Common use of Delay Liquidated Damages Clause in Contracts

Delay Liquidated Damages. As Buyer’s sole and exclusive remedy if the Project fails to achieve Project Substantial Completion on or before [DATE], Seller will pay Buyer liquidated damages of $[X] As Buyer’s sole and exclusive remedy if the Project fails to achieve Mechanical Completion on or before [DATE], Seller will pay Buyer liquidated damages of $[X] Performance Guarantees Shortfall Liquidated Damages: Seller guarantees that the Project will meet or exceed an [X]MW guaranteed capacity of the plant prior to Project Substantial Completion As Buyer’s sole and exclusive remedy for Seller’s failure to achieve the performance guarantees, Seller will pay Buyer liquidated damages of $[X] up to an agreed upon cap of $[X] for that portion of the Project that fails to achieve the Performance Guarantees Except for such capacity guarantee by Seller, neither the BTA nor the Development Agreements will provide any availability or energy yield guarantees or other performance guarantees The Guaranteed Project Substantial Completion Date will be extended due to Buyer-Caused Delays and Excusable Events, provided that no Excusable Event will extend the Project Substantial Completion Date beyond [DATE] The agreed Guaranteed Capacity test procedures will be set forth in the Development Agreements Progress Reporting Commencing on the first full month after mobilization of contractor to the Project site, general contractor will provide a weekly summary of the progress of its work and will provide a monthly progress report to the Seller, Buyer and Independent Engineer Seller, Independent Engineer and Buyer will be entitled to attend monthly meetings and any daily meeting that may be convened by general contractor on the Project site to review progress of the work Scope Change Orders No scope change order becomes effective until executed by both parties after the parties have agreed on scope, schedule and cost impacts Governing Law BTA and Development Agreements will be governed by Indiana law Venue for resolution of any dispute will be federal or state courts in Xxxxxx County, Indiana, and rights to jury trial will be waived Performance Security and Guaranty To be agreed upon by the Parties – Parental Guaranty from an investment grade party or Letter of Credit Surety Bond will not be acceptable Tax Equity (if necessary) Seller agrees to, in accordance with good business practices, support the Buyer’s efforts to contract for a Tax Equity Investor and comply with any associated Independent Engineer review / certifications required

Delay Liquidated Damages. As Buyer’s sole and exclusive remedy if If the Project fails to achieve Project Substantial Work Completion on or before [DATE]Date does not occur by the Guaranteed Completion Date, Seller will pay Buyer be liable for liquidated damages for each week from the Guaranteed Completion Date until the Work Completion Date, provided Seller will not be liable for such liquidated damages for delay to the extent that such delay was caused by an Excusable Event or, if Seller is the prevailing party in such dispute, for the duration of $[X] As Buyer’s sole and exclusive remedy if any proceedings commenced as contemplated in Section 2.12.2 to the Project fails extent such dispute proceedings are commenced prior to achieve Mechanical the Guaranteed Completion on or before [DATE], Date. Seller will pay Buyer Buyer, as liquidated damages for such failure the sum of __________________ Dollars ($[X] Performance Guarantees Shortfall Liquidated Damages: _______) for each week of such delay, not to exceed _____________________ Dollars ($__________) in the aggregate. Any and all amounts paid by Seller guarantees for liquidated damages under this Section 2.13 will be treated as a reduction in the Purchase Price if the Closing occurs. The Parties acknowledge and agree that because of the unique nature of the Work and the Project will meet Assets, it is difficult or exceed an [X]MW guaranteed capacity impossible to determine with precision the amount of the plant prior to Project Substantial Completion As Buyer’s sole and exclusive remedy for damages that would or might be incurred by Buyer as a result of Seller’s failure to achieve timely perform the performance guarantees, Seller will pay Buyer liquidated damages of $[X] up to an agreed upon cap of $[X] for that portion of Work and complete the Project by the Guaranteed Completion Date. It is understood and agreed by the Parties that fails to achieve the Performance Guarantees Except for such capacity guarantee by Seller, neither the BTA nor the Development Agreements will provide any availability or energy yield guarantees or other performance guarantees The Guaranteed Project Substantial Completion Date will be extended due to Buyer-Caused Delays and Excusable Events, provided that no Excusable Event will extend the Project Substantial Completion Date beyond [DATE] The agreed Guaranteed Capacity test procedures will be set forth in the Development Agreements Progress Reporting Commencing on the first full month after mobilization of contractor to the Project site, general contractor will provide a weekly summary of the progress of its work and will provide a monthly progress report to the Seller, Buyer and Independent Engineer Seller, Independent Engineer and (a) Buyer will be entitled damaged by the failure of Seller to attend monthly meetings meet such obligations, (b) it would be impracticable or extremely difficult to fix the actual damages resulting therefrom, (c) any sums which would be payable under this Section 2.13 are in the nature of liquidated damages, and any daily meeting not a penalty, and are fair and reasonable, and (d) each payment represents a reasonable estimate of fair compensation for the losses that may reasonably be convened by general contractor on the Project site to review progress of the work Scope Change Orders No scope change order becomes effective until executed by both parties after the parties have agreed on scope, schedule and cost impacts Governing Law BTA and Development Agreements will be governed by Indiana law Venue for resolution of any dispute will be federal or state courts in Xxxxxx County, Indiana, and rights to jury trial will be waived Performance Security and Guaranty To be agreed upon by the Parties – Parental Guaranty anticipated from an investment grade party or Letter of Credit Surety Bond will not be acceptable Tax Equity (if necessary) Seller agrees to, in accordance with good business practices, support the Buyer’s efforts to contract for a Tax Equity Investor and comply with any associated Independent Engineer review / certifications requiredeach such failure.

Delay Liquidated Damages. As Buyer’s sole The Parties agree that it would be extremely difficult and exclusive remedy impracticable under presently known and anticipated facts and circumstances to ascertain and fix the actual damages Owner would incur if Contractor does not satisfy the Project fails to achieve Project conditions for Substantial Completion of a Power Block by the Guaranteed Substantial Completion Date for such Power Block, and accordingly, if Contractor does not satisfy the conditions for Substantial Completion of a Power Block by the Guaranteed Substantial Completion Date for such Power Block, Owner's sole remedy for such delay shall be to recover from Contractor, and Contractor shall pay to Owner, as liquidated damages and not as a penalty, Delay Liquidated Damages for each Day or portion of a Day that Substantial Completion of the Power Block is delayed beyond the Guaranteed Substantial Completion Date for such Power Block; provided, however, that if any delay in achievement of Substantial Completion of a Power Block is directly and solely attributable to the failure of a Major Equipment Vendor to timely perform its obligations under a Major Equipment Contract, then Contractor's liability for Delay Liquidated Damages shall be limited to any liquidated damages for delay payable by the Major Equipment Vendor under the applicable Major Equipment Contract; and provided further, that in no event shall aggregate Delay Liquidated Damages exceed the Delay Liquidated Damages Cap. If Contractor satisfies the conditions for Substantial Completion of a Power Block on or before [DATE], Seller will pay Buyer liquidated damages of $[X] As Buyer’s sole and exclusive remedy if the Project fails to achieve Mechanical Completion on or before [DATE], Seller will pay Buyer liquidated damages of $[X] Performance Guarantees Shortfall Liquidated Damages: Seller guarantees that the Project will meet or exceed an [X]MW guaranteed capacity of the plant prior to Project Substantial Completion As Buyer’s sole and exclusive remedy for Seller’s failure to achieve the performance guarantees, Seller will pay Buyer liquidated damages of $[X] up to an agreed upon cap of $[X] for that portion of the Project that fails to achieve the Performance Guarantees Except for such capacity guarantee by Seller, neither the BTA nor the Development Agreements will provide any availability or energy yield guarantees or other performance guarantees The Guaranteed Project Substantial Completion Date will for such Power Block, Contractor shall not be extended due liable for any Delay Liquidated Damages under this Section 10.1. The Delay Liquidated Damages identified in this Section 10.1 relate solely to Buyer-Caused Delays and Excusable Events, provided that no Excusable Event will extend Contractor's delay in satisfying the Project conditions for Substantial Completion of a Power Block by the Guaranteed Substantial Completion Date beyond [DATE] The agreed Guaranteed Capacity test procedures will be set forth in the Development Agreements Progress Reporting Commencing on the first full month after mobilization for such Power Block and not to any other breaches, actions or omissions of contractor Contractor with respect to the Project site, general contractor will provide a weekly summary of the progress of its work and will provide a monthly progress report to the Seller, Buyer and Independent Engineer Seller, Independent Engineer and Buyer will be entitled to attend monthly meetings and any daily meeting that may be convened by general contractor on the Project site to review progress of the work Scope Change Orders No scope change order becomes effective until executed by both parties after the parties have agreed on scope, schedule and cost impacts Governing Law BTA and Development Agreements will be governed by Indiana law Venue for resolution of any dispute will be federal or state courts in Xxxxxx County, Indiana, and rights to jury trial will be waived Performance Security and Guaranty To be agreed upon by the Parties – Parental Guaranty from an investment grade party or Letter of Credit Surety Bond will not be acceptable Tax Equity (if necessary) Seller agrees to, in accordance with good business practices, support the Buyer’s efforts to contract for a Tax Equity Investor and comply with any associated Independent Engineer review / certifications requiredWork.

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

Delay Liquidated Damages. As Buyer’s sole and exclusive remedy if the Project If Seller (1) fails to achieve Project deliver the engineering/document deliverables on the dates set forth in Attachment A and Attachment D, as applicable, and in the manner this Agreement specifies, (2) fails to deliver the material/equipment deliverables on the dates set forth in Attachment D, or (3) Contractor fails to meet the Guaranteed Substantial Completion on or before [DATE]Date due to Seller (including its subcontractors and suppliers), Contractor and Seller agree Contractor would be damaged. As it would be almost impossible to ascertain the actual damages precisely due to the failures described in the prior sentence, Seller will agrees to pay Buyer delay liquidated damages in the amounts listed in Attachment E (which shall not be construed to limit Seller’s other obligations or liabilities under this Agreement). Contractor and Seller agree any and all sums payable under this Section 26(a)(i) and Attachment E are in the nature of $liquidated damages and not a penalty. Performance Guarantee Liquidated Damages. [X] As Buyer’s sole and exclusive remedy NOTE: include performance guarantee(s), if applicable. Should performance guarantee(s) be included, performance guarantee liquidated damages need to be added, unless the Project obligation(s) for performance guarantee(s) is (are) “make good” (see (iii) below for “make good” performance guarantees). For performance guarantees with liquidated damages, state the following, “If Seller fails to achieve Mechanical Completion meet (list out the specific performance guarantee(s)), Contractor and Seller agree Contractor would be damaged. As it would be almost impossible to ascertain the actual damages precisely due to the (insert “failure” or “failures” depending on whether one performance guarantee or before [DATE]multiple performance guarantees are tied to liquidated damages) described in the prior sentence, Seller will agrees to pay Buyer performance guarantee liquidated damages in the amounts listed in Attachment E (which shall not be construed to limit Seller’s other obligations or liabilities under this Agreement). Contractor and Seller agree any and all sums payable under this Section 26(a)(ii) and Attachment E are in the nature of $[Xliquidated damages and not a penalty.”] Performance Guarantees Shortfall Liquidated DamagesGuarantee Make Good Obligations. [NOTE: Seller include performance guarantee(s), if applicable. For performance guarantees that with “make good” obligations, list out the Project will meet or exceed an [X]MW guaranteed capacity specific performance guarantee(s) and state the specific performance guarantee(s) is (are) make good. Thereafter, include one of the plant prior to Project Substantial Completion As Buyer’s sole and exclusive remedy for following sentences, depending on whether there is one performance guarantee or multiple performance guarantees with a make good obligation, “Seller’s failure make good obligation to meet the performance guarantee is absolute. Accordingly, for its make good obligation, Seller shall do all things necessary to achieve the performance guarantee, including exercising each and every repair or replacement alternative, regardless of cost to Seller or associated difficulties.” Or, “Seller’s make good obligations to meet the performance guarantees are absolute. Accordingly, for its make good obligations, Seller shall do all things necessary to achieve the performance guarantees, including exercising each and every repair or replacement alternative, regardless of cost to Seller will pay Buyer liquidated damages of $or associated difficulties.”] [X] up to an agreed upon cap of $[X] for that portion of the Project that fails to achieve the Performance Guarantees Except for such capacity guarantee by SellerFOR ANY OF THE FOREGOING, neither the BTA nor the Development Agreements will provide any availability or energy yield guarantees or other performance guarantees The Guaranteed Project Substantial Completion Date will be extended due to Buyer-Caused Delays and Excusable EventsPLEASE CONTACT THE ASSISTANT GENERAL COUNSEL, provided that no Excusable Event will extend the Project Substantial Completion Date beyond [DATE] The agreed Guaranteed Capacity test procedures will be set forth in the Development Agreements Progress Reporting Commencing on the first full month after mobilization of contractor to the Project siteWHO DEVELOPED THE PRIME AGREEMENT, general contractor will provide a weekly summary of the progress of its work and will provide a monthly progress report to the Seller, Buyer and Independent Engineer Seller, Independent Engineer and Buyer will be entitled to attend monthly meetings and any daily meeting that may be convened by general contractor on the Project site to review progress of the work Scope Change Orders No scope change order becomes effective until executed by both parties after the parties have agreed on scope, schedule and cost impacts Governing Law BTA and Development Agreements will be governed by Indiana law Venue for resolution of any dispute will be federal or state courts in Xxxxxx County, Indiana, and rights to jury trial will be waived Performance Security and Guaranty To be agreed upon by the Parties – Parental Guaranty from an investment grade party or Letter of Credit Surety Bond will not be acceptable Tax Equity (if necessary) Seller agrees to, in accordance with good business practices, support the Buyer’s efforts to contract for a Tax Equity Investor and comply with any associated Independent Engineer review / certifications requiredFOR ANY QUESTIONS.]

Delay Liquidated Damages. As Buyer’s sole Except as otherwise excused due to Uncontrollable Circumstances and exclusive remedy if the Project fails Sewer District Fault, the Design-Build Contractor shall pay daily delay liquidated damages to achieve Project the Sewer District in the sum of One Thousand Dollars ($1,000.00) per day for each and every calendar day of unexcused delays in achieving Substantial Completion on or before [DATE], Seller will beyond the date set for Substantial Completion. The Design-Build Contractor shall pay Buyer daily delay liquidated damages to the Sewer District in the sum of Five Hundred Dollars ($[X] As Buyer’s sole 500.00) per day for each and exclusive remedy if every calendar day of unexcused delays in achieving Final Completion and continuing for each day that Final Completion falls after the Project fails date set for Final Completion in accordance with Section 7.12 of this Design-Build Agreement, and thereafter until any termination of this Design-Build Agreement for an Event of Default. The Design-Build Contractor shall also indemnify the Sewer District in accordance with and subject to achieve Mechanical Completion on or before [DATE], Seller will pay Buyer liquidated damages of $[X] Performance Guarantees Shortfall Liquidated Damages: Seller guarantees that the Project will meet or exceed an [X]MW guaranteed capacity of the plant prior to Project Substantial Completion As Buyer’s sole and exclusive remedy for Seller’s limitations set forth in Section 11.3 hereof against all Loss-and-Expense resulting from any Legal Proceeding originated by any third-party arising from such failure to achieve Final Acceptance by the performance guaranteesapplicable Scheduled Final Acceptance Date except to the extent such failure is caused by an Uncontrollable Circumstance, Seller will pay Buyer liquidated damages of $[X] up to an agreed upon cap of $[X] for that portion of the Project that fails and/or arising from a failure to achieve the Performance Guarantees Except for such capacity guarantee by Seller, neither the BTA nor the Development Agreements will provide any availability or energy yield guarantees or other performance guarantees The Guaranteed Project Substantial Final Completion Date will be extended due to Buyer-Caused Delays and Excusable Events, provided that no Excusable Event will extend the Project Substantial Completion Date beyond [DATE] The agreed Guaranteed Capacity test procedures will be set forth in the Development Agreements Progress Reporting Commencing on the first full month after mobilization of contractor to the Project site, general contractor will provide a weekly summary of the progress of its work and will provide a monthly progress report to the Seller, Buyer and Independent Engineer Seller, Independent Engineer and Buyer will be entitled to attend monthly meetings and any daily meeting that may be convened by general contractor on the Project site to review progress of the work Scope Change Orders No scope change order becomes effective until executed by both parties after the parties have agreed on scope, schedule and cost impacts Governing Law BTA and Development Agreements will be governed by Indiana law Venue for resolution of any dispute will be federal or state courts in Xxxxxx County, Indiana, and rights to jury trial will be waived Performance Security and Guaranty To be agreed upon by the Parties – Parental Guaranty from an investment grade party or Letter of Credit Surety Bond will not be acceptable Tax Equity (if necessary) Seller agrees to, applicable date set for Final Completion in accordance with good business practicesSection 7.12 of this Design-Build Agreement. Any sums due and payable as liquidated damages by the Design-Build Contractor shall be payable, support not as a penalty, but as liquidated damages representing a reasonable and fair approximation of the Buyerdamages likely to be sustained by the Sewer District as a result of the Design-Build Contractor’s efforts delay, estimated at the time of executing the Design-Build Agreement. When the Sewer District reasonably believes that Substantial Completion or Final Completion will be inexcusably delayed, the Sewer District shall be entitled, but not required, to contract withhold from any amounts otherwise due the Design-Build Contractor an amount then believed by the Sewer District to be adequate to recover Liquidated Damages applicable to such delays. If and when the Design-Build Contractor overcomes the delay in achieving Substantial Completion or Final Completion, for a Tax Equity Investor and comply which the Sewer District has withheld from payment amounts sufficient to cover Liquidated Damages commensurate with the anticipated delays, the Sewer District shall promptly release to the Design-Build Contractor those funds withheld as liquidated damages for anticipated delays which did not occur. Nothing in this section shall be constructed to limit any associated Independent Engineer review / certifications requirednon-damage remedies, including termination, also provided for with respect to any such nonperformance, breach or default.

Delay Liquidated Damages. As Buyer’s sole and exclusive remedy if the Project If Subcontractor (1) fails to achieve Project deliver the engineering/document deliverables on the dates set forth in Attachment A and Attachment D, as applicable, and in the manner this Agreement specifies, (2) fails to deliver the material/equipment deliverables on the dates set forth in Attachment D, (3) fails to deliver the construction deliverables on the dates set forth in Attachment D, or (4) Contractor fails to meet the Guaranteed Substantial Completion on or before [DATE]Date due to Subcontractor (including its subcontractors and suppliers), Seller will Contractor and Subcontractor agree Contractor would be damaged. As it would be almost impossible to ascertain the actual damages precisely due to the failures described in the prior sentence, Subcontractor agrees to pay Buyer delay liquidated damages in the amounts listed in Attachment E (which shall not be construed to limit Subcontractor’s other obligations or liabilities under this Agreement). Contractor and Subcontractor agree any and all sums payable under this Section 38(a)(i) and Attachment E are in the nature of $liquidated damages and not a penalty. Performance Guarantee Liquidated Damages. [X] As Buyer’s sole and exclusive remedy NOTE: include performance guarantee(s), if applicable. Should performance guarantee(s) be included, performance guarantee liquidated damages need to be added, unless the Project obligation(s) for performance guarantee(s) is (are) “make good” (see (iii) below for “make good” performance guarantees). For performance guarantees with liquidated damages, state the following, “If Subcontractor fails to achieve Mechanical Completion meet (list out the specific performance guarantee(s)), Contractor and Subcontractor agree Contractor would be damaged. As it would be almost impossible to ascertain the actual damages precisely due to the (insert “failure” or “failures” depending on whether one performance guarantee or before [DATE]multiple performance guarantees are tied to liquidated damages) described in the prior sentence, Seller will Subcontractor agrees to pay Buyer performance guarantee liquidated damages in the amounts listed in Attachment E (which shall not be construed to limit Subcontractor’s other obligations or liabilities under this Agreement). Contractor and Subcontractor agree any and all sums payable under this Section 38(a)(ii) and Attachment E are in the nature of $[Xliquidated damages and not a penalty.”] Performance Guarantees Shortfall Liquidated DamagesGuarantee Make Good Obligations. [NOTE: Seller include performance guarantee(s), if applicable. For performance guarantees that with “make good” obligations, list out the Project will meet or exceed an [X]MW guaranteed capacity specific performance guarantee(s) and state the specific performance guarantee(s) is (are) make good. Thereafter, include one of the plant prior following sentences, depending on whether there is one performance guarantee or multiple performance guarantees with a make good obligation, “Subcontractor’s make good obligation to Project Substantial Completion As Buyermeet the performance guarantee is absolute. Accordingly, for its make good obligation, Subcontractor shall do all things necessary to achieve the performance guarantee, including exercising each and every repair or replacement alternative, regardless of cost to Subcontractor or associated difficulties.” Or, “Subcontractor’s sole and exclusive remedy make good obligations to meet the performance guarantees are absolute. Accordingly, for Seller’s failure its make good obligations, Subcontractor shall do all things necessary to achieve the performance guarantees, Seller will pay Buyer liquidated damages including exercising each and every repair or replacement alternative, regardless of $cost to Subcontractor or associated difficulties.”] [X] up to an agreed upon cap of $[X] for that portion of the Project that fails to achieve the Performance Guarantees Except for such capacity guarantee by SellerFOR ANY OF THE FOREGOING, neither the BTA nor the Development Agreements will provide any availability or energy yield guarantees or other performance guarantees The Guaranteed Project Substantial Completion Date will be extended due to Buyer-Caused Delays and Excusable EventsPLEASE CONTACT THE ASSISTANT GENERAL COUNSEL, provided that no Excusable Event will extend the Project Substantial Completion Date beyond [DATE] The agreed Guaranteed Capacity test procedures will be set forth in the Development Agreements Progress Reporting Commencing on the first full month after mobilization of contractor to the Project siteWHO DEVELOPED THE PRIME AGREEMENT, general contractor will provide a weekly summary of the progress of its work and will provide a monthly progress report to the Seller, Buyer and Independent Engineer Seller, Independent Engineer and Buyer will be entitled to attend monthly meetings and any daily meeting that may be convened by general contractor on the Project site to review progress of the work Scope Change Orders No scope change order becomes effective until executed by both parties after the parties have agreed on scope, schedule and cost impacts Governing Law BTA and Development Agreements will be governed by Indiana law Venue for resolution of any dispute will be federal or state courts in Xxxxxx County, Indiana, and rights to jury trial will be waived Performance Security and Guaranty To be agreed upon by the Parties – Parental Guaranty from an investment grade party or Letter of Credit Surety Bond will not be acceptable Tax Equity (if necessary) Seller agrees to, in accordance with good business practices, support the Buyer’s efforts to contract for a Tax Equity Investor and comply with any associated Independent Engineer review / certifications requiredFOR ANY QUESTIONS.]

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

Delay Liquidated Damages. As Buyer’s sole and exclusive remedy if If the Project fails to achieve Project Substantial Work Completion on or before [DATE]Date does not occur by the Guaranteed Completion Date, Seller will pay Buyer be liable for liquidated damages for each day from the Guaranteed Completion Date until the Work Completion Date, provided Seller will not be liable for such liquidated damages for delay to the extent that such delay was caused by an Excusable Event or, if Seller is the prevailing party in such dispute, for the duration of $[X] As Buyer’s sole and exclusive remedy if any proceedings commenced as contemplated in Section 2.12.2 to the Project fails extent such dispute proceedings are commenced prior to achieve Mechanical the Guaranteed Completion on or before [DATE], Date. Seller will pay Buyer Buyer, as liquidated damages for such failure the sum of $[X[ Dollars ($ )] Performance Guarantees Shortfall Liquidated Damages: for each day of such delay, not to exceed [ Dollars ($ )] in the aggregate. Any and all amounts due from Seller guarantees that for liquidated damages under this Section 2.13 will be treated as a reduction in the Project will meet or exceed an [X]MW guaranteed capacity Purchase Price if the Closing occurs. Except for termination of this Agreement pursuant to Section 10.1, in which case Seller’s obligation to pay liquidated damages under this Section 2.13 shall cease, the plant prior payment by Seller to Project Substantial Completion As Buyer of liquidated damages under this Section 2.13 are Buyer’s sole and exclusive remedy for Seller’s delay in completing the Work and the Project Assets by the Guaranteed Completion Date. The Parties acknowledge and agree that because of the unique nature of the Work and the Project Assets, it is difficult or impossible to determine with precision the amount of damages that would or might be incurred by Xxxxx as a result of Seller’s failure to achieve timely perform the performance guarantees, Seller will pay Buyer liquidated damages of $[X] up to an agreed upon cap of $[X] for that portion of Work and complete the Project Assets by the Guaranteed Completion Date. It is understood and agreed by the Parties that fails to achieve the Performance Guarantees Except for such capacity guarantee by Seller, neither the BTA nor the Development Agreements will provide any availability or energy yield guarantees or other performance guarantees The Guaranteed Project Substantial Completion Date will be extended due to Buyer-Caused Delays and Excusable Events, provided that no Excusable Event will extend the Project Substantial Completion Date beyond [DATE] The agreed Guaranteed Capacity test procedures will be set forth in the Development Agreements Progress Reporting Commencing on the first full month after mobilization of contractor to the Project site, general contractor will provide a weekly summary of the progress of its work and will provide a monthly progress report to the Seller, Buyer and Independent Engineer Seller, Independent Engineer and (a) Buyer will be entitled damaged by the failure of Seller to attend monthly meetings meet such obligations, (b) it would be impracticable or extremely difficult to fix the actual damages resulting therefrom, (c) any sums which would be payable under this Section 2.13 are in the nature of liquidated damages, and any daily meeting not a penalty, and are fair and reasonable, and (d) each payment represents a reasonable estimate of fair compensation for the losses that may reasonably be convened by general contractor on the Project site to review progress of the work Scope Change Orders No scope change order becomes effective until executed by both parties after the parties have agreed on scope, schedule and cost impacts Governing Law BTA and Development Agreements will be governed by Indiana law Venue for resolution of any dispute will be federal or state courts in Xxxxxx County, Indiana, and rights to jury trial will be waived Performance Security and Guaranty To be agreed upon by the Parties – Parental Guaranty anticipated from an investment grade party or Letter of Credit Surety Bond will not be acceptable Tax Equity (if necessary) Seller agrees to, in accordance with good business practices, support the Buyer’s efforts to contract for a Tax Equity Investor and comply with any associated Independent Engineer review / certifications requiredeach such failure.

Delay Liquidated Damages. As Buyer’s sole and exclusive remedy if If the Project fails to achieve Project Substantial Work Completion on or before [DATE]Date does not occur by the Guaranteed Completion Date, Seller will pay Buyer be liable for liquidated damages for each day from the Guaranteed Completion Date until the Work Completion Date, provided Seller will not be liable for such liquidated damages for delay to the extent that such delay was caused by an Excusable Event or, if Seller is the prevailing party in such dispute, for the duration of $[X] As Buyer’s sole and exclusive remedy if any proceedings commenced as contemplated in Section 2.12.2 to the Project fails extent such dispute proceedings are commenced prior to achieve Mechanical the Guaranteed Completion on or before [DATE], Date. Seller will pay Buyer Buyer, as liquidated damages for such failure the sum of $[X[ Dollars ($ )] Performance Guarantees Shortfall Liquidated Damages: for each day of such delay, not to exceed [ Dollars ($ )] in the aggregate. Any and all amounts due from Seller guarantees that for liquidated damages under this Section 2.13 will be treated as a reduction in the Project will meet or exceed an [X]MW guaranteed capacity Purchase Price if the Closing occurs. Except for termination of this Agreement pursuant to Section 10.1, in which case Seller’s obligation to pay liquidated damages under this Section 2.13 shall cease, the plant prior payment by Seller to Project Substantial Completion As Buyer of liquidated damages under this Section 2.13 are Buyer’s sole and exclusive remedy for Seller’s delay in completing the Work and the Project Assets by the Guaranteed Completion Date. The Parties acknowledge and agree that because of the unique nature of the Work and the Project Assets, it is difficult or impossible to determine with precision the amount of damages that would or might be incurred by Buyer as a result of Seller’s failure to achieve timely perform the performance guarantees, Seller will pay Buyer liquidated damages of $[X] up to an agreed upon cap of $[X] for that portion of Work and complete the Project Assets by the Guaranteed Completion Date. It is understood and agreed by the Parties that fails to achieve the Performance Guarantees Except for such capacity guarantee by Seller, neither the BTA nor the Development Agreements will provide any availability or energy yield guarantees or other performance guarantees The Guaranteed Project Substantial Completion Date will be extended due to Buyer-Caused Delays and Excusable Events, provided that no Excusable Event will extend the Project Substantial Completion Date beyond [DATE] The agreed Guaranteed Capacity test procedures will be set forth in the Development Agreements Progress Reporting Commencing on the first full month after mobilization of contractor to the Project site, general contractor will provide a weekly summary of the progress of its work and will provide a monthly progress report to the Seller, Buyer and Independent Engineer Seller, Independent Engineer and (a) Buyer will be entitled damaged by the failure of Seller to attend monthly meetings meet such obligations, (b) it would be impracticable or extremely difficult to fix the actual damages resulting therefrom, (c) any sums which would be payable under this Section 2.13 are in the nature of liquidated damages, and any daily meeting not a penalty, and are fair and reasonable, and (d) each payment represents a reasonable estimate of fair compensation for the losses that may reasonably be convened by general contractor on the Project site to review progress of the work Scope Change Orders No scope change order becomes effective until executed by both parties after the parties have agreed on scope, schedule and cost impacts Governing Law BTA and Development Agreements will be governed by Indiana law Venue for resolution of any dispute will be federal or state courts in Xxxxxx County, Indiana, and rights to jury trial will be waived Performance Security and Guaranty To be agreed upon by the Parties – Parental Guaranty anticipated from an investment grade party or Letter of Credit Surety Bond will not be acceptable Tax Equity (if necessary) Seller agrees to, in accordance with good business practices, support the Buyer’s efforts to contract for a Tax Equity Investor and comply with any associated Independent Engineer review / certifications requiredeach such failure.