Common use of Delay Liquidated Damages Clause in Contracts

Delay Liquidated Damages. The Parties agree that it would be extremely difficult and impracticable under presently known and anticipated facts and circumstances to ascertain and fix the actual damages Owners would incur if a Unit does not achieve Substantial Completion by the Guaranteed Substantial Completion Date for such Unit and, accordingly, if a Unit does not achieve Substantial Completion by such Unit’s Guaranteed Substantial Completion Date, as such date may be extended pursuant to this Agreement, Owners’ remedy for such delay shall be to recover from Contractor as liquidated damages, and not as a penalty, liquidated damages (“Delay Liquidated Damages”) as follows: [***] The amount of proceeds to which Owners are entitled on a daily basis pursuant to the delay in start-up insurance coverage (following the deductible period thereunder) shall, if procured pursuant to Section 16.3, reduce the Delay Liquidated Damages due from Contractor for each Day for which such insurance is payable; provided that in the event the daily amount of such insurance proceeds exceed the daily Delay Liquidated Damages, Contractor shall have no claim to such excess. Beginning with the date that [***]. In no event shall the total Delay Liquidated Damages for the failure to achieve Substantial Completion of a Unit on or prior to the Guaranteed Substantial Completion Date for such Unit exceed in the aggregate an amount equal to [***]. Payment of the Delay Liquidated Damages shall be Owners’ sole and exclusive remedy for Contractor’s failure to achieve Substantial Completion of a Unit on or before the Guaranteed Substantial Completion Date for such Unit; however, Delay Liquidated Damages are intended only to cover damages suffered by Owners as a result of delay and shall not affect the right of Owners to terminate the Agreement pursuant to Article 22 or their remedies provided for in Article 22 as a result of such termination.

Delay Liquidated Damages. The Parties agree that it would be extremely difficult If Seller (1) fails to deliver the engineering/document deliverables on the dates set forth in Attachment A and impracticable under presently known Attachment D, as applicable, and anticipated facts and circumstances in the manner this Agreement specifies, (2) fails to ascertain and fix deliver the actual damages Owners would incur if a Unit does not achieve Substantial Completion by material/equipment deliverables on the dates set forth in Attachment D, or (3) Contractor fails to meet the Guaranteed Substantial Completion Date for such Unit anddue to Seller (including its subcontractors and suppliers), accordinglyContractor and Seller agree Contractor would be damaged. As it would be almost impossible to ascertain the actual damages precisely due to the failures described in the prior sentence, Seller agrees to pay delay liquidated damages in the amounts listed in Attachment E (which shall not be construed to limit Seller’s other obligations or liabilities under this Agreement). Contractor and Seller agree any and all sums payable under this Section 26(a)(i) and Attachment E are in the nature of liquidated damages and not a penalty. Performance Guarantee Liquidated Damages. [NOTE: include performance guarantee(s), if a Unit does not achieve Substantial Completion by such Unit’s Guaranteed Substantial Completion Dateapplicable. Should performance guarantee(s) be included, as such date may performance guarantee liquidated damages need to be extended pursuant to this Agreementadded, Owners’ remedy unless the obligation(s) for such delay shall be to recover from Contractor as performance guarantee(s) is (are) “make good” (see (iii) below for “make good” performance guarantees). For performance guarantees with liquidated damages, state the following, “If Seller fails to meet (list out the specific performance guarantee(s)), Contractor and Seller agree Contractor would be damaged. As it would be almost impossible to ascertain the actual damages precisely due to the (insert “failure” or “failures” depending on whether one performance guarantee or multiple performance guarantees are tied to liquidated damages) described in the prior sentence, Seller agrees to pay performance guarantee liquidated damages in the amounts listed in Attachment E (which shall not be construed to limit Seller’s other obligations or liabilities under this Agreement). Contractor and Seller agree any and all sums payable under this Section 26(a)(ii) and Attachment E are in the nature of liquidated damages and not as a penalty, liquidated damages (“Delay Liquidated Damages.”) as follows] Performance Guarantee Make Good Obligations. [NOTE: [***] The amount of proceeds to which Owners are entitled on a daily basis pursuant to the delay in start-up insurance coverage (following the deductible period thereunder) shallinclude performance guarantee(s), if procured pursuant applicable. For performance guarantees with “make good” obligations, list out the specific performance guarantee(s) and state the specific performance guarantee(s) is (are) make good. Thereafter, include one of the following sentences, depending on whether there is one performance guarantee or multiple performance guarantees with a make good obligation, “Seller’s make good obligation to Section 16.3meet the performance guarantee is absolute. Accordingly, reduce the Delay Liquidated Damages due from Contractor for each Day for which such insurance is payable; provided that in the event the daily amount of such insurance proceeds exceed the daily Delay Liquidated Damagesits make good obligation, Contractor Seller shall have no claim to such excess. Beginning with the date that [***]. In no event shall the total Delay Liquidated Damages for the failure do all things necessary to achieve Substantial Completion the performance guarantee, including exercising each and every repair or replacement alternative, regardless of a Unit on cost to Seller or prior associated difficulties.” Or, “Seller’s make good obligations to meet the Guaranteed Substantial Completion Date performance guarantees are absolute. Accordingly, for such Unit exceed in the aggregate an amount equal to [***]. Payment of the Delay Liquidated Damages its make good obligations, Seller shall be Owners’ sole and exclusive remedy for Contractor’s failure do all things necessary to achieve Substantial Completion the performance guarantees, including exercising each and every repair or replacement alternative, regardless of a Unit on cost to Seller or before the Guaranteed Substantial Completion Date for such Unit; howeverassociated difficulties.”] [FOR ANY OF THE FOREGOING, Delay Liquidated Damages are intended only to cover damages suffered by Owners as a result of delay and shall not affect the right of Owners to terminate the Agreement pursuant to Article 22 or their remedies provided for in Article 22 as a result of such terminationPLEASE CONTACT THE ASSISTANT GENERAL COUNSEL, WHO DEVELOPED THE PRIME AGREEMENT, FOR ANY QUESTIONS.]

Delay Liquidated Damages. The Parties agree that it would be extremely difficult If Subcontractor (1) fails to deliver the engineering/document deliverables on the dates set forth in Attachment A and impracticable under presently known Attachment D, as applicable, and anticipated facts and circumstances in the manner this Agreement specifies, (2) fails to ascertain and fix deliver the actual damages Owners would incur if a Unit does not achieve Substantial Completion by material/equipment deliverables on the dates set forth in Attachment D, (3) fails to deliver the construction deliverables on the dates set forth in Attachment D, or (4) Contractor fails to meet the Guaranteed Substantial Completion Date for such Unit anddue to Subcontractor (including its subcontractors and suppliers), accordinglyContractor and Subcontractor agree Contractor would be damaged. As it would be almost impossible to ascertain the actual damages precisely due to the failures described in the prior sentence, Subcontractor agrees to pay delay liquidated damages in the amounts listed in Attachment E (which shall not be construed to limit Subcontractor’s other obligations or liabilities under this Agreement). Contractor and Subcontractor agree any and all sums payable under this Section 38(a)(i) and Attachment E are in the nature of liquidated damages and not a penalty. Performance Guarantee Liquidated Damages. [NOTE: include performance guarantee(s), if a Unit does not achieve Substantial Completion by such Unit’s Guaranteed Substantial Completion Dateapplicable. Should performance guarantee(s) be included, as such date may performance guarantee liquidated damages need to be extended pursuant to this Agreementadded, Owners’ remedy unless the obligation(s) for such delay shall be to recover from Contractor as performance guarantee(s) is (are) “make good” (see (iii) below for “make good” performance guarantees). For performance guarantees with liquidated damages, state the following, “If Subcontractor fails to meet (list out the specific performance guarantee(s)), Contractor and Subcontractor agree Contractor would be damaged. As it would be almost impossible to ascertain the actual damages precisely due to the (insert “failure” or “failures” depending on whether one performance guarantee or multiple performance guarantees are tied to liquidated damages) described in the prior sentence, Subcontractor agrees to pay performance guarantee liquidated damages in the amounts listed in Attachment E (which shall not be construed to limit Subcontractor’s other obligations or liabilities under this Agreement). Contractor and Subcontractor agree any and all sums payable under this Section 38(a)(ii) and Attachment E are in the nature of liquidated damages and not as a penalty, liquidated damages (“Delay Liquidated Damages.”) as follows] Performance Guarantee Make Good Obligations. [NOTE: [***] The amount of proceeds to which Owners are entitled on a daily basis pursuant to the delay in start-up insurance coverage (following the deductible period thereunder) shallinclude performance guarantee(s), if procured pursuant applicable. For performance guarantees with “make good” obligations, list out the specific performance guarantee(s) and state the specific performance guarantee(s) is (are) make good. Thereafter, include one of the following sentences, depending on whether there is one performance guarantee or multiple performance guarantees with a make good obligation, “Subcontractor’s make good obligation to Section 16.3meet the performance guarantee is absolute. Accordingly, reduce the Delay Liquidated Damages due from Contractor for each Day for which such insurance is payable; provided that in the event the daily amount of such insurance proceeds exceed the daily Delay Liquidated Damagesits make good obligation, Contractor Subcontractor shall have no claim to such excess. Beginning with the date that [***]. In no event shall the total Delay Liquidated Damages for the failure do all things necessary to achieve Substantial Completion the performance guarantee, including exercising each and every repair or replacement alternative, regardless of a Unit on cost to Subcontractor or prior associated difficulties.” Or, “Subcontractor’s make good obligations to meet the Guaranteed Substantial Completion Date performance guarantees are absolute. Accordingly, for such Unit exceed in the aggregate an amount equal to [***]. Payment of the Delay Liquidated Damages its make good obligations, Subcontractor shall be Owners’ sole and exclusive remedy for Contractor’s failure do all things necessary to achieve Substantial Completion the performance guarantees, including exercising each and every repair or replacement alternative, regardless of a Unit on cost to Subcontractor or before the Guaranteed Substantial Completion Date for such Unit; howeverassociated difficulties.”] [FOR ANY OF THE FOREGOING, Delay Liquidated Damages are intended only to cover damages suffered by Owners as a result of delay and shall not affect the right of Owners to terminate the Agreement pursuant to Article 22 or their remedies provided for in Article 22 as a result of such terminationPLEASE CONTACT THE ASSISTANT GENERAL COUNSEL, WHO DEVELOPED THE PRIME AGREEMENT, FOR ANY QUESTIONS.]

Delay Liquidated Damages. If the Work Completion Date does not occur by the Guaranteed Completion Date, Seller will be liable for liquidated damages for each week from the Guaranteed Completion Date until the Work Completion Date, provided Seller will not be liable for such liquidated damages for delay to the extent that such delay was caused by an Excusable Event or, if Seller is the prevailing party in such dispute, for the duration of any proceedings commenced as contemplated in Section 2.12.2 to the extent such dispute proceedings are commenced prior to the Guaranteed Completion Date. Seller will pay Buyer, as liquidated damages for such failure the sum of __________________ Dollars ($_______) for each week of such delay, not to exceed _____________________ Dollars ($__________) in the aggregate. Any and all amounts paid by Seller for liquidated damages under this Section 2.13 will be treated as a reduction in the Purchase Price if the Closing occurs. The Parties acknowledge and agree that because of the unique nature of the Work and the Project Assets, it is difficult or impossible to determine with precision the amount of damages that would or might be incurred by Buyer as a result of Seller’s failure to timely perform the Work and complete the Project by the Guaranteed Completion Date. It is understood and agreed by the Parties that (a) Buyer will be damaged by the failure of Seller to meet such obligations, (b) it would be impracticable or extremely difficult and impracticable under presently known and anticipated facts and circumstances to ascertain and fix the actual damages Owners resulting therefrom, (c) any sums which would incur if a Unit does not achieve Substantial Completion by be payable under this Section 2.13 are in the Guaranteed Substantial Completion Date for such Unit and, accordingly, if a Unit does not achieve Substantial Completion by such Unit’s Guaranteed Substantial Completion Date, as such date may be extended pursuant to this Agreement, Owners’ remedy for such delay shall be to recover from Contractor as nature of liquidated damages, and not as a penalty, liquidated damages and are fair and reasonable, and (“Delay Liquidated Damages”d) as follows: [***] The amount each payment represents a reasonable estimate of proceeds to which Owners are entitled on a daily basis pursuant to the delay in start-up insurance coverage (following the deductible period thereunder) shall, if procured pursuant to Section 16.3, reduce the Delay Liquidated Damages due from Contractor for each Day for which such insurance is payable; provided that in the event the daily amount of such insurance proceeds exceed the daily Delay Liquidated Damages, Contractor shall have no claim to such excess. Beginning with the date that [***]. In no event shall the total Delay Liquidated Damages fair compensation for the failure to achieve Substantial Completion of a Unit on or prior to the Guaranteed Substantial Completion Date for losses that may reasonably be anticipated from each such Unit exceed in the aggregate an amount equal to [***]. Payment of the Delay Liquidated Damages shall be Owners’ sole and exclusive remedy for Contractor’s failure to achieve Substantial Completion of a Unit on or before the Guaranteed Substantial Completion Date for such Unit; however, Delay Liquidated Damages are intended only to cover damages suffered by Owners as a result of delay and shall not affect the right of Owners to terminate the Agreement pursuant to Article 22 or their remedies provided for in Article 22 as a result of such terminationfailure.

Delay Liquidated Damages. The Parties agree that it would be extremely difficult and impracticable under presently known and anticipated facts and circumstances to ascertain and fix the actual damages Owners Owner would incur if a Unit Contractor does not achieve satisfy the conditions for Substantial Completion of a Power Block by the Guaranteed Substantial Completion Date for such Unit andPower Block, and accordingly, if a Unit Contractor does not achieve satisfy the conditions for Substantial Completion of a Power Block by such Unit’s the Guaranteed Substantial Completion DateDate for such Power Block, as such date may be extended pursuant to this Agreement, Owners’ Owner's sole remedy for such delay shall be to recover from Contractor, and Contractor shall pay to Owner, as liquidated damages, damages and not as a penalty, liquidated damages (“Delay Liquidated Damages”) as follows: [***] The amount of proceeds to which Owners are entitled on a daily basis pursuant to the delay in start-up insurance coverage (following the deductible period thereunder) shall, if procured pursuant to Section 16.3, reduce the Delay Liquidated Damages due from Contractor for each Day for which such insurance is payable; provided that in the event the daily amount of such insurance proceeds exceed the daily Delay Liquidated Damages, Contractor shall have no claim to such excess. Beginning with the date that [***]. In no event shall the total Delay Liquidated Damages for the failure to achieve each Day or portion of a Day that Substantial Completion of a Unit on or prior to the Power Block is delayed beyond the Guaranteed Substantial Completion Date for such Unit exceed Power Block; provided, however, that if any delay in achievement of Substantial Completion of a Power Block is directly and solely attributable to the aggregate an amount equal failure of a Major Equipment Vendor to [***]. Payment of the timely perform its obligations under a Major Equipment Contract, then Contractor's liability for Delay Liquidated Damages shall be Owners’ sole limited to any liquidated damages for delay payable by the Major Equipment Vendor under the applicable Major Equipment Contract; and exclusive remedy provided further, that in no event shall aggregate Delay Liquidated Damages exceed the Delay Liquidated Damages Cap. If Contractor satisfies the conditions for Contractor’s failure to achieve Substantial Completion of a Unit Power Block on or before the Guaranteed Substantial Completion Date for such Unit; howeverPower Block, Contractor shall not be liable for any Delay Liquidated Damages are intended only under this Section 10.1. The Delay Liquidated Damages identified in this Section 10.1 relate solely to cover damages suffered Contractor's delay in satisfying the conditions for Substantial Completion of a Power Block by Owners as a result the Guaranteed Substantial Completion Date for such Power Block and not to any other breaches, actions or omissions of delay and shall not affect Contractor with respect to the right of Owners to terminate the Agreement pursuant to Article 22 or their remedies provided for in Article 22 as a result of such terminationWork.

Delay Liquidated Damages. If the Work Completion Date does not occur by the Guaranteed Completion Date, Seller will be liable for liquidated damages for each day from the Guaranteed Completion Date until the Work Completion Date, provided Seller will not be liable for such liquidated damages for delay to the extent that such delay was caused by an Excusable Event or, if Seller is the prevailing party in such dispute, for the duration of any proceedings commenced as contemplated in Section 2.12.2 to the extent such dispute proceedings are commenced prior to the Guaranteed Completion Date. Seller will pay Buyer, as liquidated damages for such failure the sum of [ Dollars ($ )] for each day of such delay, not to exceed [ Dollars ($ )] in the aggregate. Any and all amounts due from Seller for liquidated damages under this Section 2.13 will be treated as a reduction in the Purchase Price if the Closing occurs. Except for termination of this Agreement pursuant to Section 10.1, in which case Seller’s obligation to pay liquidated damages under this Section 2.13 shall cease, the payment by Seller to Buyer of liquidated damages under this Section 2.13 are Buyer’s sole and exclusive remedy for Seller’s delay in completing the Work and the Project Assets by the Guaranteed Completion Date. The Parties acknowledge and agree that because of the unique nature of the Work and the Project Assets, it is difficult or impossible to determine with precision the amount of damages that would or might be incurred by Buyer as a result of Seller’s failure to timely perform the Work and complete the Project Assets by the Guaranteed Completion Date. It is understood and agreed by the Parties that (a) Buyer will be damaged by the failure of Seller to meet such obligations, (b) it would be impracticable or extremely difficult and impracticable under presently known and anticipated facts and circumstances to ascertain and fix the actual damages Owners resulting therefrom, (c) any sums which would incur if a Unit does not achieve Substantial Completion by be payable under this Section 2.13 are in the Guaranteed Substantial Completion Date for such Unit and, accordingly, if a Unit does not achieve Substantial Completion by such Unit’s Guaranteed Substantial Completion Date, as such date may be extended pursuant to this Agreement, Owners’ remedy for such delay shall be to recover from Contractor as nature of liquidated damages, and not as a penalty, liquidated damages and are fair and reasonable, and (“Delay Liquidated Damages”d) as follows: [***] The amount each payment represents a reasonable estimate of proceeds to which Owners are entitled on a daily basis pursuant to the delay in start-up insurance coverage (following the deductible period thereunder) shall, if procured pursuant to Section 16.3, reduce the Delay Liquidated Damages due from Contractor for each Day for which such insurance is payable; provided that in the event the daily amount of such insurance proceeds exceed the daily Delay Liquidated Damages, Contractor shall have no claim to such excess. Beginning with the date that [***]. In no event shall the total Delay Liquidated Damages fair compensation for the failure to achieve Substantial Completion of a Unit on or prior to the Guaranteed Substantial Completion Date for losses that may reasonably be anticipated from each such Unit exceed in the aggregate an amount equal to [***]. Payment of the Delay Liquidated Damages shall be Owners’ sole and exclusive remedy for Contractor’s failure to achieve Substantial Completion of a Unit on or before the Guaranteed Substantial Completion Date for such Unit; however, Delay Liquidated Damages are intended only to cover damages suffered by Owners as a result of delay and shall not affect the right of Owners to terminate the Agreement pursuant to Article 22 or their remedies provided for in Article 22 as a result of such terminationfailure.

Delay Liquidated Damages. The Parties agree that it would be extremely difficult and impracticable under presently known and anticipated facts and circumstances to ascertain and fix the actual damages Owners would incur if a Unit does not achieve Substantial Completion by the Guaranteed Substantial Completion Date for such Unit and, accordingly, if a Unit does not achieve Substantial Completion by such Unit’s Guaranteed Substantial Completion Date, as such date may be extended pursuant to this Agreement, Owners’ remedy for such delay shall be to recover from Contractor as liquidated damages, and not as a penalty, liquidated damages (“Delay Liquidated Damages”) as follows: For the first [***] following the Guaranteed Substantial Completion Date [***] Thereafter [***] The amount of proceeds to which Owners are entitled on a daily basis pursuant to the delay in start-up insurance coverage (following the deductible period thereunder) shall, if procured pursuant to Section 16.3, reduce the Delay Liquidated Damages due from Contractor for each Day for which such insurance is payable; provided that in the event the daily amount of such insurance proceeds exceed the daily Delay Liquidated Damages, Contractor shall have no claim to such excess. Beginning with the date that [***], no Delay Liquidated Damages shall be due or shall accrue. From and after the date (if any) that [***], Delay Liquidated Damages shall again begin to accrue to the extent they are due and payable under the other provisions of this Agreement. In no event shall the total Delay Liquidated Damages for the failure to achieve Substantial Completion of a Unit on or prior to the Guaranteed Substantial Completion Date for such Unit exceed in the aggregate an amount equal to [***]] of the Contract Price for such Unit. Payment of the Delay Liquidated Damages shall be Owners’ sole and exclusive remedy for Contractor’s failure to achieve Substantial Completion of a Unit on or before the Guaranteed Substantial Completion Date for such Unit; however, Delay Liquidated Damages are intended only to cover damages suffered by Owners as a result of delay and shall not affect the right of Owners to terminate the Agreement pursuant to Article 22 or their remedies provided for in Article 22 as a result of such termination.

Delay Liquidated Damages. Except as otherwise excused due to Uncontrollable Circumstances and the Sewer District Fault, the Design-Build Contractor shall pay daily delay liquidated damages to the Sewer District in the sum of One Thousand Dollars ($1,000.00) per day for each and every calendar day of unexcused delays in achieving Substantial Completion beyond the date set for Substantial Completion. The Parties agree Design-Build Contractor shall pay daily delay liquidated damages to the Sewer District in the sum of Five Hundred Dollars ($500.00) per day for each and every calendar day of unexcused delays in achieving Final Completion and continuing for each day that it would be extremely difficult Final Completion falls after the date set for Final Completion in accordance with Section 7.12 of this Design-Build Agreement, and impracticable under presently known thereafter until any termination of this Design-Build Agreement for an Event of Default. The Design-Build Contractor shall also indemnify the Sewer District in accordance with and anticipated facts and circumstances subject to ascertain and fix the actual damages Owners would incur if limitations set forth in Section 11.3 hereof against all Loss-and-Expense resulting from any Legal Proceeding originated by any third-party arising from such failure to achieve Final Acceptance by the applicable Scheduled Final Acceptance Date except to the extent such failure is caused by an Uncontrollable Circumstance, and/or arising from a Unit does not failure to achieve Substantial Final Completion by the Guaranteed Substantial applicable date set for Final Completion Date for such Unit and, accordingly, if a Unit does not achieve Substantial Completion in accordance with Section 7.12 of this Design-Build Agreement. Any sums due and payable as liquidated damages by such Unit’s Guaranteed Substantial Completion Date, as such date may be extended pursuant to this Agreement, Owners’ remedy for such delay the Design-Build Contractor shall be to recover from Contractor as liquidated damagespayable, and not as a penalty, but as liquidated damages (“Delay Liquidated Damages”) as follows: [***] The amount of proceeds to which Owners are entitled on representing a daily basis pursuant to the delay in start-up insurance coverage (following the deductible period thereunder) shall, if procured pursuant to Section 16.3, reduce the Delay Liquidated Damages due from Contractor for each Day for which such insurance is payable; provided that in the event the daily amount of such insurance proceeds exceed the daily Delay Liquidated Damages, Contractor shall have no claim to such excess. Beginning with the date that [***]. In no event shall the total Delay Liquidated Damages for the failure to achieve Substantial Completion of a Unit on or prior to the Guaranteed Substantial Completion Date for such Unit exceed in the aggregate an amount equal to [***]. Payment reasonable and fair approximation of the Delay Liquidated Damages shall damages likely to be Owners’ sole and exclusive remedy for Contractor’s failure to achieve Substantial Completion of a Unit on or before sustained by the Guaranteed Substantial Completion Date for such Unit; however, Delay Liquidated Damages are intended only to cover damages suffered by Owners Sewer District as a result of the Design-Build Contractor’s delay, estimated at the time of executing the Design-Build Agreement. When the Sewer District reasonably believes that Substantial Completion or Final Completion will be inexcusably delayed, the Sewer District shall be entitled, but not required, to withhold from any amounts otherwise due the Design-Build Contractor an amount then believed by the Sewer District to be adequate to recover Liquidated Damages applicable to such delays. If and when the Design-Build Contractor overcomes the delay and in achieving Substantial Completion or Final Completion, for which the Sewer District has withheld from payment amounts sufficient to cover Liquidated Damages commensurate with the anticipated delays, the Sewer District shall promptly release to the Design-Build Contractor those funds withheld as liquidated damages for anticipated delays which did not affect the right of Owners occur. Nothing in this section shall be constructed to terminate the Agreement pursuant to Article 22 or their remedies limit any non-damage remedies, including termination, also provided for in Article 22 as a result of with respect to any such terminationnonperformance, breach or default.

Delay Liquidated Damages. The Parties agree that it would be extremely difficult As Buyer’s sole and impracticable under presently known and anticipated facts and circumstances exclusive remedy if the Project fails to ascertain and fix the actual damages Owners would incur if a Unit does not achieve Project Substantial Completion by on or before [DATE], Seller will pay Buyer liquidated damages of $[X] As Buyer’s sole and exclusive remedy if the Guaranteed Project fails to achieve Mechanical Completion on or before [DATE], Seller will pay Buyer liquidated damages of $[X] Performance Guarantees Shortfall Liquidated Damages: Seller guarantees that the Project will meet or exceed an [X]MW guaranteed capacity of the plant prior to Project Substantial Completion Date for such Unit and, accordingly, if a Unit does not achieve Substantial Completion by such UnitAs Buyer’s Guaranteed Substantial Completion Date, as such date may be extended pursuant to this Agreement, Owners’ remedy for such delay shall be to recover from Contractor as liquidated damages, and not as a penalty, liquidated damages (“Delay Liquidated Damages”) as follows: [***] The amount of proceeds to which Owners are entitled on a daily basis pursuant to the delay in start-up insurance coverage (following the deductible period thereunder) shall, if procured pursuant to Section 16.3, reduce the Delay Liquidated Damages due from Contractor for each Day for which such insurance is payable; provided that in the event the daily amount of such insurance proceeds exceed the daily Delay Liquidated Damages, Contractor shall have no claim to such excess. Beginning with the date that [***]. In no event shall the total Delay Liquidated Damages for the failure to achieve Substantial Completion of a Unit on or prior to the Guaranteed Substantial Completion Date for such Unit exceed in the aggregate an amount equal to [***]. Payment of the Delay Liquidated Damages shall be Owners’ sole and exclusive remedy for ContractorSeller’s failure to achieve Substantial Completion the performance guarantees, Seller will pay Buyer liquidated damages of a Unit on $[X] up to an agreed upon cap of $[X] for that portion of the Project that fails to achieve the Performance Guarantees Except for such capacity guarantee by Seller, neither the BTA nor the Development Agreements will provide any availability or before the energy yield guarantees or other performance guarantees The Guaranteed Project Substantial Completion Date will be extended due to Buyer-Caused Delays and Excusable Events, provided that no Excusable Event will extend the Project Substantial Completion Date beyond [DATE] The agreed Guaranteed Capacity test procedures will be set forth in the Development Agreements Progress Reporting Commencing on the first full month after mobilization of contractor to the Project site, general contractor will provide a weekly summary of the progress of its work and will provide a monthly progress report to the Seller, Buyer and Independent Engineer Seller, Independent Engineer and Buyer will be entitled to attend monthly meetings and any daily meeting that may be convened by general contractor on the Project site to review progress of the work Scope Change Orders No scope change order becomes effective until executed by both parties after the parties have agreed on scope, schedule and cost impacts Governing Law BTA and Development Agreements will be governed by Indiana law Venue for such Unit; howeverresolution of any dispute will be federal or state courts in Xxxxxx County, Delay Liquidated Damages are intended only Indiana, and rights to cover damages suffered jury trial will be waived Performance Security and Guaranty To be agreed upon by Owners as the Parties – Parental Guaranty from an investment grade party or Letter of Credit Surety Bond will not be acceptable Tax Equity (if necessary) Seller agrees to, in accordance with good business practices, support the Buyer’s efforts to contract for a result of delay Tax Equity Investor and shall not affect the right of Owners to terminate the Agreement pursuant to Article 22 or their remedies provided for in Article 22 as a result of such termination.comply with any associated Independent Engineer review / certifications required

Delay Liquidated Damages. If the Work Completion Date does not occur by the Guaranteed Completion Date, Seller will be liable for liquidated damages for each day from the Guaranteed Completion Date until the Work Completion Date, provided Seller will not be liable for such liquidated damages for delay to the extent that such delay was caused by an Excusable Event or, if Seller is the prevailing party in such dispute, for the duration of any proceedings commenced as contemplated in Section 2.12.2 to the extent such dispute proceedings are commenced prior to the Guaranteed Completion Date. Seller will pay Buyer, as liquidated damages for such failure the sum of [ Dollars ($ )] for each day of such delay, not to exceed [ Dollars ($ )] in the aggregate. Any and all amounts due from Seller for liquidated damages under this Section 2.13 will be treated as a reduction in the Purchase Price if the Closing occurs. Except for termination of this Agreement pursuant to Section 10.1, in which case Seller’s obligation to pay liquidated damages under this Section 2.13 shall cease, the payment by Seller to Buyer of liquidated damages under this Section 2.13 are Buyer’s sole and exclusive remedy for Seller’s delay in completing the Work and the Project Assets by the Guaranteed Completion Date. The Parties acknowledge and agree that because of the unique nature of the Work and the Project Assets, it is difficult or impossible to determine with precision the amount of damages that would or might be incurred by Xxxxx as a result of Seller’s failure to timely perform the Work and complete the Project Assets by the Guaranteed Completion Date. It is understood and agreed by the Parties that (a) Buyer will be damaged by the failure of Seller to meet such obligations, (b) it would be impracticable or extremely difficult and impracticable under presently known and anticipated facts and circumstances to ascertain and fix the actual damages Owners resulting therefrom, (c) any sums which would incur if a Unit does not achieve Substantial Completion by be payable under this Section 2.13 are in the Guaranteed Substantial Completion Date for such Unit and, accordingly, if a Unit does not achieve Substantial Completion by such Unit’s Guaranteed Substantial Completion Date, as such date may be extended pursuant to this Agreement, Owners’ remedy for such delay shall be to recover from Contractor as nature of liquidated damages, and not as a penalty, liquidated damages and are fair and reasonable, and (“Delay Liquidated Damages”d) as follows: [***] The amount each payment represents a reasonable estimate of proceeds to which Owners are entitled on a daily basis pursuant to the delay in start-up insurance coverage (following the deductible period thereunder) shall, if procured pursuant to Section 16.3, reduce the Delay Liquidated Damages due from Contractor for each Day for which such insurance is payable; provided that in the event the daily amount of such insurance proceeds exceed the daily Delay Liquidated Damages, Contractor shall have no claim to such excess. Beginning with the date that [***]. In no event shall the total Delay Liquidated Damages fair compensation for the failure to achieve Substantial Completion of a Unit on or prior to the Guaranteed Substantial Completion Date for losses that may reasonably be anticipated from each such Unit exceed in the aggregate an amount equal to [***]. Payment of the Delay Liquidated Damages shall be Owners’ sole and exclusive remedy for Contractor’s failure to achieve Substantial Completion of a Unit on or before the Guaranteed Substantial Completion Date for such Unit; however, Delay Liquidated Damages are intended only to cover damages suffered by Owners as a result of delay and shall not affect the right of Owners to terminate the Agreement pursuant to Article 22 or their remedies provided for in Article 22 as a result of such terminationfailure.