Common use of Delay Damages Clause in Contracts

Delay Damages. If the Commercial Operation Date is not achieved by the date set forth therefor in Section 3.1(a) (as extended pursuant to Section 3.1(c)), Seller shall pay to Buyer damages for each month from and after such date until the Commercial Operation Date at the rate of $1.50 per kwh of Contract Maximum Amount up to a maximum of twelve (12) months of delay, pro rated for partial months (“Delay Damages”). Delay Damages shall be due under this Section 3.2(a) without regard to whether Buyer exercises its right to terminate this Agreement pursuant to Section 9.3; provided, however, that if Buyer exercises its right to terminate this Agreement under Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing at the date of such termination. If the Facility has not achieved the Commercial Operation by the date set forth therefor in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), for any reason, Seller shall have the right to terminate this Agreement at any time after that deadline date (as so extended) until either the Facility achieves the Commercial Operation Date or Buyer terminates this Agreement under Section 9.3 (regardless of whether or not Seller elected to continue to construct the Project). In the event Seller so terminates this Agreement, Seller shall be liable to Buyer on the date of such termination for (x) the entire amount of Delay Damages that would otherwise accrue (or have accrued) by such date plus (y) the undrawn amount of any Development Period Security provided to Buyer by Seller; provided, however, that if Seller terminates this Agreement on the deadline set forth for the Commercial Operation Date in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), Seller shall not be required to pay any Delay Damages hereunder but shall forfeit the Development Period Security. Subject to the foregoing sentence, neither Party shall have any liability to the other Party with respect to a termination of this Agreement by Seller under this Section 3.2(b). Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’s delay in achieving the Commercial Operation Date would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore the Delay Damages and other damages as agreed to by the Parties and set forth herein are a fair and reasonable calculation of such damages. Notwithstanding the foregoing, this Article shall not limit the amount of damages payable to Buyer if this Agreement is terminated by Buyer as a result of Seller’s failure to achieve the Commercial Operation Date. Any such termination damages shall be determined in accordance with Article 9. By the tenth (10th) day following the end of the calendar month in which Delay Damages first become due and continuing by the tenth (10th) day of each calendar month during the period in which Delay Damages accrue (and the following months if applicable), Buyer shall deliver to Seller an invoice showing Buyer’s computation of such damages and any amount due Buyer in respect thereof for the preceding calendar month. No later than ten (10) days after receiving such an invoice, Seller shall pay to Buyer, by wire transfer of immediately available funds to an account specified in writing by Buyer or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such invoice. If Seller fails to pay such amounts when due, Buyer may draw upon the Development Period Security for payment of such Delay Damages, and Buyer may exercise any other remedies available for Seller’s default hereunder.

Delay Damages. (a) If the Commercial Operation Date is not achieved by the date set forth therefor in Section 3.1(a) (as extended pursuant to Section 3.1(c)), Seller shall pay to Buyer damages for each month from and after such date until the Commercial Operation Date at the rate of $1.50 per kwh of Contract Maximum Amount month up to a maximum of twelve (12) months of delay, pro rated for partial months (“Delay Damages”). Delay Damages shall be due under this Section 3.2(a) without regard to whether Buyer exercises its right to terminate this Agreement pursuant to Section 9.3; provided, however, that if Buyer exercises its right to terminate this Agreement under Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing at the date of such termination. If the Facility has not achieved the Commercial Operation by the date set forth therefor in Section 3.1(a. (b) (as the same may be extended in accordance with Section 3.1(c)), for any reason, Seller shall have the right to terminate this Agreement at any time after that deadline date (as so extended) until either the Facility achieves the Commercial Operation Date or Buyer terminates this Agreement under Section 9.3 (regardless of whether or not Seller elected to continue to construct the Project). In the event Seller so terminates this Agreement, Seller shall be liable to Buyer on the date of such termination for (x) the entire amount of Delay Damages that would otherwise accrue (or have accrued) by such date plus (y) the undrawn amount of any Development Period Security provided to Buyer by Seller; provided, however, that if Seller terminates this Agreement on the deadline set forth for the Commercial Operation Date in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), Seller shall not be required to pay any Delay Damages hereunder but shall forfeit the Development Period Security. Subject to the foregoing sentence, neither Party shall have any liability to the other Party with respect to a termination of this Agreement by Seller under this Section 3.2(b). Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’s delay in achieving the Commercial Operation Date would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore the Delay Damages and other damages as agreed to by the Parties and set forth herein are a fair and reasonable calculation of such damages. Notwithstanding the foregoing, this Article shall not limit the amount of damages payable to Buyer if this Agreement is terminated by Buyer as a result of Seller’s failure to achieve the Commercial Operation Date. Any such termination damages shall be determined in accordance with Article 9. . (c) By the tenth (10th) day following the end of the calendar month in which Delay Damages first become due and continuing by the tenth (10th) day of each calendar month during the period in which Delay Damages accrue (and the following months if applicable), Buyer shall deliver to Seller an invoice showing Buyer’s computation of such damages and any amount due Buyer in respect thereof for the preceding calendar month. No later than ten (10) days after receiving such an invoice, Seller shall pay to Buyer, by wire transfer of immediately available funds to an account specified in writing by Buyer or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such invoice. If Seller fails to pay such amounts when due, Buyer may draw upon the Development Period Security for payment of such Delay Damages, and Buyer may exercise any other remedies available for Seller’s default hereunder.

Delay Damages. (a) If the Commercial Operation Date is not achieved by the date set forth therefor in Section 3.1(a) (as extended pursuant to Section 3.1(c)), Guaranteed Commercial Operation Date Seller shall pay to Buyer damages for each month day from and after such date until the Guaranteed Commercial Operation Date in an amount of $21,140 (which is equal to $100.00 per MWh per hour of the Contract Maximum Amount), commencing on the Guaranteed Commercial Operation Date (as extended pursuant to Sections 3.1(c), 3.1(d), 3.1(e) and 10.1) and ending on the earlier of (i) the Commercial Operation Date at Date, (ii) the rate of $1.50 per kwh of Contract Maximum Amount up date that Buyer exercises its right to a maximum of terminate this Agreement under Section 9.3, or (iii) the date that is twelve (12) months of delay, pro rated for partial months after the Guaranteed Commercial Operation Date (“Delay Damages”). Delay Damages shall be due under this Section 3.2(a) without regard to whether Buyer exercises its right to terminate this Agreement pursuant to Section 9.3; provided, however, that if Buyer exercises its right to terminate this Agreement under Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing at the date of such termination. If Notwithstanding the Facility has not achieved foregoing, the Parties agree that if the Commercial Operation Date is not achieved by the date set forth therefor in Section 3.1(aGuaranteed Commercial Operation Date and, at least thirty (30) days prior to the Guaranteed Commercial Operation Date, Seller (x) provides certification acceptable to Buyer, from an Independent Engineer with supporting detail and information that demonstrates that the Commercial Operation Date is reasonably likely to occur on or prior to the one year anniversary of the Guaranteed Commercial Operation Date (as the same such date may be extended in accordance with extended), (y) has exercised its rights to extend all of the Critical Milestone Dates pursuant to Section 3.1(c)) the maximum number of times allowed pursuant to the terms of this Agreement, and (z) posts additional Credit Support in an amount equal to $7,716,100 (which is equal to twelve (12) months of Delay Damages), for any reason, Seller then Buyer shall have the right not exercise its rights to terminate this Agreement at any time after that deadline date (as so extendeddue to an Event of Default under Section 9.2(e) until either the Facility achieves date that is twelve (12) months after the Guaranteed Commercial Operation Date or Buyer terminates this Agreement under Section 9.3 (regardless of whether or not as long as Seller elected to continue to construct the Project). In the event Seller so terminates this Agreement, Seller shall be liable to Buyer on the date of such termination for (x) the entire amount of is paying Delay Damages that would otherwise accrue (or have accrued) by such date plus (y) the undrawn amount of any Development Period Security provided to Buyer by Seller; provided, however, that if Seller terminates this Agreement on the deadline set forth for the Commercial Operation Date in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), Seller shall not be required to pay any Delay Damages hereunder but shall forfeit the Development Period Security. Subject to the foregoing sentence, neither Party shall have any liability to the other Party with respect to a termination provision of this Agreement by Seller under this Section 3.2(b). 3.2. (b) Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’s delay in achieving the Commercial Operation Date by the Guaranteed Commercial Operation Date would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore the Delay Damages and other damages as agreed to by the Parties and set forth herein are a fair and reasonable calculation of such damages. Notwithstanding the foregoing, this Article shall not limit the amount of damages payable to Buyer if this Agreement is terminated by Buyer as a result of Seller’s failure to achieve the Commercial Operation Date. Any such termination damages shall be determined in accordance with Article 9. . (c) By the tenth fifteenth (10th15th) day following the end of the calendar month in which Delay Damages first become due and continuing by the tenth fifteenth (10th15th) day of each calendar month during the period in which Delay Damages accrue (and the following months if applicable), Buyer shall deliver to Seller an invoice showing Buyer’s computation of such damages and any amount due Buyer in respect thereof for the preceding calendar month. No later than ten (10) days after receiving such an invoice, Seller shall pay to Buyer, by wire transfer of immediately available funds to an account specified in writing by Buyer or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such invoice. If Seller fails to pay such amounts when due, Buyer may draw upon the Development Period Security for payment of such Delay Damages, and Buyer may exercise any other remedies available for Seller’s default hereunder.

Delay Damages. (a) If the Commercial Operation Date is not achieved by the date set forth therefor in Section 3.1(a) Guaranteed Commercial Operation Date (as extended pursuant to Section Sections 3.1(c)) and 10.1), Seller shall pay to Buyer damages for each month day from and after such date until in an amount equal to $2,517, commencing on the Guaranteed Commercial Operation Date (as extended pursuant to Sections 3.1(c) and 10.1) and ending on the earlier of (i) the Commercial Operation Date at Date, (ii) the rate of $1.50 per kwh of Contract Maximum Amount up date that Buyer exercises its right to a maximum of terminate this Agreement under Section 9.3, or (iii) the date that is twelve (12) months of delay, pro rated for partial months after the Guaranteed Commercial Operation Date (“Delay Damages”). Delay Damages shall be due under this Section 3.2(a) without regard to whether Buyer exercises its right to terminate this Agreement pursuant to Section 9.3; provided, however, that if Buyer exercises its right to terminate this Agreement under Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing at the date of such termination. If the Facility has not achieved the Commercial Operation by the date set forth therefor in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c))For purposes of illustration, for any reason, Seller shall have the right to terminate this Agreement at any time after that deadline date (as so extended) until either the Facility achieves the Commercial Operation Date or Buyer terminates this Agreement under Section 9.3 (regardless of whether or not Seller elected to continue to construct the Project). In the event Seller so terminates this Agreement, Seller shall be liable to Buyer on the date of such termination for (x) the entire amount an example calculation of Delay Damages that would otherwise accrue (or have accrued) by such date plus (y) the undrawn amount of any Development Period Security provided to Buyer by Seller; provided, however, that if Seller terminates this Agreement on the deadline is set forth for the Commercial Operation Date in Section 3.1(aon Exhibit F. (b) (as the same may be extended in accordance with Section 3.1(c)), Seller shall not be required to pay any Delay Damages hereunder but shall forfeit the Development Period Security. Subject to the foregoing sentence, neither Party shall have any liability to the other Party with respect to a termination of this Agreement by Seller under this Section 3.2(b). Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’s delay in achieving the Commercial Operation Date by the Guaranteed Commercial Operation Date would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore the Delay Damages and other damages as agreed to by the Parties and set forth herein are a fair and reasonable calculation of such damages. Notwithstanding the foregoing, this Article shall not limit the amount of damages payable to Buyer if this Agreement is terminated by Buyer as a result of Seller’s failure to achieve the Commercial Operation Date. Any such termination damages shall be determined in accordance with Article 9. . (c) By the tenth (10th) day following the end of the calendar month in which Delay Damages first become due and continuing by the tenth (10th) day of each calendar month during the period in which Delay Damages accrue (and the following months if applicable), Buyer shall deliver to Seller an invoice showing Buyer’s computation of such damages and any amount due Buyer in respect thereof for the preceding calendar month. No later than ten (10) days after receiving such an invoice, Seller shall pay to Buyer, by wire transfer of immediately available funds to an account specified in writing by Buyer or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such invoice. If Seller fails to pay such amounts when due, Buyer may draw upon the Development Period Security for payment of such Delay Damages, and Buyer may exercise any other remedies available for Seller’s default hereunder.

Delay Damages. (a) If the Commercial Operation Date is not achieved by the date set forth therefor in Section 3.1(a) Guaranteed Delivery Term Start Date (as extended pursuant to Section Sections 3.1(c) and 10.1),3.1(c) through 3.1(f)), Seller shall pay to Buyer damages for each month day from and after such date until in an amount equal to $100.00 per MWh per hour of Contract Maximum Amount, (e.g., if the Contract Maximum Amount were 364 MWh per hour Seller would pay Buyer damages in the amount of $36,400 per day), commencing on the Guaranteed Delivery Term Start Date (as extended pursuant to Sections 3.1(c) and 10.1)3.1(c) through 3.1(f)) and ending on the earlier of (i) the Commercial Operation Date at Date, (ii) the rate of $1.50 per kwh of Contract Maximum Amount up date that Buyer exercises its right to a maximum of terminate this Agreement under Section 9.3, or9.3, and (iii) the date that is twelve (12) months of delay, pro rated for partial months after the Guaranteed Delivery Term Start Date (“Delay Damages”). Delay Damages shall be due under this Section 3.2(a3.2(a)3.2(a) without regard to whether Buyer exercises its right to terminate this Agreement pursuant to Section 9.39.3;9.3; provided, however, that if Buyer exercises its right to terminate this Agreement under Section 9.39.3,9.3, Delay Damages shall be due and owing only to the extent that such Delay Damages were due and owing at the date of such termination. If the Facility has not achieved the Commercial Operation by the date set forth therefor in Section 3.1(a. (b) (as the same may be extended in accordance with Section 3.1(c)), for any reason, Seller shall have the right to terminate this Agreement at any time after that deadline date (as so extended) until either the Facility achieves the Commercial Operation Date or Buyer terminates this Agreement under Section 9.3 (regardless of whether or not Seller elected to continue to construct the Project). In the event Seller so terminates this Agreement, Seller shall be liable to Buyer on the date of such termination for (x) the entire amount of Delay Damages that would otherwise accrue (or have accrued) by such date plus (y) the undrawn amount of any Development Period Security provided to Buyer by Seller; provided, however, that if Seller terminates this Agreement on the deadline set forth for the Commercial Operation Date in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), Seller shall not be required to pay any Delay Damages hereunder but shall forfeit the Development Period Security. Subject to the foregoing sentence, neither Party shall have any liability to the other Party with respect to a termination of this Agreement by Seller under this Section 3.2(b). Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’s delay in achieving the Commercial Operation Date by the Guaranteed Delivery Term Start Date would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore the Delay Damages and other damages as agreed to by the Parties and set forth herein are a fair and reasonable calculation of such damages. Notwithstanding the foregoing, this Article shall not limit the amount of damages payable to Buyer hereunder if this Agreement is terminated by Buyer as a result of Seller’s failure to achieve the Commercial Operation Date. Any such termination damages shall be determined in accordance with Article 9. 9. (c) By the tenth (10th10thfifteenth (15th) day following the end of the calendar month in which Delay Damages first become due and continuing by the tenth (10th10thfifteenth (15th) day of each calendar month during the period in which Delay Damages accrue (and the following months monthsmonth if applicable), Buyer shall deliver to Seller an invoice showing Buyer’s computation of such damages and any amount due Buyer in respect thereof for the preceding calendar month. No later than ten (10) days after receiving such an invoice,On or before the later of (x) fifteen (15) days from receipt of the applicable invoice or (y) the last day of the calendar month in which the applicable invoice was received (or in either event the next Business Day if such day is not a Business Day), Seller shall pay to Buyer, by wire transfer of immediately available funds to an account specified in writing by Buyer or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such invoice. If Seller fails to pay such amounts when due, Buyer may draw upon the Development Period Security SecurityCredit Support or the Seller Guaranty for payment of such Delay Damages, and Buyer may exercise any other remedies available for Seller’s default hereunder.

Delay Damages. (a) If the Commercial Operation Date is not achieved by the date set forth therefor in Section 3.1(a) Guaranteed Commercial Operation Date (as extended pursuant to Section Sections 3.1(c)) -(d) and 10.1), Seller shall pay to Buyer damages for each month day from and after such date until in an amount equal to $399.60 per day, commencing on the Guaranteed Commercial Operation Date (as extended pursuant to Sections 3.1(c)-(d) and 10.1) and ending on the earlier of (i) the Commercial Operation Date at Date, (ii) the rate of $1.50 per kwh of Contract Maximum Amount up date that Buyer exercises its right to a maximum of terminate this Agreement under Section 9.3, or (iii) the date that is twelve (12) months of delay, pro rated for partial months after the Guaranteed Commercial Operation Date (“Delay Damages”). Delay Damages shall be due under this Section 3.2(a) without regard to whether Buyer exercises its right to terminate this Agreement pursuant to Section 9.3; provided, however, that if Buyer exercises its right to terminate this Agreement under Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing at the date of such termination. If the Facility has not achieved the Commercial Operation by the date set forth therefor in Section 3.1(a. (b) (as the same may be extended in accordance with Section 3.1(c)), for any reason, Seller shall have the right to terminate this Agreement at any time after that deadline date (as so extended) until either the Facility achieves the Commercial Operation Date or Buyer terminates this Agreement under Section 9.3 (regardless of whether or not Seller elected to continue to construct the Project). In the event Seller so terminates this Agreement, Seller shall be liable to Buyer on the date of such termination for (x) the entire amount of Delay Damages that would otherwise accrue (or have accrued) by such date plus (y) the undrawn amount of any Development Period Security provided to Buyer by Seller; provided, however, that if Seller terminates this Agreement on the deadline set forth for the Commercial Operation Date in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), Seller shall not be required to pay any Delay Damages hereunder but shall forfeit the Development Period Security. Subject to the foregoing sentence, neither Party shall have any liability to the other Party with respect to a termination of this Agreement by Seller under this Section 3.2(b). Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’s delay in achieving the Commercial Operation Date by the Guaranteed Commercial Operation Date would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore the Delay Damages and other damages as agreed to by the Parties and set forth herein are a fair and reasonable calculation of such damages. Notwithstanding the foregoing, this Article shall not limit the amount of damages payable to Buyer if this Agreement is terminated by Buyer as a result of Seller’s failure to achieve the Commercial Operation Date. Any such termination damages shall be determined in accordance with Article 9. . (c) By the tenth (10th) day following the end of the calendar month in which Delay Damages first become due and continuing by the tenth (10th) day of each calendar month during the period in which Delay Damages accrue (and the following months if applicable), Buyer shall deliver to Seller an invoice showing Buyer’s computation of such damages and any amount due Buyer in respect thereof for the preceding calendar month. No later than ten (10) days after receiving such an invoice, Seller shall pay to Buyer, by wire transfer of immediately available funds to an account specified in writing by Buyer or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such invoice. If Seller fails to pay such amounts when due, Buyer may draw upon the Development Period Security for payment of such Delay Damages, and Buyer may exercise any other remedies available for Seller’s default hereunder.

Delay Damages. If the Commercial Operation Date is not achieved by the date set forth therefor in Section 3.1(a) Guaranteed Delivery Term Start Date (as extended pursuant to Section Sections 3.1(c)) and 10.1), Seller shall pay to Buyer damages for each month day from and after such date until in an amount equal to $100.00 per MWh per hour of Contract Maximum Amount, commencing on the Guaranteed Delivery Term Start Date (as extended pursuant to Sections 3.1(c) and 10.1) and ending on the earlier of (i) the Commercial Operation Date at Date, (ii) the rate of $1.50 per kwh of Contract Maximum Amount up date that Buyer exercises its right to a maximum of terminate this Agreement under Section 9.3, or (iii) the date that is twelve (12) months of delay, pro rated for partial months after the Guaranteed Delivery Term Start Date (“Delay Damages”). Delay Damages shall be due under this Section 3.2(a) without regard to whether Buyer exercises its right to terminate this Agreement pursuant to Section 9.3; provided, however, that if Buyer exercises its right to terminate this Agreement under Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing at the date of such termination. If the Facility has not achieved the Commercial Operation by the date set forth therefor in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), for any reason, Seller shall have the right to terminate this Agreement at any time after that deadline date (as so extended) until either the Facility achieves the Commercial Operation Date or Buyer terminates this Agreement under Section 9.3 (regardless of whether or not Seller elected to continue to construct the Project). In the event Seller so terminates this Agreement, Seller shall be liable to Buyer on the date of such termination for (x) the entire amount of Delay Damages that would otherwise accrue (or have accrued) by such date plus (y) the undrawn amount of any Development Period Security provided to Buyer by Seller; provided, however, that if Seller terminates this Agreement on the deadline set forth for the Commercial Operation Date in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), Seller shall not be required to pay any Delay Damages hereunder but shall forfeit the Development Period Security. Subject to the foregoing sentence, neither Party shall have any liability to the other Party with respect to a termination of this Agreement by Seller under this Section 3.2(b). Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’s delay in achieving the Commercial Operation Date by the Guaranteed Delivery Term Start Date would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore the Delay Damages and other damages as agreed to by the Parties and set forth herein are a fair and reasonable calculation of such damages. Notwithstanding the foregoing, this Article shall not limit the amount of damages payable to Buyer if this Agreement is terminated by Buyer as a result of Seller’s failure to achieve the Commercial Operation Date. Any such termination damages shall be determined in accordance with Article 9. By the tenth (10th) day following the end of the calendar month in which Delay Damages first become due and continuing by the tenth (10th) day of each calendar month during the period in which Delay Damages accrue (and the following months if applicable), Buyer shall deliver to Seller an invoice showing Buyer’s computation of such damages and any amount due Buyer in respect thereof for the preceding calendar month. No later than ten (10) days after receiving such an invoice, Seller shall pay to Buyer, by wire transfer of immediately available funds to an account specified in writing by Buyer or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such invoice. If Seller fails to pay such amounts when due, Buyer may draw upon the Development Period Security for payment of such Delay Damages, and Buyer may exercise any other remedies available for Seller’s default hereunder.

Delay Damages. (a) If the Commercial Operation Date is not achieved by the date set forth therefor in Section 3.1(a) Guaranteed Commercial Operation Date (as extended pursuant to Section Sections 3.1(c)) -(d) and 10.1), Seller shall pay to Buyer damages for each month day from and after such date until in an amount equal to $235.10 per day, commencing on the Guaranteed Commercial Operation Date (as extended pursuant to Sections 3.1(c)-(d) and 10.1) and ending on the earlier of (i) the Commercial Operation Date at Date, (ii) the rate of $1.50 per kwh of Contract Maximum Amount up date that Buyer exercises its right to a maximum of terminate this Agreement under Section 9.3, or (iii) the date that is twelve (12) months of delay, pro rated for partial months after the Guaranteed Commercial Operation Date (“Delay Damages”). Delay Damages shall be due under this Section 3.2(a) without regard to whether Buyer exercises its right to terminate this Agreement pursuant to Section 9.3; provided, however, that if Buyer exercises its right to terminate this Agreement under Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing at the date of such termination. If the Facility has not achieved the Commercial Operation by the date set forth therefor in Section 3.1(a. (b) (as the same may be extended in accordance with Section 3.1(c)), for any reason, Seller shall have the right to terminate this Agreement at any time after that deadline date (as so extended) until either the Facility achieves the Commercial Operation Date or Buyer terminates this Agreement under Section 9.3 (regardless of whether or not Seller elected to continue to construct the Project). In the event Seller so terminates this Agreement, Seller shall be liable to Buyer on the date of such termination for (x) the entire amount of Delay Damages that would otherwise accrue (or have accrued) by such date plus (y) the undrawn amount of any Development Period Security provided to Buyer by Seller; provided, however, that if Seller terminates this Agreement on the deadline set forth for the Commercial Operation Date in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), Seller shall not be required to pay any Delay Damages hereunder but shall forfeit the Development Period Security. Subject to the foregoing sentence, neither Party shall have any liability to the other Party with respect to a termination of this Agreement by Seller under this Section 3.2(b). Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’s delay in achieving the Commercial Operation Date by the Guaranteed Commercial Operation Date would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore the Delay Damages and other damages as agreed to by the Parties and set forth herein are a fair and reasonable calculation of such damages. Notwithstanding the foregoing, this Article shall not limit the amount of damages payable to Buyer if this Agreement is terminated by Buyer as a result of Seller’s failure to achieve the Commercial Operation Date. Any such termination damages shall be determined in accordance with Article 9. . (c) By the tenth (10th) day following the end of the calendar month in which Delay Damages first become due and continuing by the tenth (10th) day of each calendar month during the period in which Delay Damages accrue (and the following months if applicable), Buyer shall deliver to Seller an invoice showing Buyer’s computation of such damages and any amount due Buyer in respect thereof for the preceding calendar month. No later than ten (10) days after receiving such an invoice, Seller shall pay to Buyer, by wire transfer of immediately available funds to an account specified in writing by Buyer or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such invoice. If Seller fails to pay such amounts when due, Buyer may draw upon the Development Period Security for payment of such Delay Damages, and Buyer may exercise any other remedies available for Seller’s default hereunder.

Delay Damages. ‌ (a) If the Commercial Operation Date is not achieved by the date set forth therefor in Section 3.1(a) Guaranteed Commercial Operation Date (as extended pursuant to Section Sections 3.1(c)) -(d) and 10.1), Seller shall pay to Buyer damages for each month day from and after such date until in an amount equal to $235.10 per day, commencing on the Guaranteed Commercial Operation Date (as extended pursuant to Sections 3.1(c)-(d) and 10.1) and ending on the earlier of (i) the Commercial Operation Date at Date, (ii) the rate of $1.50 per kwh of Contract Maximum Amount up date that Buyer exercises its right to a maximum of terminate this Agreement under Section 9.3, or (iii) the date that is twelve (12) months of delay, pro rated for partial months after the Guaranteed Commercial Operation Date (“Delay Damages”). Delay Damages shall be due under this Section 3.2(a) without regard to whether Buyer exercises its right to terminate this Agreement pursuant to Section 9.3; provided, however, that if Buyer exercises its right to terminate this Agreement under Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing at the date of such termination. If the Facility has not achieved the Commercial Operation by the date set forth therefor in Section 3.1(a. (b) (as the same may be extended in accordance with Section 3.1(c)), for any reason, Seller shall have the right to terminate this Agreement at any time after that deadline date (as so extended) until either the Facility achieves the Commercial Operation Date or Buyer terminates this Agreement under Section 9.3 (regardless of whether or not Seller elected to continue to construct the Project). In the event Seller so terminates this Agreement, Seller shall be liable to Buyer on the date of such termination for (x) the entire amount of Delay Damages that would otherwise accrue (or have accrued) by such date plus (y) the undrawn amount of any Development Period Security provided to Buyer by Seller; provided, however, that if Seller terminates this Agreement on the deadline set forth for the Commercial Operation Date in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), Seller shall not be required to pay any Delay Damages hereunder but shall forfeit the Development Period Security. Subject to the foregoing sentence, neither Party shall have any liability to the other Party with respect to a termination of this Agreement by Seller under this Section 3.2(b). Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’s delay in achieving the Commercial Operation Date by the Guaranteed Commercial Operation Date would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore the Delay Damages and other damages as agreed to by the Parties and set forth herein are a fair and reasonable calculation of such damages. Notwithstanding the foregoing, this Article shall not limit the amount of damages payable to Buyer if this Agreement is terminated by Buyer as a result of Seller’s failure to achieve the Commercial Operation Date. Any such termination damages shall be determined in accordance with Article 9. . (c) By the tenth (10th) day following the end of the calendar month in which Delay Damages first become due and continuing by the tenth (10th) day of each calendar month during the period in which Delay Damages accrue (and the following months if applicable), Buyer shall deliver to Seller an invoice showing Buyer’s computation of such damages and any amount due Buyer in respect thereof for the preceding calendar month. No later than ten (10) days after receiving such an invoice, Seller shall pay to Buyer, by wire transfer of immediately available funds to an account specified in writing by Buyer or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such invoice. If Seller fails to pay such amounts when due, Buyer may draw upon the Development Period Security for payment of such Delay Damages, and Buyer may exercise any other remedies available for Seller’s default hereunder.

Delay Damages. (a) If the Commercial Operation Date is not achieved by the date set forth therefor therefore in Section 3.1(a) (as extended pursuant to Section 3.1(c)), Seller shall pay to Buyer damages for each month from and after such date until the Commercial Operation Date at the rate of $1.50 [ ] per month [$0.50 per kwh of Contract Maximum Amount Maximum] up to a maximum of twelve (12) months of delay, pro rated for partial months (“Delay Damages”). Delay Damages shall be due under this Section 3.2(a) without regard to whether Buyer exercises its right to terminate this Agreement pursuant to Section 9.3; provided, however, that if Buyer exercises its right to terminate this Agreement under Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing at the date of such termination. If the Facility has not achieved the Commercial Operation by the date set forth therefor in Section 3.1(a. (b) (as the same may be extended in accordance with Section 3.1(c)), for any reason, Seller shall have the right to terminate this Agreement at any time after that deadline date (as so extended) until either the Facility achieves the Commercial Operation Date or Buyer terminates this Agreement under Section 9.3 (regardless of whether or not Seller elected to continue to construct the Project). In the event Seller so terminates this Agreement, Seller shall be liable to Buyer on the date of such termination for (x) the entire amount of Delay Damages that would otherwise accrue (or have accrued) by such date plus (y) the undrawn amount of any Development Period Security provided to Buyer by Seller; provided, however, that if Seller terminates this Agreement on the deadline set forth for the Commercial Operation Date in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), Seller shall not be required to pay any Delay Damages hereunder but shall forfeit the Development Period Security. Subject to the foregoing sentence, neither Party shall have any liability to the other Party with respect to a termination of this Agreement by Seller under this Section 3.2(b). Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’s delay in achieving the Commercial Operation Date would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore the Delay Damages and other damages as agreed to by the Parties and set forth herein are a fair and reasonable calculation of such damages. Notwithstanding the foregoing, this Article shall not limit the amount of damages payable to Buyer if this Agreement is terminated by Buyer as a result of Seller’s failure to achieve the Commercial Operation Date. Any such termination damages shall be determined in accordance with Article 9. . (c) By the tenth (10th) day following the end of the calendar month in which Delay Damages first become due and continuing by the tenth (10th) day of each calendar month during the period in which Delay Damages accrue (and the following months if applicable), Buyer shall deliver to Seller an invoice showing Buyer’s computation of such damages and any amount due Buyer in respect thereof for the preceding calendar month. No later than ten (10) days after receiving such an invoice, Seller shall pay to Buyer, by wire transfer of immediately available funds to an account specified in writing by Buyer or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such invoice. If Seller fails to pay such amounts when due, Buyer may draw upon the Development Period Security for payment of such Delay Damages, and Buyer may exercise any other remedies available for Seller’s default hereunder.

Delay Damages. (a) If the Commercial Operation Date is not achieved by the date set forth therefor in Section 3.1(a) (as extended pursuant to Section 3.1(c)), Guaranteed Commercial Operation Date Seller shall pay to Buyer damages for each month day from and after such date until the Guaranteed Commercial Operation Date in an amount of $18,464 (which is equal to $100.00 per MWh per hour of the Contract Maximum Amount), commencing on the Guaranteed Commercial Operation Date (as extended pursuant to Sections 3.1(c), 3.1(d), 3.1(e) and 10.1) and ending on the earlier of (i) the Commercial Operation Date at Date, (ii) the rate of $1.50 per kwh of Contract Maximum Amount up date that Buyer exercises its right to a maximum of terminate this Agreement under Section 9.3, or (iii) the date that is twelve (12) months of delay, pro rated for partial months after the Guaranteed Commercial Operation Date (“Delay Damages”). Delay Damages shall be due under this Section 3.2(a) without regard to whether Buyer exercises its right to terminate this Agreement pursuant to Section 9.3; provided, however, that if Buyer exercises its right to terminate this Agreement under Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing at the date of such termination. If Notwithstanding the Facility has not achieved foregoing, the Parties agree that if the Commercial Operation Date is not achieved by the date set forth therefor in Section 3.1(aGuaranteed Commercial Operation Date and, at least thirty (30) days prior to the Guaranteed Commercial Operation Date, Seller (x) provides certification acceptable to Buyer, from an Independent Engineer with supporting detail and information that demonstrates that the Commercial Operation Date is reasonably likely to occur on or prior to the one year anniversary of the Guaranteed Commercial Operation Date (as the same such date may be extended in accordance with extended), (y) has exercised its rights to extend all of the Critical Milestone Dates pursuant to Section 3.1(c)) the maximum number of times allowed pursuant to the terms of this Agreement, and (z) posts additional Credit Support with a Value of $6,739,360 (which is equal to twelve (12) months of Delay Damages), for any reason, Seller then Buyer shall have the right not exercise its rights to terminate this Agreement at any time after that deadline date (as so extendeddue to an Event of Default under Section 9.2(e) until either the Facility achieves date that is twelve (12) months after the Guaranteed Commercial Operation Date or Buyer terminates this Agreement under Section 9.3 (regardless of whether or not as long as Seller elected to continue to construct the Project). In the event Seller so terminates this Agreement, Seller shall be liable to Buyer on the date of such termination for (x) the entire amount of is paying Delay Damages that would otherwise accrue (or have accrued) by such date plus (y) the undrawn amount of any Development Period Security provided to Buyer by Seller; provided, however, that if Seller terminates this Agreement on the deadline set forth for the Commercial Operation Date in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), Seller shall not be required to pay any Delay Damages hereunder but shall forfeit the Development Period Security. Subject to the foregoing sentence, neither Party shall have any liability to the other Party with respect to a termination provision of this Agreement by Seller under this Section 3.2(b). 3.2. (b) Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’s delay in achieving the Commercial Operation Date by the Guaranteed Commercial Operation Date would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore the Delay Damages and other damages as agreed to by the Parties and set forth herein are a fair and reasonable calculation of such damages. Notwithstanding the foregoing, this Article shall not limit the amount of damages payable to Buyer if this Agreement is terminated by Buyer as a result of Seller’s failure to achieve the Commercial Operation Date. Any such termination damages shall be determined in accordance with Article 9. . (c) By the tenth fifteenth (10th15th) day following the end of the calendar month in which Delay Damages first become due and continuing by the tenth fifteenth (10th15th) day of each calendar month during the period in which Delay Damages accrue (and the following months if applicable), Buyer shall deliver to Seller an invoice showing Buyer’s computation of such damages and any amount due Buyer in respect thereof for the preceding calendar month. No later than ten (10) days after receiving such an invoice, Seller shall pay to Buyer, by wire transfer of immediately available funds to an account specified in writing by Buyer or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such invoice. If Seller fails to pay such amounts when due, Buyer may draw upon the Development Period Security for payment of such Delay Damages, and Buyer may exercise any other remedies available for Seller’s default hereunder.

Delay Damages. (a) If the Commercial Operation Date is not achieved by the date set forth therefor in Section 3.1(a) Guaranteed Commercial Operation Date (as extended pursuant to Section Sections 3.1(c)) -(d) and 10.1), Seller shall pay to Buyer damages for each month day from and after such date until in an amount equal to $221.70 per day, commencing on the Guaranteed Commercial Operation Date (as extended pursuant to Sections 3.1(c)-(d) and 10.1) and ending on the earlier of (i) the Commercial Operation Date at Date, (ii) the rate of $1.50 per kwh of Contract Maximum Amount up date that Buyer exercises its right to a maximum of terminate this Agreement under Section 9.3, or (iii) the date that is twelve (12) months of delay, pro rated for partial months after the Guaranteed Commercial Operation Date (“Delay Damages”). Delay Damages shall be due under this Section 3.2(a) without regard to whether Buyer exercises its right to terminate this Agreement pursuant to Section 9.3; provided, however, that if Buyer exercises its right to terminate this Agreement under Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing at the date of such termination. If the Facility has not achieved the Commercial Operation by the date set forth therefor in Section 3.1(a. (b) (as the same may be extended in accordance with Section 3.1(c)), for any reason, Seller shall have the right to terminate this Agreement at any time after that deadline date (as so extended) until either the Facility achieves the Commercial Operation Date or Buyer terminates this Agreement under Section 9.3 (regardless of whether or not Seller elected to continue to construct the Project). In the event Seller so terminates this Agreement, Seller shall be liable to Buyer on the date of such termination for (x) the entire amount of Delay Damages that would otherwise accrue (or have accrued) by such date plus (y) the undrawn amount of any Development Period Security provided to Buyer by Seller; provided, however, that if Seller terminates this Agreement on the deadline set forth for the Commercial Operation Date in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), Seller shall not be required to pay any Delay Damages hereunder but shall forfeit the Development Period Security. Subject to the foregoing sentence, neither Party shall have any liability to the other Party with respect to a termination of this Agreement by Seller under this Section 3.2(b). Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’s delay in achieving the Commercial Operation Date by the Guaranteed Commercial Operation Date would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore the Delay Damages and other damages as agreed to by the Parties and set forth herein are a fair and reasonable calculation of such damages. Notwithstanding the foregoing, this Article shall not limit the amount of damages payable to Buyer if this Agreement is terminated by Buyer as a result of Seller’s failure to achieve the Commercial Operation Date. Any such termination damages shall be determined in accordance with Article 9. . (c) By the tenth (10th) day following the end of the calendar month in which Delay Damages first become due and continuing by the tenth (10th) day of each calendar month during the period in which Delay Damages accrue (and the following months if applicable), Buyer shall deliver to Seller an invoice showing Buyer’s computation of such damages and any amount due Buyer in respect thereof for the preceding calendar month. No later than ten (10) days after receiving such an invoice, Seller shall pay to Buyer, by wire transfer of immediately available funds to an account specified in writing by Buyer or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such invoice. If Seller fails to pay such amounts when due, Buyer may draw upon the Development Period Security for payment of such Delay Damages, and Buyer may exercise any other remedies available for Seller’s default hereunder.

Delay Damages. ‌ (a) If the Commercial Operation Date is not achieved by the date set forth therefor in Section 3.1(a) Guaranteed Commercial Operation Date (as extended pursuant to Section Sections 3.1(c)) -(d) and 10.1), Seller shall pay to Buyer damages for each month day from and after such date until in an amount equal to $221.70 per day, commencing on the Guaranteed Commercial Operation Date (as extended pursuant to Sections 3.1(c)-(d) and 10.1) and ending on the earlier of (i) the Commercial Operation Date at Date, (ii) the rate of $1.50 per kwh of Contract Maximum Amount up date that Buyer exercises its right to a maximum of terminate this Agreement under Section 9.3, or (iii) the date that is twelve (12) months of delay, pro rated for partial months after the Guaranteed Commercial Operation Date (“Delay Damages”). Delay Damages shall be due under this Section 3.2(a) without regard to whether Buyer exercises its right to terminate this Agreement pursuant to Section 9.3; provided, however, that if Buyer exercises its right to terminate this Agreement under Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing at the date of such termination. If the Facility has not achieved the Commercial Operation by the date set forth therefor in Section 3.1(a. (b) (as the same may be extended in accordance with Section 3.1(c)), for any reason, Seller shall have the right to terminate this Agreement at any time after that deadline date (as so extended) until either the Facility achieves the Commercial Operation Date or Buyer terminates this Agreement under Section 9.3 (regardless of whether or not Seller elected to continue to construct the Project). In the event Seller so terminates this Agreement, Seller shall be liable to Buyer on the date of such termination for (x) the entire amount of Delay Damages that would otherwise accrue (or have accrued) by such date plus (y) the undrawn amount of any Development Period Security provided to Buyer by Seller; provided, however, that if Seller terminates this Agreement on the deadline set forth for the Commercial Operation Date in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), Seller shall not be required to pay any Delay Damages hereunder but shall forfeit the Development Period Security. Subject to the foregoing sentence, neither Party shall have any liability to the other Party with respect to a termination of this Agreement by Seller under this Section 3.2(b). Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’s delay in achieving the Commercial Operation Date by the Guaranteed Commercial Operation Date would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore the Delay Damages and other damages as agreed to by the Parties and set forth herein are a fair and reasonable calculation of such damages. Notwithstanding the foregoing, this Article shall not limit the amount of damages payable to Buyer if this Agreement is terminated by Buyer as a result of Seller’s failure to achieve the Commercial Operation Date. Any such termination damages shall be determined in accordance with Article 9. . (c) By the tenth (10th) day following the end of the calendar month in which Delay Damages first become due and continuing by the tenth (10th) day of each calendar month during the period in which Delay Damages accrue (and the following months if applicable), Buyer shall deliver to Seller an invoice showing Buyer’s computation of such damages and any amount due Buyer in respect thereof for the preceding calendar month. No later than ten (10) days after receiving such an invoice, Seller shall pay to Buyer, by wire transfer of immediately available funds to an account specified in writing by Buyer or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such invoice. If Seller fails to pay such amounts when due, Buyer may draw upon the Development Period Security for payment of such Delay Damages, and Buyer may exercise any other remedies available for Seller’s default hereunder.

Delay Damages. (a) If the Commercial Operation Date is not achieved by the date set forth therefor in Section 3.1(a) Guaranteed Commercial Operation Date (as extended pursuant to Section Sections 3.1(c)) and 10.1), Seller shall pay to Buyer damages for each month day from and after such date until in an amount equal to $2,374, commencing on the Guaranteed Commercial Operation Date (as extended pursuant to Sections 3.1(c) and 10.1) and ending on the earlier of (i) the Commercial Operation Date at Date, (ii) the rate of $1.50 per kwh of Contract Maximum Amount up date that Buyer exercises its right to a maximum of terminate this Agreement under Section 9.3, or (iii) the date that is twelve (12) months of delay, pro rated for partial months after the Guaranteed Commercial Operation Date (“Delay Damages”). Delay Damages shall be due under this Section 3.2(a) without regard to whether Buyer exercises its right to terminate this Agreement pursuant to Section 9.3; provided, however, that if Buyer exercises its right to terminate this Agreement under Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing at the date of such termination. If the Facility has not achieved the Commercial Operation by the date set forth therefor in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c))For purposes of illustration, for any reason, Seller shall have the right to terminate this Agreement at any time after that deadline date (as so extended) until either the Facility achieves the Commercial Operation Date or Buyer terminates this Agreement under Section 9.3 (regardless of whether or not Seller elected to continue to construct the Project). In the event Seller so terminates this Agreement, Seller shall be liable to Buyer on the date of such termination for (x) the entire amount an example calculation of Delay Damages that would otherwise accrue (or have accrued) by such date plus (y) the undrawn amount of any Development Period Security provided to Buyer by Seller; provided, however, that if Seller terminates this Agreement on the deadline is set forth for the Commercial Operation Date in Section 3.1(aon Exhibit F. (b) (as the same may be extended in accordance with Section 3.1(c)), Seller shall not be required to pay any Delay Damages hereunder but shall forfeit the Development Period Security. Subject to the foregoing sentence, neither Party shall have any liability to the other Party with respect to a termination of this Agreement by Seller under this Section 3.2(b). Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’s delay in achieving the Commercial Operation Date by the Guaranteed Commercial Operation Date would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore the Delay Damages and other damages as agreed to by the Parties and set forth herein are a fair and reasonable calculation of such damages. Notwithstanding the foregoing, this Article shall not limit the amount of damages payable to Buyer if this Agreement is terminated by Buyer as a result of Seller’s failure to achieve the Commercial Operation Date. Any such termination damages shall be determined in accordance with Article 9. . (c) By the tenth (10th) day following the end of the calendar month in which Delay Damages first become due and continuing by the tenth (10th) day of each calendar month during the period in which Delay Damages accrue (and the following months if applicable), Buyer shall deliver to Seller an invoice showing Buyer’s computation of such damages and any amount due Buyer in respect thereof for the preceding calendar month. No later than ten (10) days after receiving such an invoice, Seller shall pay to Buyer, by wire transfer of immediately available funds to an account specified in writing by Buyer or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such invoice. If Seller fails to pay such amounts when due, Buyer may draw upon the Development Period Security for payment of such Delay Damages, and Buyer may exercise any other remedies available for Seller’s default hereunder.

Delay Damages. (a) If the Commercial Operation Date is not achieved by the date set forth therefor in Section 3.1(a) Guaranteed Commercial Operation Date (as extended pursuant to Section Sections 3.1(c), 3.1(d), 3.1(e) and 10.1), Seller shall pay to Buyer damages for each month day from and after such date until in an amount equal to $21,234 (which is $100.00 per MWh per hour of Contract Maximum Amount), commencing on the Guaranteed Commercial Operation Date (as extended pursuant to Sections 3.1(c), 3.1(d), 3.1(e) and 10.1) and ending on the earlier of (i) the Commercial Operation Date at Date, (ii) the rate of $1.50 per kwh of Contract Maximum Amount up date that Buyer exercises its right to a maximum of terminate this Agreement under Section 9.3, or (iii) the date that is twelve (12) months of delay, pro rated for partial months after the Guaranteed Commercial Operation Date (“Delay Damages”). Delay Damages shall be due under this Section 3.2(a) without regard to whether Buyer exercises its right to terminate this Agreement pursuant to Section 9.3; provided, however, that if Buyer exercises its right to terminate this Agreement under Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing at the date of such termination. If Notwithstanding anything in this Section 3.2(a) or Section 9.2(e) to the Facility has not achieved contrary, the Parties agree that, if the Commercial Operation Date is not achieved by the Guaranteed Commercial Operation Date and, at any time prior to the date set forth therefor in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), for any reason, Seller shall have the on which Buyer exercises its right to terminate this Agreement at any time after under Section 9.3, Seller (x) provides an Independent Engineer’s certification, in form and substance reasonably acceptable to Buyer and with reasonable supporting detail and information, stating that deadline date (as so extended) until either the Facility achieves the Commercial Operation Date is reasonably likely to occur on or Buyer terminates this Agreement under Section 9.3 (regardless of whether or not Seller elected prior to continue to construct the Project). In the event Seller so terminates this Agreement, Seller shall be liable to Buyer on the date of such termination for that is twelve (x12) months after the entire amount of Delay Damages that would otherwise accrue Guaranteed Commercial Operation Date (or have accrued) by as such date plus may be extended), (y) has exercised its rights to extend the undrawn Critical Milestone dates the maximum number of times allowed pursuant to Section 3.1(c), and (z) posts additional Credit Support in the amount of $7,750, 410 (which is equal to three hundred sixty five (365) days of Delay Damages), then Buyer shall not have any Development Period Security provided right to Buyer by Seller; provided, however, that if Seller terminates terminate this Agreement on because of an Event of Default under Section 9.2(e) until the deadline set forth for date that is twelve (12) months after the Guaranteed Commercial Operation Date in Section 3.1(a) (as the same may be extended provided that Seller is paying Delay Damages in accordance with the provision of this Section 3.1(c3.2(a)), Seller shall not be required to pay any Delay Damages hereunder but shall forfeit the Development Period Security. Subject to the foregoing sentence, neither Party shall have any liability to the other Party with respect to a termination of this Agreement by Seller under this Section 3.2(b). . (b) Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’s delay in achieving the Commercial Operation Date by the Guaranteed Commercial Operation Date would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore the Delay Damages and other damages as agreed to by the Parties and set forth herein are a fair and reasonable calculation of such damages. Notwithstanding the foregoing, this Article shall not limit the amount of damages Termination Payment payable to Buyer if this Agreement is terminated by Buyer as a result of Seller’s failure to achieve the Commercial Operation Date. Any such termination damages Termination Payment shall be determined in accordance with Article 9. . (c) By the tenth (10th) day following the end of the calendar month in which Delay Damages first become due and continuing by the tenth (10th) day of each calendar month during the period in which Delay Damages accrue (and the following months if applicable), Buyer shall deliver to Seller an invoice showing Buyer’s computation of such damages and any amount due Buyer in respect thereof for the preceding calendar month. No later than ten (10) days after receiving such an invoice, Seller shall pay to Buyer, by wire transfer of immediately available funds to an account specified in writing by Buyer or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such invoice. If Seller fails to pay such amounts when due, Buyer may draw upon the Development Period Security or additional Credit Support posted pursuant to Section 3.2(a) for payment of such Delay Damages, and Buyer may exercise any other remedies available for Seller’s default hereunder.

Delay Damages. (a) If the Commercial Operation Date is not achieved by the date set forth therefor in Section 3.1(a) Guaranteed Commercial Operation Date (as extended pursuant to Section Sections 3.1(c), 3.1(d), 3.1(e) and 10.1), Seller shall pay to Buyer damages for each month day from and after such date until in an amount equal to $17,982 (which is $100.00 per MWh per hour of Contract Maximum Amount), commencing on the Guaranteed Commercial Operation Date (as extended pursuant to Sections 3.1(c), 3.1(d), 3.1(e) and 10.1) and ending on the earlier of (i) the Commercial Operation Date at Date, (ii) the rate of $1.50 per kwh of Contract Maximum Amount up date that Buyer exercises its right to a maximum of terminate this Agreement under Section 9.3, or (iii) the date that is twelve (12) months of delay, pro rated for partial months after the Guaranteed Commercial Operation Date (“Delay Damages”). Delay Damages shall be due under this Section 3.2(a) without regard to whether Buyer exercises its right to terminate this Agreement pursuant to Section 9.3; provided, however, that if Buyer exercises its right to terminate this Agreement under Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing at the date of such termination. If Notwithstanding anything in this Section 3.2(a) or Section 9.2(e) to the Facility has not achieved contrary, the Parties agree that, if the Commercial Operation Date is not achieved by the Guaranteed Commercial Operation Date and, at any time prior to the date set forth therefor in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), for any reason, Seller shall have the on which Buyer exercises its right to terminate this Agreement at any time after under Section 9.3, Seller (x) provides an Independent Engineer’s certification, in form and substance reasonably acceptable to Buyer and with reasonable supporting detail and information, stating that deadline date (as so extended) until either the Facility achieves the Commercial Operation Date is reasonably likely to occur on or Buyer terminates this Agreement under Section 9.3 (regardless of whether or not Seller elected prior to continue to construct the Project). In the event Seller so terminates this Agreement, Seller shall be liable to Buyer on the date of such termination for that is twelve (x12) months after the entire amount of Delay Damages that would otherwise accrue Guaranteed Commercial Operation Date (or have accrued) by as such date plus may be extended), (y) has exercised its rights to extend the undrawn amount Critical Milestone dates the maximum number of times allowed pursuant to Section 3.1(c), and (z) posts additional Credit Support with a Value of $6,563,430 (which is equal to three hundred sixty five (365) days of Delay Damages), then Buyer shall not have any Development Period Security provided right to Buyer by Seller; provided, however, that if Seller terminates terminate this Agreement on because of an Event of Default under Section 9.2(e) until the deadline set forth for date that is twelve (12) months after the Guaranteed Commercial Operation Date in Section 3.1(a) (as the same may be extended provided that Seller is paying Delay Damages in accordance with the provision of this Section 3.1(c3.2(a)), Seller shall not be required to pay any Delay Damages hereunder but shall forfeit the Development Period Security. Subject to the foregoing sentence, neither Party shall have any liability to the other Party with respect to a termination of this Agreement by Seller under this Section 3.2(b). . (b) Each Party agrees and acknowledges that (i) the damages that Buyer Xxxxx would incur due to Seller’s delay in achieving the Commercial Operation Date by the Guaranteed Commercial Operation Date would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore the Delay Damages and other damages as agreed to by the Parties and set forth herein are a fair and reasonable calculation of such damages. Notwithstanding the foregoing, this Article shall not limit the amount of damages Termination Payment payable to Buyer if this Agreement is terminated by Buyer as a result of Seller’s failure to achieve the Commercial Operation Date. Any such termination damages Termination Payment shall be determined in accordance with Article 9. . (c) By the tenth (10th) day following the end of the calendar month in which Delay Damages first become due and continuing by the tenth (10th) day of each calendar month during the period in which Delay Damages accrue (and the following months if applicable), Buyer shall deliver to Seller an invoice showing BuyerXxxxx’s computation of such damages and any amount due Buyer in respect thereof for the preceding calendar month. No later than ten (10) days after receiving such an invoice, Seller shall pay to Buyer, by wire transfer of immediately available funds to an account specified in writing by Buyer or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such invoice. If Seller fails to pay such amounts when due, Buyer may draw upon the Development Period Security or additional Credit Support posted pursuant to Section 3.2(a) for payment of such Delay Damages, and Buyer may exercise any other remedies available for Seller’s default hereunder.

Delay Damages. (a) If the Commercial Operation Date is not achieved by the date set forth therefor in Section 3.1(a) (as extended pursuant to Section 3.1(c)), Seller shall pay to Buyer damages for each month from and after such date until the Commercial Operation Date at the rate of $1.50 202 per kwh of Contract Maximum Amount month up to a maximum of twelve (12) months of delay, pro rated for partial months (“Delay Damages”). Delay Damages shall be due under this Section 3.2(a) without regard to whether Buyer exercises its right to terminate this Agreement pursuant to Section 9.3; provided, however, that if Buyer exercises its right to terminate this Agreement under Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing at the date of such termination. If the Facility has not achieved the Commercial Operation by the date set forth therefor in Section 3.1(a. (b) (as the same may be extended in accordance with Section 3.1(c)), for any reason, Seller shall have the right to terminate this Agreement at any time after that deadline date (as so extended) until either the Facility achieves the Commercial Operation Date or Buyer terminates this Agreement under Section 9.3 (regardless of whether or not Seller elected to continue to construct the Project). In the event Seller so terminates this Agreement, Seller shall be liable to Buyer on the date of such termination for (x) the entire amount of Delay Damages that would otherwise accrue (or have accrued) by such date plus (y) the undrawn amount of any Development Period Security provided to Buyer by Seller; provided, however, that if Seller terminates this Agreement on the deadline set forth for the Commercial Operation Date in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), Seller shall not be required to pay any Delay Damages hereunder but shall forfeit the Development Period Security. Subject to the foregoing sentence, neither Party shall have any liability to the other Party with respect to a termination of this Agreement by Seller under this Section 3.2(b). Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’s delay in achieving the Commercial Operation Date would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore the Delay Damages and other damages as agreed to by the Parties and set forth herein are a fair and reasonable calculation of such damages. Notwithstanding the foregoing, this Article shall not limit the amount of damages payable to Buyer if this Agreement is terminated by Buyer as a result of Seller’s failure to achieve the Commercial Operation Date. Any such termination damages shall be determined in accordance with Article 9. . (c) By the tenth (10th) day following the end of the calendar month in which Delay Damages first become due and continuing by the tenth (10th) day of each calendar month during the period in which Delay Damages accrue (and the following months if applicable), Buyer shall deliver to Seller an invoice showing Buyer’s computation of such damages and any amount due Buyer in respect thereof for the preceding calendar month. No later than ten (10) days after receiving such an invoice, Seller shall pay to Buyer, by wire transfer of immediately available funds to an account specified in writing by Buyer or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such invoice. If Seller fails to pay such amounts when due, Buyer may draw upon the Development Period Security for payment of such Delay Damages, and Buyer may exercise any other remedies available for Seller’s default hereunder.

Delay Damages. (a) If the Commercial Operation Date is not achieved by the date set forth therefor in Section 3.1(a) Guaranteed Commercial Operation Date (as extended pursuant to Section Sections 3.1(c), 3.1(d), 3.1(e) and 10.1), Seller shall pay to Buyer damages for each month day from and after such date until in an amount equal to $21,234 (which is $100.00 per MWh per hour of Contract Maximum Amount), commencing on the Guaranteed Commercial Operation Date (as extended pursuant to Sections 3.1(c), 3.1(d), 3.1(e) and 10.1) and ending on the earlier of (i) the Commercial Operation Date at Date, (ii) the rate of $1.50 per kwh of Contract Maximum Amount up date that Buyer exercises its right to a maximum of terminate this Agreement under Section 9.3, or (iii) the date that is twelve (12) months of delay, pro rated for partial months after the Guaranteed Commercial Operation Date (“Delay Damages”). Delay Damages shall be due under this Section 3.2(a) without regard to whether Buyer exercises its right to terminate this Agreement pursuant to Section 9.3; provided, however, that if Buyer exercises its right to terminate this Agreement under Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing at the date of such termination. If Notwithstanding anything in this Section 3.2(a) or Section 9.2(e) to the Facility has not achieved contrary, the Parties agree that, if the Commercial Operation Date is not achieved by the Guaranteed Commercial Operation Date and, at any time prior to the date set forth therefor in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), for any reason, Seller shall have the on which Buyer exercises its right to terminate this Agreement at any time after under Section 9.3, Seller (x) provides an Independent Engineer’s certification, in form and substance reasonably acceptable to Buyer and with reasonable supporting detail and information, stating that deadline date (as so extended) until either the Facility achieves the Commercial Operation Date is reasonably likely to occur on or Buyer terminates this Agreement under Section 9.3 (regardless of whether or not Seller elected prior to continue to construct the Project). In the event Seller so terminates this Agreement, Seller shall be liable to Buyer on the date of such termination for that is twelve (x12) months after the entire amount of Delay Damages that would otherwise accrue Guaranteed Commercial Operation Date (or have accrued) by as such date plus may be extended), (y) has exercised its rights to extend the undrawn Critical Milestone dates the maximum number of times allowed pursuant to Section 3.1(c), and (z) posts additional Credit Support in the amount of $7,750, 410 (which is equal to three hundred sixty five (365) days of Delay Damages), then Buyer shall not have any Development Period Security provided right to Buyer by Seller; provided, however, that if Seller terminates terminate this Agreement on because of an Event of Default under Section 9.2(e) until the deadline set forth for date that is twelve (12) months after the Guaranteed Commercial Operation Date in Section 3.1(a) (as the same may be extended provided that Seller is paying Delay Damages in accordance with the provision of this Section 3.1(c3.2(a)), Seller shall not be required to pay any Delay Damages hereunder but shall forfeit the Development Period Security. Subject to the foregoing sentence, neither Party shall have any liability to the other Party with respect to a termination of this Agreement by Seller under this Section 3.2(b). . (b) Each Party agrees and acknowledges that (i) the damages that Buyer would Buxxx xould incur due to Seller’s delay in achieving the Commercial Operation Date by the Guaranteed Commercial Operation Date would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore the Delay Damages and other damages as agreed to by the Parties and set forth herein are a fair and reasonable calculation of such damages. Notwithstanding the foregoing, this Article shall not limit the amount of damages Termination Payment payable to Buyer if this Agreement is terminated by Buyer as a result of Seller’s failure to achieve the Commercial Operation Date. Any such termination damages Termination Payment shall be determined in accordance with Article 9. . (c) By the tenth (10th) day following the end of the calendar month in which Delay Damages first become due and continuing by the tenth (10th) day of each calendar month during the period in which Delay Damages accrue (and the following months if applicable), Buyer shall deliver to Seller an invoice showing BuyerBuxxx’s computation of such damages and any amount due Buyer in respect thereof for the preceding calendar month. No later than ten (10) days after receiving such an invoice, Seller shall pay to Buyer, by wire transfer of immediately available funds to an account specified in writing by Buyer or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such invoice. If Seller fails to pay such amounts when due, Buyer may draw upon the Development Period Security or additional Credit Support posted pursuant to Section 3.2(a) for payment of such Delay Damages, and Buyer may exercise any other remedies available for Seller’s default hereunder.

Delay Damages. (a) If the Commercial Operation Date is not achieved by the date set forth therefor in Section 3.1(a) (as extended pursuant to Section 3.1(c)), Guaranteed Commercial Operation Date Seller shall pay to Buyer damages for each month day from and after such date until the Guaranteed Commercial Operation Date in an amount of $396 (which is equal to $100.00 per MWh per hour of the Contract Maximum Amount), commencing on the Guaranteed Commercial Operation Date (as extended pursuant to Sections 3.1(c), 3.1(d), 3.1(e) and 10.1) and ending on the earlier of (i) the Commercial Operation Date at Date, (ii) the rate of $1.50 per kwh of Contract Maximum Amount up date that Buyer exercises its right to a maximum of terminate this Agreement under Section 9.3, or (iii) the date that is twelve (12) months of delay, pro rated for partial months after the Guaranteed Commercial Operation Date (“Delay Damages”). Delay Damages shall be due under this Section 3.2(a) without regard to whether Buyer exercises its right to terminate this Agreement pursuant to Section 9.3; provided, however, that if Buyer exercises its right to terminate this Agreement under Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing at the date of such termination. If Notwithstanding the Facility has not achieved foregoing, the Parties agree that if the Commercial Operation Date is not achieved by the date set forth therefor in Section 3.1(aGuaranteed Commercial Operation Date and, at least thirty (30) days prior to the Guaranteed Commercial Operation Date, Seller (x) provides certification acceptable to Buyer, from an Independent Engineer with supporting detail and information that demonstrates that the Commercial Operation Date is reasonably likely to occur on or prior to the one year anniversary of the Guaranteed Commercial Operation Date (as the same such date may be extended in accordance with extended), (y) has exercised its rights to extend all of the Critical Milestone Dates pursuant to Section 3.1(c)) the maximum number of times allowed pursuant to the terms of this Agreement, and (z) posts additional Credit Support in an amount equal to $144,540 (which is equal to twelve (12) months of Delay Damages), for any reason, Seller then Buyer shall have the right not exercise its rights to terminate this Agreement at any time after that deadline date (as so extendeddue to an Event of Default under Section 9.2(e) until either the Facility achieves date that is twelve (12) months after the Guaranteed Commercial Operation Date or Buyer terminates this Agreement under Section 9.3 (regardless of whether or not as long as Seller elected to continue to construct the Project). In the event Seller so terminates this Agreement, Seller shall be liable to Buyer on the date of such termination for (x) the entire amount of is paying Delay Damages that would otherwise accrue (or have accrued) by such date plus (y) the undrawn amount of any Development Period Security provided to Buyer by Seller; provided, however, that if Seller terminates this Agreement on the deadline set forth for the Commercial Operation Date in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), Seller shall not be required to pay any Delay Damages hereunder but shall forfeit the Development Period Security. Subject to the foregoing sentence, neither Party shall have any liability to the other Party with respect to a termination provision of this Agreement by Seller under this Section 3.2(b). 3.2. (b) Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’s delay in achieving the Commercial Operation Date by the Guaranteed Commercial Operation Date would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore the Delay Damages and other damages as agreed to by the Parties and set forth herein are a fair and reasonable calculation of such damages. Notwithstanding the foregoing, this Article shall not limit the amount of damages payable to Buyer if this Agreement is terminated by Buyer as a result of Seller’s failure to achieve the Commercial Operation Date. Any such termination damages shall be determined in accordance with Article 9. . (c) By the tenth fifteenth (10th15th) day following the end of the calendar month in which Delay Damages first become due and continuing by the tenth fifteenth (10th15th) day of each calendar month during the period in which Delay Damages accrue (and the following months if applicable), Buyer shall deliver to Seller an invoice showing Buyer’s computation of such damages and any amount due Buyer in respect thereof for the preceding calendar month. No later than ten (10) days after receiving such an invoice, Seller shall pay to Buyer, by wire transfer of immediately available funds to an account specified in writing by Buyer or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such invoice. If Seller fails to pay such amounts when due, Buyer may draw upon the Development Period Security for payment of such Delay Damages, and Buyer may exercise any other remedies available for Seller’s default hereunder.

Delay Damages. (a) If the Commercial Operation Date is not achieved by Contractor fails to comply with Clause 8.2 (Time for Completion), the Contractor shall subject to Clause 2.4 (Employer’s Claims) pay delay damages in the amounts set out in Clause 8.6(b) to the Employer for this default, such delay damages to be paid for every day or part thereof which shall elapse between the relevant Time for Completion and the date set forth therefor stated in Section 3.1(athe associated Taking-Over Certificate. (b) (as extended pursuant to Section 3.1(c))If t he C ontractor f ails t o complete the Works w ithin the Time f or C ompletion, Seller the Contractor shall pay to Buyer the Employer as delay damages in arrears the sum of forty thousand dollars (US$40,000) for each month from and after such date until the Commercial Operation Date at the rate of $1.50 per kwh of Contract Maximum Amount up to a maximum of twelve (12) months day of delay, pro rated for partial months . (“Delay Damages”). Delay Damages shall be c) The total amount due under Clause 8.6 shall not exceed [twenty per cent (20%)] of the Contract Price. (d) The amounts specified in sub-paragraphs (b) above of this Section 3.2(a) without regard to whether Buyer exercises its right to terminate this Agreement pursuant to Section 9.3; provided, however, that if Buyer exercises its right to terminate this Agreement under Section 9.3, Delay Damages shall be due and owing Clause have been calculated by the Parties as representing the likely daily loss to the extent that such Delay Damages were due and owing at the date of such termination. If the Facility has not achieved the Commercial Operation by the date set forth therefor in Section 3.1(a) (Employer as the same may be extended in accordance with Section 3.1(c)), for any reason, Seller shall have the right to terminate this Agreement at any time after that deadline date (as so extended) until either the Facility achieves the Commercial Operation Date or Buyer terminates this Agreement under Section 9.3 (regardless of whether or not Seller elected to continue to construct the Project). In the event Seller so terminates this Agreement, Seller shall be liable to Buyer on the date of such termination for (x) the entire amount of Delay Damages that would otherwise accrue (or have accrued) by such date plus (y) the undrawn amount a result of any Development Period Security provided to Buyer by Seller; provided, however, that if Seller terminates this Agreement on the deadline set forth for the Commercial Operation Date in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), Seller shall not be required to pay any Delay Damages hereunder but shall forfeit the Development Period Security. Subject to the foregoing sentence, neither Party shall have any liability to the other Party with respect to a termination of this Agreement by Seller under this Section 3.2(b). Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’s delay in achieving the Commercial Operation Date would be difficult or impossible to predict with certaintyTimes for Completion, and (ii) it are reasonable and constitute liquidated damages and are not a penalty. It is impractical further understood and difficult to assess agreed that the payment of such amounts, and an y en cashment of the Performance Security p ursuant t o its terms, shall be in p artial satisfaction of actual damages in the circumstances stated, and therefore the Delay Damages and other damages as agreed to by the Parties and set forth herein are a fair and reasonable calculation of for such damages. Notwithstanding the foregoing, this Article shall not limit the amount of damages payable to Buyer if this Agreement is terminated by Buyer as a result of Seller’s failure to achieve the Commercial Operation Date. Any such termination occurrence. (e) These delay damages shall be determined the only damages due from the Contractor for such default, other t han in accordance with Article 9t he e vent o f t ermination un der C xxxxx 9.4 ( Failure to Pass Tests on Completion), Clause 11.4 (Failure to Remedy Defects) and Clause 15.2 (Termination by Employer) prior to completion of the Works. By These damages shall not relieve the tenth Contractor from its obligation to complete the Works, or from any other duties, obligations or responsibilities which it may have under the Contract. (10thf) day At any time following the end of each month, the calendar month Employer shall compute and advise the Contractor in which Delay Damages first become due and continuing by the tenth (10th) day of each calendar month during the period in which Delay Damages accrue (and the following months if applicable), Buyer shall deliver to Seller an invoice showing Buyer’s computation of such the amount of delay damages and due to the Employer pursuant to this C ontract f or any amount due Buyer in respect thereof for of the preceding calendar monthpr eceding m onth. No later than ten (10S uch a mounts shall be payable by t he Contractor w ithin t wenty ( 20) days after receiving o f the da te of t he de livery o f such an invoice, Seller shall pay to Buyer, by wire transfer of immediately available funds to an account specified in writing by Buyer or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such invoice. If Seller fails to pay such amounts when due, Buyer may draw upon the Development Period Security for payment of such Delay Damages, and Buyer may exercise any other remedies available for Seller’s default hereunderi nvoice t o t he Contractor.

Delay Damages. (a) If the Commercial Operation Date is not achieved by the date set forth therefor in Section 3.1(a) Guaranteed Commercial Operation Date (as extended pursuant to Section Sections 3.1(c), 3.1(d), 3.1(e) and 10.1), Seller shall pay to Buyer damages for each month day from and after such date until in an amount equal to $18,527 (which is $100.00 per MWh per hour of Contract Maximum Amount), commencing on the Guaranteed Commercial Operation Date (as extended pursuant to Sections 3.1(c), 3.1(d), 3.1(e) and 10.1) and ending on the earlier of (i) the Commercial Operation Date at Date, (ii) the rate of $1.50 per kwh of Contract Maximum Amount up date that Buyer exercises its right to a maximum of terminate this Agreement under Section 9.3, or (iii) the date that is twelve (12) months of delay, pro rated for partial months after the Guaranteed Commercial Operation Date (“Delay Damages”). Delay Damages shall be due under this Section 3.2(a) without regard to whether Buyer exercises its right to terminate this Agreement pursuant to Section 9.3; provided, however, that if Buyer exercises its right to terminate this Agreement under Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing at the date of such termination. If Notwithstanding anything in this Section 3.2(a) or Section 9.2(e) to the Facility has not achieved contrary, the Parties agree that, if the Commercial Operation Date is not achieved by the Guaranteed Commercial Operation Date and, at any time prior to the date set forth therefor in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), for any reason, Seller shall have the on which Buyer exercises its right to terminate this Agreement at any time after under Section 9.3, Seller (x) provides an Independent Engineer’s certification, in form and substance reasonably acceptable to Buyer and with reasonable supporting detail and information, stating that deadline date (as so extended) until either the Facility achieves the Commercial Operation Date is reasonably likely to occur on or Buyer terminates this Agreement under Section 9.3 (regardless of whether or not Seller elected prior to continue to construct the Project). In the event Seller so terminates this Agreement, Seller shall be liable to Buyer on the date of such termination for that is twelve (x12) months after the entire amount of Delay Damages that would otherwise accrue Guaranteed Commercial Operation Date (or have accrued) by as such date plus may be extended), (y) has exercised its rights to extend the undrawn amount Critical Milestone dates the maximum number of times allowed pursuant to Section 3.1(c), and (z) posts additional Credit Support with a Value of $6,762,355 (which is equal to three hundred sixty five (365) days of Delay Damages), then Buyer shall not have any Development Period Security provided right to Buyer by Seller; provided, however, that if Seller terminates terminate this Agreement on because of an Event of Default under Section 9.2(e) until the deadline set forth for date that is twelve (12) months after the Guaranteed Commercial Operation Date in Section 3.1(a) (as the same may be extended provided that Seller is paying Delay Damages in accordance with the provision of this Section 3.1(c3.2(a)), Seller shall not be required to pay any Delay Damages hereunder but shall forfeit the Development Period Security. Subject to the foregoing sentence, neither Party shall have any liability to the other Party with respect to a termination of this Agreement by Seller under this Section 3.2(b). . (b) Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’s delay in achieving the Commercial Operation Date by the Guaranteed Commercial Operation Date would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore the Delay Damages and other damages as agreed to by the Parties and set forth herein are a fair and reasonable calculation of such damages. Notwithstanding the foregoing, this Article shall not limit the amount of damages Termination Payment payable to Buyer if this Agreement is terminated by Buyer as a result of Seller’s failure to achieve the Commercial Operation Date. Any such termination damages Termination Payment shall be determined in accordance with Article 9. . (c) By the tenth (10th) day following the end of the calendar month in which Delay Damages first become due and continuing by the tenth (10th) day of each calendar month during the period in which Delay Damages accrue (and the following months if applicable), Buyer shall deliver to Seller an invoice showing Buyer’s computation of such damages and any amount due Buyer in respect thereof for the preceding calendar month. No later than ten (10) days after receiving such an invoice, Seller shall pay to Buyer, by wire transfer of immediately available funds to an account specified in writing by Buyer or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such invoice. If Seller fails to pay such amounts when due, Buyer may draw upon the Development Period Security or additional Credit Support posted pursuant to Section 3.2(a) for payment of such Delay Damages, and Buyer may exercise any other remedies available for Seller’s default hereunder.

Delay Damages. (a) If the Commercial Operation Date is not achieved by the date set forth therefor in Section 3.1(a) Guaranteed Commercial Operation Date (as extended pursuant to Section Sections 3.1(c), 3.1(d), 3.1(e) and 10.1), Seller shall pay to Buyer damages for each month day from and after such date until in an amount equal to $21,877 (which is $100.00 per MWh per hour of Contract Maximum Amount), commencing on the Guaranteed Commercial Operation Date (as extended pursuant to Sections 3.1(c), 3.1(d), 3.1(e) and 10.1) and ending on the earlier of (i) the Commercial Operation Date at Date, (ii) the rate of $1.50 per kwh of Contract Maximum Amount up date that Buyer exercises its right to a maximum of terminate this Agreement under Section 9.3, or (iii) the date that is twelve (12) months of delay, pro rated for partial months after the Guaranteed Commercial Operation Date (“Delay Damages”). Delay Damages shall be due under this Section 3.2(a) without regard to whether Buyer exercises its right to terminate this Agreement pursuant to Section 9.3; provided, however, that if Buyer exercises its right to terminate this Agreement under Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing at the date of such termination. If Notwithstanding anything in this Section 3.2(a) or Section 9.2(e) to the Facility has not achieved contrary, the Parties agree that, if the Commercial Operation Date is not achieved by the Guaranteed Commercial Operation Date and, at any time prior to the date set forth therefor in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), for any reason, Seller shall have the on which Buyer exercises its right to terminate this Agreement at any time after under Section 9.3, Seller (x) provides an Independent Engineer’s certification, in form and substance reasonably acceptable to Buyer and with reasonable supporting detail and information, stating that deadline date (as so extended) until either the Facility achieves the Commercial Operation Date is reasonably likely to occur on or Buyer terminates this Agreement under Section 9.3 (regardless of whether or not Seller elected prior to continue to construct the Project). In the event Seller so terminates this Agreement, Seller shall be liable to Buyer on the date of such termination for that is twelve (x12) months after the entire amount of Delay Damages that would otherwise accrue Guaranteed Commercial Operation Date (or have accrued) by as such date plus may be extended), (y) has exercised its rights to extend the undrawn Critical Milestone dates the maximum number of times allowed pursuant to Section 3.1(c), and (z) posts additional Credit Support in the amount of $7,985,105 (which is equal to three hundred sixty five (365) days of Delay Damages), then Buyer shall not have any Development Period Security provided right to Buyer by Seller; provided, however, that if Seller terminates terminate this Agreement on because of an Event of Default under Section 9.2(e) until the deadline set forth for date that is twelve (12) months after the Guaranteed Commercial Operation Date in Section 3.1(a) (as the same may be extended provided that Seller is paying Delay Damages in accordance with the provision of this Section 3.1(c3.2(a)), Seller shall not be required to pay any Delay Damages hereunder but shall forfeit the Development Period Security. Subject to the foregoing sentence, neither Party shall have any liability to the other Party with respect to a termination of this Agreement by Seller under this Section 3.2(b). . (b) Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’s delay in achieving the Commercial Operation Date by the Guaranteed Commercial Operation Date would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore the Delay Damages and other damages as agreed to by the Parties and set forth herein are a fair and reasonable calculation of such damages. Notwithstanding the foregoing, this Article shall not limit the amount of damages Termination Payment payable to Buyer if this Agreement is terminated by Buyer as a result of Seller’s failure to achieve the Commercial Operation Date. Any such termination damages Termination Payment shall be determined in accordance with Article 9. . (c) By the tenth (10th) day following the end of the calendar month in which Delay Damages first become due and continuing by the tenth (10th) day of each calendar month during the period in which Delay Damages accrue (and the following months if applicable), Buyer shall deliver to Seller an invoice showing Buyer’s computation of such damages and any amount due Buyer in respect thereof for the preceding calendar month. No later than ten (10) days after receiving such an invoice, Seller shall pay to Buyer, by wire transfer of immediately available funds to an account specified in writing by Buyer or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such invoice. If Seller fails to pay such amounts when due, Buyer may draw upon the Development Period Security or additional Credit Support posted pursuant to Section 3.2(a) for payment of such Delay Damages, and Buyer may exercise any other remedies available for Seller’s default hereunder.

Delay Damages. (a) If the Commercial Operation Date is not achieved by the date set forth therefor in Section 3.1(a) Guaranteed Commercial Operation Date (as extended pursuant to Section Sections 3.1(c), 3.1(d), 3.1(e) and 10.1), Seller shall pay to Buyer damages for each month day from and after such date until in an amount equal to $18,527 (which is $100.00 per MWh per hour of Contract Maximum Amount), commencing on the Guaranteed Commercial Operation Date (as extended pursuant to Sections 3.1(c), 3.1(d), 3.1(e) and 10.1) and ending on the earlier of (i) the Commercial Operation Date at Date, (ii) the rate of $1.50 per kwh of Contract Maximum Amount up date that Buyer exercises its right to a maximum of terminate this Agreement under Section 9.3, or (iii) the date that is twelve (12) months of delay, pro rated for partial months after the Guaranteed Commercial Operation Date (“Delay Damages”). Delay Damages shall be due under this Section 3.2(a) without regard to whether Buyer exercises its right to terminate this Agreement pursuant to Section 9.3; provided, however, that if Buyer exercises its right to terminate this Agreement under Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing at the date of such termination. If Notwithstanding anything in this Section 3.2(a) or Section 9.2(e) to the Facility has not achieved contrary, the Parties agree that, if the Commercial Operation Date is not achieved by the Guaranteed Commercial Operation Date and, at any time prior to the date set forth therefor in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), for any reason, Seller shall have the on which Buyer exercises its right to terminate this Agreement at any time after under Section 9.3, Seller (x) provides an Independent Engineer’s certification, in form and substance reasonably acceptable to Buyer and with reasonable supporting detail and information, stating that deadline date (as so extended) until either the Facility achieves the Commercial Operation Date is reasonably likely to occur on or Buyer terminates this Agreement under Section 9.3 (regardless of whether or not Seller elected prior to continue to construct the Project). In the event Seller so terminates this Agreement, Seller shall be liable to Buyer on the date of such termination for that is twelve (x12) months after the entire amount of Delay Damages that would otherwise accrue Guaranteed Commercial Operation Date (or have accrued) by as such date plus may be extended), (y) has exercised its rights to extend the undrawn amount Critical Milestone dates the maximum number of times allowed pursuant to Section 3.1(c), and (z) posts additional Credit Support with a Value of $6,762,355 (which is equal to three hundred sixty five (365) days of Delay Damages), then Buyer shall not have any Development Period Security provided right to Buyer by Seller; provided, however, that if Seller terminates terminate this Agreement on because of an Event of Default under Section 9.2(e) until the deadline set forth for date that is twelve (12) months after the Guaranteed Commercial Operation Date in Section 3.1(a) (as the same may be extended provided that Seller is paying Delay Damages in accordance with the provision of this Section 3.1(c3.2(a)), Seller shall not be required to pay any Delay Damages hereunder but shall forfeit the Development Period Security. Subject to the foregoing sentence, neither Party shall have any liability to the other Party with respect to a termination of this Agreement by Seller under this Section 3.2(b). . (b) Each Party agrees and acknowledges that (i) the damages that Buyer Xxxxx would incur due to Seller’s delay in achieving the Commercial Operation Date by the Guaranteed Commercial Operation Date would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore the Delay Damages and other damages as agreed to by the Parties and set forth herein are a fair and reasonable calculation of such damages. Notwithstanding the foregoing, this Article shall not limit the amount of damages Termination Payment payable to Buyer if this Agreement is terminated by Buyer as a result of Seller’s failure to achieve the Commercial Operation Date. Any such termination damages Termination Payment shall be determined in accordance with Article 9. . (c) By the tenth (10th) day following the end of the calendar month in which Delay Damages first become due and continuing by the tenth (10th) day of each calendar month during the period in which Delay Damages accrue (and the following months if applicable), Buyer shall deliver to Seller an invoice showing BuyerXxxxx’s computation of such damages and any amount due Buyer in respect thereof for the preceding calendar month. No later than ten (10) days after receiving such an invoice, Seller shall pay to Buyer, by wire transfer of immediately available funds to an account specified in writing by Buyer or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such invoice. If Seller fails to pay such amounts when due, Buyer may draw upon the Development Period Security or additional Credit Support posted pursuant to Section 3.2(a) for payment of such Delay Damages, and Buyer may exercise any other remedies available for Seller’s default hereunder.

Delay Damages. (a) If the Commercial Operation Date is not achieved by the date set forth therefor in Section 3.1(a) Guaranteed Delivery Term Start Date (as extended pursuant to Section Sections 3.1(c)) and 10.1), Seller shall pay to Buyer damages for each month day from and after such date until in an amount equal to $100.00 per MWh per hour of Contract Maximum Amount, commencing on the Guaranteed Delivery Term Start Date (as extended pursuant to Sections 3.1(c) and 10.1) and ending on the earlier of (i) the Commercial Operation Date at Date, (ii) the rate of $1.50 per kwh of Contract Maximum Amount up date that Buyer exercises its right to a maximum of terminate this Agreement under Section 9.3, or (iii) the date that is twelve (12) months of delay, pro rated for partial months after the Guaranteed Delivery Term Start Date (“Delay Damages”). Delay Damages shall be due under this Section 3.2(a) without regard to whether Buyer exercises its right to terminate this Agreement pursuant to Section 9.3; provided, however, that if Buyer exercises its right to terminate this Agreement under Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing at the date of such termination. If the Facility has not achieved the Commercial Operation by the date set forth therefor in Section 3.1(a. (b) (as the same may be extended in accordance with Section 3.1(c)), for any reason, Seller shall have the right to terminate this Agreement at any time after that deadline date (as so extended) until either the Facility achieves the Commercial Operation Date or Buyer terminates this Agreement under Section 9.3 (regardless of whether or not Seller elected to continue to construct the Project). In the event Seller so terminates this Agreement, Seller shall be liable to Buyer on the date of such termination for (x) the entire amount of Delay Damages that would otherwise accrue (or have accrued) by such date plus (y) the undrawn amount of any Development Period Security provided to Buyer by Seller; provided, however, that if Seller terminates this Agreement on the deadline set forth for the Commercial Operation Date in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), Seller shall not be required to pay any Delay Damages hereunder but shall forfeit the Development Period Security. Subject to the foregoing sentence, neither Party shall have any liability to the other Party with respect to a termination of this Agreement by Seller under this Section 3.2(b). Each Party agrees and acknowledges that (i) the damages that Buyer Xxxxx would incur due to Seller’s delay in achieving the Commercial Operation Date by the Guaranteed Delivery Term Start Date would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore the Delay Damages and other damages as agreed to by the Parties and set forth herein are a fair and reasonable calculation of such damages. Notwithstanding the foregoing, this Article shall not limit the amount of damages payable to Buyer if this Agreement is terminated by Buyer as a result of Seller’s failure to achieve the Commercial Operation Date. Any such termination damages shall be determined in accordance with Article 9. . (c) By the tenth (10th) day following the end of the calendar month in which Delay Damages first become due and continuing by the tenth (10th) day of each calendar month during the period in which Delay Damages accrue (and the following months if applicable), Buyer shall deliver to Seller an invoice showing BuyerXxxxx’s computation of such damages and any amount due Buyer in respect thereof for the preceding calendar month. No later than ten (10) days after receiving such an invoice, Seller shall pay to Buyer, by wire transfer of immediately available funds to an account specified in writing by Buyer or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such invoice. If Seller fails to pay such amounts when due, Buyer may draw upon the Development Period Security for payment of such Delay Damages, and Buyer may exercise any other remedies available for Seller’s default hereunder.

Delay Damages. If the Commercial Operation Date is not achieved by the date set forth therefor in Section 3.1(a) Guaranteed Commercial Operation Date (as extended pursuant to Section Sections 3.1(c)) and 10.1), Seller shall pay to Buyer damages for each month day from and after such date until in an amount equal to $100.00 per MWh per hour of Contract Maximum Amount, commencing on the Guaranteed Commercial Operation Date (as extended pursuant to Sections 3.1(c) and 10.1) and ending on the earlier of (i) the Commercial Operation Date at Date, (ii) the rate of $1.50 per kwh of Contract Maximum Amount up date that Buyer exercises its right to a maximum of terminate this Agreement under Section 9.3, or (iii) the date that is twelve (12) months of delay, pro rated for partial months after the Guaranteed Commercial Operation Date (“Delay Damages”). Delay Damages shall be due under this Section 3.2(a) without regard to whether Buyer exercises its right to terminate this Agreement pursuant to Section 9.3; provided, however, that if Buyer exercises its right to terminate this Agreement under Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing at the date of such termination. If the Facility has not achieved the Commercial Operation by the date set forth therefor in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), for any reason, Seller shall have the right to terminate this Agreement at any time after that deadline date (as so extended) until either the Facility achieves the Commercial Operation Date or Buyer terminates this Agreement under Section 9.3 (regardless of whether or not Seller elected to continue to construct the Project). In the event Seller so terminates this Agreement, Seller shall be liable to Buyer on the date of such termination for (x) the entire amount of Delay Damages that would otherwise accrue (or have accrued) by such date plus (y) the undrawn amount of any Development Period Security provided to Buyer by Seller; provided, however, that if Seller terminates this Agreement on the deadline set forth for the Commercial Operation Date in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), Seller shall not be required to pay any Delay Damages hereunder but shall forfeit the Development Period Security. Subject to the foregoing sentence, neither Party shall have any liability to the other Party with respect to a termination of this Agreement by Seller under this Section 3.2(b). Each Party agrees and acknowledges that (i) the damages that Buyer Xxxxx would incur due to Seller’s delay in achieving the Commercial Operation Date by the Guaranteed Commercial Operation Date would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore the Delay Damages and other damages as agreed to by the Parties and set forth herein are a fair and reasonable calculation of such damages. Notwithstanding the foregoing, this Article shall not limit the amount of damages payable to Buyer if this Agreement is terminated by Buyer as a result of Seller’s failure to achieve the Commercial Operation Date. Any such termination damages shall be determined in accordance with Article 9. By the tenth (10th) day following the end of the calendar month in which Delay Damages first become due and continuing by the tenth (10th) day of each calendar month during the period in which Delay Damages accrue (and the following months if applicable), Buyer shall deliver to Seller an invoice showing BuyerXxxxx’s computation of such damages and any amount due Buyer in respect thereof for the preceding calendar month. No later than ten (10) days after receiving such an invoice, Seller shall pay to Buyer, by wire transfer of immediately available funds to an account specified in writing by Buyer or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such invoice. If Seller fails to pay such amounts when due, Buyer may draw upon the Development Period Security for payment of such Delay Damages, and Buyer may exercise any other remedies available for Seller’s default hereunder.

Delay Damages. ‌ (a) If the Commercial Operation Date is not achieved by the date set forth therefor in Section 3.1(a) Guaranteed Commercial Operation Date (as extended pursuant to Section Sections 3.1(c)) -(d) and 10.1), Seller shall pay to Buyer damages for each month day from and after such date until in an amount equal to $376.80 per day, commencing on the Guaranteed Commercial Operation Date (as extended pursuant to Sections 3.1(c)-(d) and 10.1) and ending on the earlier of (i) the Commercial Operation Date at Date, (ii) the rate of $1.50 per kwh of Contract Maximum Amount up date that Buyer exercises its right to a maximum of terminate this Agreement under Section 9.3, or (iii) the date that is twelve (12) months of delay, pro rated for partial months after the Guaranteed Commercial Operation Date (“Delay Damages”). Delay Damages shall be due under this Section 3.2(a) without regard to whether Buyer exercises its right to terminate this Agreement pursuant to Section 9.3; provided, however, that if Buyer exercises its right to terminate this Agreement under Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing at the date of such termination. If the Facility has not achieved the Commercial Operation by the date set forth therefor in Section 3.1(a. (b) (as the same may be extended in accordance with Section 3.1(c)), for any reason, Seller shall have the right to terminate this Agreement at any time after that deadline date (as so extended) until either the Facility achieves the Commercial Operation Date or Buyer terminates this Agreement under Section 9.3 (regardless of whether or not Seller elected to continue to construct the Project). In the event Seller so terminates this Agreement, Seller shall be liable to Buyer on the date of such termination for (x) the entire amount of Delay Damages that would otherwise accrue (or have accrued) by such date plus (y) the undrawn amount of any Development Period Security provided to Buyer by Seller; provided, however, that if Seller terminates this Agreement on the deadline set forth for the Commercial Operation Date in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), Seller shall not be required to pay any Delay Damages hereunder but shall forfeit the Development Period Security. Subject to the foregoing sentence, neither Party shall have any liability to the other Party with respect to a termination of this Agreement by Seller under this Section 3.2(b). Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’s delay in achieving the Commercial Operation Date by the Guaranteed Commercial Operation Date would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore the Delay Damages and other damages as agreed to by the Parties and set forth herein are a fair and reasonable calculation of such damages. Notwithstanding the foregoing, this Article shall not limit the amount of damages payable to Buyer if this Agreement is terminated by Buyer as a result of Seller’s failure to achieve the Commercial Operation Date. Any such termination damages shall be determined in accordance with Article 9. . (c) By the tenth (10th) day following the end of the calendar month in which Delay Damages first become due and continuing by the tenth (10th) day of each calendar month during the period in which Delay Damages accrue (and the following months if applicable), Buyer shall deliver to Seller an invoice showing Buyer’s computation of such damages and any amount due Buyer in respect thereof for the preceding calendar month. No later than ten (10) days after receiving such an invoice, Seller shall pay to Buyer, by wire transfer of immediately available funds to an account specified in writing by Buyer or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such invoice. If Seller fails to pay such amounts when due, Buyer may draw upon the Development Period Security for payment of such Delay Damages, and Buyer may exercise any other remedies available for Seller’s default hereunder.

Delay Damages. (a) If the Commercial Operation Date is not achieved by the date set forth therefor therefore in Section 3.1(a) (as extended pursuant to Section 3.1(c)), Seller shall pay to Buyer damages for each month from and after such date until the Commercial Operation Date at the rate of $1.50 37,500 per kwh of Contract Maximum Amount month up to a maximum of twelve (12) months of delay, pro rated for partial months (“Delay Damages”). Delay Damages shall be due under this Section 3.2(a) without regard to whether Buyer exercises its right to terminate this Agreement pursuant to Section 9.3; provided, however, that if Buyer exercises its right to terminate this Agreement under Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing at the date of such termination. If the Facility has not achieved the Commercial Operation by the date set forth therefor in Section 3.1(a. (b) (as the same may be extended in accordance with Section 3.1(c)), for any reason, Seller shall have the right to terminate this Agreement at any time after that deadline date (as so extended) until either the Facility achieves the Commercial Operation Date or Buyer terminates this Agreement under Section 9.3 (regardless of whether or not Seller elected to continue to construct the Project). In the event Seller so terminates this Agreement, Seller shall be liable to Buyer on the date of such termination for (x) the entire amount of Delay Damages that would otherwise accrue (or have accrued) by such date plus (y) the undrawn amount of any Development Period Security provided to Buyer by Seller; provided, however, that if Seller terminates this Agreement on the deadline set forth for the Commercial Operation Date in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), Seller shall not be required to pay any Delay Damages hereunder but shall forfeit the Development Period Security. Subject to the foregoing sentence, neither Party shall have any liability to the other Party with respect to a termination of this Agreement by Seller under this Section 3.2(b). Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’s delay in achieving the Commercial Operation Date would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore the Delay Damages and other damages as agreed to by the Parties and set forth herein are a fair and reasonable calculation of such damages. Notwithstanding the foregoing, this Article shall not limit the amount of damages payable to Buyer if this Agreement is terminated by Buyer as a result of Seller’s failure to achieve the Commercial Operation Date. Any such termination damages shall be determined in accordance with Article 9. . (c) By the tenth (10th) day following the end of the calendar month in which Delay Damages first become due and continuing by the tenth (10th) day of each calendar month during the period in which Delay Damages accrue (and the following months if applicable), Buyer shall deliver to Seller an invoice showing Buyer’s computation of such damages and any amount due Buyer in respect thereof for the preceding calendar month. No later than ten (10) days after receiving such an invoice, Seller shall pay to Buyer, by wire transfer of immediately available funds to an account specified in writing by Buyer or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such invoice. If Seller fails to pay any such undisputed amounts when due, Buyer may draw upon the Development Period Security for payment of such Delay Damages, and Buyer may exercise any other remedies expressly available herein (as such remedies may be limited herein) for Seller’s default hereunder.

Delay Damages. (a) If the Commercial Operation Date is not achieved by the date set forth therefor in Section 3.1(a) Commercial Operation Date Deadline (as extended pursuant to Section 3.1(c)4.2), Seller shall pay to Buyer damages Delay Damages for each month from and after such date until the Commercial Operation Date at the rate of $1.50 per kwh of Contract Maximum Amount up to a maximum of twelve (12) months day of delay, pro rated for partial months (“Delay Damages”). Delay Damages shall be due under this Section 3.2(a) without regard to whether Buyer exercises its right to terminate this Agreement pursuant to Section 9.3; provided, . however, that if Buyer exercises its right to terminate this Agreement under Section 9.3Sections 11.2 and 11.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing at as of the effective date of such termination. If the Facility has not achieved the Commercial Operation by the date set forth therefor in Section 3.1(a. (b) (as the same may be extended in accordance with Section 3.1(c)), for any reason, Seller shall have the right to terminate this Agreement at any time after that deadline date (as so extended) until either the Facility achieves the Commercial Operation Date or Buyer terminates this Agreement under Section 9.3 (regardless of whether or not Seller elected to continue to construct the Project). In the event Seller so terminates this Agreement, Seller shall be liable to Buyer on the date of such termination for (x) the entire amount of Delay Damages that would otherwise accrue (or have accrued) by such date plus (y) the undrawn amount of any Development Period Security provided to Buyer by Seller; provided, however, that if Seller terminates this Agreement on the deadline set forth for the Commercial Operation Date in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), Seller shall not be required to pay any Delay Damages hereunder but shall forfeit the Development Period Security. Subject to the foregoing sentence, neither Party shall have any liability to the other Party with respect to a termination of this Agreement by Seller under this Section 3.2(b). Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’s 's delay in achieving or inability to achieve any Condition Precedent, the Completion Deadline and/or the Commercial Operation Date Deadline would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore the Extension Payments, the liquidated damages provided at the end of Section 4.2, the termination rights and damage calculations under Sections 5.3(c) and 9.3(a), and the Delay Damages and other damages all as agreed to by the Parties and as set forth herein are a fair and reasonable calculation of such damages. Notwithstanding the foregoing, this Article shall not limit the amount of damages payable to Buyer if this Agreement is terminated by Buyer as a result of Seller’s 's failure to achieve the Completion Deadline and/or Commercial Operation DateDate Deadline, or otherwise. Any such termination damages shall be determined in accordance with Article 9. Section 11.3. (c) By the tenth (10th) day following the end of the calendar month in which Delay Damages first become due and continuing by the tenth (10th) day of each calendar month during the period in which Delay Damages accrue (and the following months if applicable), Buyer shall deliver to Seller an invoice showing Buyer’s Xxxxx's computation of such damages and any amount due Buyer in respect thereof for the preceding calendar month. No later than ten (10) days da,ys after receiving such an invoice, Seller shall pay to Buyer, by wire transfer of immediately available funds to an account specified in writing by Buyer or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such invoice. If Seller fails to pay such amounts when due, Buyer may draw upon the any Development Period Security for payment of such Delay Damages, and Buyer Xxxxx may exercise any other remedies available for Seller’s 's default hereunder.

Delay Damages. (a) If the Commercial Operation Date is not achieved by the date set forth therefor in Section 3.1(a) Guaranteed Commercial Operation Date (as extended pursuant to Section Sections 3.1(c)) and 10.1), Seller shall pay to Buyer damages for each month day from and after such date until the Guaranteed Commercial Operation Date in an amount of $396 (which is equal to $100.00 per MWh per hour of the Contract Maximum Amount,), commencing on the Guaranteed Commercial Operation Date (as extended pursuant to Sections 3.1(c), 3.1(d), 3.1(e) and 10.1) and ending on the earlier of (i) the Commercial Operation Date at Date, (ii) the rate of $1.50 per kwh of Contract Maximum Amount up date that Buyer exercises its right to a maximum of terminate this Agreement under Section 9.3, or (iii) the date that is twelve (12) months of delay, pro rated for partial months after the Guaranteed Commercial Operation Date (“Delay Damages”). Delay Damages shall be due under this Section 3.2(a) without regard to whether Buyer exercises its right to terminate this Agreement pursuant to Section 9.3; provided, however, that if Buyer exercises its right to terminate this Agreement under Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing at the date of such termination. If Notwithstanding the Facility has not achieved foregoing, the Parties agree that if the Commercial Operation Date is not achieved by the date set forth therefor in Section 3.1(aGuaranteed Commercial Operation Date and, at least thirty (30) days prior to the Guaranteed Commercial Operation Date, Seller (x) provides certification acceptable to Buyer, from an Independent Engineer with supporting detail and information that demonstrates that the Commercial Operation Date is reasonably likely to occur on or prior to the one year anniversary of the Guaranteed Commercial Operation Date (as the same such date may be extended in accordance with extended), (y) has exercised its rights to extend all of the Critical Milestone Dates pursuant to Section 3.1(c)) the maximum number of times allowed pursuant to the terms of this Agreement, and (z) posts additional Credit Support in an amount equal to $144,540 (which is equal to twelve (12) months of Delay Damages), for any reason, Seller then Buyer shall have the right not exercise its rights to terminate this Agreement at any time after that deadline date (as so extendeddue to an Event of Default under Section 9.2(e) until either the Facility achieves date that is twelve (12) months after the Guaranteed Commercial Operation Date or Buyer terminates this Agreement under Section 9.3 (regardless of whether or not as long as Seller elected to continue to construct the Project). In the event Seller so terminates this Agreement, Seller shall be liable to Buyer on the date of such termination for (x) the entire amount of is paying Delay Damages that would otherwise accrue (or have accrued) by such date plus (y) the undrawn amount of any Development Period Security provided to Buyer by Seller; provided, however, that if Seller terminates this Agreement on the deadline set forth for the Commercial Operation Date in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), Seller shall not be required to pay any Delay Damages hereunder but shall forfeit the Development Period Security. Subject to the foregoing sentence, neither Party shall have any liability to the other Party with respect to a termination provision of this Agreement by Seller under this Section 3.2(b). 3.2. (b) Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’s delay in achieving the Commercial Operation Date by the Guaranteed Commercial Operation Date would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore the Delay Damages and other damages as agreed to by the Parties and set forth herein are a fair and reasonable calculation of such damages. Notwithstanding the foregoing, this Article shall not limit the amount of damages payable to Buyer if this Agreement is terminated by Buyer as a result of Seller’s failure to achieve the Commercial Operation Date. Any such termination damages shall be determined in accordance with Article 9. . (c) By the tenth (10th10thfifteenth (15th) day following the end of the calendar month in which Delay Damages first become due and continuing by the tenth (10th10thfifteenth (15th) day of each calendar month during the period in which Delay Damages accrue (and the following months if applicable), Buyer shall deliver to Seller an invoice showing Buyer’s computation of such damages and any amount due Buyer in respect thereof for the preceding calendar month. No later than ten (10) days after receiving such an invoice, Seller shall pay to Buyer, by wire transfer of immediately available funds to an account specified in writing by Buyer or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such invoice. If Seller fails to pay such amounts when due, Buyer may draw upon the Development Period Security for payment of such Delay Damages, and Buyer may exercise any other remedies available for Seller’s default hereunder.

Delay Damages. (a) If the Commercial Operation Date is not achieved by the date set forth therefor therefortherefore in Section 3.1(a) (as extended pursuant to Section 3.1(c)), Seller shall pay to Buyer damages for each month from and after such date until the Commercial Operation Date at the rate of $[ ] per month [$1.50 per kwh of Contract Maximum Amount if the Facility has an expected capacity factor of 50% or more; $1.00 per kwh of Contract Maximum Amount if the Facility has an expected capacity factor more than 20% but less than 50%; and $0.50 per kwh of Contract Maximum Amount if the Facility has an expected capacity factor of 20% or less]37,500 per month up to a maximum of twelve (12) months of delay, pro rated for partial months (“Delay Damages”). Delay Damages shall be due under this Section 3.2(a) without regard to whether Buyer exercises its right to terminate this Agreement pursuant to Section 9.3; provided, however, that if Buyer exercises its right to terminate this Agreement under Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing at the date of such termination. If the Facility has not achieved the Commercial Operation by the date set forth therefor in Section 3.1(a. (b) (as the same may be extended in accordance with Section 3.1(c)), for any reason, Seller shall have the right to terminate this Agreement at any time after that deadline date (as so extended) until either the Facility achieves the Commercial Operation Date or Buyer terminates this Agreement under Section 9.3 (regardless of whether or not Seller elected to continue to construct the Project). In the event Seller so terminates this Agreement, Seller shall be liable to Buyer on the date of such termination for (x) the entire amount of Delay Damages that would otherwise accrue (or have accrued) by such date plus (y) the undrawn amount of any Development Period Security provided to Buyer by Seller; provided, however, that if Seller terminates this Agreement on the deadline set forth for the Commercial Operation Date in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), Seller shall not be required to pay any Delay Damages hereunder but shall forfeit the Development Period Security. Subject to the foregoing sentence, neither Party shall have any liability to the other Party with respect to a termination of this Agreement by Seller under this Section 3.2(b). Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’s delay in achieving the Commercial Operation Date would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore the Delay Damages and other damages as agreed to by the Parties and set forth herein are a fair and reasonable calculation of such damages. Notwithstanding the foregoing, this Article shall not limit the amount of damages payable to Buyer if this Agreement is terminated by Buyer as a result of Seller’s failure to achieve the Commercial Operation Date. Any such termination damages shall be determined in accordance with Article 9. . (c) By the tenth (10th) day following the end of the calendar month in which Delay Damages first become due and continuing by the tenth (10th) day of each calendar month during the period in which Delay Damages accrue (and the following months if applicable), Buyer shall deliver to Seller an invoice showing Buyer’s computation of such damages and any amount due Buyer in respect thereof for the preceding calendar month. No later than ten (10) days after receiving such an invoice, Seller shall pay to Buyer, by wire transfer of immediately available funds to an account specified in writing by Buyer or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such invoice. If Seller fails to pay any such undisputed amounts when due, Buyer may draw upon the Development Period Security for payment of such Delay Damages, and Buyer may exercise any other remedies expressly available herein (as such remedies may be limited herein) for Seller’s default hereunder.

Delay Damages. (a) If the Commercial Operation Date is not achieved by the date set forth therefor in Section 3.1(a) Guaranteed Commercial Operation Date (as extended pursuant to Section Sections 3.1(c), 3.1(d), 3.1(e), 3.1(f) and 10.1), Seller shall pay to Buyer damages for each month day from and after such date until the Guaranteed Commercial Operation Date in an amount equal to (which is per MWh per hour of Contract Maximum Amount), commencing on the Guaranteed Commercial Operation Date (as extended pursuant to Sections 3.1(c), 3.1(d), 3.1(e), 3.1(f) and 10.1) and ending on the earlier of (i) the Commercial Operation Date, (ii) the date that Buyer exercises its right to terminate this Agreement under Section 9.3, or (iii) the date that is after the Guaranteed Commercial Operation Date at the rate of $1.50 per kwh of Contract Maximum Amount up to a maximum of twelve (12) months of delay, pro rated for partial months (“Delay DamagesDamages ”). Delay Damages shall be due under this Section 3.2(a) without regard to whether Buyer exercises its right to terminate this Agreement pursuant to Section 9.3; provided, however, that if Buyer exercises its right to terminate this Agreement under Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing at the date of such termination. If Notwithstanding anything in this Section 3.2(a) or Section 9.2(e) to the Facility has not achieved contrary, the Parties agree that, if the Commercial Operation Date is not achieved by the Guaranteed Commercial Operation Date and, at any time prior to the date set forth therefor in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), for any reason, Seller shall have the on which Buyer exercises its right to terminate this Agreement at any time after under Section 9.3, Seller (x) provides an Independent Engineer’s certification, in form and substance reasonably acceptable to Buyer and with reasonable supporting detail and information, stating that deadline date (as so extended) until either the Facility achieves the Commercial Operation Date is reasonably likely to occur on or Buyer terminates this Agreement under Section 9.3 (regardless of whether or not Seller elected prior to continue to construct the Project). In the event Seller so terminates this Agreement, Seller shall be liable to Buyer on the date of such termination for that is after the Guaranteed Commercial Operation Date (x) the entire amount of Delay Damages that would otherwise accrue (or have accrued) by as such date plus may be extended), (y) has exercised its rights to extend the undrawn amount Critical Milestone dates the maximum number of any times allowed pursuant to Section 3.1(c), and (z) posts additional Development Period Security provided in the amount of (which is equal to days of Delay Damages), then Buyer by Seller; provided, however, that if Seller terminates shall not have any right to terminate this Agreement on because of an Event of Default under Section 9.2(e) until the deadline set forth for date that is after the Guaranteed Commercial Operation Date in Section 3.1(a) (as the same may be extended provided that Seller is paying Delay Damages in accordance with the provision of this Section 3.1(c3.2(a)), Seller shall not be required to pay any Delay Damages hereunder but shall forfeit the Development Period Security. Subject to the foregoing sentence, neither Party shall have any liability to the other Party with respect to a termination of this Agreement by Seller under this Section 3.2(b). . (b) Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’s delay in achieving the Commercial Operation Date by the Guaranteed Commercial Operation Date would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore the Delay Damages and other damages as agreed to by the Parties and set forth herein are a fair and reasonable calculation of such damages. Notwithstanding the foregoing, this Article shall not limit the amount of damages payable to Buyer if this Agreement is terminated by Buyer as a result of Seller’s failure to achieve the Commercial Operation Date. Any such termination damages shall be determined in accordance with Article 9. . (c) By the tenth fifteenth (10th15th) day following the end of the calendar month in which Delay Damages first become due and continuing by the tenth fifteenth (10th15th) day of each calendar month during the period in which Delay Damages accrue (and the following months if applicable), Buyer shall deliver to Seller an invoice showing Buyer’s computation of such damages and any amount due to Buyer in respect thereof for the preceding calendar month. No later than ten (10) days after receiving such an invoice, Seller shall pay to Buyer, by wire transfer of immediately available funds to an account specified in writing by Buyer or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such invoice. If Seller fails to pay such amounts when due, Buyer may draw upon the Development Period Security for payment of such Delay Damages, and Buyer may exercise any other remedies available for Seller’s default hereunder.

Delay Damages. If the Commercial Operation Date is not achieved by the date set forth therefor in Section 3.1(a) Guaranteed Commercial Operation Date (as extended pursuant to Section Sections 3.1(c)) and 10.1), Seller shall pay to Buyer damages for each month from and after such date until in an amount equal to $100.00 per MWh of Contract Maximum Amount, prorated for partial months, commencing on the Guaranteed Commercial Operation Date (as extended pursuant to Sections 3.1(c) and 10.1) and ending on the earlier of (i) the Commercial Operation Date at Date, (ii) the rate of $1.50 per kwh of Contract Maximum Amount up date that Buyer exercises its right to a maximum of terminate this Agreement under Section 9.3, or (iii) the date that is twelve (12) months of delay, pro rated for partial months after the Guaranteed Commercial Operation Date (“Delay Damages”). Delay Damages shall be due under this Section 3.2(a) without regard to whether Buyer exercises its right to terminate this Agreement pursuant to Section 9.3; provided, however, that if Buyer exercises its right to terminate this Agreement under Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing at the date of such termination. If the Facility has not achieved the Commercial Operation by the date set forth therefor in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), for any reason, Seller shall have the right to terminate this Agreement at any time after that deadline date (as so extended) until either the Facility achieves the Commercial Operation Date or Buyer terminates this Agreement under Section 9.3 (regardless of whether or not Seller elected to continue to construct the Project). In the event Seller so terminates this Agreement, Seller shall be liable to Buyer on the date of such termination for (x) the entire amount of Delay Damages that would otherwise accrue (or have accrued) by such date plus (y) the undrawn amount of any Development Period Security provided to Buyer by Seller; provided, however, that if Seller terminates this Agreement on the deadline set forth for the Commercial Operation Date in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), Seller shall not be required to pay any Delay Damages hereunder but shall forfeit the Development Period Security. Subject to the foregoing sentence, neither Party shall have any liability to the other Party with respect to a termination of this Agreement by Seller under this Section 3.2(b). Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’s delay in achieving the Commercial Operation Date by the Guaranteed Commercial Operation Date would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore the Delay Damages and other damages as agreed to by the Parties and set forth herein are a fair and reasonable calculation of such damages. Notwithstanding the foregoing, this Article shall not limit the amount of damages payable to Buyer if this Agreement is terminated by Buyer as a result of Seller’s failure to achieve the Commercial Operation Date. Any such termination damages shall be determined in accordance with Article 9. By the tenth (10th) day following the end of the calendar month in which Delay Damages first become due and continuing by the tenth (10th) day of each calendar month during the period in which Delay Damages accrue (and the following months if applicable), Buyer shall deliver to Seller an invoice showing Buyer’s computation of such damages and any amount due Buyer in respect thereof for the preceding calendar month. No later than ten (10) days after receiving such an invoice, Seller shall pay to Buyer, by wire transfer of immediately available funds to an account specified in writing by Buyer or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such invoice. If Seller fails to pay such amounts when due, Buyer may draw upon the Development Period Security for payment of such Delay Damages, and Buyer may exercise any other remedies available for Seller’s default hereunder.

Delay Damages. (a) If the Commercial Operation Date is not achieved by the date set forth therefor in Section 3.1(a) Guaranteed Commercial Operation Date (as extended pursuant to Section Sections 3.1(c)) -(d) and 10.1), Seller shall pay to Buyer damages for each month day from and after such date until in an amount equal to $376.80 per day, commencing on the Guaranteed Commercial Operation Date (as extended pursuant to Sections 3.1(c)-(d) and 10.1) and ending on the earlier of (i) the Commercial Operation Date at Date, (ii) the rate of $1.50 per kwh of Contract Maximum Amount up date that Buyer exercises its right to a maximum of terminate this Agreement under Section 9.3, or (iii) the date that is twelve (12) months of delay, pro rated for partial months after the Guaranteed Commercial Operation Date (“Delay Damages”). Delay Damages shall be due under this Section 3.2(a) without regard to whether Buyer exercises its right to terminate this Agreement pursuant to Section 9.3; provided, however, that if Buyer exercises its right to terminate this Agreement under Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing at the date of such termination. If the Facility has not achieved the Commercial Operation by the date set forth therefor in Section 3.1(a. (b) (as the same may be extended in accordance with Section 3.1(c)), for any reason, Seller shall have the right to terminate this Agreement at any time after that deadline date (as so extended) until either the Facility achieves the Commercial Operation Date or Buyer terminates this Agreement under Section 9.3 (regardless of whether or not Seller elected to continue to construct the Project). In the event Seller so terminates this Agreement, Seller shall be liable to Buyer on the date of such termination for (x) the entire amount of Delay Damages that would otherwise accrue (or have accrued) by such date plus (y) the undrawn amount of any Development Period Security provided to Buyer by Seller; provided, however, that if Seller terminates this Agreement on the deadline set forth for the Commercial Operation Date in Section 3.1(a) (as the same may be extended in accordance with Section 3.1(c)), Seller shall not be required to pay any Delay Damages hereunder but shall forfeit the Development Period Security. Subject to the foregoing sentence, neither Party shall have any liability to the other Party with respect to a termination of this Agreement by Seller under this Section 3.2(b). Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’s delay in achieving the Commercial Operation Date by the Guaranteed Commercial Operation Date would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore the Delay Damages and other damages as agreed to by the Parties and set forth herein are a fair and reasonable calculation of such damages. Notwithstanding the foregoing, this Article shall not limit the amount of damages payable to Buyer if this Agreement is terminated by Buyer as a result of Seller’s failure to achieve the Commercial Operation Date. Any such termination damages shall be determined in accordance with Article 9. . (c) By the tenth (10th) day following the end of the calendar month in which Delay Damages first become due and continuing by the tenth (10th) day of each calendar month during the period in which Delay Damages accrue (and the following months if applicable), Buyer shall deliver to Seller an invoice showing Buyer’s computation of such damages and any amount due Buyer in respect thereof for the preceding calendar month. No later than ten (10) days after receiving such an invoice, Seller shall pay to Buyer, by wire transfer of immediately available funds to an account specified in writing by Buyer or by any other means agreed to by the Parties in writing from time to time, the amount set forth as due in such invoice. If Seller fails to pay such amounts when due, Buyer may draw upon the Development Period Security for payment of such Delay Damages, and Buyer may exercise any other remedies available for Seller’s default hereunder.