Common use of Remedies of the Buyer Clause in Contracts

Remedies of the Buyer. ‌ (a) If any Supplier Event of Default (other than a Supplier Event of Default referred to in Sections 10.1(e), 10.1(g), and 10.1(h)) occurs and is continuing, upon written notice to the Supplier, the Buyer may, subject to Article 12, terminate this Agreement.‌ (b) If a Supplier Event of Default referred to in Sections 10.1(b), 10.1(k), or 10.1(l) occurs and is continuing, in addition to the remedies set out in Section 10.2(a), at the discretion of the Buyer, either:‌ (i) the Supplier will forfeit an amount equivalent to the Assumed Deemed Dispatch Payment that would be payable to the Supplier, if any, for the Settlement Month in which such Supplier Event of Default occurs, as liquidated damages and not as a penalty; or (ii) the Buyer may levy a performance assessment set-off, as liquidated damages and not as a penalty, equal to three (3) times the average Assumed Deemed Dispatch Payment that would be payable to the Supplier, if any, for the most recent twelve (12) Settlement Months (or the number of Settlement Months that have elapsed from the Term Commencement Date if less than twelve (12) Settlement Months have elapsed), in the event that three (3) or more Supplier Events of Default referred to in Sections 10.1(b), 10.1(k), or 10.1(l) have occurred within a Contract Year, regardless of whether such Supplier Events of Default have been subsequently cured, and which may be satisfied by the Buyer setting off any payments due to the Supplier against any amounts payable by the Supplier to the Buyer including, at the Buyer’s option, the amount of any Completion and Performance Security provided to the Buyer pursuant to Article 6, and by drawing on the Completion and Performance Security, or any part thereof, and if the remedy in Section 10.2(a) has not been exercised, requiring the Supplier to replace such drawn security with new security. (c) If a Supplier Event of Default occurs and is continuing, the Buyer may, in addition to the remedies set out in Section 10.2(a):‌ (i) set off any payments due to the Supplier against any amounts payable by the Supplier to the Buyer including, at the Buyer’s option, the amount of any Completion and Performance Security provided to the Buyer pursuant to Article 6; and (ii) draw on the Completion and Performance Security, or any part thereof and, if the remedy in Section 10.2(a) has not been exercised, require the Supplier to replace such drawn security with new security. (d) Notwithstanding Sections 10.2(a), 10.2(b), and 10.2(c), upon the occurrence of a Supplier Event of Default referred to in Sections 10.1(e), 10.1(g) or 10.1(h), this Agreement shall automatically terminate without notice, act or formality, effective immediately before the occurrence of such Supplier Event of Default, in which case, for certainty, the Secured Lender shall have the rights available to it under Section 12.2(g).‌ (e) If the Buyer terminates this Agreement pursuant to Section 10.2(a) or this Agreement is terminated pursuant to Section 10.2(d), the Buyer shall have the following option, exercisable in the sole and absolute discretion of the Buyer: the Buyer shall be entitled to retain all Completion and Performance Security provided by or on behalf of the Supplier and exercise all other remedies available to the Buyer including pursuing a claim for damages, as contemplated in Section 10.5.‌ (f) Termination shall not relieve the Supplier or the Buyer of their respective responsibilities relating to the availability of the Contract Capacity and delivery of the Electricity, Related Products, and Environmental Attributes from the Facility that relate to the Contract Capacity, or amounts payable under this Agreement, up to and including the Termination Date. The Buyer shall be responsible only for the payment of amounts accruing under this Agreement up to and including the Termination Date. In addition to its other rights of set off available to it pursuant to this Agreement and at law, the Buyer may hold back payment or set off its obligation to make such payment against any payments owed to it if the Supplier fails to comply with its obligations on termination.

Remedies of the Buyer. ‌ (a) If any Supplier Event of Default (other than a Supplier Event of Default referred to in Sections 10.1(e9.1(e), 10.1(g9.1(g), and 10.1(h9.1(h)) occurs and is continuing, upon written notice to the Supplier, the Buyer may, subject to Article 1211, in accordance with Section 9.5(a), terminate this Agreement.‌Agreement and, if applicable, demand the Early Termination Payment. (b) If a Supplier Event of Default referred to in Sections 10.1(b9.1(b), 10.1(k9.1(n), or 10.1(l9.1(o) occurs and is continuing, the Buyer may, in addition to the remedies set out in Section 10.2(a9.2(a), at the discretion of the Buyer, either:‌either: (i) the Supplier will forfeit an amount equivalent to the Assumed Deemed Dispatch Payment that would be entire Contingent Support Payment, otherwise payable to the Supplier, if any, Supplier for the Settlement Month in which such Supplier Event of Default occurs, as liquidated damages and not as a penalty; or (ii) the Buyer may levy a performance assessment set-off, as liquidated damages and not as a penalty, equal to three (3) times the average Assumed Deemed Dispatch Contingent Support Payment that would be payable to the Supplier, if any, Supplier for the most recent twelve (12) Settlement Months (or the number of Settlement Months that have elapsed from the Term Commencement Date if less than twelve (12) Settlement Months have elapsed), in the event that three (3) or more Supplier Events of Default referred to in Sections 10.1(b9.1(b), 10.1(k9.1(n), or 10.1(l9.1(o) have occurred within a Contract Year, regardless of whether such Supplier Events of Default have had been subsequently cured, and which may be satisfied by the Buyer setting off any payments due to the Supplier against any amounts payable by the Supplier to the Buyer including, at the Buyer’s option, the amount of any Completion and Performance Security provided to the Buyer pursuant to Article 65, and by drawing on the Completion and Performance Security, or any part thereof, and if the remedy in Section 10.2(a9.2(a) has not been exercised, requiring the Supplier to replace such drawn security with new security. (c) If a Supplier Event of Default referred to in Sections 9.1(a), 9.1(l), or 9.1(m) occurs and is continuing, the Buyer may, in addition to the remedies set out in Section 10.2(a):‌9.2(a): (i) set off any payments due to the Supplier against any amounts payable by the Supplier to the Buyer including, at the Buyer’s option, the amount of any Completion and Performance Security provided to the Buyer pursuant to Article 6; 5, and (ii) draw on the Completion and Performance Security, or any part thereof and, if the remedy in Section 10.2(a9.2(a) has not been exercised, require the Supplier to replace such drawn security with new security. (d) Notwithstanding Sections 10.2(a9.2(a), 10.2(b9.2(b), and 10.2(c9.3(c), upon the occurrence of a Supplier Event of Default referred to in Sections 10.1(e9.1(e), 10.1(g) 9.1(g), or 10.1(h9.1(h), this Agreement shall automatically terminate without notice, act or formality, effective immediately before the occurrence of such Supplier Event of Default, in which case, for certainty, the Secured Lender shall have the rights available to it under Section 12.2(g).‌11.2(g). (e) If the Buyer terminates this Agreement pursuant to Section 10.2(a) or this Agreement is terminated pursuant to Section 10.2(d), the Buyer shall have the following option, exercisable in the sole and absolute discretion of the Buyer: the Buyer shall be entitled to retain all Completion and Performance Security provided by or on behalf of the Supplier and exercise all other remedies available to the Buyer including pursuing a claim for damages, as contemplated in Section 10.5.‌ (f) Termination shall not relieve the Supplier or the Buyer of their respective responsibilities relating to the availability of the Contract Capacity Contracted Demand Reduction and delivery curtailment of the Electricity, Related Products, and Environmental Attributes from Electricity demand of the Facility that relate to Load as a direct result of the Contract Capacity, or amounts payable under this Agreement, operation of the Control Equipment up to and including the Termination Date. The Buyer shall be responsible only for the payment of amounts accruing under this Agreement up to and including the Termination Date. In addition to its other rights of set off available to it pursuant to this Agreement and at law, the Buyer may hold back payment or set off its obligation to make such payment against any payments owed to it if the Supplier fails to comply with its obligations on termination. (f) To the extent that any Supplier Event of Default is curable, the Buyer shall have the right, but not the obligation, to cure or attempt to cure such Supplier Event of Default on behalf of the Supplier, and at the Supplier’s expense. Prior to doing so, the Buyer will advise the Supplier of its intention to take steps to cure. The Supplier shall reimburse the Buyer, forthwith upon written demand, for its costs, charges, and expenses (including legal fees) incurred in curing or attempting to cure such Supplier Event of Default.

Remedies of the Buyer. ‌ (a) If any Supplier Event of Default (other than a Supplier Event of Default referred to in Sections 10.1(e9.1(e), 10.1(g9.1(g), and 10.1(h9.1(h)) occurs and is continuing, upon written notice to the Supplier, the Buyer may, subject to Article 1211, in accordance with Section 9.5(a), terminate this Agreement.‌Agreement and, if applicable, demand the Early Termination Payment. (b) If a Supplier Event of Default referred to in Sections 10.1(b), 10.1(k), 9.1(b) or 10.1(l9.1(n) occurs and is continuing, in addition to the remedies set out in Section 10.2(a9.2(a), at the discretion of the Buyer, either:‌either: (i) the Supplier will forfeit an amount equivalent to the Assumed Deemed Dispatch entire Contingent Support Payment that would be otherwise payable to the Supplier, if any, Supplier for the Settlement Month in which such Supplier Event of Default occurs, as liquidated damages and not as a penalty; or (ii) the Buyer may levy a performance assessment set-off, as liquidated damages and not as a penalty, equal to three (3) times the average Assumed Deemed Dispatch Contingent Support Payment that would be payable to the Supplier, if any, Supplier for the most recent twelve (12) Settlement Months (or the number of Settlement Months that have elapsed from the Term Commencement Date if less than twelve (12) Settlement Months have elapsed), in the event that three (3) or more Supplier Events of Default referred to in Sections 10.1(bSection 9.1(b), 10.1(k), or 10.1(l) have occurred within a Contract Year, regardless of whether such Supplier Events of Default have had been subsequently cured, and which may be satisfied by the Buyer setting off any payments due to the Supplier against any amounts payable by the Supplier to the Buyer including, at the Buyer’s option, the amount of any Completion and Performance Security provided to the Buyer pursuant to Article 65, and by drawing on the Completion and Performance Security, or any part thereof, and if the remedy in Section 10.2(a9.2(a) has not been exercised, exercised requiring the Supplier to replace such drawn security with new security. (c) If a Supplier Event of Default referred to in Sections 9.1(a), 9.1(l), or 9.1(m) occurs and is continuing, the Buyer may, in addition to the remedies set out in Section 10.2(a):‌9.2(a): (i) set off any payments due to the Supplier against any amounts payable by the Supplier to the Buyer including, at the Buyer’s option, the amount of any Completion and Performance Security provided to the Buyer pursuant to Article 6; 5, and (ii) draw on the Completion and Performance Security, or any part thereof and, if the remedy in Section 10.2(a9.2(a) has not been exercised, require the Supplier to replace such drawn security with new security. (d) Notwithstanding Sections 10.2(a9.2(a), 10.2(b9.2(b), and 10.2(c9.3(c), upon the occurrence of a Supplier Event of Default referred to in Sections 10.1(e9.1(e), 10.1(g) 9.1(g), or 10.1(h9.1(h), this Agreement shall automatically terminate without notice, act or formality, effective immediately before the occurrence of such Supplier Event of Default, in which case, for certainty, the Secured Lender shall have the rights available to it under Section 12.2(g).‌11.2(g). (e) If the Buyer terminates this Agreement pursuant to Section 10.2(a) or this Agreement is terminated pursuant to Section 10.2(d), the Buyer shall have the following option, exercisable in the sole and absolute discretion of the Buyer: the Buyer shall be entitled to retain all Completion and Performance Security provided by or on behalf of the Supplier and exercise all other remedies available to the Buyer including pursuing a claim for damages, as contemplated in Section 10.5.‌ (f) Termination shall not relieve the Supplier or the Buyer of their respective responsibilities relating to the availability of the Contract Capacity and delivery of the Electricity, Related Products, and Environmental Attributes from the Facility that relate to the Contract DSM Project Equivalent Capacity, or amounts payable under this Agreement, up to and including the Termination Date. The Buyer shall be responsible only for the payment of amounts accruing under this Agreement up to and including the Termination Date. In addition to its other rights of set off available to it pursuant to this Agreement and at law, the Buyer may hold back payment or set off its obligation to make such payment against any payments owed to it if the Supplier fails to comply with its obligations on termination.

Remedies of the Buyer. ‌ (a) If any Supplier Event of Default (other than a Supplier Event of Default referred to in Sections 10.1(e9.1(e), 10.1(g9.1(g), and 10.1(h9.1(h)) occurs and is continuing, upon written notice to the Supplier, the Buyer may, subject to Article 1211, in accordance with Section 9.5(a), terminate this Agreement.‌Agreement and, if applicable, demand the Early Termination Payment. (b) If a Supplier Event of Default referred to in Sections 10.1(b9.1(b), 10.1(k9.1(n), or 10.1(l9.1(o) occurs and is continuing, in addition to the remedies set out in Section 10.2(a9.2(a), at the discretion of the Buyer, either:‌either: (i) the Supplier will forfeit an amount equivalent to the Assumed Deemed Dispatch entire Contingent Support Payment that would be otherwise payable to the Supplier, if any, Supplier for the Settlement Month in which such Supplier Event of Default occurs, as liquidated damages and not as a penalty; or (ii) the Buyer may levy a performance assessment set-off, as liquidated damages and not as a penalty, equal to three (3) times the average Assumed Deemed Dispatch Contingent Support Payment that would be payable to the Supplier, if any, Supplier for the most recent twelve (12) Settlement Months (or the number of Settlement Months that have elapsed from the Term Commencement Date if less than twelve (12) Settlement Months have elapsed), in the event that three (3) or more Supplier Events of Default referred to in Sections 10.1(b9.1(b), 10.1(k9.1(n), or 10.1(l9.1(o) have occurred within a Contract Year, regardless of whether such Supplier Events of Default have had been subsequently cured, and which may be satisfied by the Buyer setting off any payments due to the Supplier against any amounts payable by the Supplier to the Buyer including, at the Buyer’s option, the amount of any Completion and Performance Security provided to the Buyer pursuant to Article 65, and by drawing on the Completion and Performance Security, or any part thereof, and if the remedy in Section 10.2(a9.2(a) has not been exercised, requiring the Supplier to replace such drawn security with new security. (c) If a Supplier Event of Default referred to in Sections 9.1(a), 9.1(l), or 9.1(m) occurs and is continuing, the Buyer may, in addition to the remedies set out in Section 10.2(a):‌9.2(a): (i) set off any payments due to the Supplier against any amounts payable by the Supplier to the Buyer including, at the Buyer’s option, the amount of any Completion and Performance Security provided to the Buyer pursuant to Article 6; 5, and (ii) draw on the Completion and Performance Security, or any part thereof and, if the remedy in Section 10.2(a9.2(a) has not been exercised, require the Supplier to replace such drawn security with new security. (d) Notwithstanding Sections 10.2(a9.2(a), 10.2(b9.2(b), and 10.2(c9.3(c), upon the occurrence of a Supplier Event of Default referred to in Sections 10.1(e9.1(e), 10.1(g) 9.1(g), or 10.1(h9.1(h), this Agreement shall automatically terminate without notice, act or formality, effective immediately before the occurrence of such Supplier Event of Default, in which case, for certainty, the Secured Lender shall have the rights available to it under Section 12.2(g).‌11.2(g). (e) If the Buyer terminates this Agreement pursuant to Section 10.2(a) or this Agreement is terminated pursuant to Section 10.2(d), the Buyer shall have the following option, exercisable in the sole and absolute discretion of the Buyer: the Buyer shall be entitled to retain all Completion and Performance Security provided by or on behalf of the Supplier and exercise all other remedies available to the Buyer including pursuing a claim for damages, as contemplated in Section 10.5.‌ (f) Termination shall not relieve the Supplier or the Buyer of their respective responsibilities relating to the availability of the Contract Capacity and delivery of the Electricity, Electricity and Related Products, and Environmental Attributes Products from the Facility that relate to the Contract CapacityFacility, or amounts payable under this Agreement, up to and including the Termination Date. The Buyer shall be responsible only for the payment of amounts accruing under this Agreement up to and including the Termination Date. In addition to its other rights of set off available to it pursuant to this Agreement and at law, the Buyer may hold back payment or set off its obligation to make such payment against any payments owed to it if the Supplier fails to comply with its obligations on termination.

Remedies of the Buyer. ‌ (a) If any Supplier Event of Default (other than a Supplier Event of Default referred to in Sections 10.1(e), 10.1(g), and 10.1(h)) occurs and is continuing, upon written notice to the Supplier, the Buyer may, subject to Article 12, 13 terminate this Agreement.‌ (b) If a Supplier Event of Default referred to in Sections 10.1(b), 10.1(k), 10.1(l), or 10.1(l10.1(m) occurs and is continuing, in addition to the remedies remedy set out in Section 10.2(a), at the discretion of the Buyer, either:‌ (i) the Supplier will forfeit an amount equivalent to the Assumed Deemed Dispatch Monthly Payment that would be payable to the Supplier, if any, for the Settlement Month in which such Supplier Event of Default occurs, as liquidated damages and not as a penalty; or (ii) the Buyer may levy a performance assessment set-off, as liquidated damages and not as a penalty, equal to three (3) times the average Assumed Deemed Dispatch Monthly Payment that would be payable to the Supplier, if any, for the most recent twelve (12) Settlement Months (or the number of Settlement Months that have elapsed from the Term Commencement Date if less than twelve (12) Settlement Months have elapsed), in the event that three (3) or more Supplier Events of Default referred to in Sections 10.1(b), 10.1(k), 10.1(l), or 10.1(l10.1(m) have occurred within a Contract Year, regardless of whether such Supplier Events of Default have been subsequently cured, and which may be satisfied by the Buyer setting off any payments due to the Supplier against any amounts payable by the Supplier to the Buyer including, at the Buyer’s option, the amount of any Completion and Performance Security provided to the Buyer pursuant to Article 6, and by drawing on the Completion and Performance Security, or any part thereof, and if the remedy in Section 10.2(a) has not been exercised, requiring the Supplier to replace such drawn security with new security, if applicable. (c) If a Supplier Event of Default occurs and is continuing, the Buyer may, in addition to the remedies set out in Section 10.2(a):‌ (i) set off any payments due to the Supplier against any amounts payable by the Supplier to the Buyer including, at the Buyer’s option, the amount of any Completion and Performance Security provided to the Buyer pursuant to Article 6; and (ii) draw on the Completion and Performance Security, or any part thereof and, if the remedy in Section 10.2(a) has not been exercised, require the Supplier to replace such drawn security with new security, if applicable. (d) Notwithstanding Sections 10.2(a), 10.2(b), and 10.2(c), upon the occurrence of a Supplier Event of Default referred to in Sections 10.1(e), 10.1(g) or 10.1(h), this Agreement shall automatically terminate without notice, act or formality, effective immediately before the occurrence of such Supplier Event of Default, in which case, for certainty, the Secured Lender shall have the rights available to it under Section 12.2(g).‌Default.‌ (e) If the Buyer terminates this Agreement pursuant to Section 10.2(a) or this Agreement is terminated pursuant to Section 10.2(d), the Buyer shall have the following option, exercisable in the sole and absolute discretion of the Buyer: the Buyer shall be entitled to retain all Completion and Performance Security provided by or on behalf of the Supplier and exercise all other remedies available to the Buyer including pursuing a claim for damages, as contemplated in Section 10.5.‌10.5. (f) Termination shall not relieve the Supplier or the Buyer of their respective responsibilities relating to the availability of the Contract Capacity and delivery of the Electricity, Related Products, and Environmental Attributes from the Facility that relate to the Contract Capacity, or amounts payable under this Agreement, up to and including the Termination Date. The Buyer shall be responsible only for the payment of amounts accruing under this Agreement up to and including the Termination Date. In addition to its other rights of set off available to it pursuant to this Agreement and at law, the Buyer may hold back payment or set off its obligation to make such payment against any payments owed to it if the Supplier fails to comply with its obligations on termination.

Remedies of the Buyer. ‌ (a) If any Supplier Event of Default (other than a Supplier Event of Default referred to in Sections 10.1(e), 10.1(g), and 10.1(h)) occurs and is continuing, upon written notice to the Supplier, the Buyer may, subject to Article 12, terminate this Agreement.‌Agreement. (b) If a Supplier Event of Default referred to in Sections 10.1(b), 10.1(k10.1(m), or 10.1(l10.1(n) occurs and is continuing, in addition to the remedies set out in Section 10.2(a), at the discretion of the Buyer, either:‌either: (i) the Supplier will forfeit an amount equivalent to the Assumed Deemed Dispatch Payment that would be payable to the Supplier, if any, for the Settlement Month in which such Supplier Event of Default occurs, as liquidated damages and not as a penalty; or (ii) the Buyer may levy a performance assessment set-off, as liquidated damages and not as a penalty, equal to three (3) times the average Assumed Deemed Dispatch Payment that would be payable to the Supplier, if any, for the most recent twelve (12) Settlement Months (or the number of Settlement Months that have elapsed from the Term Commencement Date if less than twelve (12) Settlement Months have elapsed), in the event that three (3) or more Supplier Events of Default referred to in Sections 10.1(b), 10.1(k10.1(m), or 10.1(l10.1(n) have occurred within a Contract Year, regardless of whether such Supplier Events of Default have been subsequently cured, and which may be satisfied by the Buyer setting off any payments due to the Supplier against any amounts payable by the Supplier to the Buyer including, at the Buyer’s option, the amount of any Completion and Performance Security provided to the Buyer pursuant to Article 6, and by drawing on the Completion and Performance Security, or any part thereof, and if the remedy in Section 10.2(a) has not been exercised, requiring the Supplier to replace such drawn security with new security. (c) If a Supplier Event of Default occurs and is continuing, the Buyer may, in addition to the remedies set out in Section 10.2(a):‌10.2(a): (i) set off any payments due to the Supplier against any amounts payable by the Supplier to the Buyer including, at the Buyer’s option, the amount of any Completion and Performance Security provided to the Buyer pursuant to Article 6; and (ii) draw on the Completion and Performance Security, or any part thereof and, if the remedy in Section 10.2(a) has not been exercised, require the Supplier to replace such drawn security with new security. (d) Notwithstanding Sections 10.2(a), 10.2(b), and 10.2(c), upon the occurrence of a Supplier Event of Default referred to in Sections 10.1(e), 10.1(g) or 10.1(h), this Agreement shall automatically terminate without notice, act or formality, effective immediately before the occurrence of such Supplier Event of Default, in which case, for certainty, the Secured Lender shall have the rights available to it under Section 12.2(g).‌12.2(g). (e) If the Buyer terminates this Agreement pursuant to Section 10.2(a) or this Agreement is terminated pursuant to Section 10.2(d), the Buyer shall have the following option, exercisable in the sole and absolute discretion of the Buyer: : (i) if the Termination Date precedes the Contract Facility COD, the Supplier shall pay, as liquidated damages and not as a penalty, an amount equivalent to (1) the amount of all Completion and Performance Security provided by or on behalf of the Supplier, plus (2) the amount of any portion of the Completion and Performance Security that the Supplier was required under Section 6.1 to provide to the Buyer as of the Termination Date (with the total amount of such liquidated damages being referred to as the “Sum”). The Buyer shall be entitled to retain all Completion and Performance Security provided by or on behalf of the Supplier and apply it towards the Supplier’s obligation to pay the Sum. With respect to any unpaid portion of the Sum, the Buyer may exercise all remedies available to the Buyer including pursuing a claim for damages, as contemplated in Section 10.5; or (ii) if the Termination Date is on or after the Contract Facility COD, the Buyer shall be entitled to retain all Completion and Performance Security provided by or on behalf of the Supplier and exercise all other remedies available to the Buyer including pursuing a claim for damages, as contemplated in Section 10.5.‌10.5. (f) Termination shall not relieve the Supplier or the Buyer of their respective responsibilities relating to the availability of the Contract Capacity and delivery of the Electricity, Electricity and Related Products, and Environmental Attributes Products from the Facility that relate to the Contract CapacityFacility, or amounts payable under this Agreement, up to and including the Termination Date. The Buyer shall be responsible only for the payment of amounts accruing under this Agreement up to and including the Termination Date. In addition to its other rights of set off available to it pursuant to this Agreement and at law, the Buyer may hold back payment or set off its obligation to make such payment against any payments owed to it if the Supplier fails to comply with its obligations on termination.

Remedies of the Buyer. ‌ (a) If any Supplier Event of Default (other than a Supplier Event of Default referred to in Sections 10.1(e), 10.1(g), and 10.1(h)) occurs and is continuing, upon written notice to the Supplier, the Buyer may, subject to Article 12, terminate this Agreement.‌Agreement. (b) If a Supplier Event of Default referred to in Sections 10.1(b), 10.1(k10.1(m), or 10.1(l10.1(n) occurs and is continuing, in addition to the remedies set out in Section 10.2(a), at the discretion of the Buyer, either:‌either: (i) the Supplier will forfeit an amount equivalent to the Assumed Deemed Dispatch Payment that would be payable to the Supplier, if any, for the Settlement Month in which such Supplier Event of Default occurs, as liquidated damages and not as a penalty; or (ii) the Buyer may levy a performance assessment set-off, as liquidated damages and not as a penalty, equal to three (3) times the average Assumed Deemed Dispatch Payment that would be payable to the Supplier, if any, for the most recent twelve (12) Settlement Months (or the number of Settlement Months that have elapsed from the Term Commencement Date if less than twelve (12) Settlement Months have elapsed), in the event that three (3) or more Supplier Events of Default referred to in Sections 10.1(b), 10.1(k10.1(m), or 10.1(l10.1(n) have occurred within a Contract Year, regardless of whether such Supplier Events of Default have been subsequently cured, and which may be satisfied by the Buyer setting off any payments due to the Supplier against any amounts payable by the Supplier to the Buyer including, at the Buyer’s option, the amount of any Completion and Performance Security provided to the Buyer pursuant to Article 6, and by drawing on the Completion and Performance Security, or any part thereof, and if the remedy in Section 10.2(a) has not been exercised, requiring the Supplier to replace such drawn security with new security. (c) If a Supplier Event of Default occurs and is continuing, the Buyer may, in addition to the remedies set out in Section 10.2(a):‌10.2(a): (i) set off any payments due to the Supplier against any amounts payable by the Supplier to the Buyer including, at the Buyer’s option, the amount of any Completion and Performance Security provided to the Buyer pursuant to Article 6; and (ii) draw on the Completion and Performance Security, or any part thereof and, if the remedy in Section 10.2(a) has not been exercised, require the Supplier to replace such drawn security with new security. (d) Notwithstanding Sections 10.2(a), 10.2(b), and 10.2(c), upon the occurrence of a Supplier Event of Default referred to in Sections 10.1(e), 10.1(g) or 10.1(h), this Agreement shall automatically terminate without notice, act or formality, effective immediately before the occurrence of such Supplier Event of Default, in which case, for certainty, the Secured Lender shall have the rights available to it under Section 12.2(g).‌12.2(g). (e) If the Buyer terminates this Agreement pursuant to Section 10.2(a) or this Agreement is terminated pursuant to Section 10.2(d), the Buyer shall have the following option, exercisable in the sole and absolute discretion of the Buyer: : (i) if the Termination Date precedes the COD, the Supplier shall pay, as liquidated damages and not as a penalty, an amount equivalent to (1) the amount of all Completion and Performance Security provided by or on behalf of the Supplier, plus (2) the amount of any portion of the Completion and Performance Security that the Supplier was required under Section 6.1 to provide to the Buyer as of the Termination Date (with the total amount of such liquidated damages being referred to as the “Sum”). The Buyer shall be entitled to retain all Completion and Performance Security provided by or on behalf of the Supplier and apply it towards the Supplier’s obligation to pay the Sum. With respect to any unpaid portion of the Sum, the Buyer may exercise all remedies available to the Buyer including pursuing a claim for damages, as contemplated in Section 10.5; or (ii) if the Termination Date is on or after the COD, the Buyer shall be entitled to retain all Completion and Performance Security provided by or on behalf of the Supplier and exercise all other remedies available to the Buyer including pursuing a claim for damages, as contemplated in Section 10.5.‌10.5. (f) Termination shall not relieve the Supplier or the Buyer of their respective responsibilities relating to the availability of the Contract Capacity and delivery of the Electricity, Related Products, and Environmental Attributes from the Facility that relate to the Contract Capacity, or amounts payable under this Agreement, up to and including the Termination Date. The Buyer shall be responsible only for the payment of amounts accruing under this Agreement up to and including the Termination Date. In addition to its other rights of set off available to it pursuant to this Agreement and at law, the Buyer may hold back payment or set off its obligation to make such payment against any payments owed to it if the Supplier fails to comply with its obligations on termination.