Common use of Timeliness of Payment Clause in Contracts

Timeliness of Payment. Unless otherwise agreed by the Parties, all invoices under this Agreement shall be due and payable in accordance with each Party’s invoice instructions on or before the thirtieth (30th) Day after receipt of the invoice or, if such Day is not a Business Day, then on the next Business Day. For the avoidance of doubt, such thirtieth (30th) Day after receipt of the invoice, or such following Business Day, shall be the date on which the amounts invoiced therein shall be due for all purposes of this Agreement. Each Party will make payments by electronic funds transfer, or by other mutually agreeable method(s), to the account designated by the other Party. Any amounts not paid by the due date will be deemed delinquent and will accrue interest at the Interest Rate, such interest to be calculated from and including the due date to but excluding the date the delinquent amount is paid in full. Disputes and Adjustments of Invoices A Party may, in good faith, dispute the correctness of any invoice or any adjustment to an invoice, rendered under this Agreement or adjust any invoice for any arithmetic or computational error within six (6) years of the date the invoice, or adjustment to an invoice, was rendered. In the event an invoice or portion thereof, or any other claim or adjustment arising hereunder, is disputed, payment of the undisputed portion of the invoice shall be required to be made when due, with notice of the objection given to the other Party. Any invoice dispute or invoice adjustment shall be in writing and shall state the basis for the dispute or adjustment. If an invoice is not rendered within twelve (12) Months after the close of the Month during which performance occurred, the right to payment for such performance is waived. Payment Obligation Each Party shall pay the other Party all amounts owed in full when due except for amounts in dispute in accordance with Section 7.4. LIMITATIONS THE PARTIES AGREE THAT SELLER’S WARRANTIES SPECIFICALLY SET FORTH IN THIS AGREEMENT CONSTITUTE BUYER’S SOLE REMEDY AND SELLER’S SOLE LIABILITY WITH RESPECT TO WARRANTY CLAIMS AND ARE IN LIEU OF ANY OTHER WARRANTIES AVAILABLE AT LAW OR IN EQUITY. THERE IS NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED. THE PARTIES CONFIRM THAT THE EXPRESS REMEDIES AND MEASURES OF DAMAGES PROVIDED IN THIS AGREEMENT SATISFY THE ESSENTIAL PURPOSES HEREOF. UNLESS EXPRESSLY HEREIN PROVIDED, NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE. IT IS THE INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE. TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE LIQUIDATED, THE PARTIES ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE, OR OTHERWISE OBTAINING AN ADEQUATE REMEDY IS INCONVENIENT AND THE LIQUIDATED DAMAGES CALCULATED HEREUNDER CONSTITUTE A REASONABLE APPROXIMATION OF THE HARM OR LOSS, AND NOT A PENALTY. SELLER SECURITY Seller Security As security for Seller’s obligations under or related to this Agreement, within five (5) Business Days of receipt of notice from Buyer in accordance with Section 2.1 that the Effective Date has occurred, Seller shall deliver to Buyer and shall thereafter maintain security consisting of Letters of Credit, Performance Bonds and/or money in Escrow (the “Seller Security”) in an aggregate amount through Project COD equal to the product of (a) the Project Capacity and (b) $150,000 per MW (the “Security Amount”). The Seller Security may only be in the form of a Letter of Credit, Performance Bond, and/or money in Escrow or combination thereof. Seller shall maintain the Seller Security in the Security Amount, at Seller’s sole cost and expense, until the latest of (x) the end of the Term, (y) completion of all payments Seller is obligated to make to Buyer at any time, including any Termination Payment, Make-Whole Payment and/or Liquidated Damages, or (z) in the event any payment has been made by Seller to Buyer within ninety-eight (98) Days prior to the end of the Term or any payment is due by Seller to Buyer as of the end of the Term, the date of which is ninety-eight (98) Days following the date on which the last such payment is made. Each Letter of Credit and Performance Bond provided as Seller Security shall be issued by a Person meeting the Credit Requirements or an issuer meeting the Letter of Credit and Performance Bond requirements, and if at any time such Person fails to meet the Credit Requirements or such issuer fails to meet such requirements, Seller shall as promptly as practicable replace such Letter of Credit or Performance Bond with alternative forms of Seller Security in the form required by this Agreement provided by a Person that meets the Credit Requirements. Seller Security Replacement Subject to Section 9.1, if no Seller Event of Default has occurred that is continuing, and no Seller Event of Default will occur upon the giving of notice, the passage of time or both, Seller shall have the right to replace any Letter of Credit, Performance Bond or Escrow with a substitute form or substitute forms of Seller Security provided that such replacement meets the terms and conditions of Seller Security under this Agreement and provided further that there be no lapse in the required amount of Seller Security resulting from such replacement. If the applicable substitute Seller Security shall be replacing a Letter of Credit, then Buyer shall promptly mark such Letter of Credit as “cancelled” and return the original of same to Seller and shall take such other actions as reasonably may be requested by the issuer of such letter of credit to evidence the cancellation thereof. If the applicable substitute Seller Security shall be replacing a Performance Bond, then Buyer shall promptly mark such Performance Bond as “cancelled” and return the original of the same to Seller and shall take all such other actions as reasonably may be requested by the issuer of such Performance Bond to evidence cancellation thereof. If the applicable substitute Seller Security shall be replacing cash collateral, then Buyer shall execute such documentation releasing and terminating its rights (including contract rights) with respect thereto, and shall take any other steps necessary to transfer such cash collateral back to Seller, in each case as may be reasonably requested by Seller. If Seller shall have previously provided, but shall no longer be required to maintain, certain Seller Security hereunder, then Xxxxx shall return, in the same manner as described above, the applicable Seller Security previously posted on behalf of Seller but which is no longer required to be maintained. Draw on Seller Security Buyer may draw upon or make a claim on Seller Security (a) to satisfy any amounts owed by Seller to Buyer under this Agreement (other than disputed amounts) that are not satisfied within ten (10) Days following the date on which such amounts become due and owing pursuant to Section 7.3, or, (b) in the entire amount of such Seller Security if any Letter of Credit, Performance Bond or Escrow or other form of Seller Security instrument is due to expire by its terms within thirty (30) Days and has not been replaced, and Seller continues to be required to provide such Seller Security, in which instance Buyer may hold the proceeds of such draw as a cash balance to secure Seller’s obligations but shall return such to Seller upon Seller’s provision of substitute Seller Security in accordance with this Agreement. Upon termination of this Agreement by reason of a Seller Event of Default, Buyer shall have the right to draw upon or make a claim on Seller Security for any undisputed amounts owed to Buyer under this Agreement. In the event Seller becomes Bankrupt, if any payment has been made by Seller to Buyer within the period prior to Seller becoming Bankrupt in a manner that such Seller payment to Buyer could be challenged or recovered as a preference or fraudulent conveyance in bankruptcy, Buyer may, at any time prior to expiry of Seller Security, draw upon or make a claim on such Seller Security in an amount equal to the potentially recoverable prior payment and hold such amount in Escrow until the later of (i) the last date on which any trustee or party may assert Claims seeking to recover such payment, if no such Claim has been asserted, or (ii) final adjudication of any asserted Claim as to such payment, provided, if no such Claim for recovery of such payment has been timely asserted, or if such Claim is finally adjudicated and found not recoverable from Buyer, the amount in Escrow shall be promptly paid to Seller, and if the payment is recovered from Buyer, such amount may be retained by Xxxxx.

Timeliness of Payment. Unless otherwise agreed by the Parties, all invoices under this Agreement shall be due and payable in accordance with each Party’s invoice instructions on or before the thirtieth (30th) Day after receipt of the invoice or, if such Day is not a Business Day, then on the next Business Day. For the avoidance of doubt, such thirtieth (30th) Day after receipt of the invoice, or such following Business Day, shall be the date on which the amounts invoiced therein shall be due for all purposes of this Agreement. Each Party will make payments by electronic funds transfer, or by other mutually agreeable method(s), to the account designated by the other Party. Any amounts not paid by the due date will be deemed delinquent and will accrue interest at the Interest Rate, such interest to be calculated from and including the due date to but excluding the date the delinquent amount is paid in full. Disputes and Adjustments of Invoices A Party may, in good faith, dispute the correctness of any invoice or any adjustment to an invoice, rendered under this Agreement or adjust any invoice for any arithmetic or computational error within six (6) years of the date the invoice, or adjustment to an invoice, was rendered. In the event an invoice or portion thereof, or any other claim or adjustment arising hereunder, is disputed, payment of the undisputed portion of the invoice shall be required to be made when due, with notice of the objection given to the other Party. Any invoice dispute or invoice adjustment shall be in writing and shall state the basis for the dispute or adjustment. If an invoice is not rendered within twelve (12) Months after the close of the Month during which performance occurred, the right to payment for such performance is waived. Payment Obligation Each Party shall pay the other Party all amounts owed in full when due except for amounts in dispute in accordance with Section 7.4. LIMITATIONS THE PARTIES AGREE THAT SELLER’S WARRANTIES SPECIFICALLY SET FORTH IN THIS AGREEMENT CONSTITUTE BUYER’S SOLE REMEDY AND SELLER’S SOLE LIABILITY WITH RESPECT TO WARRANTY CLAIMS AND ARE IN LIEU OF ANY OTHER WARRANTIES AVAILABLE AT LAW OR IN EQUITY. THERE IS NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED. THE PARTIES CONFIRM THAT THE EXPRESS REMEDIES AND MEASURES OF DAMAGES PROVIDED IN THIS AGREEMENT SATISFY THE ESSENTIAL PURPOSES HEREOF. UNLESS EXPRESSLY HEREIN PROVIDED, NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE. IT IS THE INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE. TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE LIQUIDATED, THE PARTIES ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE, OR OTHERWISE OBTAINING AN ADEQUATE REMEDY IS INCONVENIENT AND THE LIQUIDATED DAMAGES CALCULATED HEREUNDER CONSTITUTE A REASONABLE APPROXIMATION OF THE HARM OR LOSS, AND NOT A PENALTY. SELLER SECURITY Seller Security As security for Seller’s obligations under or related to this Agreement, within five (5) Business Days of receipt of notice from Buyer in accordance with Section 2.1 that the Effective Date has occurred, Seller shall deliver to Buyer and shall thereafter maintain security consisting of Letters of Credit, Performance Bonds and/or money in Escrow (the “Seller Security”) in an aggregate amount through Project COD equal to the product of (a) the Project Capacity and (b) $150,000 600,000 per MW (the “Security Amount”). The initial Seller Security may not include a Guaranty, and may only be in the form of a Letter of Credit, Performance Bond, and/or money in Escrow or combination thereof, but after Project COD has been achieved, Seller may provide or substitute Guaranties, Letters of Credit, Performance Bonds and/or money in Escrow as provided in Section 9.2.1. Seller shall maintain the Seller Security in the Security Amount, at Seller’s sole cost and expense, until the latest of (x) the end of the Term, (y) completion of all payments Seller is obligated to make to Buyer at any time, including any Termination Payment, Make-Whole Payment and/or Liquidated Damages, or (z) in the event any payment has been made by Seller to Buyer within ninety-eight (98) Days prior to the end of the Term or any payment is due by Seller to Buyer as of the end of the Term, the date of which is ninety-eight (98) Days following the date on which the last such payment is made.  Each Guaranty, Letter of Credit and Performance Bond provided as Seller Security shall be issued by a Person Guarantor meeting the Credit Requirements or an issuer meeting the Letter of Credit and Performance Bond requirements, and if at any time such Person Guarantor fails to meet the Credit Requirements or such issuer fails to meet such requirements, Seller shall as promptly as practicable replace such Guaranty, Letter of Credit or Performance Bond with alternative forms of Seller Security in the form required by this Agreement Agreement, and in the case of a Guaranty, Letter of Credit or Performance Bond, provided by a Person Guarantor or issuer that meets the Credit Requirements. Seller Security Replacement  Subject to Section 9.1, if no Seller Event of Default has occurred that is continuing, and no Seller Event of Default will occur upon the giving of notice, the passage of time or both, Seller shall have the right to replace any Letter of Credit, Guaranty, Performance Bond or Escrow with a substitute form or substitute forms of Seller Security provided that such replacement meets the terms and conditions of Seller Security under this Agreement and provided further that there be no lapse in the required amount of Seller Security resulting from such replacement. If the applicable substitute Seller Security shall be replacing a Letter of Credit, then Buyer shall promptly mark such Letter of Credit as “cancelled” and return the original of same to Seller and shall take such other actions as reasonably may be requested by the issuer of such letter of credit to evidence the cancellation thereof. If the applicable substitute Seller Security shall be replacing a Performance Bond, then Buyer shall promptly mark such Performance Bond as “cancelled” and return the original of the same to Seller and shall take all such other actions as reasonably may be requested by the issuer of such Performance Bond to evidence cancellation thereof. If the applicable substitute Seller Security shall be replacing cash collateral, then Buyer shall execute such documentation releasing and terminating its rights (including contract rights) with respect thereto, and shall take any other steps necessary to transfer such cash collateral back to Seller, in each case as may be reasonably requested by Seller. If Seller shall have previously provided, but shall no longer be required to maintain, certain Seller Security hereunder, then Xxxxx shall return, in the same manner as described above, the applicable Seller Security previously posted on behalf of Seller but which is no longer required to be maintained. Draw on Seller Security Buyer may draw upon or make a claim on Seller Security (a) to satisfy any amounts owed by Seller to Buyer under this Agreement (other than disputed amounts) that are not satisfied within ten (10) Days following the date on which such amounts become due and owing pursuant to Section 7.3, or, (b) in the entire amount of such Seller Security if any Letter of Credit, Performance Bond or Escrow or other form of Seller Security instrument is due to expire by its terms within thirty (30) Days and has not been replaced, and Seller continues to be required to provide such Seller Security, in which instance Buyer may hold the proceeds of such draw as a cash balance to secure Seller’s obligations but shall return such to Seller upon Seller’s provision of substitute Seller Security in accordance with this Agreement. Upon termination of this Agreement by reason of a Seller Event of Default, Buyer shall have the right to draw upon or make a claim on Seller Security for any undisputed amounts owed to Buyer under this Agreement. In the event Seller becomes Bankrupt, if any payment has been made by Seller to Buyer within the period prior to Seller becoming Bankrupt in a manner that such Seller payment to Buyer could be challenged or recovered as a preference or fraudulent conveyance in bankruptcy, Buyer may, at any time prior to expiry of Seller Security, draw upon or make a claim on such Seller Security in an amount equal to the potentially recoverable prior payment and hold such amount in Escrow until the later of (i) the last date on which any trustee or party may assert Claims seeking to recover such payment, if no such Claim has been asserted, or (ii) final adjudication of any asserted Claim as to such payment, provided, if no such Claim for recovery of such payment has been timely asserted, or if such Claim is finally adjudicated and found not recoverable from Buyer, the amount in Escrow shall be promptly paid to Seller, and if the payment is recovered from Buyer, such amount may be retained by Xxxxx.

Timeliness of Payment. With respect to all Transactions: The first sentence of Section 6.2 of the EEI Master Agreement is hereby amended and restated as follows in accordance with the option selected on the Gas Annex Cover Sheet: Option A: Payment Netting, with Payment for Gas Transactions and all other Transactions on the 25th. “Unless otherwise agreed by the PartiesParties in a Transaction, all invoices payments with respect to both Gas Transactions and all other Transactions under this EEI Master Agreement shall be due and payable in accordance with each Party’s invoice instructions on or before the thirtieth later of the twenty-fifth (30th25th) Day day of each month or the tenth (10th) day after receipt of the invoice or, if such Day day is not a Business Day, then on the next Business Day.” Option B: Payment Netting, with Payment for Gas Transactions and all other Transactions on the 20th. For “Unless otherwise agreed by the avoidance Parties in a Transaction, all payments with respect to both Gas Transactions and all other Transactions under this EEI Master Agreement shall be due and payable in accordance with each Party’s invoice instructions on or before the later of doubt, such thirtieth the twentieth (30th20th) Day day of each month or the tenth (10th) day after receipt of the invoiceinvoice or, or if such following day is not a Business Day, shall be then on the date next Business Day.” Option C: No Payment Netting, with Payment for Transactions other than Gas Transactions on which the amounts invoiced therein 20th and for Gas Transactions on the 25th. “Unless otherwise agreed by the Parties in a Transaction, (i) all payments with respect to Transactions other than Gas Transactions under this EEI Master Agreement shall be due for all purposes of this Agreement. Each Party will make payments by electronic funds transfer, and payable in accordance with each Party’s invoice instructions on or by other mutually agreeable method(s), to before the account designated by the other Party. Any amounts not paid by the due date will be deemed delinquent and will accrue interest at the Interest Rate, such interest to be calculated from and including the due date to but excluding the date the delinquent amount is paid in full. Disputes and Adjustments of Invoices A Party may, in good faith, dispute the correctness of any invoice or any adjustment to an invoice, rendered under this Agreement or adjust any invoice for any arithmetic or computational error within six (6) years later of the date twentieth (20th) day of each month or the invoice, or adjustment to an invoice, was rendered. In the event an invoice or portion thereof, or any other claim or adjustment arising hereunder, is disputed, payment of the undisputed portion tenth (10th) day after receipt of the invoice or, if such day is not a Business Day, then on the next Business Day and (ii) all payments with respect to Gas Transactions under this EEI Master Agreement shall be required to be made when due, with notice of the objection given to the other Party. Any invoice dispute or invoice adjustment shall be in writing due and shall state the basis for the dispute or adjustment. If an invoice is not rendered within twelve (12) Months after the close of the Month during which performance occurred, the right to payment for such performance is waived. Payment Obligation Each Party shall pay the other Party all amounts owed in full when due except for amounts in dispute payable in accordance with Section 7.4. LIMITATIONS THE PARTIES AGREE THAT SELLER’S WARRANTIES SPECIFICALLY SET FORTH IN THIS AGREEMENT CONSTITUTE BUYER’S SOLE REMEDY AND SELLER’S SOLE LIABILITY WITH RESPECT TO WARRANTY CLAIMS AND ARE IN LIEU OF ANY OTHER WARRANTIES AVAILABLE AT LAW OR IN EQUITY. THERE IS NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED. THE PARTIES CONFIRM THAT THE EXPRESS REMEDIES AND MEASURES OF DAMAGES PROVIDED IN THIS AGREEMENT SATISFY THE ESSENTIAL PURPOSES HEREOF. UNLESS EXPRESSLY HEREIN PROVIDED, NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE. IT IS THE INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE. TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE LIQUIDATED, THE PARTIES ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE, OR OTHERWISE OBTAINING AN ADEQUATE REMEDY IS INCONVENIENT AND THE LIQUIDATED DAMAGES CALCULATED HEREUNDER CONSTITUTE A REASONABLE APPROXIMATION OF THE HARM OR LOSS, AND NOT A PENALTY. SELLER SECURITY Seller Security As security for Sellereach Party’s obligations under invoice instructions on or related to this Agreement, within five before the later of the twenty-fifth (525th) Business Days day of each month or the tenth (10th) day after receipt of notice from Buyer the invoice or, if such day is not a Business Day, then on the next Business Day.” Option D: No Payment Netting, with Payment for Transactions other than Gas Transactions on the 20th and for Gas Transactions on a Specified Date. “Unless otherwise agreed by the Parties in a Transaction, (i) all payments with respect to Transactions other than Gas Transactions under this EEI Master Agreement shall be due and payable in accordance with Section 2.1 that each Party’s invoice instructions on or before the Effective Date has occurredlater of the twentieth (20th) day of each month or the tenth (10th) day after receipt of the invoice or, Seller shall deliver to Buyer and shall thereafter maintain security consisting of Letters of Creditif such day is not a Business Day, Performance Bonds and/or money in Escrow (then on the “Seller Security”) in an aggregate amount through Project COD equal to the product of (a) the Project Capacity next Business Day and (bii) $150,000 per MW (the “Security Amount”). The Seller Security may only be in the form of a Letter of Credit, Performance Bond, and/or money in Escrow or combination thereof. Seller shall maintain the Seller Security in the Security Amount, at Seller’s sole cost and expense, until the latest of (x) the end of the Term, (y) completion of all payments Seller is obligated with respect to make to Buyer at any time, including any Termination Payment, Make-Whole Payment and/or Liquidated Damages, or (z) in the event any payment has been made by Seller to Buyer within ninety-eight (98) Days prior to the end of the Term or any payment is due by Seller to Buyer as of the end of the Term, the date of which is ninety-eight (98) Days following the date on which the last such payment is made. Each Letter of Credit and Performance Bond provided as Seller Security Gas Transactions under this EEI Master Agreement shall be issued by a Person meeting the Credit Requirements or an issuer meeting the Letter of Credit and Performance Bond requirements, and if at any time such Person fails to meet the Credit Requirements or such issuer fails to meet such requirements, Seller shall as promptly as practicable replace such Letter of Credit or Performance Bond with alternative forms of Seller Security in the form required by this Agreement provided by a Person that meets the Credit Requirements. Seller Security Replacement Subject to Section 9.1, if no Seller Event of Default has occurred that is continuing, and no Seller Event of Default will occur upon the giving of notice, the passage of time or both, Seller shall have the right to replace any Letter of Credit, Performance Bond or Escrow with a substitute form or substitute forms of Seller Security provided that such replacement meets the terms and conditions of Seller Security under this Agreement and provided further that there be no lapse in the required amount of Seller Security resulting from such replacement. If the applicable substitute Seller Security shall be replacing a Letter of Credit, then Buyer shall promptly mark such Letter of Credit as “cancelled” and return the original of same to Seller and shall take such other actions as reasonably may be requested by the issuer of such letter of credit to evidence the cancellation thereof. If the applicable substitute Seller Security shall be replacing a Performance Bond, then Buyer shall promptly mark such Performance Bond as “cancelled” and return the original of the same to Seller and shall take all such other actions as reasonably may be requested by the issuer of such Performance Bond to evidence cancellation thereof. If the applicable substitute Seller Security shall be replacing cash collateral, then Buyer shall execute such documentation releasing and terminating its rights (including contract rights) with respect thereto, and shall take any other steps necessary to transfer such cash collateral back to Seller, in each case as may be reasonably requested by Seller. If Seller shall have previously provided, but shall no longer be required to maintain, certain Seller Security hereunder, then Xxxxx shall return, in the same manner as described above, the applicable Seller Security previously posted on behalf of Seller but which is no longer required to be maintained. Draw on Seller Security Buyer may draw upon or make a claim on Seller Security (a) to satisfy any amounts owed by Seller to Buyer under this Agreement (other than disputed amounts) that are not satisfied within ten (10) Days following the date on which such amounts become due and owing pursuant to Section 7.3, or, (b) in the entire amount of such Seller Security if any Letter of Credit, Performance Bond or Escrow or other form of Seller Security instrument is due to expire by its terms within thirty (30) Days and has not been replaced, and Seller continues to be required to provide such Seller Security, in which instance Buyer may hold the proceeds of such draw as a cash balance to secure Seller’s obligations but shall return such to Seller upon Seller’s provision of substitute Seller Security payable in accordance with this Agreement. Upon termination of this Agreement by reason of a Seller Event of Default, Buyer shall have the right to draw upon each Party’s invoice instructions on or make a claim on Seller Security for any undisputed amounts owed to Buyer under this Agreement. In the event Seller becomes Bankrupt, if any payment has been made by Seller to Buyer within the period prior to Seller becoming Bankrupt in a manner that such Seller payment to Buyer could be challenged or recovered as a preference or fraudulent conveyance in bankruptcy, Buyer may, at any time prior to expiry of Seller Security, draw upon or make a claim on such Seller Security in an amount equal to the potentially recoverable prior payment and hold such amount in Escrow until before the later of date specified in Gas Annex Cover Sheet or the tenth (i10th) day after receipt of the last date on which any trustee or party may assert Claims seeking to recover such paymentinvoice or, if no such Claim has been assertedday is not a Business Day, or (ii) final adjudication of any asserted Claim as to such payment, provided, if no such Claim for recovery of such payment has been timely asserted, or if such Claim is finally adjudicated and found not recoverable from Buyer, then on the amount in Escrow shall be promptly paid to Seller, and if the payment is recovered from Buyer, such amount may be retained by Xxxxxnext Business Day.”

Timeliness of Payment. Unless otherwise agreed by the Parties, all invoices under this Agreement shall be due and payable in accordance with each Party’s invoice instructions on or before the thirtieth (30th) Day after receipt of the invoice or, if such Day is not a Business Day, then on the next Business Day. For the avoidance of doubt, such thirtieth (30th) Day after receipt of the invoice, or such following Business Day, shall be the date on which the amounts invoiced therein shall be due for all purposes of this Agreement. Each Party will make payments by electronic funds transfer, or by other mutually agreeable method(s), to the account designated by the other Party. Any amounts not paid by the due date will be deemed delinquent and will accrue interest at the Interest Rate, such interest to be calculated from and including the due date to but excluding the date the delinquent amount is paid in full. Disputes and Adjustments of Invoices A Party may, in good faith, dispute the correctness of any invoice or any adjustment to an invoice, rendered under this Agreement or adjust any invoice for any arithmetic or computational error within six (6) years of the date the invoice, or adjustment to an invoice, was rendered. In the event an invoice or portion thereof, or any other claim or adjustment arising hereunder, is disputed, payment of the undisputed portion of the invoice shall be required to be made when due, with notice of the objection given to the other Party. Any invoice dispute or invoice adjustment shall be in writing and shall state the basis for the dispute or adjustment. If an invoice is not rendered within twelve (12) Months after the close of the Month during which performance occurred, the right to payment for such performance is waived. Payment Obligation Each Party shall pay the other Party all amounts owed in full when due except for amounts in dispute in accordance with Section 7.4. LIMITATIONS THE PARTIES AGREE THAT SELLER’S WARRANTIES SPECIFICALLY SET FORTH IN THIS AGREEMENT CONSTITUTE BUYER’S SOLE REMEDY AND SELLER’S SOLE LIABILITY WITH RESPECT TO WARRANTY CLAIMS AND ARE IN LIEU OF ANY OTHER WARRANTIES AVAILABLE AT LAW OR IN EQUITY. THERE IS NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED. THE PARTIES CONFIRM THAT THE EXPRESS REMEDIES AND MEASURES OF DAMAGES PROVIDED IN THIS AGREEMENT SATISFY THE ESSENTIAL PURPOSES HEREOF. UNLESS EXPRESSLY HEREIN PROVIDED, NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE. IT IS THE INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE. TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE LIQUIDATED, THE PARTIES ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE, OR OTHERWISE OBTAINING AN ADEQUATE REMEDY IS INCONVENIENT AND THE LIQUIDATED DAMAGES CALCULATED HEREUNDER CONSTITUTE A REASONABLE APPROXIMATION OF THE HARM OR LOSS, AND NOT A PENALTY. SELLER SECURITY Seller Security As security for Seller’s obligations under or related to this Agreement, within five fifteen (515) Business Days of receipt of notice from Buyer in accordance with Section 2.1 that the Effective Date has occurred, Seller shall deliver to Buyer and shall thereafter maintain security consisting of Letters of Credit, Performance Bonds and/or money in Escrow (the “Seller Security”) in an aggregate amount through Project COD equal to the product of (a) the Project Capacity and (b) one hundred and fifty thousand dollars ($150,000 150,000) per MW (the “Security Amount”). The initial Seller Security may not include a Guaranty, and may only be in the form of a Letter of Credit, Performance Bond, and/or money in Escrow or combination thereof, but after Project COD has been achieved, Seller may provide or substitute Guaranties, Letters of Credit, Performance Bonds and/or money in Escrow as provided in Section 9.2.1. Seller shall maintain the Seller Security in the Security Amount, at Seller’s sole cost and expense, until the latest of (x) the end of the Term, (y) completion of all payments Seller is obligated to make to Buyer at any time, including any Termination Payment, Make-Whole Payment and/or Liquidated Damages, or (z) in the event any payment has been made by Seller to Buyer within ninety-eight (98) Days prior to the end of the Term or any payment is due by Seller to Buyer as of the end of the Term, the date of which is ninety-eight (98) Days following the date on which the last such payment is made.  Each Guaranty, Letter of Credit and Performance Bond provided as Seller Security shall be issued by a Person Guarantor meeting the Credit Requirements or an issuer meeting the Letter of Credit and Performance Bond requirements, as applicable, and if at any time such Person Guarantor fails to meet the Credit Requirements or such issuer fails to meet such requirements, Seller shall as promptly as practicable replace such Guaranty, Letter of Credit or Performance Bond with alternative forms of Seller Security in the form as required by this Agreement Agreement, and in the case of a Guaranty, Letter of Credit or Performance Bond, provided by a Person Guarantor or issuer that meets the Credit Requirements. Seller Security Replacement  Subject to Section 9.1, if no Seller Event of Default has occurred that is continuing, and no Seller Event of Default will occur upon the giving of notice, the passage of time or both, Seller shall have the right to replace any Letter of Credit, Guaranty, Performance Bond or Escrow with a substitute form or substitute forms of Seller Security provided that such replacement meets the terms and conditions of Seller Security under this Agreement and provided further that there be no lapse in the required amount of Seller Security resulting from such replacement. If the applicable substitute Seller Security shall be replacing a Letter of Credit, then Buyer shall promptly mark such Letter of Credit as “cancelled” and return the original of same to Seller and shall take such other actions as reasonably may be requested by the issuer of such letter of credit to evidence the cancellation thereof. If the applicable substitute Seller Security shall be replacing a Performance Bond, then Buyer shall promptly mark such Performance Bond as “cancelled” and return the original of the same to Seller and shall take all such other actions as reasonably may be requested by the issuer of such Performance Bond to evidence cancellation thereof. If the applicable substitute Seller Security shall be replacing cash collateral, then Buyer shall execute such documentation releasing and terminating its rights (including contract rights) with respect thereto, and shall take any other steps necessary to transfer such cash collateral back to Seller, in each case as may be reasonably requested by Seller. If Seller shall have previously provided, but shall no longer be required to maintain, certain Seller Security hereunder, then Xxxxx shall return, in the same manner as described above, the applicable Seller Security previously posted on behalf of Seller but which is no longer required to be maintained. Draw on Seller Security Buyer may draw upon or make a claim on Seller Security (a) to satisfy any amounts owed by Seller to Buyer under this Agreement (other than disputed amounts) that are not satisfied within ten (10) Days following the date on which such amounts become due and owing pursuant to Section 7.3, or, (b) in the entire amount of such Seller Security if any Letter of Credit, Performance Bond or Escrow or other form of Seller Security instrument is due to expire by its terms within thirty (30) Days and has not been replaced, and Seller continues to be required to provide such Seller Security, in which instance Buyer may hold the proceeds of such draw as a cash balance to secure Seller’s obligations but shall return such to Seller upon Seller’s provision of substitute Seller Security in accordance with this Agreement. Upon termination of this Agreement by reason of a Seller Event of Default, Buyer shall have the right to draw upon or make a claim on Seller Security for any undisputed amounts owed to Buyer under this Agreement. In the event Seller becomes Bankrupt, if any payment has been made by Seller to Buyer within the period prior to Seller becoming Bankrupt in a manner that such Seller payment to Buyer could be challenged or recovered as a preference or fraudulent conveyance in bankruptcy, Buyer may, at any time prior to expiry of Seller Security, draw upon or make a claim on such Seller Security in an amount equal to the potentially recoverable prior payment and hold such amount in Escrow until the later of (i) the last date on which any trustee or party may assert Claims seeking to recover such payment, if no such Claim has been asserted, or (ii) final adjudication of any asserted Claim as to such payment, provided, if no such Claim for recovery of such payment has been timely asserted, or if such Claim is finally adjudicated and found not recoverable from Buyer, the amount in Escrow shall be promptly paid to Seller, and if the payment is recovered from Buyer, such amount may be retained by Xxxxx.