Common use of Commercial Operation of the Facility Clause in Contracts

Commercial Operation of the Facility. “Commercial Operation” means the condition existing when (i) Seller has fulfilled all of the conditions precedent in Section 2.2 of the Agreement and (ii) Seller has provided Notice to Buyer that Commercial Operation has been achieved and specifying the “placed in service” date per Internal Revenue Service Requirements of the Facility. The “Commercial Operation Date” shall be the later of (x) [_______________] or (y) the date on which Commercial Operation is achieved. Seller shall cause Commercial Operation for the Facility to occur by [_________] (as such date may be extended by the Development Cure Period (defined below), the “Guaranteed Commercial Operation Date”). Seller shall notify Buyer that it intends to achieve Commercial Operation at least sixty (60) days before the anticipated Commercial Operation Date. If Seller achieves Commercial Operation by the Guaranteed Commercial Operation Date, all Daily Delay Damages paid by Seller shall be refunded to Seller. Seller shall include the request for refund of the Daily Delay Damages with the first invoice to Buyer after the Commercial Operation Date. If Seller does not achieve Commercial Operation by the Guaranteed Commercial Operation Date, Buyer shall retain Daily Delay Damages, as applicable, and Seller shall pay Commercial Operation Delay Damages to Buyer for each day after the Guaranteed Commercial Operation Date until the Commercial Operation Date. Commercial Operation Delay Damages shall be payable to Buyer by Seller until the Commercial Operation Date. On or before the tenth (10th) day of each month, Buyer shall invoice Seller for Commercial Operation Delay Damages, if any, accrued during the prior month. The Parties agree that Xxxxx’s retention of Daily Delay Damages and receipt of Commercial Operation Delay Damages shall be Buyer’s sole and exclusive remedy for the first ninety (90) days of delay in achieving the Commercial Operation Date on or before the Guaranteed Commercial Operation Date, but shall (x) not be construed as Buyer’s declaration that an Event of Default has occurred under any provision of Section 11.1 and (y) not limit Buyer’s right to declare an Event of Default under Section 11.1(b)(ii) and receive a Damage Payment upon exercise of Buyer’s default right pursuant to Section 11.2.

Commercial Operation of the Facility. “Commercial Operation” means the condition existing when (i) Seller has fulfilled all of the conditions precedent in Section 2.2 of the Agreement and provided Notice to Buyer substantially in the form of Exhibit H (the “COD Certificate”) (ii) Seller has notified Buyer in writing that it has provided Notice the required documentation to Buyer and met the conditions for achieving Commercial Operation, and (iii) Buyer has acknowledged to Seller in writing that Buyer agrees that Commercial Operation has been achieved and specifying the “placed in service” date per Internal Revenue Service Requirements achieved. Buyer’s failure to respond to Seller’s Notice within five (5) Business Days shall be deemed approval of Seller’s COD Certificate. If Buyer disagrees that Commercial Operation has occurred following receipt of the FacilityNotice, it shall within such five (5) Business Day period, deliver to Seller a valid detailed explanation as to why it believes that Commercial Operation has not occurred. The Seller shall then remedy Buyer’s concern, if valid, and the Notice process of above shall repeat until Buyer has approved Seller’s COD Certificate or a deemed approval occurs. Upon Buyer’s approval or deemed approval, Buyer shall provide Seller with written acknowledgement of the COD. The “Commercial Operation Date” shall be the later of (x) [_______________] or (y) the date on which Commercial Operation is achievedthe COD Certificate has been approved or deemed approved. If the iterative process described above occurs three (3) times or more, either Party may resort to the dispute resolution processes provided for in this Agreement. Seller shall cause Commercial Operation for the Facility to occur by [_________] the Expected Commercial Operation Date (as such date may be extended by the Development Cure Period (defined below), the “Guaranteed Commercial Operation Date”). Seller shall notify Buyer that it intends to achieve Commercial Operation at least sixty (60) days before the anticipated Commercial Operation Date. If Seller achieves Commercial Operation for the Facility to occur by the Guaranteed Commercial Operation Date, all Daily Construction Delay Damages paid by Seller shall be refunded to Seller. Seller shall include the a request for refund of the Daily Construction Delay Damages with the first invoice to Buyer after the Commercial Operation DateOperation. If Seller does not achieve Commercial Operation by the Guaranteed Commercial Operation Date, Buyer shall retain Daily Delay Damagesas it may be extended as provided herein, as applicable, and Seller shall pay Commercial Operation COD Delay Damages to Buyer for each day after the Guaranteed Commercial Operation Date until the Commercial Operation DateDate and shall be paid to Buyer in advance on a monthly basis. Commercial Operation A prorated amount will be returned to Seller if COD is achieved during the month for which COD Delay Damages shall be payable to Buyer by Seller until the Commercial Operation Date. On or before the tenth (10th) day of each month, Buyer shall invoice Seller for Commercial Operation Delay Damages, if any, accrued during the prior monthwere paid in advance. The Parties agree that Xxxxx’s retention of Daily Delay Damages and receipt of Commercial Operation COD Delay Damages shall be Buyer’s sole and exclusive remedy for the first ninety (90) days of delay in achieving the Commercial Operation Date on or before the Guaranteed Commercial Operation Date, but shall (x) not be construed as Buyer’s declaration that an Event of Default has occurred under any provision of Section 11.1 and (y) not limit Buyer’s right to declare an Event of Default under Section 11.1(b)(ii) and receive a Damage Payment upon exercise of Buyer’s default right pursuant to Section 11.2.

Commercial Operation of the Facility. “Commercial Operation” means the condition existing when (i) Seller has fulfilled all of the conditions precedent in Section 2.2 of the Agreement and provided Notice to Buyer substantially in the form of Exhibit H (the “COD Certificate”) (ii) Seller has notified Buyer in writing that it has provided Notice the required documentation to Buyer and met the conditions for achieving Commercial Operation, and (iii) Buyer has acknowledged to Seller in writing that Buyer agrees that Commercial Operation has been achieved and specifying the “placed in service” date per Internal Revenue Service Requirements of the Facilityachieved. The “Commercial Operation Date” shall be either (i) the later of (x) [_______________] the Expected Commercial Operation Date, or (y) the date on which Commercial Operation is achieved. Seller shall cause Commercial Operation for the Facility to occur by [_________] the Expected Commercial Operation Date (as such date may be extended by the Development Cure Period (defined below), the “Guaranteed Commercial Operation Date”). Seller shall notify Buyer that it intends to achieve Commercial Operation at least sixty (60) days before the anticipated Commercial Operation Date. If Seller achieves Commercial Operation for the Facility to occur by the Guaranteed Commercial Operation Date, all Daily Construction Delay Damages paid by Seller shall be refunded to Seller. Seller shall include the a request for refund of the Daily Construction Delay Damages with the first invoice to Buyer after the Commercial Operation DateOperation. If Seller does not achieve Commercial Operation by the Guaranteed Commercial Operation Date, Buyer shall retain Daily Delay Damagesas it may be extended as provided herein, as applicable, and Seller shall pay Commercial Operation COD Delay Damages to Buyer for each day after the Guaranteed Commercial Operation Date until the Commercial Operation DateDate and shall be paid to Buyer in advance on a monthly basis. Commercial Operation A prorated amount will be returned to Seller if COD is achieved during the month for which COD Delay Damages shall be payable to Buyer by Seller until the Commercial Operation Date. On or before the tenth (10th) day of each month, Buyer shall invoice Seller for Commercial Operation Delay Damages, if any, accrued during the prior monthwere paid in advance. The Parties agree that Xxxxx’s retention of Daily Delay Damages and receipt of Commercial Operation COD Delay Damages shall be Buyer’s sole and exclusive remedy for the first ninety (90) days of delay in achieving Seller’s failure to achieve the Commercial Operation Date on or before the Guaranteed Commercial Operation Date, but shall (x) not be construed as Buyer’s declaration that an Event of Default has occurred under any provision of Section 11.1 Error: Reference source not found and (y) not limit Buyer’s right to declare an Event of Default under pursuant to Section 11.1(b)(ii) and receive a Damage Payment upon exercise of Buyer’s default right pursuant to Section 11.2Error: Reference source not found.

Commercial Operation of the Facility. “Commercial Operation” means the condition existing when (i) all necessary permits have been obtained and all conditions to operate the Facility have been satisfied and complied with in order to produce, sell and transmit Energy, (ii) the Seller receives final permission to parallel from the PTO, (iii) ninety percent (90%) of the Guaranteed Capacity has been completed and is ready to produce and deliver Energy to Buyer, (iv) Full Capacity Deliverability Status has been assigned by the CAISO, and (v) Seller has fulfilled all of the conditions precedent in Section 2.2 of the Agreement Agreement; and (iivi) Seller has provided Notice confirmed to Buyer in writing that Commercial Operation has been achieved and specifying the “placed in service” date per Internal Revenue Service Requirements of the Facilityachieved. The “Commercial Operation Date” shall be the later of (x) [_______________Date] or (y) the date on which Commercial Operation is achieved. Seller shall cause Commercial Operation for the Facility to occur by [_________Date] (as such date may be extended by the Development Cure Period (defined below), the “Guaranteed Commercial Operation Date”). Seller shall notify Buyer that it intends to achieve Commercial Operation at least sixty (60) days before the anticipated Commercial Operation DateDate and shall confirm to Buyer in writing when Commercial Operation has been achieved. If Seller achieves Commercial Operation by the Guaranteed Commercial Operation Date, all Daily Delay Damages paid by Seller shall be refunded to Seller. Seller shall include the request for refund of the Daily Delay Damages with the first invoice to Buyer after the Commercial Operation DateOperation. If Seller does not achieve Commercial Operation by the Guaranteed Commercial Operation Date, Buyer shall retain Daily Delay Damages, as applicable, and Seller shall pay “Commercial Operation Delay Damages Damages” to Buyer for each day after the Facility has not been completed and is not ready to produce and deliver Energy to Buyer as of the Guaranteed Commercial Operation Date until the Commercial Operation Date. Commercial Operation Delay Damages shall be payable to Buyer by Seller until the Commercial Operation Date. On or before the tenth (10th) day of each month, Buyer shall invoice Seller for Commercial Operation Delay Damages, if any, accrued during the prior month. The Parties agree that Xxxxx’s retention of Daily Delay Damages and receipt of Commercial Operation Delay Damages shall be Buyer’s sole and exclusive remedy for the first ninety (90) days of delay in achieving the Commercial Operation Date on or before the Guaranteed Commercial Operation Date, but shall (x) not be construed as Buyer’s declaration that an Event of Default has occurred under any provision of Section 11.1 and (y) not limit Buyer’s right to declare an Event of Default under Section 11.1(b)(ii) and receive a Damage Payment upon exercise of Buyer’s default right pursuant to Section 11.2.

Commercial Operation of the Facility. “Commercial Operation” means the condition existing when (i) Seller has fulfilled all of the conditions precedent in Section 2.2 of the Agreement and provided Notice to Buyer substantially in the form of Exhibit H (the “COD Certificate”) (ii) Seller has notified Buyer in writing that it has provided Notice the required documentation to Buyer and met the conditions for achieving Commercial Operation, and (iii) Buyer has acknowledged to Seller in writing that Buyer agrees that Commercial Operation has been achieved and specifying the “placed in service” date per Internal Revenue Service Requirements of the Facilityachieved. The “Commercial Operation Date” shall be the later of (x) [_______________] or (y) the date on which Commercial Operation is achieved. Seller shall use commercially reasonable efforts to cause Commercial Operation for the Facility to occur by [_________] (as such date may be extended by the Development Cure Period (defined below), the “Guaranteed Commercial Operation Date”). Seller shall notify Buyer that it intends to achieve Commercial Operation at least sixty (60) days before the anticipated Commercial Operation Date. If Seller achieves Commercial Operation for the Facility by the Guaranteed Commercial Operation Date, all Daily Construction Delay Damages paid by Seller shall be refunded to Seller. Seller shall include the request for refund of the Daily Construction Delay Damages with the first invoice to Buyer after the Commercial Operation DateOperation. If Seller does not achieve Commercial Operation by the Guaranteed Commercial Operation Date, Buyer shall retain Daily Delay Damages, as applicable, and Seller shall pay Commercial Operation COD Delay Damages to Buyer for each day after the Facility has not been completed and is not ready to produce and deliver Energy generated by the Facility to Buyer as of the Guaranteed Commercial Operation Date until the Commercial Operation Date. Commercial Operation COD Delay Damages shall be payable paid for each day of delay and shall be paid to Buyer by in advance on a monthly basis. A prorated amount will be returned to Seller until the Commercial Operation Date. On or before the tenth (10th) day of each month, Buyer shall invoice Seller for Commercial Operation Delay Damages, if any, accrued COD is achieved during the prior monthmonth for which COD Delay Damages were paid in advance. The Parties agree that Xxxxx’s retention receipt of Daily COD Delay Damages and receipt of Commercial Operation Delay Damages shall be Buyer’s sole and exclusive remedy for the first ninety (90) days of delay in achieving the Commercial Operation Date on or before the Guaranteed Commercial Operation Date, but shall (x) not be construed as BuyerXxxxx’s declaration that an Event of Default has occurred under any provision of Section 11.1 and (y) not limit Buyer’s right to declare an Event of Default under Section 11.1(b)(ii) and receive a Damage Payment upon exercise of Buyer’s default right remedies pursuant to Section 11.2.