Common use of Extension of the Guaranteed Dates Clause in Contracts

Extension of the Guaranteed Dates. The Guaranteed Construction Start Date and the Guaranteed Commercial Operation Date shall both, subject to notice and documentation requirements set forth below, be extended on a day-for-day basis due to Force Majeure Event for a period of up to one-hundred twenty (120) days on a cumulative basis (the “Development Cure Period”). No extension shall be given under the Development Cure Period (a) if the delay was due to Seller’s failure to take commercially reasonable actions to meet its requirements and deadlines, (b) Seller does not satisfy the requirements of a Force Majeure Event, including the notice and documentation requirements under Section Error: Reference source not found. Upon request from Buyer, Seller shall promptly provide documentation demonstrating to Buyer’s reasonable satisfaction that the delay was the result of a Force Majeure Event and did not result from Seller’s actions or failure to take commercially reasonable actions Failure to Reach Guaranteed Capacity. If, at Commercial Operation, the Installed Capacity is less than one hundred percent (100%) of the Guaranteed Capacity, Seller shall have one hundred twenty (120) days after the Commercial Operation Date to install additional capacity or Network Upgrades such that the Installed Capacity is equal to (but not greater than) the Guaranteed Capacity, and Seller shall provide to Buyer a new certificate substantially in the form attached as Exhibit I hereto specifying the new Installed Capacity. If Seller fails to construct the Guaranteed Capacity by such date, Seller shall pay “Capacity Damages” to Buyer, in an amount equal to Two Hundred Fifty Thousand Dollars ($250,000) for each MW that the Guaranteed Capacity exceeds the Installed Capacity, and the Guaranteed Capacity and other applicable portions of the Agreement shall be adjusted accordingly.

Extension of the Guaranteed Dates. The Guaranteed Construction Start Date and the Guaranteed Commercial Operation Date shall bothshall, subject to notice and documentation requirements set forth below, both be automatically extended on a day-for-day basis due to Force Majeure Event for a period of up to one-hundred twenty (120) days on a cumulative basis (the “Development Cure Period”). No extension shall be given under ) for the Development Cure Period (a) if duration of any and all delays arising out of the delay was due following circumstances to the extent the following circumstances are not the result of Seller’s failure to take all commercially reasonable actions to meet its requirements and deadlines: a. a Force Majeure Event occurs; or b. the Interconnection Facilities or Network Upgrades or any other upgrades or interconnection facilities required under the Interconnection Agreement with NV Energy are not complete and ready for the Facility to connect and sell Product at the Delivery Point by the Guaranteed Commercial Operation Date despite the exercise of diligent and commercially reasonable efforts by Seller; or c. Seller has not acquired all material permits, consents, licenses, approvals, or authorizations from any Governmental Authority required for Seller to own, construct, interconnect, operate or maintain the Facility, and to permit Seller and Facility to make available and sell Product by the Guaranteed Commercial Operation Date, despite the exercise of best efforts by Seller; or d. Xxxxx has not made all necessary arrangements to receive the Delivered Energy at the Delivery Point by the Guaranteed Commercial Operation Date. Notwithstanding anything in this Agreement to the contrary, the cumulative extensions granted under the Development Cure Period (bother than the extensions granted pursuant to clause 4(d) Seller does above) shall not satisfy the requirements of exceed one hundred twenty (120) days, for any reason, including a Force Majeure Event, including and the notice cumulative extensions granted to the Guaranteed Commercial Operation Date by the payment of Commercial Operation Delay Damages and documentation requirements under Section Error: Reference source any Development Cure Period(s) (other than the extensions granted pursuant to clause 4(d) above) shall not foundexceed one hundred eighty (180) days. Upon request from Buyer, Seller shall promptly provide documentation reasonably demonstrating to Buyer’s reasonable satisfaction that the delay was the result of a Force Majeure Event and delays described above did not result from Seller’s actions or failure to take commercially reasonable actions Failure to Reach Guaranteed Capacity. If, at Commercial Operation, the Installed Capacity is less than one hundred percent (100%) of the Guaranteed Capacity, Seller shall have one hundred twenty (120) days after the Commercial Operation Date to install additional capacity or Network Upgrades such that the Installed Capacity is equal to (but not greater than) the Guaranteed Capacity, and Seller shall provide to Buyer a new certificate substantially in the form attached as Exhibit I hereto specifying the new Installed Capacity. If Seller fails to construct the Guaranteed Capacity by such date, Seller shall pay “Capacity Damages” to Buyer, in an amount equal to Two Hundred Fifty Thousand Dollars ($250,000) for each MW that the Guaranteed Capacity exceeds the Installed Capacity, and the Guaranteed Capacity and other applicable portions of the Agreement shall be adjusted accordinglyactions.

Extension of the Guaranteed Dates. The Guaranteed Construction Start Date and the Guaranteed Commercial Operation Date shall both, subject to notice and documentation requirements set forth below, be automatically extended on a day-for-day basis (the “Development Cure Period”) due to (a) a Force Majeure Event Event, or (b) [Parties to discuss potential inclusion of permits and Buyer delays related to ability to receive Generating Facility Energy at the Delivery Point by GCOD.] the Interconnection Facilities or Network Upgrades are not complete and ready for a period of up the Facility to connect and sell Product at the Delivery Point by the Guaranteed Commercial Operation Date (“Interconnection Delays”). Notwithstanding anything to the contrary, the cumulative extensions under the Development Cure Period shall not exceed one-hundred twenty (120) days on a cumulative basis (the “Development Cure Period”)for any reason,. No In addition, no extension shall be given under the Development Cure Period (ai) if the delay was due to Seller’s failure to take commercially reasonable actions to meet its requirements and deadlines, (bii) if Seller is asserting a claim of Force Majeure Event, and Seller does not satisfy the requirements of a Force Majeure Event, including the notice and documentation requirements under Section Error: Reference source 10.3.][, or (iii) if Seller is asserting a claim for any other delay provided for above and Seller fails to provide written notice to Buyer within thirty (30) days after Seller became aware of an actual delay affecting the Facility, except that in the case of a delay occurring within sixty (60) days of the Expected Commercial Operation Date, or after such date, Seller must provide written notice within seven (7) Business Days of Seller becoming aware of such delay.] As used in the preceding sentence, “actual delay” does not foundinclude Seller’s receipt of generic notices of potential delays. Upon request from Buyer, Seller shall promptly provide documentation demonstrating to Buyer’s reasonable satisfaction that the delay was the result of a Force Majeure Event and delays described above did not result from Seller’s actions or failure to take commercially reasonable actions Failure to Reach Guaranteed Capacityactions. If, at Commercial Operation, Buyer shall compensate Seller for the Installed Capacity is less than one hundred percent (100%) of the Guaranteed Capacity, Seller shall have one hundred twenty (120) days after the Commercial Operation Date to install additional capacity or Network Upgrades such that the Installed Capacity is equal to (but not greater than) the Guaranteed Capacity, and Seller shall provide to Buyer a new certificate substantially Product in the form attached as accordance with this Exhibit I hereto specifying the new Installed Capacity. If Seller fails to construct the Guaranteed Capacity by such date, Seller shall pay “Capacity Damages” to Buyer, in an amount equal to Two Hundred Fifty Thousand Dollars ($250,000) for each MW that the Guaranteed Capacity exceeds the Installed Capacity, and the Guaranteed Capacity and other applicable portions of the Agreement shall be adjusted accordingly.C.

Extension of the Guaranteed Dates. The Guaranteed Construction Start Date and the Guaranteed Commercial Operation Date shall bothshall, subject to notice and documentation requirements set forth below, be automatically extended on a day-for-day basis due to Force Majeure Event for a period of up to one-hundred twenty (120) days on a cumulative basis (the “Development Cure Period”)) for the duration of any and all delays arising out of the following circumstances: a. Seller has not acquired all material permits, consents, licenses, approvals, or authorizations from any Governmental Authority required for Seller to own, construct, interconnect, operate or maintain the Facility and to permit Seller and Facility to make available and sell Product by the Expected Construction Start Date, despite the exercise of due diligence by Seller; or b. a Force Majeure Event occurs; or c. the Interconnection Facilities or Network Upgrades are not complete and ready for the Facility to connect and sell Product at the Delivery Point by the Guaranteed Commercial Operation Date, despite the exercise of due diligence by Seller. No extension shall be given Notwithstanding anything in this Agreement to the contrary, the cumulative extensions granted under the Development Cure Period above shall not exceed one hundred twenty (a120) days, for any reason, including a Force Majeure Event, and no extension shall be given if the delay was due to the result of Seller’s failure to take commercially reasonable actions exercise due diligence to meet its requirements and deadlines, (b) Seller does not satisfy the requirements of a Force Majeure Event, including the notice and documentation requirements under Section Error: Reference source not found. Upon request from Buyer, Seller shall promptly provide documentation demonstrating to Buyer’s reasonable satisfaction that the delay was the result of a Force Majeure Event and delays described above did not result from Seller’s actions or failure to take commercially reasonable actions Failure to Reach Guaranteed Capacity. If, at Commercial Operation, the Installed Capacity is less than one hundred percent (100%) of the Guaranteed Capacity, Seller shall have one hundred twenty (120) days after the Commercial Operation Date to install additional capacity or Network Upgrades such that the Installed Capacity is equal to (but not greater than) the Guaranteed Capacity, and Seller shall provide to Buyer a new certificate substantially in the form attached as Exhibit I hereto specifying the new Installed Capacity. If Seller fails to construct the Guaranteed Capacity by such date, Seller shall pay “Capacity Damages” to Buyer, in an amount equal to Two Hundred Fifty Thousand Dollars ($250,000) for each MW that the Guaranteed Capacity exceeds the Installed Capacity, and the Guaranteed Capacity and other applicable portions of the Agreement shall be adjusted accordinglyexercise due diligence.

Extension of the Guaranteed Dates. The Guaranteed Construction Start Date and the Guaranteed Commercial Operation Date shall bothshall, subject to notice and documentation requirements set forth below, be automatically extended on a day-for-day basis due to Force Majeure Event for a period of up to one-hundred twenty (120) days on a cumulative basis (the “Development Cure Period”)) for the duration of any and all delays arising out of the following circumstances: by the Expected Construction Start Date, Seller has not acquired all material permits, consents, licenses, approvals, or authorizations from any Governmental Authority required for Seller to own, construct, interconnect, operate or maintain the Facility and to permit Seller and Facility to make available and sell Product, despite the exercise of due diligence by Seller; or a Force Majeure Event occurs; or the Interconnection Facilities or Network Upgrades are not complete and ready for the Facility to connect and sell Product at the Delivery Point by the Guaranteed Commercial Operation Date, despite the exercise of due diligence by Seller, or Xxxxx has not made all necessary arrangements to receive the Facility Energy at the Delivery Point by the Guaranteed Commercial Operation Date. No extension shall be given Notwithstanding anything in this Agreement to the contrary, the cumulative extensions granted under the Development Cure Period above shall not exceed one hundred twenty (a120) days, for any reason, including a Force Majeure Event, and no extension shall be given if the delay was due to the result of Seller’s failure to take commercially reasonable actions exercise due diligence to meet its requirements and deadlines, (b) Seller does not satisfy the requirements of a Force Majeure Event, including the notice and documentation requirements under Section Error: Reference source not found. Upon request from Buyer, Seller shall promptly provide documentation demonstrating to Buyer’s reasonable satisfaction that the delay was the result of a Force Majeure Event and delays described above did not result from Seller’s actions or failure to take commercially reasonable actions Failure to Reach Guaranteed Capacity. If, at Commercial Operation, the Installed Capacity is less than one hundred percent (100%) of the Guaranteed Capacity, Seller shall have one hundred twenty (120) days after the Commercial Operation Date to install additional capacity or Network Upgrades such that the Installed Capacity is equal to (but not greater than) the Guaranteed Capacity, and Seller shall provide to Buyer a new certificate substantially in the form attached as Exhibit I hereto specifying the new Installed Capacity. If Seller fails to construct the Guaranteed Capacity by such date, Seller shall pay “Capacity Damages” to Buyer, in an amount equal to Two Hundred Fifty Thousand Dollars ($250,000) for each MW that the Guaranteed Capacity exceeds the Installed Capacity, and the Guaranteed Capacity and other applicable portions of the Agreement shall be adjusted accordinglyexercise due diligence.

Extension of the Guaranteed Dates. The Guaranteed Construction Start Date and the Guaranteed Commercial Operation Date shall both, subject to notice and documentation requirements set forth below, be extended on a day-for-day basis due to Force Majeure Event for a period of up to one-hundred twenty (120) days on a cumulative basis (the “Development Cure Period”)) for the duration of each of the following delays: a Force Majeure Event occurs; or Xxxxx has not made all necessary arrangements to receive the Energy at the Delivery Point by the Guaranteed Commercial Operation Date. No extension shall be given Notwithstanding anything in this Agreement to the contrary, the cumulative extensions granted under the Development Cure Period (aother than the extensions granted pursuant to clause 4(b) if above) shall not exceed one hundred eighty (180) days, for any reason, and, without limiting the provisions of Section 10.3, no extension shall be given to the extent that (i) the delay was due to the result of Seller’s failure to take all commercially reasonable actions to meet its requirements and deadlines, ; (bii) Seller does not satisfy the requirements failed to provide prompt written notice to Buyer of a delay due to a Force Majeure Event, but in no case more than thirty (30) days after Seller became aware of an actual delay (not including Seller’s receipt of generic notices of potential delays due to a Force Majeure Event) affecting the Facility, except that in the case of a delay occurring within sixty (60) days of the Guaranteed Delivery Commencement Date, or after such date, Seller must provide written notice and documentation requirements under Section Error: Reference source not found. Upon within seven (7) Business Days of Seller becoming aware of such delay; or (iii) Seller failed, upon written request from Buyer, Seller shall promptly to provide documentation demonstrating to Buyer’s reasonable satisfaction that the delay was the a result of a Force Majeure Event and did not result from Seller’s actions or failure to take commercially reasonable actions Failure to Reach Guaranteed Capacity. If, at Commercial Operation, the Installed Capacity is less than one hundred percent (100%) of the Guaranteed Capacity, Seller shall have one hundred twenty (120) days after the Commercial Operation Date to install additional capacity or Network Upgrades such that the Installed Capacity is equal to (but not greater than) the Guaranteed Capacity, and Seller shall provide to Buyer a new certificate substantially in the form attached as Exhibit I hereto specifying the new Installed Capacity. If Seller fails to construct the Guaranteed Capacity by such date, Seller shall pay “Capacity Damages” to Buyer, in an amount equal to Two Hundred Fifty Thousand Dollars ($250,000) for each MW that the Guaranteed Capacity exceeds the Installed Capacity, and the Guaranteed Capacity and other applicable portions of the Agreement shall be adjusted accordinglyactions.

Extension of the Guaranteed Dates. The Guaranteed Construction Start Date and the Guaranteed Commercial Operation Date shall both, subject to notice and documentation requirements set forth below, be automatically extended on a day-for-day basis due to Force Majeure Event for a period of up to one-hundred twenty (120) days on a cumulative basis (the “Development Cure Period”)) for the duration of any and all delays arising out of the following circumstances: a Force Majeure Event occurs; or the Interconnection Facilities or Network Upgrades are not complete and ready for the Facility to connect and sell Product at the Delivery Point by the Guaranteed Commercial Operation Date, despite the exercise of due diligence by Seller. No extension shall be given Notwithstanding anything in this Agreement to the contrary, the cumulative extensions granted under the Development Cure Period above shall not exceed one hundred eighty (a180) days, for any reason, including a Force Majeure Event, no extension shall be given if (i) the delay was due to the result of Seller’s failure to take all commercially reasonable actions to meet its requirements and deadlines, (bii) Seller does failed to provide requested documentation as provided below, (iii) Seller failed to provide written notice of a Force Majeure Event to Buyer as required under the Agreement, or (iv) for delays that are not satisfy the requirements of claimed as a Force Majeure Event, including Seller failed to provide written notice as required in the next sentence. For delays that are not claimed as a Force Majeure Event, Seller shall provide prompt written notice and documentation requirements under Section Error: Reference source not foundto Buyer of a delay, but in no case more than thirty (30) days after Seller became aware of such delay, except that in the case of a delay occurring within sixty (60) days of the Expected Commercial Operation Date, or after such date, Seller must provide written notice within five (5) Business Days of Seller becoming aware of such delay. Upon request from Buyer, Seller shall promptly provide documentation demonstrating to Buyer’s reasonable satisfaction that the delay was the result of a and delays described above, including from Force Majeure Event and Events, did not result from Seller’s actions or failure to take commercially reasonable actions Failure to Reach Guaranteed Capacity. If, at Commercial Operation, the Installed Capacity is less than one hundred percent (100%) of the Guaranteed Capacity, Seller shall have one hundred twenty (120) days after the Commercial Operation Date to install additional capacity or Network Upgrades such that the Installed Capacity is equal to (but not greater than) the Guaranteed Capacity, and Seller shall provide to Buyer a new certificate substantially in the form attached as Exhibit I hereto specifying the new Installed Capacity. If Seller fails to construct the Guaranteed Capacity by such date, Seller shall pay “Capacity Damages” to Buyer, in an amount equal to Two Hundred Fifty Thousand Dollars ($250,000) for each MW that the Guaranteed Capacity exceeds the Installed Capacity, and the Guaranteed Capacity and other applicable portions of the Agreement shall be adjusted accordinglyactions.

Extension of the Guaranteed Dates. The Guaranteed Construction Start Date and the Guaranteed Commercial Operation Date shall both, subject to notice and documentation requirements set forth below, be automatically extended on a day-for-day basis due to Force Majeure Event for a period of up to one-hundred twenty (120) days on a cumulative basis (the “Development Cure Period”)) for the duration of any delays arising out of the following circumstances: a. a Force Majeure Event occurs; b. Seller is unable to acquire material permits, consents, licenses, approvals or authorizations from any Governmental Authority required for Seller to construct, interconnect, or operate the Facility due to reasons outside of the reasonable control of Seller; or c. the Interconnection Facilities or Network Upgrades are not complete and ready for the Facility to connect and sell Product at the Delivery Point by the Guaranteed Commercial Operation Date, due to reasons outside of the reasonable control of Seller. Notwithstanding anything to the contrary, the cumulative extensions granted under the Development Cure Period shall not exceed for any reason, including a Force Majeure Event. No extension shall be given under the Development Cure Period if (ai) if the delay was due to the result of Seller’s failure to take all commercially reasonable actions to meet its requirements and deadlines, (bii) Seller for extensions for a Force Majeure Event under subsection (a) above, if the delay does not otherwise satisfy the requirements of a Force Majeure Event, including the notice and documentation requirements under Section Error: Reference source 10.3, or (iii) for delays that are not foundclaimed as a Force Majeure Event, Seller failed to provide written notice as required in the next sentence. For delays that are not claimed as a Force Majeure Event, Seller shall provide prompt written notice to Buyer of a delay, but in no case more than thirty (30) days after Seller became aware of such delay, except that in the case of a delay occurring within sixty (60) days of the Expected Commercial Operation Date, or after such date, Seller must provide written notice within five (5) Business Days of Seller becoming aware of such delay. Upon request from Buyer, Seller shall promptly provide documentation demonstrating to Buyer’s reasonable satisfaction that the delay was the result of a and delays described above, including from Force Majeure Event and Events, did not result from Seller’s actions or failure to take commercially reasonable actions Failure to Reach Guaranteed Capacity. If, at Commercial Operation, the Installed Capacity is less than one hundred percent (100%) of the Guaranteed Capacity, Seller shall have one hundred twenty (120) days after the Commercial Operation Date to install additional capacity or Network Upgrades such that the Installed Capacity is equal to (but not greater than) the Guaranteed Capacity, and Seller shall provide to Buyer a new certificate substantially in the form attached as Exhibit I hereto specifying the new Installed Capacity. If Seller fails to construct the Guaranteed Capacity by such date, Seller shall pay “Capacity Damages” to Buyer, in an amount equal to Two Hundred Fifty Thousand Dollars ($250,000) for each MW that the Guaranteed Capacity exceeds the Installed Capacity, and the Guaranteed Capacity and other applicable portions of the Agreement shall be adjusted accordinglyactions.

Extension of the Guaranteed Dates. The Guaranteed Construction Start Date and the Guaranteed Commercial Operation Date each shall both, subject to notice and documentation requirements set forth below, be extended automatically on a day-for-day basis due for the duration of any and all delays arising out of the following circumstances to Force Majeure Event for a period the extent the following circumstances are not the result of up Seller’s failure to one-hundred twenty (120) days on a cumulative basis take all commercially reasonable actions to meet the applicable requirements and deadlines (the “Development Cure Period”); provided, that day-for-day delays caused by more than one of the following circumstances occurring at the same time shall apply concurrently: (a) a delay in the issuance of any permit or approval required to achieve the Construction Start or Commercial Operation; (b) a delay caused by one or more Force Majeure Events; (c) a delay in the completion of construction of any Interconnection Facilities or Network Upgrades required for the Facility to interconnect with the transmission system, charge and discharge Energy, and deliver Capacity Attributes to Buyer, including without limitation if the Interconnection Facilities or Network Upgrades are not complete and ready at least four (4) months prior to the Guaranteed Commercial Operation Date (as in effect before an extension under this Section 5(c)); or (d) Xxxxx has not made all necessary arrangements to receive the Facility Energy at the Delivery Point by the Guaranteed Commercial Operation Date. No extension Seller shall be given submit a Notice of a Development Cure Period delay to Buyer and may revise or supplement any previously submitted Notice to, among other things, reflect additional days of Development Cure Period which occur after the submission of any such Notice. Notwithstanding anything in this Agreement to the contrary, the cumulative extensions granted under the Development Cure Period (aother than the extensions granted pursuant to Section 5(d) if the delay was due to Seller’s failure to take commercially reasonable actions to meet its requirements and deadlinesabove, which shall not have any limit) shall not exceed three-hundred (b300) Seller does not satisfy the requirements of a Force Majeure Event, including the notice and documentation requirements under Section Error: Reference source not founddays. Upon request from Buyer, Seller shall promptly provide documentation demonstrating to Buyer’s reasonable satisfaction that the delay was the result of a Force Majeure Event and delays described above did not result from Seller’s actions or failure to take commercially reasonable actions Failure actions. Extensions due to Reach Guaranteed Capacity. If, at Commercial Operation, the Installed Capacity is less than one hundred percent (100%) of any Development Cure Period shall apply to the Guaranteed Capacity, Seller shall have one hundred twenty (120) days after the Construction Start Date and Guaranteed Commercial Operation Date to install additional capacity or Network Upgrades such that the Installed Capacity is equal to simultaneously but shall not exceed three-hundred (but not greater than300) the Guaranteed Capacity, and Seller shall provide to Buyer a new certificate substantially days in the form attached as Exhibit I hereto specifying the new Installed Capacity. If Seller fails to construct the Guaranteed Capacity by such date, Seller shall pay “Capacity Damages” to Buyer, in an amount equal to Two Hundred Fifty Thousand Dollars ($250,000) for each MW that the Guaranteed Capacity exceeds the Installed Capacity, and the Guaranteed Capacity and other applicable portions of the Agreement shall be adjusted accordinglyaggregate.

Extension of the Guaranteed Dates. The Guaranteed Construction Start Date Date, Guaranteed Interconnection Agreement Date, and the Guaranteed Commercial Operation Date shall bothshall, subject to notice and documentation requirements set forth below, be automatically extended on a day-for-day basis due to Force Majeure Event for a period of up to one-hundred twenty (120) days on a cumulative basis (the “Development Cure Period”)) for the duration of any and all delays arising out of the following circumstances: A Force Majeure Event occurs; Seller has not acquired by the Expected Construction Start Date all material permits, consents, licenses, approvals or authorizations from any Governmental Authority required for Seller to own, construct, interconnect, operate or maintain the Facility and to permit Seller and the Facility to make available and sell Product, despite the exercise of diligent and commercially reasonable efforts by Seller; The Interconnection Facilities or Network Upgrades, if applicable, are not complete and ready for the Project to connect and sell Product at the Delivery Point by the Expected Initial Delivery Date despite the exercise of commercially reasonable efforts by Seller; or Xxxxx has not made all necessary arrangements to receive the Facility Energy at the Delivery Point by the Guaranteed Commercial Operation Date. No Notwithstanding anything in this Agreement to the contrary, the cumulative extensions granted under Section 3 of this Exhibit B shall not exceed one hundred twenty (120) days, for any reason, including a Force Majeure Event. Notwithstanding the foregoing, no extension shall be given under the Development Cure Period (a) if the delay was due to the result of Seller’s failure to take all commercially reasonable actions to meet its requirements and deadlines, (b) . Seller does not satisfy the requirements shall provide prompt written Notice to Buyer of a Force Majeure Eventdelay, including the notice and documentation requirements under Section Error: Reference source not foundbut in no case more than thirty (30) days after Seller became aware of such delay. Upon request from Buyer, Seller shall promptly provide documentation demonstrating to Buyer’s reasonable satisfaction that the delay was the result of a Force Majeure Event and delays described above did not result from Seller’s actions or failure to take commercially reasonable actions Failure to Reach Guaranteed Capacity. If, at Commercial Operation, the Installed Capacity is less than one hundred percent (100%) of the Guaranteed Capacity, Seller shall have one hundred twenty (120) days after the Commercial Operation Date to install additional capacity or Network Upgrades such that the Installed Capacity is equal to (but not greater than) the Guaranteed Capacity, and Seller shall provide to Buyer a new certificate substantially in the form attached as Exhibit I hereto specifying the new Installed Capacity. If Seller fails to construct the Guaranteed Capacity by such date, Seller shall pay “Capacity Damages” to Buyer, in an amount equal to Two Hundred Fifty Thousand Dollars ($250,000) for each MW that the Guaranteed Capacity exceeds the Installed Capacity, and the Guaranteed Capacity and other applicable portions of the Agreement shall be adjusted accordinglyactions.

Extension of the Guaranteed Dates. The Guaranteed Construction Start Date and the Guaranteed Commercial Operation Date shall bothshall, subject to notice and documentation requirements set forth below, be automatically extended on a day-for-day basis due to Force Majeure Event for a period of up to one-hundred twenty (120) days on a cumulative basis (the “Development Cure Period”)) for the duration of any and all delays arising out of the following circumstances: (a) Seller has not acquired all material permits, consents, licenses, approvals, or authorizations from any Governmental Authority required for Seller to own, construct, interconnect, operate or maintain the Facility and to permit Seller and Facility to make available and sell Product by the Expected Construction Start Date, despite the exercise of due diligence by Seller; or (b) a Force Majeure Event occurs; or (c) the Interconnection Facilities or Network Upgrades are not complete and ready for the Facility to connect and sell Product at the Delivery Point by the Guaranteed Commercial Operation Date, despite the exercise of due diligence by Seller. No extension shall be given Notwithstanding anything in this Agreement to the contrary, the cumulative extensions granted under the Development Cure Period above shall not exceed one hundred twenty (a120) days, for any reason, including a Force Majeure Event, and no extension shall be given if the delay was due to the result of Seller’s failure to take commercially reasonable actions exercise due diligence to meet its requirements and deadlines, (b) Seller does not satisfy the requirements of a Force Majeure Event, including the notice and documentation requirements under Section Error: Reference source not found. Upon request from Buyer, Seller shall promptly provide documentation demonstrating to Buyer’s reasonable satisfaction that the delay was the result of a Force Majeure Event and delays described above did not result from Seller’s actions or failure to take commercially reasonable actions Failure to Reach Guaranteed Capacity. If, at Commercial Operation, the Installed Capacity is less than one hundred percent (100%) of the Guaranteed Capacity, Seller shall have one hundred twenty (120) days after the Commercial Operation Date to install additional capacity or Network Upgrades such that the Installed Capacity is equal to (but not greater than) the Guaranteed Capacity, and Seller shall provide to Buyer a new certificate substantially in the form attached as Exhibit I hereto specifying the new Installed Capacity. If Seller fails to construct the Guaranteed Capacity by such date, Seller shall pay “Capacity Damages” to Buyer, in an amount equal to Two Hundred Fifty Thousand Dollars ($250,000) for each MW that the Guaranteed Capacity exceeds the Installed Capacity, and the Guaranteed Capacity and other applicable portions of the Agreement shall be adjusted accordinglyexercise due diligence.