Common use of Delay Damages Clause in Contracts

Delay Damages. (a) If the Commercial Operation Date is not achieved by the Commercial Operation Date Deadline, Seller shall pay to Buyer Delay Damages for each day after the Commercial Operation Date Deadline until the Facility achieves Commercial Operation as liquidated damages for such delay; provided, however, that if Buyer exercises its right to terminate this Agreement under Sections 11.2 and 11.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing as of the effective date of such termination. (b) Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’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 all as agreed to by the Parties as set ELECTRONICALLY FILED - 2021 June 7 6:26 PM - SCPSC - Docket # 2021-88-E - Page 22 of 150 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 as a result of Seller’s failure to achieve the Completion Deadline and/or Commercial Operation Date Deadline, or otherwise. Any such termination damages shall be determined in accordance with 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 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 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 any Development Period Credit Support for payment of such Delay Damages, and Xxxxx may exercise any other remedies available for Seller’s default hereunder.

Delay Damages. (a) If the Commercial Operation Date is not achieved by the Commercial Operation Date Deadline, Seller shall pay to Buyer Delay Damages for each day after the Commercial Operation Date Deadline until the Facility achieves Commercial Operation as liquidated ELECTRONICALLY FILED - 2021 June 7 6:26 PM - SCPSC - Docket # 2021-88-E - Page 95 of 150 Effective On, During, and After the First Billing Cycle of January 2020 Pursuant to Public Service Commission of South Carolina Order No. 2019-847 damages for such delay; provided, however, that if Buyer exercises its right to terminate this Agreement under Sections 11.2 and 11.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing as of the effective date of such termination. (b) Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’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 all as agreed to by the Parties as set ELECTRONICALLY FILED - 2021 June 7 6:26 PM - SCPSC - Docket # 2021-88-E - Page 22 of 150 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 as a result of Seller’s failure to achieve the Completion Deadline and/or Commercial Operation Date Deadline, or otherwise. Any such termination damages shall be determined in accordance with 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 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 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 any Development Period Credit Support for payment of such Delay Damages, and Xxxxx may exercise any other remedies available for Seller’s default hereunder.

Delay Damages. (a) If the Commercial Operation Date is not achieved by the Commercial Operation Date Deadline, Seller shall pay to Buyer Delay Damages for each day after the Commercial Operation Date Deadline until the Facility achieves Commercial Operation as liquidated damages for such delay; provided, however, that if Buyer exercises its right to terminate this Agreement under Sections 11.2 and 11.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing as of the effective date of such termination. (b) Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’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 all as agreed to by the Parties as set ELECTRONICALLY FILED - 2021 June 7 6:26 PM - SCPSC - Docket # 2021-88-E - Page 22 of 150 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 as a result of Seller’s failure to achieve the Completion Deadline and/or Commercial Operation Date Deadline, or otherwise. Any such termination damages shall be determined in accordance with 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 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 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 Xxxxx 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 any Development Period Credit Support for payment of such Delay Damages, and Xxxxx may exercise any other remedies available for Seller’s default hereunder.

Delay Damages. 8.1. If for any reason other than Force Majeure and reasons attributable to BUYER, a Lot of Cells is Delivered after the Guaranteed Delivery Date thereof (aa “Late Delivery”), then for each week (or part thereof) If of delay after the Commercial Operation Date is not achieved by the Commercial Operation Date DeadlineGuaranteed Delivery Date, Seller Supplier shall pay to Buyer Delay Damages for each day after the Commercial Operation Date Deadline until the Facility achieves Commercial Operation as BUYER liquidated damages for such (“Delay Damages”) at the rate of one half percent (0.5%) of the value of the delayed delivery (computed basis Purchase Order price), per week (or part thereof) of delay; provided, however, that Delay Damages payable hereunder shall not exceed twenty percent (20%) of the Purchase Order price (“Liquidated Damages Cap”) of delayed delivery. The Parties agree that the Delay Damages described in this Article 8.1 are fair and reasonable in light of the anticipated harm that would ensue from a delay in Delivery of the Cells, the difficulties in proving the loss and ascertaining the amount of loss to the aggrieved party, the limitation on liability herein and the inconvenience or non-feasibility of otherwise obtaining an adequate remedy. The Parties further acknowledge and agree that such liquidated damages are a genuine and reasonable pre-estimate of and reasonable compensation for the Losses and damages that will be suffered by BUYER in the event of any delay in the supply of the Cells and Supplier irrevocably undertakes that it will not, whether by legal proceedings or otherwise, contend that the amount of the liquidated damages are not reasonable. 8.2. Each Delivery of a Cells that is required to replace a Rejected Cells (“Replacement Cells”) shall be considered a Late Delivery, if Buyer exercises its right Supplier is unable to terminate this Agreement under Sections 11.2 Deliver such Cells within the Guaranteed Replacement Delivery Period and 11.3shall be subject to payment of delay liquidated damages (“Replacement Delay Damages”) by Supplier, which shall accrue from the day after the Guaranteed Replacement Delivery Period ends until the actual Delivery of the Replacement Cells at BUYER’s Site. Replacement Delay Damages shall be due payable at the rate of one half percent (0.5%) of the aggregate value of the Replacement Cells, whose Delivery is delayed beyond the Guaranteed Replacement Delivery Period, per week (or part thereof) of delay; provided, however, that the delay liquidated damages payable hereunder shall not exceed Twenty percent (20%) of the of the aggregate Price of the Replacement Cells (“Replacement Delay Damages Cap”) whose Delivery is delayed beyond the Guaranteed Replacement Delivery Period. The Parties agree that the Replacement Delay Damages are fair and owing reasonable in light of the anticipated harm that would ensue from a delay in Delivery of the Cells, the difficulties in proving the loss and ascertaining the amount of loss to the extent aggrieved Party, the limitation on liability herein and non-feasibility of otherwise obtaining an adequate remedy. The Parties further acknowledge and agree that Replacement Delay Damages are a genuine pre-estimate of loss and are not a penalty. 8.3. Each Delivery of Replacement Cells, shall be considered a Late Delivery, if Supplier is unable to Deliver such Cells on or prior to the Guaranteed Replacement Delivery Period for the Replacement Cells or the Guaranteed Delivery Date for the Shortfall Cells, as the case may be, and subject to Delay Damages, which (i) shall accrue from the Guaranteed Replacement Delivery Period for Replacement Cells, or the Guaranteed Delivery Date for Shortfall Cells,, as the case may be, until the actual Delivery of such Replacement Cells, or Shortfall Cells,; and (ii) shall be payable at the rate of one half percent (0.5%) of the aggregate Price of the Replacement Cells, or Shortfall Cells,, as the case may be, per week (or part thereof) of delay (prorated for delays of less than one week); provided, however, that Delay Damages payable hereunder shall not exceed ten percent (10%) of the aggregate Price of the Replacement Cells or Shortfall Cells, as the case may be. The Parties agree that the liquidated damages described in this Article 8.3 are fair and reasonable in light of the anticipated harm that would ensue from a delay in Delivery of the Cells, the difficulties in proving the loss and ascertaining the amount of loss to the aggrieved party, the limitation on liability herein and the inconvenience or non-feasibility of otherwise obtaining an adequate remedy. The Parties further acknowledge and agree that such Delay Damages were due liquidated damages are a genuine and owing as reasonable pre-estimate of and reasonable compensation for the Losses and damages that will be suffered by BUYER in the event of any delay in the supply of the effective date Replacement Cells, and/or Shortfall Cells, and Supplier irrevocably undertakes that it will not, whether by legal proceedings or otherwise, contend that the amount of the liquidated damages are not reasonable. 8.4. Cost pertaining to replacement would be in the scope of supplier such as transportation ,freight and applicable America custom duty . 8.5. Alternatively, in case a Lot of Cells will get delayed at the Designated Delivery Point, for more than 7 working days for any reason whatsoever other than Force Majeure and reasons attributable to BUYER, and Supplier fails to deliver the Cells by the Guaranteed Delivery Date for more than 7 working days , then without prejudice to any other right or relief available to BUYER under the Contract, BUYER shall be entitled to procure the required Cells from a third party. In the event the price of such termination. (b) Each Party agrees and acknowledges that Cells procured from a third-party is higher than the respective Purchase Order Price, Supplier shall pay to BUYER the difference between: (i) the damages that Buyer would incur due price paid by BUYER to Seller’s delay in achieving or inability to achieve any Condition Precedent, procure the Completion Deadline and/or Cells from a third party and the Commercial Operation Date Deadline would be difficult or impossible to predict with certainty, Contract Price; and (ii) it refund respective Purchase Order Price, within 30 (thirty) days from Supplier’s receipt of invoice for payment from BUYER. BUYER shall also be entitled to terminate the Contract unilaterally with immediate effect at its sole discretion. 8.6. In the event delay in delivery is impractical caused due to acts and difficult to assess actual damages in omission of the circumstances statedPurchaser, and therefore then 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)Delivery Date shall be postponed accordingly, and the Delay Damages all as agreed to by the Parties as set ELECTRONICALLY FILED - 2021 June 7 6:26 PM - SCPSC - Docket # 2021-88-E - Page 22 of 150 forth herein are a fair and reasonable calculation of such damages. Notwithstanding the foregoing, this Article Supplier shall not limit the amount be held liable for such delay and shall not be liable to pay Delivery Delay Liquidated Xxxxxxxx.Xx case of damages payable to Buyer if this Agreement is terminated as a result non- payment or delay in payment of Seller’s failure to achieve the Completion Deadline and/or Commercial Operation Date Deadline, any invoice or otherwise. Any such termination damages shall be determined in accordance with 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 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 after receiving such an invoicedue, including non-issuance of L/C or delayed issuance of L/C under this agreement by BUYER , Seller shall pay amongst its legal remedies have the right to Buyerrecover late payment charges or late issuance of L/C against the due amount, at the rate of 9 % per annum or maximum rate permitted by wire transfer applicable laws, whichever is higher from the due date till the actual date of immediately available funds payment or Issuance of L/C. 8.7. BUYER has the right to an account specified in writing periodically raise the debit notes which shall be confirmed by Buyer supplier for any delivery failures 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 any Development Period Credit Support for payment of such Delay Damagesrejected cells, and Xxxxx may exercise any other remedies available these will be adjusted from the invoice for Seller’s default hereunderthe following month.

Delay Damages. (a) If the Commercial Operation Date is not achieved by the Commercial Operation Date Deadline, Seller shall pay to Buyer Delay Damages for each day after the Commercial Operation Date Deadline until the Facility achieves Commercial Operation as liquidated damages for such delayOperation; provided, . however, . that if Buyer exercises its right to terminate this Agreement under Sections 11.2 and 11.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing as of the effective date of such termination. (b) Each Party agrees and acknowledges that (i) the damages that Buyer Xxxxx 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 all as agreed to by the Parties as set ELECTRONICALLY FILED - 2021 June 7 6:26 PM - SCPSC - Docket # 2021-88-E - Page 22 of 150 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 as a result of Seller’s 's failure to achieve the Completion Deadline and/or andjor Commercial Operation Date Deadline, or otherwise. Any such termination damages shall be determined in accordance with 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 Xxxxx’s '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 any Development Period Credit Support for payment of such Delay Damages, and 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 Commercial Operation Date Deadline, Seller shall pay to Buyer Delay Damages for each day after the Commercial Operation Date Deadline until the Facility achieves Commercial Operation as liquidated damages for such delay; provided, however, that if Buyer exercises its right to terminate this Agreement under Sections 11.2 and 11.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing as of the effective date of such termination. (b) Each Party agrees and acknowledges that (i) the damages that Buyer Xxxxx would incur due to Seller’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 ELECTRONICALLY FILED - 2019 September 20 5:06 PM - SCPSC - Docket # 2019-184-E - Page 21 of 66 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 all as agreed to by the Parties as set ELECTRONICALLY FILED - 2021 June 7 6:26 PM - SCPSC - Docket # 2021-88-E - Page 22 of 150 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 as a result of Seller’s failure to achieve the Completion Deadline and/or Commercial Operation Date Deadline, or otherwise. Any such termination damages shall be determined in accordance with 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 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 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 any Development Period Credit Support for payment of such Delay Damages, and Xxxxx may exercise any other remedies available for Seller’s default hereunder.

Delay Damages. (a) ‌ If the Commercial Operation Date is not achieved by the Guaranteed Commercial Operation Date Deadline(as extended pursuant to Sections 3.1(c) and 10.1), Seller shall pay to Buyer Delay Damages damages for each day from and after such date in an amount equal to 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 Deadline until Date, (ii) the Facility achieves date that Buyer exercises its right to terminate this Agreement under Section 9.3, or (iii) the date that is twelve (12) months after the Guaranteed Commercial Operation as liquidated damages for such delayDate (“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 Sections 11.2 and 11.3Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing as of at the effective date of such termination. (b) . Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’s delay in achieving or inability to achieve any Condition Precedent, the Completion Deadline and/or the Commercial Operation Date Deadline 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 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 all as agreed to by the Parties as and set ELECTRONICALLY FILED - 2021 June 7 6:26 PM - SCPSC - Docket # 2021-88-E - Page 22 of 150 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 as a result of Seller’s failure to achieve the Completion Deadline and/or Commercial Operation Date Deadline, or otherwiseDate. Any such termination damages shall be determined in accordance with Section 11.3. (c) 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 XxxxxBuyer’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 any the Development Period Credit Support Security for payment of such Delay Damages, and Xxxxx 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 Guaranteed Commercial Operation Date Deadline(as extended pursuant to Sections 3.1(c) and 10.1), Seller shall pay to Buyer Delay Damages damages for each day from and after such date in an amount equal to $940, 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 Deadline until Date, (ii) the Facility achieves date that Buyer exercises its right to terminate this Agreement under Section 9.3, or (iii) the date that is twelve (12) months after the Guaranteed Commercial Operation as liquidated damages for such delayDate (“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 Sections 11.2 and 11.3Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing as of at the effective date of such termination. (b) Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’s delay in achieving or inability to achieve any Condition Precedent, the Completion Deadline and/or the Commercial Operation Date Deadline 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 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 all as agreed to by the Parties as and set ELECTRONICALLY FILED - 2021 June 7 6:26 PM - SCPSC - Docket # 2021-88-E - Page 22 of 150 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 as a result of Seller’s failure to achieve the Completion Deadline and/or Commercial Operation Date Deadline, or otherwiseDate. Any such termination damages shall be determined in accordance with Section 11.3Article 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 XxxxxBuyer’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 any the Development Period Credit Support Security for payment of such Delay Damages, and Xxxxx 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 Guaranteed Commercial Operation Date Deadline(as extended pursuant to Sections 3.1(c) and 10.1), Seller shall pay to Buyer Delay Damages damages for each day from and after such date in an amount equal to $887, 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 Deadline until Date, (ii) the Facility achieves date that Buyer exercises its right to terminate this Agreement under Section 9.3, or (iii) the date that is twelve (12) months after the Guaranteed Commercial Operation as liquidated damages for such delayDate (“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 Sections 11.2 and 11.3Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing as of at the effective date of such termination. (b) Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’s delay in achieving or inability to achieve any Condition Precedent, the Completion Deadline and/or the Commercial Operation Date Deadline 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 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 all as agreed to by the Parties as and set ELECTRONICALLY FILED - 2021 June 7 6:26 PM - SCPSC - Docket # 2021-88-E - Page 22 of 150 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 as a result of Seller’s failure to achieve the Completion Deadline and/or Commercial Operation Date Deadline, or otherwiseDate. Any such termination damages shall be determined in accordance with Section 11.3Article 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 XxxxxBuyer’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 any the Development Period Credit Support Security for payment of such Delay Damages, and Xxxxx 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 Commercial Operation Date Deadlinedate set forth therefor in Section 3.1(a) (as extended pursuant to Section 3.1(c)), Seller shall pay to Buyer Delay Damages damages for each day month from and after such date until the Commercial Operation Date Deadline until at the Facility achieves Commercial Operation as liquidated damages rate of $[ ] per month [$0.50 per kwh of Contract Maximum Amount] up to a maximum of twelve (12) months of delay, pro rated for such delaypartial 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 Sections 11.2 and 11.3Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing as of at the effective date of such termination. (b) Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’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 all as agreed to by the Parties as and set ELECTRONICALLY FILED - 2021 June 7 6:26 PM - SCPSC - Docket # 2021-88-E - Page 22 of 150 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 as a result of Seller’s failure to achieve the Completion Deadline and/or Commercial Operation Date Deadline, or otherwiseDate. Any such termination damages shall be determined in accordance with Section 11.3Article 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 XxxxxBuyer’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 any the Development Period Credit Support Security for payment of such Delay Damages, and Xxxxx 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 Commercial Operation Date Deadlinedate set forth therefore in Section 3.1(a) (as extended pursuant to Section 3.1(c)), Seller shall pay to Buyer Delay Damages damages for each day month from and after such date until the Commercial Operation Date Deadline until at the Facility achieves Commercial Operation as liquidated damages rate of $[___] per month [$0.50 per kwh of Contract Maximum] up to a maximum of twelve (12) months of delay, pro rated for such delaypartial 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 Sections 11.2 and 11.3Section 9.3, Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing as of at the effective date of such termination. (b) . Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’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 all as agreed to by the Parties as and set ELECTRONICALLY FILED - 2021 June 7 6:26 PM - SCPSC - Docket # 2021-88-E - Page 22 of 150 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 as a result of Seller’s failure to achieve the Completion Deadline and/or Commercial Operation Date Deadline, or otherwiseDate. Any such termination damages shall be determined in accordance with Section 11.3. (c) 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 XxxxxBuyer’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 any the Development Period Credit Support Security for payment of such Delay Damages, and Xxxxx 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 Guaranteed Commercial Operation Date Deadline(as extended pursuant to Sections 3.1(c) and 10.1), Seller shall pay to Buyer Delay Damages for each day after damages in an amount equal to $100.00 per MW of Buyer’s Percentage Entitlement of the nameplate capacity of the Facility, as set forth in Exhibit A, per day, commencing on the Guaranteed Commercial Operation Date and ending on the earlier of (i) the Commercial Operation Date Deadline until Date, (ii) the Facility achieves Commercial Operation as liquidated damages for such delay; provided, however, date that if Buyer exercises its right to terminate this Agreement under Sections 11.2 and 11.3Section 9.3, or (iii) the date that is twelve (12) months after the Guaranteed Commercial Operation Date (“Delay Damages shall be due and owing to the extent that such Delay Damages were due and owing as of the effective date of such terminationDamages”). (b) Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to Seller’s delay in achieving or inability to achieve any Condition Precedent, the Completion Deadline and/or the Commercial Operation Date Deadline 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 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 all as agreed to by the Parties as and set ELECTRONICALLY FILED - 2021 June 7 6:26 PM - SCPSC - Docket # 2021-88-E - Page 22 of 150 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 as a result of Seller’s failure to achieve the Completion Deadline and/or Commercial Operation Date Deadline, or otherwiseDate. Any such termination damages shall be determined in accordance with Section 11.3Article 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 XxxxxBuyer’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 any the Development Period Credit Support Security for payment of such Delay Damages, and Xxxxx Buyer may exercise any other remedies available for Seller’s default hereunder.