Common use of Payment of Liquidated Damages Clause in Contracts

Payment of Liquidated Damages. With respect to the liquidated damages payable under Section 4.3(a) (Capacity Test and Liquidated Damages), Section 4.4(a) (Annual Equivalent Availability Factor and Liquidated Damages), Section 4.5(a) (Annual Equivalent Forced Outage Factor and Liquidated Damages) and Section 4.6(a) (RTE Test and Liquidated Damages) (collectively, the “Performance Metrics LDs”), Company shall have the right, at any time on or after the LD Assessment Date for the liquidated damages in question, at Company’s option, to set-off such liquidated damages from the amounts to be paid to Seller under Section 4.1 (Lump Sum Payment) of this Agreement or, to draw such liquidated damages from the Operating Period Security, as follows: if the Facility fails to achieve the Capacity Performance Metric for a Measurement Period, Company shall have the right to set-off or draw the amount of liquidated damages owed for such failure as calculated as provided in Section 4.3(a) (Capacity Test and Liquidated Damages); if the Quarterly Report for the Measurement Period in question shows a failure to achieve one or more of the Performance Metrics required for such period, and Company does not submit a Notice of Disagreement with respect to such Quarterly Report, Company shall have the right to set-off or draw the amount of liquidated damages owed for such failure as calculated as provided in Section 4.4(a) (Annual Equivalent Availability Factor and Liquidated Damages), Section 4.5(a) (Annual Equivalent Forced Outage Factor and Liquidated Damages) and Section 4.6(a) (RTE Test and Liquidated Damages), as applicable; in all cases in which Company submits a Notice of Disagreement for a given Quarterly Report, Company shall have the right to set-off or draw all or any portion of the amount of liquidated damages for the Measurement Period in question, as applicable, as calculated on the basis of the shortfall(s) in the achievement of the Performance Metric(s) in question, as shown in such Notice of Disagreement; and in the event of any disagreement as to the liquidated damages owed under clause (i) and (ii) above: if the amount set-off or drawn by the Company exceeds the amount of liquidated damages for such Measurement Period that are eventually found to be payable for the LD Period in question as determined under Section 2 (Quarterly Report Disagreements) of Attachment S (Quarterly Reporting and Dispute Resolution by Independent Evaluator) to this Agreement, Company shall promptly (and in no event more than forty-five (45) Business Days from the date of such determination) repay such excess to Seller together with, unless the Parties otherwise agree in writing, interest from the date of Company’s set-off or draw until the date that such excess is repaid to Seller at the average Prime Rate for such period; and if Company does not exercise its rights to set-off or draw liquidated damages for such Measurement Period, or does not set-off or draw the full amount of the liquidated damages for such period eventually found to be payable for the LD Period in question as determined under Section 2 (Quarterly Report Disagreements) of Attachment S (Quarterly Reporting and Dispute Resolution by Independent Evaluator) to this Agreement, Seller shall promptly, upon such determination as aforesaid, pay to Company the amount of liquidated damages that are found to be owing together with, unless otherwise agreed by the Parties in writing, interest on the amount of such liquidated damages that went unpaid from the applicable LD Assessment Date for such liquidated damages until the date such liquidated damages are paid to Company in full at the average Prime Rate for such period, and Company shall have the right, at its option, to set-off such interest for the amounts to be paid to Seller under Section 4.1 (Lump Sum Payment) of this Agreement or to draw from the Operating Period Security. Any delay by Company in exercising its rights to set-off liquidated damages and/or interest from the amounts to be paid to Seller under Section 4.1 (Lump Sum Payment) of this Agreement, or to draw such liquidated damages and/or interest from the Operating Period Security, shall not constitute a waiver by Company of its right to do so.

Payment of Liquidated Damages. With respect to the liquidated damages payable under Section 4.3(a2.5(b) (PV System Equivalent Availability Factor Performance Metric and Liquidated Damages), Section 2.6(c) (GPR Performance Metric and Liquidated Damages), Section 2.7(a) (XXXX Capacity Test and Liquidated Damages), Section 4.4(a2.8(a) (XXXX Annual Equivalent Availability Factor and Liquidated Damages), Section 4.5(a) 2.9 (XXXX Annual Equivalent Forced Outage Factor and Factor; Liquidated Damages) and Section 4.6(a) 2.10 (RTE Test and XXXX Round Trip Efficiency; Liquidated Damages; Termination Rights) and Section 2.11 (Fast Frequency Response Performance Metric) [SUBJECT TO REMOVAL PER SECTION 2.11 DRAFTING NOTE] (collectively, the “"Performance Metrics LDs”"), Company shall have the right, at any time on or after the LD Assessment Date for the liquidated damages in question, at Company’s 's option, to set-off such liquidated damages from the amounts to be paid to Seller under Section 4.1 2.3 (Lump Sum Payment) of this Agreement or, to draw such liquidated damages from the Operating Period Security, as follows: if the Facility XXXX fails to achieve the XXXX Capacity Performance Metric for a XXXX Measurement Period, the Company shall have the right to set-off or draw the amount owed for such failure as calculated as provided in Section 2.7(a) (XXXX Capacity Test and Liquidated Damages); and if the Monthly Report for the calendar month, MPR Assessment Period, or XXXX Measurement Period in question, as applicable, shows a failure to achieve one or more of the Performance Metrics required for the LD Period in question, the MPR Measurement Period in question, or the XXXX Measurement Period in question, as applicable, and Company does not submit a Notice of Disagreement with respect to such Monthly Report, the Company shall have the right to set-off or draw the amount of liquidated damages owed for such failure as calculated as provided in Section 4.3(a2.5(b) (Capacity Test PV System Equivalent Availability Factor Performance Metric and Liquidated Damages); if the Quarterly Report for the Measurement Period in question shows a failure to achieve one or more of the Performance Metrics required for such period, and Company does not submit a Notice of Disagreement with respect to such Quarterly Report, Company shall have the right to set-off or draw the amount of liquidated damages owed for such failure as calculated as provided in Section 4.4(a2.6(c) (GPR Performance Metric and Liquidated Damages), Section 2.8(a) (XXXX Annual Equivalent Availability Factor and Liquidated Damages), Section 4.5(a) 2.9 (XXXX Annual Equivalent Forced Outage Factor and Factor; Liquidated Damages), Section 2.10 (XXXX Round Trip Efficiency Test; Liquidated Damages; Termination Rights) and Section 4.6(a2.11 (Fast Frequency Response Performance Metric) (RTE Test and Liquidated Damages)[SUBJECT TO REMOVAL PER SECTION 2.11 DRAFTING NOTE], as applicable; in all cases in which Company submits a Notice of Disagreement for a given Quarterly Monthly Report, Company shall have the right to set-off or draw all or any portion of the amount of liquidated damages for the calendar month in question, MPR Assessment Period in question, or XXXX Measurement Period in question, as applicable, as calculated on the basis of the shortfall(s) in the achievement of the Performance Metric(s) in question, as shown in such Notice of Disagreement; and in the event of any disagreement as to the liquidated damages owed under clause (i) and (iiiii) above: if the amount set-off or drawn by the Company exceeds the amount of liquidated damages for such Measurement Period that are eventually found to be payable for the LD Period in question as determined under Section 2 (Quarterly Report Disagreements) of Attachment S (Quarterly Reporting and Dispute Resolution by Independent Evaluator) to this Agreement, Company shall promptly (and in no event more than forty-five (45) Business Days from the date of such determination) repay such excess to Seller together with, unless the Parties otherwise agree in writing, interest from the date of Company’s set-off or draw until the date that such excess is repaid to Seller at the average Prime Rate for such period; and if Company does not exercise its rights to set-off or draw liquidated damages for such Measurement Period, or does not set-off or draw the full amount of the liquidated damages for such period eventually found to be payable for the LD Period in question as determined under Section 2 (Quarterly Report Disagreements) of Attachment S (Quarterly Reporting and Dispute Resolution by Independent Evaluator) to this Agreement, Seller shall promptly, upon such determination as aforesaid, pay to Company the amount of liquidated damages that are found to be owing together with, unless otherwise agreed by the Parties in writing, interest on the amount of such liquidated damages that went unpaid from the applicable LD Assessment Date for such liquidated damages until the date such liquidated damages are paid to Company in full at the average Prime Rate for such period, and Company shall have the right, at its option, to set-off such interest for the amounts to be paid to Seller under Section 4.1 (Lump Sum Payment) of this Agreement or to draw from the Operating Period Security. Any delay by Company in exercising its rights to set-off liquidated damages and/or interest from the amounts to be paid to Seller under Section 4.1 (Lump Sum Payment) of this Agreement, or to draw such liquidated damages and/or interest from the Operating Period Security, shall not constitute a waiver by Company of its right to do so.:

Payment of Liquidated Damages. With respect to the liquidated damages payable under Section 4.3(a2.5(b) (Modified Pooled OMC Equipment Availability Factor Performance Metric and Liquidated Damages), Section 2.6(b) (GPI Metric and Liquidated Damages), Section 2.7(c) (BOP Benchmark and Liquidated Damages), Section 2.8(a) (XXXX Capacity Test and Liquidated Damages), Section 4.4(a2.9(a) (XXXX Annual Equivalent Availability Factor and Liquidated Damages), Section 4.5(a) 2.10 (XXXX Annual Equivalent Forced Outage Factor and Factor; Liquidated Damages) and Section 4.6(a) 2.11 (RTE Test and XXXX Round Trip Efficiency Test; Liquidated Damages; Termination Rights) (collectively, the “"Performance Metrics LDs”"), Company shall have the right, at any time on or after the LD Assessment Date for the liquidated damages in question, at Company’s 's option, to set-off such liquidated damages from the amounts to be paid to Seller under Section 4.1 2.3 (Lump Sum Payment) of this Agreement or, to draw such liquidated damages from the Operating Period Security, as follows: if the Facility XXXX fails to achieve the XXXX Capacity Performance Metric for a XXXX Measurement Period, the Company shall have the right to set-off or draw the amount owed for such failure as calculated as provided in Section 2.8(a) (XXXX Capacity Test and Liquidated Damages); and if the Monthly Report for the calendar month, PI Assessment Period, or XXXX Measurement Period in question, as applicable, shows a failure to achieve one or more of the Performance Metrics required for the LD Period in question, the PI Measurement Period in question, the BOP Measurement Period in question, or the XXXX Measurement Period in question, as applicable, and Company does not submit a Notice of Disagreement with respect to such Monthly Report, the Company shall have the right to set-off or draw the amount of liquidated damages owed for such failure as calculated as provided in Section 4.3(a2.5(b) (Capacity Test Modified Pooled OMC Equipment Availability Factor Performance Metric and Liquidated Damages); if the Quarterly Report for the Measurement Period in question shows a failure to achieve one or more of the Performance Metrics required for such period, and Company does not submit a Notice of Disagreement with respect to such Quarterly Report, Company shall have the right to set-off or draw the amount of liquidated damages owed for such failure as calculated as provided in Section 4.4(a2.6(b) (GPI Metric and Liquidated Damages), Section 2.7(c) (BOP Benchmark and Liquidated Damages), Section 2.9(a) (XXXX Annual Equivalent Availability Factor and Liquidated Damages), Section 4.5(a) 2.10 (XXXX Annual Equivalent Forced Outage Factor and Factor; Liquidated Damages) and Section 4.6(a) 2.11 (RTE Test and XXXX Round Trip Efficiency Test; Liquidated Damages; Termination Rights), as applicable; in all cases in which Company submits a Notice of Disagreement for a given Quarterly Monthly Report, Company shall have the right to set-off or draw all or any portion of the amount of liquidated damages for the calendar month in question, PI Assessment Period in question, the BOP Measurement Period in question, or XXXX Measurement Period in question, as applicable, as calculated on the basis of the shortfall(s) in the achievement of the Performance Metric(s) in question, as shown in such Notice of Disagreement; and in the event of any disagreement as to the liquidated damages owed under clause (i) and (iiiii) above: if the amount set-off or drawn by the Company exceeds the amount of liquidated damages for such Measurement Period that are eventually found to be payable for the LD Period in question as determined under Section 2 (Quarterly Report Disagreements) of Attachment S (Quarterly Reporting and Dispute Resolution by Independent Evaluator) to this Agreement, Company shall promptly (and in no event more than forty-five (45) Business Days from the date of such determination) repay such excess to Seller together with, unless the Parties otherwise agree in writing, interest from the date of Company’s set-off or draw until the date that such excess is repaid to Seller at the average Prime Rate for such period; and if Company does not exercise its rights to set-off or draw liquidated damages for such Measurement Period, or does not set-off or draw the full amount of the liquidated damages for such period eventually found to be payable for the LD Period in question as determined under Section 2 (Quarterly Report Disagreements) of Attachment S (Quarterly Reporting and Dispute Resolution by Independent Evaluator) to this Agreement, Seller shall promptly, upon such determination as aforesaid, pay to Company the amount of liquidated damages that are found to be owing together with, unless otherwise agreed by the Parties in writing, interest on the amount of such liquidated damages that went unpaid from the applicable LD Assessment Date for such liquidated damages until the date such liquidated damages are paid to Company in full at the average Prime Rate for such period, and Company shall have the right, at its option, to set-off such interest for the amounts to be paid to Seller under Section 4.1 (Lump Sum Payment) of this Agreement or to draw from the Operating Period Security. Any delay by Company in exercising its rights to set-off liquidated damages and/or interest from the amounts to be paid to Seller under Section 4.1 (Lump Sum Payment) of this Agreement, or to draw such liquidated damages and/or interest from the Operating Period Security, shall not constitute a waiver by Company of its right to do so.:

Payment of Liquidated Damages. With respect to the liquidated damages payable under Section 4.3(a2.5(b) (Modified Pooled OMC Equipment Availability Factor Performance Metric and Liquidated Damages), Section 2.6(b) (GPI Metric and Liquidated Damages), Section 2.7(c) (BOP Benchmark and Liquidated Damages), Section 2.8(a) (XXXX Capacity Test and Liquidated Damages), Section 4.4(a2.9(a) (XXXX Annual Equivalent Availability Factor and Liquidated Damages), Section 4.5(a) 2.10 (XXXX Annual Equivalent Forced Outage Factor and Factor; Liquidated Damages), Section 2.11 (XXXX Round Trip Efficiency Test; Liquidated Damages; Termination Rights) and Section 4.6(a2.12 (Fast Frequency Response Performance Metric) (RTE Test and Liquidated Damages) [SUBJECT TO REMOVAL PER SECTION 2.12 DRAFTING NOTE] (collectively, the “"Performance Metrics LDs”"), Company shall have the right, at any time on or after the LD Assessment Date for the liquidated damages in question, at Company’s 's option, to set-off such liquidated damages from the amounts to be paid to Seller under Section 4.1 2.3 (Lump Sum Payment) of this Agreement or, to draw such liquidated damages from the Operating Period Security, as follows: if the Facility XXXX fails to achieve the XXXX Capacity Performance Metric for a XXXX Measurement Period, the Company shall have the right to set-off or draw the amount owed for such failure as calculated as provided in Section 2.8(a) (XXXX Capacity Test and Liquidated Damages); and if the Monthly Report for the calendar month, PI Assessment Period, or XXXX Measurement Period in question, as applicable, shows a failure to achieve one or more of the Performance Metrics required for the LD Period in question, the PI Measurement Period in question, the BOP Measurement Period in question, or the XXXX Measurement Period in question, as applicable, and Company does not submit a Notice of Disagreement with respect to such Monthly Report, the Company shall have the right to set-off or draw the amount of liquidated damages owed for such failure as calculated as provided in Section 4.3(a2.5(b) (Capacity Test Modified Pooled OMC Equipment Availability Factor Performance Metric and Liquidated Damages); if the Quarterly Report for the Measurement Period in question shows a failure to achieve one or more of the Performance Metrics required for such period, and Company does not submit a Notice of Disagreement with respect to such Quarterly Report, Company shall have the right to set-off or draw the amount of liquidated damages owed for such failure as calculated as provided in Section 4.4(a2.6(b) (GPI Metric and Liquidated Damages), Section 2.7(c) (BOP Benchmark and Liquidated Damages), Section 2.9(a) (XXXX Annual Equivalent Availability Factor and Liquidated Damages), Section 4.5(a) 2.10 (XXXX Annual Equivalent Forced Outage Factor and Factor; Liquidated Damages), Section 2.11 (XXXX Round Trip Efficiency Test; Liquidated Damages; Termination Rights) and Section 4.6(a) 2.12 (RTE Test and Liquidated DamagesFast Frequency Response Performance Metric), as applicable; in all cases in which Company submits a Notice of Disagreement for a given Quarterly Monthly Report, Company shall have the right to set-off or draw all or any portion of the amount of liquidated damages for the calendar month in question, PI Assessment Period in question, the BOP Measurement Period in question, or XXXX Measurement Period in question, as applicable, as calculated on the basis of the shortfall(s) in the achievement of the Performance Metric(s) in question, as shown in such Notice of Disagreement; and in the event of any disagreement as to the liquidated damages owed under clause (i) and (iiiii) above: if the amount set-off or drawn by the Company exceeds the amount of liquidated damages for such Measurement Period that are eventually found to be payable for the LD Period in question as determined under Section 2 (Quarterly Report Disagreements) of Attachment S (Quarterly Reporting and Dispute Resolution by Independent Evaluator) to this Agreement, Company shall promptly (and in no event more than forty-five (45) Business Days from the date of such determination) repay such excess to Seller together with, unless the Parties otherwise agree in writing, interest from the date of Company’s set-off or draw until the date that such excess is repaid to Seller at the average Prime Rate for such period; and if Company does not exercise its rights to set-off or draw liquidated damages for such Measurement Period, or does not set-off or draw the full amount of the liquidated damages for such period eventually found to be payable for the LD Period in question as determined under Section 2 (Quarterly Report Disagreements) of Attachment S (Quarterly Reporting and Dispute Resolution by Independent Evaluator) to this Agreement, Seller shall promptly, upon such determination as aforesaid, pay to Company the amount of liquidated damages that are found to be owing together with, unless otherwise agreed by the Parties in writing, interest on the amount of such liquidated damages that went unpaid from the applicable LD Assessment Date for such liquidated damages until the date such liquidated damages are paid to Company in full at the average Prime Rate for such period, and Company shall have the right, at its option, to set-off such interest for the amounts to be paid to Seller under Section 4.1 (Lump Sum Payment) of this Agreement or to draw from the Operating Period Security. Any delay by Company in exercising its rights to set-off liquidated damages and/or interest from the amounts to be paid to Seller under Section 4.1 (Lump Sum Payment) of this Agreement, or to draw such liquidated damages and/or interest from the Operating Period Security, shall not constitute a waiver by Company of its right to do so.:

Payment of Liquidated Damages. With respect to the liquidated damages payable under Section 4.3(a2.5(b) (Modified Pooled OMC Equipment Availability Factor Performance Metric and Liquidated Damages), Section 2.6(b) (GPI Metric and Liquidated Damages), Section 2.7(c) (BOP Benchmark and Liquidated Damages), Section 2.8(a) (XXXX Capacity Test and Liquidated Damages), Section 4.4(a2.9(a) (XXXX Annual Equivalent Availability Factor and Liquidated Damages), Section 4.5(a) 2.10 (XXXX Annual Equivalent Forced Outage Factor and Factor; Liquidated Damages), Section 2.11 (XXXX Round Trip Efficiency Test; Liquidated Damages; Termination Rights) and Section 4.6(a2.12 (Fast Frequency Response Performance Metric) (RTE Test and Liquidated Damages) [SUBJECT TO REMOVAL PER SECTION 2.12 DRAFTING NOTE] (collectively, the “"Performance Metrics LDs”"), Company shall have the right, at any time on or after the LD Assessment Date for the liquidated damages in question, at Company’s 's option, to set-off such liquidated damages from the amounts to be paid to Seller under Section 4.1 2.3 (Lump Sum Payment) of this Agreement or, to draw such liquidated damages from the Operating Period Security, as follows: if the Facility XXXX fails to achieve the XXXX Capacity Performance Metric for a XXXX Measurement Period, the Company shall have the right to set-off or draw the amount owed for such failure as calculated as provided in Section 2.8(a) (XXXX Capacity Test and Liquidated Damages); and if the Monthly Report for the calendar month, PI Assessment Period, or XXXX Measurement Period in question, as applicable, shows a failure to achieve one or more of the Performance Metrics required for the LD Period in question, the PI Measurement Period in question, the BOP Measurement Period in question, or the XXXX Measurement Period in question, as applicable, and Company does not submit a Notice of Disagreement with respect to such Monthly Report, the Company shall have the right to set-off or draw the amount of liquidated damages owed for such failure as calculated as provided in Section 4.3(a2.5(b) (Capacity Test Modified Pooled OMC Equipment Availability Factor Performance Metric and Liquidated Damages); if the Quarterly Report for the Measurement Period in question shows a failure to achieve one or more of the Performance Metrics required for such period, and Company does not submit a Notice of Disagreement with respect to such Quarterly Report, Company shall have the right to set-off or draw the amount of liquidated damages owed for such failure as calculated as provided in Section 4.4(a2.6(b) (GPI Metric and Liquidated Damages), Section 2.7(c) (BOP Benchmark and Liquidated Damages), Section 2.9(a) (XXXX Annual Equivalent Availability Factor and Liquidated Damages), Section 4.5(a) 2.10 (XXXX Annual Equivalent Forced Outage Factor and Factor; Liquidated Damages), Section 2.11 (XXXX Round Trip Efficiency Test; Liquidated Damages; Termination Rights) and Section 4.6(a2.12 (Fast Frequency Response Performance Metric) (RTE Test and Liquidated Damages)[SUBJECT TO REMOVAL PER SECTION 2.12 DRAFTING NOTE], as applicable; in all cases in which Company submits a Notice of Disagreement for a given Quarterly Monthly Report, Company shall have the right to set-off or draw all or any portion of the amount of liquidated damages for the calendar month in question, PI Assessment Period in question, the BOP Measurement Period in question, or XXXX Measurement Period in question, as applicable, as calculated on the basis of the shortfall(s) in the achievement of the Performance Metric(s) in question, as shown in such Notice of Disagreement; and in the event of any disagreement as to the liquidated damages owed under clause (i) and (iiiii) above: if the amount set-off or drawn by the Company exceeds the amount of liquidated damages for such Measurement Period that are eventually found to be payable for the LD Period in question as determined under Section 2 (Quarterly Report Disagreements) of Attachment S (Quarterly Reporting and Dispute Resolution by Independent Evaluator) to this Agreement, Company shall promptly (and in no event more than forty-five (45) Business Days from the date of such determination) repay such excess to Seller together with, unless the Parties otherwise agree in writing, interest from the date of Company’s set-off or draw until the date that such excess is repaid to Seller at the average Prime Rate for such period; and if Company does not exercise its rights to set-off or draw liquidated damages for such Measurement Period, or does not set-off or draw the full amount of the liquidated damages for such period eventually found to be payable for the LD Period in question as determined under Section 2 (Quarterly Report Disagreements) of Attachment S (Quarterly Reporting and Dispute Resolution by Independent Evaluator) to this Agreement, Seller shall promptly, upon such determination as aforesaid, pay to Company the amount of liquidated damages that are found to be owing together with, unless otherwise agreed by the Parties in writing, interest on the amount of such liquidated damages that went unpaid from the applicable LD Assessment Date for such liquidated damages until the date such liquidated damages are paid to Company in full at the average Prime Rate for such period, and Company shall have the right, at its option, to set-off such interest for the amounts to be paid to Seller under Section 4.1 (Lump Sum Payment) of this Agreement or to draw from the Operating Period Security. Any delay by Company in exercising its rights to set-off liquidated damages and/or interest from the amounts to be paid to Seller under Section 4.1 (Lump Sum Payment) of this Agreement, or to draw such liquidated damages and/or interest from the Operating Period Security, shall not constitute a waiver by Company of its right to do so.:

Payment of Liquidated Damages. With respect to the liquidated damages payable under Section 4.3(a2.5(b) (PV System Equivalent Availability Factor Performance Metric and Liquidated Damages), Section 2.6(c) (GPR Performance Metric and Liquidated Damages), Section 2.7(a) (XXXX Capacity Test and Liquidated Damages), Section 4.4(a2.8(a) (XXXX Annual Equivalent Availability Factor and Liquidated Damages), Section 4.5(a) 2.9 (XXXX Annual Equivalent Forced Outage Factor and Factor; Liquidated Damages) and Section 4.6(a) 2.10 (RTE Test and XXXX Round Trip Efficiency Test; Liquidated Damages; Termination Rights) (collectively, the “"Performance Metrics LDs”"), Company shall have the right, at any time on or after the LD Assessment Date for the liquidated damages in question, at Company’s 's option, to set-off such liquidated damages from the amounts to be paid to Seller under Section 4.1 2.3 (Lump Sum Payment) of this Agreement or, to draw such liquidated damages from the Operating Period Security, as follows: if the Facility XXXX fails to achieve the XXXX Capacity Performance Metric for a XXXX Measurement Period, the Company shall have the right to set-off or draw the amount owed for such failure as calculated as provided in Section 2.7(a) (XXXX Capacity Test and Liquidated Damages); and if the Monthly Report for the calendar month, MPR Assessment Period, or XXXX Measurement Period in question, as applicable, shows a failure to achieve one or more of the Performance Metrics required for the LD Period in question, the MPR Measurement Period in question, or the XXXX Measurement Period in question, as applicable, and Company does not submit a Notice of Disagreement with respect to such Monthly Report, the Company shall have the right to set-off or draw the amount of liquidated damages owed for such failure as calculated as provided in Section 4.3(a2.5(b) (Capacity Test PV System Equivalent Availability Factor Performance Metric and Liquidated Damages); if the Quarterly Report for the Measurement Period in question shows a failure to achieve one or more of the Performance Metrics required for such period, and Company does not submit a Notice of Disagreement with respect to such Quarterly Report, Company shall have the right to set-off or draw the amount of liquidated damages owed for such failure as calculated as provided in Section 4.4(a2.6(c) (GPR Performance Metric and Liquidated Damages), Section 2.8(a) (XXXX Annual Equivalent Availability Factor and Liquidated Damages), Section 4.5(a) 2.9 (XXXX Annual Equivalent Forced Outage Factor and Factor; Liquidated Damages) and Section 4.6(a) 2.10 (RTE Test and XXXX Round Trip Efficiency Test; Liquidated Damages; Termination Rights), as applicable; in all cases in which Company submits a Notice of Disagreement for a given Quarterly Monthly Report, Company shall have the right to set-off or draw all or any portion of the amount of liquidated damages for the calendar month in question, MPR Assessment Period in question, or XXXX Measurement Period in question, as applicable, as calculated on the basis of the shortfall(s) in the achievement of the Performance Metric(s) in question, as shown in such Notice of Disagreement; and in the event of any disagreement as to the liquidated damages owed under clause (i) and (iiiii) above: if the amount set-off or drawn by the Company exceeds the amount of liquidated damages for such Measurement Period that are eventually found to be payable for the LD Period in question as determined under Section 2 (Quarterly Report Disagreements) of Attachment S (Quarterly Reporting and Dispute Resolution by Independent Evaluator) to this Agreement, Company shall promptly (and in no event more than forty-five (45) Business Days from the date of such determination) repay such excess to Seller together with, unless the Parties otherwise agree in writing, interest from the date of Company’s set-off or draw until the date that such excess is repaid to Seller at the average Prime Rate for such period; and if Company does not exercise its rights to set-off or draw liquidated damages for such Measurement Period, or does not set-off or draw the full amount of the liquidated damages for such period eventually found to be payable for the LD Period in question as determined under Section 2 (Quarterly Report Disagreements) of Attachment S (Quarterly Reporting and Dispute Resolution by Independent Evaluator) to this Agreement, Seller shall promptly, upon such determination as aforesaid, pay to Company the amount of liquidated damages that are found to be owing together with, unless otherwise agreed by the Parties in writing, interest on the amount of such liquidated damages that went unpaid from the applicable LD Assessment Date for such liquidated damages until the date such liquidated damages are paid to Company in full at the average Prime Rate for such period, and Company shall have the right, at its option, to set-off such interest for the amounts to be paid to Seller under Section 4.1 (Lump Sum Payment) of this Agreement or to draw from the Operating Period Security. Any delay by Company in exercising its rights to set-off liquidated damages and/or interest from the amounts to be paid to Seller under Section 4.1 (Lump Sum Payment) of this Agreement, or to draw such liquidated damages and/or interest from the Operating Period Security, shall not constitute a waiver by Company of its right to do so.:

Payment of Liquidated Damages. With respect to the liquidated damages payable under Section 4.3(a2.5(b) (PV System Equivalent Availability Factor Performance Metric and Liquidated Damages), Section 2.6(c) (GPR Performance Metric and Liquidated Damages), Section 2.7(a) (XXXX Capacity Test and Liquidated Damages), Section 4.4(a2.8(a) (XXXX Annual Equivalent Availability Factor and Liquidated Damages), ) and Section 4.5(a) 2.9 (Annual XXXX Equivalent Forced Outage Factor and Liquidated Damages) and Section 4.6(a) (RTE Test and Factor; Liquidated Damages) (collectively, the “"Performance Metrics LDs”"), Company shall have the right, at any time on or after the LD Assessment Date for the liquidated damages in question, at Company’s 's option, to set-off such liquidated damages from the amounts to be paid to Seller under Section 4.1 2.3 (Lump Sum Payment) of this Agreement or, to draw such liquidated damages from the Operating Period Security, as follows: if the Facility XXXX fails to achieve the XXXX Capacity Performance Metric for a XXXX Measurement Period, the Company shall have the right to set-off or draw the amount owed for such failure as calculated as provided in Section 2.7(a) (XXXX Capacity Test and Liquidated Damages); and if the Monthly Report for the calendar month, MPR Assessment Period, or XXXX Measurement Period in question, as applicable, shows a failure to achieve one or more of the Performance Metrics required for the LD Period in question, the MPR Measurement Period in question, or the XXXX Measurement Period in question, as applicable, and Company does not submit a Notice of Disagreement with respect to such Monthly Report, the Company shall have the right to set-off or draw the amount of liquidated damages owed for such failure as calculated as provided in Section 4.3(a2.5(b) (Capacity Test PV System Equivalent Availability Factor Performance Metric and Liquidated Damages); if the Quarterly Report for the Measurement Period in question shows a failure to achieve one or more of the Performance Metrics required for such period, and Company does not submit a Notice of Disagreement with respect to such Quarterly Report, Company shall have the right to set-off or draw the amount of liquidated damages owed for such failure as calculated as provided in Section 4.4(a2.6(c) (GPR Performance Metric and Liquidated Damages), Section 2.8(a) (XXXX Annual Equivalent Availability Factor and Liquidated Damages), ) and Section 4.5(a) 2.9 (XXXX Annual Equivalent Forced Outage Factor and Liquidated Damages) and Section 4.6(a) (RTE Test and Factor; Liquidated Damages), as applicable; in all cases in which Company submits a Notice of Disagreement for a given Quarterly Monthly Report, Company shall have the right to set-off or draw all or any portion of the amount of liquidated damages for the calendar month in question, MPR Assessment Period in question, or XXXX Measurement Period in question, as applicable, as calculated on the basis of the shortfall(s) in the achievement of the Performance Metric(s) in question, as shown in such Notice of Disagreement; and in the event of any disagreement as to the liquidated damages owed under clause (i) and (iiiii) above: if the amount set-off or drawn by the Company exceeds the amount of liquidated damages for such Measurement Period that are eventually found to be payable for the LD Period in question as determined under Section 2 (Quarterly Report Disagreements) of Attachment S (Quarterly Reporting and Dispute Resolution by Independent Evaluator) to this Agreement, Company shall promptly (and in no event more than forty-five (45) Business Days from the date of such determination) repay such excess to Seller together with, unless the Parties otherwise agree in writing, interest from the date of Company’s set-off or draw until the date that such excess is repaid to Seller at the average Prime Rate for such period; and if Company does not exercise its rights to set-off or draw liquidated damages for such Measurement Period, or does not set-off or draw the full amount of the liquidated damages for such period eventually found to be payable for the LD Period in question as determined under Section 2 (Quarterly Report Disagreements) of Attachment S (Quarterly Reporting and Dispute Resolution by Independent Evaluator) to this Agreement, Seller shall promptly, upon such determination as aforesaid, pay to Company the amount of liquidated damages that are found to be owing together with, unless otherwise agreed by the Parties in writing, interest on the amount of such liquidated damages that went unpaid from the applicable LD Assessment Date for such liquidated damages until the date such liquidated damages are paid to Company in full at the average Prime Rate for such period, and Company shall have the right, at its option, to set-off such interest for the amounts to be paid to Seller under Section 4.1 (Lump Sum Payment) of this Agreement or to draw from the Operating Period Security. Any delay by Company in exercising its rights to set-off liquidated damages and/or interest from the amounts to be paid to Seller under Section 4.1 (Lump Sum Payment) of this Agreement, or to draw such liquidated damages and/or interest from the Operating Period Security, shall not constitute a waiver by Company of its right to do so.:

Payment of Liquidated Damages. With respect to the liquidated damages payable under Section 4.3(a2.5(b) (Modified Pooled OMC Equipment Availability Factor Performance Metric and Liquidated Damages), Section 2.6(b) (GPI Metric and Liquidated Damages), Section 2.7(c) (BOP Benchmark and Liquidated Damages), Section 2.8(a) (XXXX Capacity Test and Liquidated Damages), Section 4.4(a2.9(a) (XXXX Annual Equivalent Availability Factor and Liquidated Damages), Section 4.5(a) 2.10 (XXXX Annual Equivalent Forced Outage Factor and Factor; Liquidated Damages), Section 2.11 (XXXX Round Trip Efficiency Test; Liquidated Damages; Termination Rights) and Section 4.6(a2.12 (Fast Frequency Response Performance Metric) (RTE Test and Liquidated Damages) [SUBJECT TO REMOVAL PER SECTION 2.12 DRAFTING NOTE] (collectively, the “"Performance Metrics LDs”"), Company shall have the right, at any time on or after the LD Assessment Date for the liquidated damages in question, at Company’s 's option, to set-off such liquidated damages from the amounts to be paid to Seller under Section 4.1 2.3 (Lump Sum Payment) of this Agreement or, to draw such liquidated damages from the Operating Period Security, as follows: if the Facility XXXX fails to achieve the XXXX Capacity Performance Metric for a XXXX Measurement Period, the Company shall have the right to set-off or draw the amount owed for such failure as calculated as provided in Section 2.8(a) (XXXX Capacity Test and Liquidated Damages); and if the Monthly Report for the calendar month, PI Assessment Period, or XXXX Measurement Period in question, as applicable, shows a failure to achieve one or more of the Performance Metrics required for the LD Period in question, the PI Measurement Period in question, the BOP Measurement Period in question, or the XXXX Measurement Period in question, as applicable, and Company does not submit a Notice of Disagreement with respect to such Monthly Report, the Company shall have the right to set-off or draw the amount of liquidated damages owed for such failure as calculated as provided in Section 4.3(a2.5(b) (Capacity Test Modified Pooled OMC Equipment Availability Factor Performance Metric and Liquidated Damages); if the Quarterly Report for the Measurement Period in question shows a failure to achieve one or more of the Performance Metrics required for such period, and Company does not submit a Notice of Disagreement with respect to such Quarterly Report, Company shall have the right to set-off or draw the amount of liquidated damages owed for such failure as calculated as provided in Section 4.4(a2.6(b) (GPI Metric and Liquidated Damages), Section 2.7(c) (BOP Benchmark and Liquidated Damages), Section 2.9(a) (XXXX Annual Equivalent Availability Factor and Liquidated Damages), Section 4.5(a) 2.10 (XXXX Annual Equivalent Forced Outage Factor and Factor; Liquidated Damages), Section 2.11 (XXXX Round Trip Efficiency Test; Liquidated Damages; Termination Rights) and Section 4.6(a) 2.12 (RTE Test and Liquidated Damages)Fast Frequency Response Performance Metric, as applicable; in all cases in which Company submits a Notice of Disagreement for a given Quarterly Monthly Report, Company shall have the right to set-off or draw all or any portion of the amount of liquidated damages for the calendar month in question, PI Assessment Period in question, the BOP Measurement Period in question, or XXXX Measurement Period in question, as applicable, as calculated on the basis of the shortfall(s) in the achievement of the Performance Metric(s) in question, as shown in such Notice of Disagreement; and in the event of any disagreement as to the liquidated damages owed under clause (i) and (iiiii) above: if the amount set-off or drawn by the Company exceeds the amount of liquidated damages for such Measurement Period that are eventually found to be payable for the LD Period in question as determined under Section 2 (Quarterly Report Disagreements) of Attachment S (Quarterly Reporting and Dispute Resolution by Independent Evaluator) to this Agreement, Company shall promptly (and in no event more than forty-five (45) Business Days from the date of such determination) repay such excess to Seller together with, unless the Parties otherwise agree in writing, interest from the date of Company’s set-off or draw until the date that such excess is repaid to Seller at the average Prime Rate for such period; and if Company does not exercise its rights to set-off or draw liquidated damages for such Measurement Period, or does not set-off or draw the full amount of the liquidated damages for such period eventually found to be payable for the LD Period in question as determined under Section 2 (Quarterly Report Disagreements) of Attachment S (Quarterly Reporting and Dispute Resolution by Independent Evaluator) to this Agreement, Seller shall promptly, upon such determination as aforesaid, pay to Company the amount of liquidated damages that are found to be owing together with, unless otherwise agreed by the Parties in writing, interest on the amount of such liquidated damages that went unpaid from the applicable LD Assessment Date for such liquidated damages until the date such liquidated damages are paid to Company in full at the average Prime Rate for such period, and Company shall have the right, at its option, to set-off such interest for the amounts to be paid to Seller under Section 4.1 (Lump Sum Payment) of this Agreement or to draw from the Operating Period Security. Any delay by Company in exercising its rights to set-off liquidated damages and/or interest from the amounts to be paid to Seller under Section 4.1 (Lump Sum Payment) of this Agreement, or to draw such liquidated damages and/or interest from the Operating Period Security, shall not constitute a waiver by Company of its right to do so.:

Payment of Liquidated Damages. With respect to the liquidated damages payable under Section 4.3(a2.5(b) (PV System Equivalent Availability Factor Performance Metric and Liquidated Damages), Section 2.6(c) (GPR Performance Metric and Liquidated Damages), Section 2.7(a) (XXXX Capacity Test and Liquidated Damages), Section 4.4(a2.8(a) (XXXX Annual Equivalent Availability Factor and Liquidated Damages), Section 4.5(a) 2.9 (XXXX Annual Equivalent Forced Outage Factor and Factor; Liquidated Damages), Section 2.10 (XXXX Round Trip Efficiency; Liquidated Damages; Termination Rights) and Section 4.6(a2.11 (Fast Frequency Response Performance Metric) (RTE Test and Liquidated Damages) [SUBJECT TO REMOVAL PER SECTION 2.11 DRAFTING NOTE] (collectively, the “"Performance Metrics LDs”"), Company shall have the right, at any time on or after the LD Assessment Date for the liquidated damages in question, at Company’s 's option, to set-off such liquidated damages from the amounts to be paid to Seller under Section 4.1 2.3 (Lump Sum Payment) of this Agreement or, to draw such liquidated damages from the Operating Period Security, as follows: if the Facility XXXX fails to achieve the XXXX Capacity Performance Metric for a XXXX Measurement Period, the Company shall have the right to set-off or draw the amount owed for such failure as calculated as provided in Section 2.7(a) (XXXX Capacity Test and Liquidated Damages); and if the Monthly Report for the calendar month, MPR Assessment Period, or XXXX Measurement Period in question, as applicable, shows a failure to achieve one or more of the Performance Metrics required for the LD Period in question, the MPR Measurement Period in question, or the XXXX Measurement Period in question, as applicable, and Company does not submit a Notice of Disagreement with respect to such Monthly Report, the Company shall have the right to set-off or draw the amount of liquidated damages owed for such failure as calculated as provided in Section 4.3(a2.5(b) (Capacity Test PV System Equivalent Availability Factor Performance Metric and Liquidated Damages); if the Quarterly Report for the Measurement Period in question shows a failure to achieve one or more of the Performance Metrics required for such period, and Company does not submit a Notice of Disagreement with respect to such Quarterly Report, Company shall have the right to set-off or draw the amount of liquidated damages owed for such failure as calculated as provided in Section 4.4(a2.6(c) (GPR Performance Metric and Liquidated Damages), Section 2.8(a) (XXXX Annual Equivalent Availability Factor and Liquidated Damages), Section 4.5(a) 2.9 (XXXX Annual Equivalent Forced Outage Factor and Factor; Liquidated Damages), Section 2.10 (XXXX Round Trip Efficiency Test; Liquidated Damages; Termination Rights) and Section 4.6(a2.12 (Fast Frequency Response Performance Metric) (RTE Test and Liquidated Damages)[SUBJECT TO REMOVAL PER SECTION 2.11 DRAFTING NOTE], as applicable; in all cases in which Company submits a Notice of Disagreement for a given Quarterly Monthly Report, Company shall have the right to set-off or draw all or any portion of the amount of liquidated damages for the calendar month in question, MPR Assessment Period in question, or XXXX Measurement Period in question, as applicable, as calculated on the basis of the shortfall(s) in the achievement of the Performance Metric(s) in question, as shown in such Notice of Disagreement; and in the event of any disagreement as to the liquidated damages owed under clause (i) and (iiiii) above: if the amount set-off or drawn by the Company exceeds the amount of liquidated damages for such Measurement Period that are eventually found to be payable for the LD Period in question as determined under Section 2 (Quarterly Report Disagreements) of Attachment S (Quarterly Reporting and Dispute Resolution by Independent Evaluator) to this Agreement, Company shall promptly (and in no event more than forty-five (45) Business Days from the date of such determination) repay such excess to Seller together with, unless the Parties otherwise agree in writing, interest from the date of Company’s set-off or draw until the date that such excess is repaid to Seller at the average Prime Rate for such period; and if Company does not exercise its rights to set-off or draw liquidated damages for such Measurement Period, or does not set-off or draw the full amount of the liquidated damages for such period eventually found to be payable for the LD Period in question as determined under Section 2 (Quarterly Report Disagreements) of Attachment S (Quarterly Reporting and Dispute Resolution by Independent Evaluator) to this Agreement, Seller shall promptly, upon such determination as aforesaid, pay to Company the amount of liquidated damages that are found to be owing together with, unless otherwise agreed by the Parties in writing, interest on the amount of such liquidated damages that went unpaid from the applicable LD Assessment Date for such liquidated damages until the date such liquidated damages are paid to Company in full at the average Prime Rate for such period, and Company shall have the right, at its option, to set-off such interest for the amounts to be paid to Seller under Section 4.1 (Lump Sum Payment) of this Agreement or to draw from the Operating Period Security. Any delay by Company in exercising its rights to set-off liquidated damages and/or interest from the amounts to be paid to Seller under Section 4.1 (Lump Sum Payment) of this Agreement, or to draw such liquidated damages and/or interest from the Operating Period Security, shall not constitute a waiver by Company of its right to do so.:

Payment of Liquidated Damages. With respect to the liquidated damages payable under Section 4.3(a) (Capacity Test and Liquidated Damages), Section 4.4(a) (Annual Equivalent Availability Factor and Liquidated Damages), Section 4.5(a) (Annual Equivalent Forced Outage Factor and Liquidated Damages) and Section 4.6(a) (RTE Test Fast Frequency Response Criteria and Liquidated Damages) (collectively, the “Performance Metrics LDs”), Company shall have the right, at any time on or after the LD Assessment Date for the liquidated damages in question, at Company’s option, to set-off such liquidated damages from the amounts to be paid to Seller under Section 4.1 (Lump Sum Payment) of this Agreement or, to draw such liquidated damages from the Operating Period Security, as follows: if the Facility fails to achieve the Capacity Performance Metric for a Measurement Period, Company shall have the right to set-off or draw the amount of liquidated damages owed for such failure as calculated as provided in Section 4.3(a) (Capacity Test and Liquidated Damages); if the Quarterly Annual Report for the Measurement Period in question shows a failure to achieve one or more of the Performance Metrics required for such period, other than the Fast Frequency Response Performance Metric, and Company does not submit a Notice of Disagreement with respect to such Quarterly Annual Report, Company shall have the right to set-off or draw the amount of liquidated damages owed for such failure as calculated as provided in Section 4.4(a) (Annual Equivalent Availability Factor and Liquidated Damages), ) Section 4.5(a) (Annual Equivalent Forced Outage Factor and Liquidated Damages) and Section 4.6(a) (RTE Test Fast Frequency Response Criteria and Liquidated Damages), as applicable; in all cases in which Company submits a Notice of Disagreement for a given Quarterly Annual Report, Company shall have the right to set-off or draw all or any portion of the amount of liquidated damages for the Measurement Period in question, as applicable, as calculated on the basis of the shortfall(s) in the achievement of the Performance Metric(s) in question, as shown in such Notice of Disagreement; and in the event of any disagreement as to the liquidated damages owed under clause (i) and (ii) above: if the amount set-off or drawn by the Company exceeds the amount of liquidated damages for such Measurement Period that are eventually found to be payable for the LD Period in question as determined under Section 2 (Quarterly Annual Report Disagreements) of Attachment S (Quarterly Annual Reporting and Dispute Resolution by Independent Evaluator) to this Agreement, Company shall promptly (and in no event more than forty-five (45) Business Days from the date of such determination) repay such excess to Seller together with, unless the Parties otherwise agree in writing, interest from the date of Company’s set-off or draw until the date that such excess is repaid to Seller at the average Prime Rate for such period; and if Company does not exercise its rights to set-off or draw liquidated damages for such Measurement Period, or does not set-off or draw the full amount of the liquidated damages for such period eventually found to be payable for the LD Period in question as determined under Section 2 (Quarterly Annual Report Disagreements) of Attachment S (Quarterly Annual Reporting and Dispute Resolution by Independent Evaluator) to this Agreement, Seller shall promptly, upon such determination as aforesaid, pay to Company the amount of liquidated damages that are found to be owing together with, unless otherwise agreed by the Parties in writing, interest on the amount of such liquidated damages that went unpaid from the applicable LD Assessment Date for such liquidated damages until the date such liquidated damages are paid to Company in full at the average Prime Rate for such period, and Company shall have the right, at its option, to set-off such interest for the amounts to be paid to Seller under Section 4.1 (Lump Sum Payment) of this Agreement or to draw from the Operating Period Security. Any delay by Company in exercising its rights to set-off liquidated damages and/or interest from the amounts to be paid to Seller under Section 4.1 (Lump Sum Payment) of this Agreement, or to draw such liquidated damages and/or interest from the Operating Period Security, shall not constitute a waiver by Company of its right to do so.

Payment of Liquidated Damages. With respect to the liquidated damages payable under Section 4.3(a) (Capacity Test and Liquidated Damages), Section 4.4(a) (Annual Equivalent Availability Factor and Liquidated Damages), Section 4.5(a) (Annual Equivalent Forced Outage Factor and Liquidated Damages) and Section 4.6(a) (RTE Test Fast Frequency Response Criteria and Liquidated Damages) (collectively, the “Performance Metrics LDs”), Company shall have the right, at any time on or after the LD Assessment Date for the liquidated damages in question, at Company’s option, to set-off such liquidated damages from the amounts to be paid to Seller under Section 4.1 (Lump Sum Payment) of this Agreement or, to draw such liquidated damages from the Operating Period Security, as follows: if the Facility fails to achieve the Capacity Performance Metric for a Measurement Period, Company shall have the right to set-off or draw the amount of liquidated damages owed for such failure as calculated as provided in Section 4.3(a) (Capacity Test and Liquidated Damages); if the Quarterly Annual Report for the Measurement Period in question shows a failure to achieve one or more of the Performance Metrics required for such period, other than the Fast Frequency Response Performance Metric, and Company does not submit a Notice of Disagreement with respect to such Quarterly Annual Report, Company shall have the right to set-off or draw the amount of liquidated damages owed for such failure as calculated as provided in Section 4.4(a) (Annual Equivalent Availability Factor and Liquidated Damages), ) and Section 4.5(a) (Annual Equivalent Forced Outage Factor and Liquidated Damages) and Section 4.6(a) (RTE Test and Liquidated Damages), as applicable; in all cases in which Company submits a Notice of Disagreement for a given Quarterly Annual Report, Company shall have the right to set-off or draw all or any portion of the amount of liquidated damages for the Measurement Period in question, as applicable, as calculated on the basis of the shortfall(s) in the achievement of the Performance Metric(s) in question, as shown in such Notice of Disagreement; and in the event of any disagreement as to the liquidated damages owed under clause (i) and (ii) above: if the amount set-off or drawn by the Company exceeds the amount of liquidated damages for such Measurement Period that are eventually found to be payable for the LD Period in question as determined under Section 2 (Quarterly Annual Report Disagreements) of Attachment S (Quarterly Annual Reporting and Dispute Resolution by Independent Evaluator) to this Agreement, Company shall promptly (and in no event more than forty-five (45) Business Days from the date of such determination) repay such excess to Seller together with, unless the Parties otherwise agree in writing, interest from the date of Company’s set-off or draw until the date that such excess is repaid to Seller at the average Prime Rate for such period; and if Company does not exercise its rights to set-off or draw liquidated damages for such Measurement Period, or does not set-off or draw the full amount of the liquidated damages for such period eventually found to be payable for the LD Period in question as determined under Section 2 (Quarterly Annual Report Disagreements) of Attachment S (Quarterly Annual Reporting and Dispute Resolution by Independent Evaluator) to this Agreement, Seller shall promptly, upon such determination as aforesaid, pay to Company the amount of liquidated damages that are found to be owing together with, unless otherwise agreed by the Parties in writing, interest on the amount of such liquidated damages that went unpaid from the applicable LD Assessment Date for such liquidated damages until the date such liquidated damages are paid to Company in full at the average Prime Rate for such period, and Company shall have the right, at its option, to set-off such interest for the amounts to be paid to Seller under Section 4.1 (Lump Sum Payment) of this Agreement or to draw from the Operating Period Security. Any delay by Company in exercising its rights to set-off liquidated damages and/or interest from the amounts to be paid to Seller under Section 4.1 (Lump Sum Payment) of this Agreement, or to draw such liquidated damages and/or interest from the Operating Period Security, shall not constitute a waiver by Company of its right to do so.

Payment of Liquidated Damages. With respect to the liquidated damages payable under Section 4.3(a2.5(b) (PV System Equivalent Availability Factor Performance Metric and Liquidated Damages), Section 2.6(c) (GPR Performance Metric and Liquidated Damages), Section 2.7(a) (XXXX Capacity Test and Liquidated Damages), Section 4.4(a2.8(a) (XXXX Annual Equivalent Availability Factor and Liquidated Damages), Section 4.5(a) 2.9 (XXXX Annual Equivalent Forced Outage Factor and Factor; Liquidated Damages) and Section 4.6(a) 2.10 (RTE Test and XXXX Round Trip Efficiency Test; Liquidated Damages; Termination Rights) and Section 2.11 (Fast Frequency Response Performance Metric) [SUBJECT TO REMOVAL PER SECTION 2.11 DRAFTING NOTE] (collectively, the “"Performance Metrics LDs”"), Company shall have the right, at any time on or after the LD Assessment Date for the liquidated damages in question, at Company’s 's option, to set-off such liquidated damages from the amounts to be paid to Seller under Section 4.1 2.3 (Lump Sum Payment) of this Agreement or, to draw such liquidated damages from the Operating Period Security, as follows: if the Facility XXXX fails to achieve the XXXX Capacity Performance Metric for a XXXX Measurement Period, the Company shall have the right to set-off or draw the amount owed for such failure as calculated as provided in Section 2.7(a) (XXXX Capacity Test and Liquidated Damages); and if the Monthly Report for the calendar month, MPR Assessment Period, or XXXX Measurement Period in question, as applicable, shows a failure to achieve one or more of the Performance Metrics required for the LD Period in question, the MPR Measurement Period in question, or the XXXX Measurement Period in question, as applicable, and Company does not submit a Notice of Disagreement with respect to such Monthly Report, the Company shall have the right to set-off or draw the amount of liquidated damages owed for such failure as calculated as provided in Section 4.3(a2.5(b) (Capacity Test PV System Equivalent Availability Factor Performance Metric and Liquidated Damages); if the Quarterly Report for the Measurement Period in question shows a failure to achieve one or more of the Performance Metrics required for such period, and Company does not submit a Notice of Disagreement with respect to such Quarterly Report, Company shall have the right to set-off or draw the amount of liquidated damages owed for such failure as calculated as provided in Section 4.4(a2.6(c) (GPR Performance Metric and Liquidated Damages), Section 2.8(a) (XXXX Annual Equivalent Availability Factor and Liquidated Damages), Section 4.5(a) 2.9 (XXXX Annual Equivalent Forced Outage Factor and Factor; Liquidated Damages), Section 2.10 (XXXX Round Trip Efficiency Test; Liquidated Damages; Termination Rights) and Section 4.6(a2.11 (Fast Frequency Response Performance Metric) (RTE Test and Liquidated Damages)[SUBJECT TO REMOVAL PER SECTION 2.11 DRAFTING NOTE], as applicable; in all cases in which Company submits a Notice of Disagreement for a given Quarterly Monthly Report, Company shall have the right to set-off or draw all or any portion of the amount of liquidated damages for the calendar month in question, MPR Assessment Period in question, or XXXX Measurement Period in question, as applicable, as calculated on the basis of the shortfall(s) in the achievement of the Performance Metric(s) in question, as shown in such Notice of Disagreement; and in the event of any disagreement as to the liquidated damages owed under clause (i) and (iiiii) above: if the amount set-off or drawn by the Company exceeds the amount of liquidated damages for such Measurement Period that are eventually found to be payable for the LD Period in question as determined under Section 2 (Quarterly Report Disagreements) of Attachment S (Quarterly Reporting and Dispute Resolution by Independent Evaluator) to this Agreement, Company shall promptly (and in no event more than forty-five (45) Business Days from the date of such determination) repay such excess to Seller together with, unless the Parties otherwise agree in writing, interest from the date of Company’s set-off or draw until the date that such excess is repaid to Seller at the average Prime Rate for such period; and if Company does not exercise its rights to set-off or draw liquidated damages for such Measurement Period, or does not set-off or draw the full amount of the liquidated damages for such period eventually found to be payable for the LD Period in question as determined under Section 2 (Quarterly Report Disagreements) of Attachment S (Quarterly Reporting and Dispute Resolution by Independent Evaluator) to this Agreement, Seller shall promptly, upon such determination as aforesaid, pay to Company the amount of liquidated damages that are found to be owing together with, unless otherwise agreed by the Parties in writing, interest on the amount of such liquidated damages that went unpaid from the applicable LD Assessment Date for such liquidated damages until the date such liquidated damages are paid to Company in full at the average Prime Rate for such period, and Company shall have the right, at its option, to set-off such interest for the amounts to be paid to Seller under Section 4.1 (Lump Sum Payment) of this Agreement or to draw from the Operating Period Security. Any delay by Company in exercising its rights to set-off liquidated damages and/or interest from the amounts to be paid to Seller under Section 4.1 (Lump Sum Payment) of this Agreement, or to draw such liquidated damages and/or interest from the Operating Period Security, shall not constitute a waiver by Company of its right to do so.:

Payment of Liquidated Damages. With respect to the liquidated damages payable under Section 4.3(a2.5(b) (PV System Equivalent Availability Factor Performance Metric and Liquidated Damages), Section 2.6(c) (GPR Performance Metric and Liquidated Damages), Section 2.7(a) (XXXX Capacity Test and Liquidated Damages), Section 4.4(a2.8(a) (XXXX Annual Equivalent Availability Factor and Liquidated Damages), Section 4.5(a) 2.9 (XXXX Annual Equivalent Forced Outage Factor and Factor; Liquidated Damages) and Section 4.6(a) 2.10 (RTE Test and XXXX Round Trip Efficiency; Liquidated Damages; Termination Rights) (collectively, the “"Performance Metrics LDs”"), Company shall have the right, at any time on or after the LD Assessment Date for the liquidated damages in question, at Company’s 's option, to set-off such liquidated damages from the amounts to be paid to Seller under Section 4.1 2.3 (Lump Sum Payment) of this Agreement or, to draw such liquidated damages from the Operating Period Security, as follows: if the Facility XXXX fails to achieve the XXXX Capacity Performance Metric for a XXXX Measurement Period, the Company shall have the right to set-off or draw the amount owed for such failure as calculated as provided in Section 2.7(a) (XXXX Capacity Test and Liquidated Damages); and if the Monthly Report for the calendar month, MPR Assessment Period, or XXXX Measurement Period in question, as applicable, shows a failure to achieve one or more of the Performance Metrics required for the LD Period in question, the MPR Measurement Period in question, or the XXXX Measurement Period in question, as applicable, and Company does not submit a Notice of Disagreement with respect to such Monthly Report, the Company shall have the right to set-off or draw the amount of liquidated damages owed for such failure as calculated as provided in Section 4.3(a2.5(b) (Capacity Test PV System Equivalent Availability Factor Performance Metric and Liquidated Damages); if the Quarterly Report for the Measurement Period in question shows a failure to achieve one or more of the Performance Metrics required for such period, and Company does not submit a Notice of Disagreement with respect to such Quarterly Report, Company shall have the right to set-off or draw the amount of liquidated damages owed for such failure as calculated as provided in Section 4.4(a2.6(c) (GPR Performance Metric and Liquidated Damages), Section 2.8(a) (XXXX Annual Equivalent Availability Factor and Liquidated Damages), Section 4.5(a) 2.9 (XXXX Annual Equivalent Forced Outage Factor and Factor; Liquidated Damages) and Section 4.6(a) 2.10 (RTE Test and XXXX Round Trip Efficiency Test; Liquidated Damages; Termination Rights), as applicable; in all cases in which Company submits a Notice of Disagreement for a given Quarterly Monthly Report, Company shall have the right to set-off or draw all or any portion of the amount of liquidated damages for the calendar month in question, MPR Assessment Period in question, or XXXX Measurement Period in question, as applicable, as calculated on the basis of the shortfall(s) in the achievement of the Performance Metric(s) in question, as shown in such Notice of Disagreement; and in the event of any disagreement as to the liquidated damages owed under clause (i) and (iiiii) above: if the amount set-off or drawn by the Company exceeds the amount of liquidated damages for such Measurement Period that are eventually found to be payable for the LD Period in question as determined under Section 2 (Quarterly Report Disagreements) of Attachment S (Quarterly Reporting and Dispute Resolution by Independent Evaluator) to this Agreement, Company shall promptly (and in no event more than forty-five (45) Business Days from the date of such determination) repay such excess to Seller together with, unless the Parties otherwise agree in writing, interest from the date of Company’s set-off or draw until the date that such excess is repaid to Seller at the average Prime Rate for such period; and if Company does not exercise its rights to set-off or draw liquidated damages for such Measurement Period, or does not set-off or draw the full amount of the liquidated damages for such period eventually found to be payable for the LD Period in question as determined under Section 2 (Quarterly Report Disagreements) of Attachment S (Quarterly Reporting and Dispute Resolution by Independent Evaluator) to this Agreement, Seller shall promptly, upon such determination as aforesaid, pay to Company the amount of liquidated damages that are found to be owing together with, unless otherwise agreed by the Parties in writing, interest on the amount of such liquidated damages that went unpaid from the applicable LD Assessment Date for such liquidated damages until the date such liquidated damages are paid to Company in full at the average Prime Rate for such period, and Company shall have the right, at its option, to set-off such interest for the amounts to be paid to Seller under Section 4.1 (Lump Sum Payment) of this Agreement or to draw from the Operating Period Security. Any delay by Company in exercising its rights to set-off liquidated damages and/or interest from the amounts to be paid to Seller under Section 4.1 (Lump Sum Payment) of this Agreement, or to draw such liquidated damages and/or interest from the Operating Period Security, shall not constitute a waiver by Company of its right to do so.:

Payment of Liquidated Damages. With respect to the liquidated damages payable under Section 4.3(a2.5(b) (Modified Pooled OMC Equipment Availability Factor Performance Metric and Liquidated Damages), Section 2.6(b) (GPI Metric and Liquidated Damages), Section 2.7(c) (BOP Benchmark and Liquidated Damages), Section 2.8(a) (XXXX Capacity Test and Liquidated Damages), Section 4.4(a2.9(a) (XXXX Annual Equivalent Availability Factor and Liquidated Damages), ) and Section 4.5(a) 2.10 (XXXX Annual Equivalent Forced Outage Factor and Liquidated Damages) and Section 4.6(a) (RTE Test and Factor; Liquidated Damages) (collectively, the “"Performance Metrics LDs”"), Company shall have the right, at any time on or after the LD Assessment Date for the liquidated damages in question, at Company’s 's option, to set-off such liquidated damages from the amounts to be paid to Seller under Section 4.1 2.3 (Lump Sum Payment) of this Agreement or, to draw such liquidated damages from the Operating Period Security, as follows: if the Facility XXXX fails to achieve the XXXX Capacity Performance Metric for a XXXX Measurement Period, the Company shall have the right to set-off or draw the amount owed for such failure as calculated as provided in Section 2.8(a) (XXXX Capacity Test and Liquidated Damages); and if the Monthly Report for the calendar month, PI Assessment Period, or XXXX Measurement Period in question, as applicable, shows a failure to achieve one or more of the Performance Metrics required for the LD Period in question, the PI Measurement Period in question, the BOP Measurement Period in question, or the XXXX Measurement Period in question, as applicable, and Company does not submit a Notice of Disagreement with respect to such Monthly Report, the Company shall have the right to set-off or draw the amount of liquidated damages owed for such failure as calculated as provided in Section 4.3(a2.5(b) (Capacity Test Modified Pooled OMC Equipment Availability Factor Performance Metric and Liquidated Damages); if the Quarterly Report for the Measurement Period in question shows a failure to achieve one or more of the Performance Metrics required for such period, and Company does not submit a Notice of Disagreement with respect to such Quarterly Report, Company shall have the right to set-off or draw the amount of liquidated damages owed for such failure as calculated as provided in Section 4.4(a2.6(b) (GPI Metric and Liquidated Damages), Section 2.7(c) (BOP Benchmark and Liquidated Damages), Section 2.9(a) (XXXX Annual Equivalent Availability Factor and Liquidated Damages), ) and Section 4.5(a) 2.10 (XXXX Annual Equivalent Forced Outage Factor and Liquidated Damages) and Section 4.6(a) (RTE Test and Factor; Liquidated Damages), as applicable; in all cases in which Company submits a Notice of Disagreement for a given Quarterly Monthly Report, Company shall have the right to set-off or draw all or any portion of the amount of liquidated damages for the calendar month in question, PI Assessment Period in question, the BOP Measurement Period in question, or XXXX Measurement Period in question, as applicable, as calculated on the basis of the shortfall(s) in the achievement of the Performance Metric(s) in question, as shown in such Notice of Disagreement; and in the event of any disagreement as to the liquidated damages owed under clause (i) and (iiiii) above: if the amount set-off or drawn by the Company exceeds the amount of liquidated damages for such Measurement Period that are eventually found to be payable for the LD Period in question as determined under Section 2 (Quarterly Report Disagreements) of Attachment S (Quarterly Reporting and Dispute Resolution by Independent Evaluator) to this Agreement, Company shall promptly (and in no event more than forty-five (45) Business Days from the date of such determination) repay such excess to Seller together with, unless the Parties otherwise agree in writing, interest from the date of Company’s set-off or draw until the date that such excess is repaid to Seller at the average Prime Rate for such period; and if Company does not exercise its rights to set-off or draw liquidated damages for such Measurement Period, or does not set-off or draw the full amount of the liquidated damages for such period eventually found to be payable for the LD Period in question as determined under Section 2 (Quarterly Report Disagreements) of Attachment S (Quarterly Reporting and Dispute Resolution by Independent Evaluator) to this Agreement, Seller shall promptly, upon such determination as aforesaid, pay to Company the amount of liquidated damages that are found to be owing together with, unless otherwise agreed by the Parties in writing, interest on the amount of such liquidated damages that went unpaid from the applicable LD Assessment Date for such liquidated damages until the date such liquidated damages are paid to Company in full at the average Prime Rate for such period, and Company shall have the right, at its option, to set-off such interest for the amounts to be paid to Seller under Section 4.1 (Lump Sum Payment) of this Agreement or to draw from the Operating Period Security. Any delay by Company in exercising its rights to set-off liquidated damages and/or interest from the amounts to be paid to Seller under Section 4.1 (Lump Sum Payment) of this Agreement, or to draw such liquidated damages and/or interest from the Operating Period Security, shall not constitute a waiver by Company of its right to do so.:

Payment of Liquidated Damages. With respect to the liquidated damages payable under Section 4.3(a) (Capacity Test and Liquidated Damages), Section 4.4(a) (Annual Equivalent Availability Factor and Liquidated Damages), ) and Section 4.5(a) (Annual Equivalent Forced Outage Factor and Liquidated Damages) and Section 4.6(a) (RTE Test and Liquidated Damages) (collectively, the “Performance Metrics LDs”), Company shall have the right, at any time on or after the LD Assessment Date for the liquidated damages in question, at Company’s option, to set-off such liquidated damages from the amounts to be paid to Seller under Section 4.1 (Lump Sum Payment) of this Agreement or, to draw such liquidated damages from the Operating Period Security, as follows: if the Facility fails to achieve the Capacity Performance Metric for a Measurement Period, the Company shall have the right to set-off or draw the amount of liquidated damages owed for such failure as calculated as provided in Section 4.3(a) (Capacity Test and Liquidated Damages); if the Quarterly Report for the Measurement Period in question question, as applicable, shows a failure to achieve one or more of the Performance Metrics required for such period, and Company does not submit a Notice of Disagreement with respect to such Quarterly Report, the Company shall have the right to set-off or draw the amount of liquidated damages owed for such failure as calculated as provided in Section 4.4(a) (Annual Equivalent Availability Factor and Liquidated Damages), ) and Section 4.5(a) (Annual Equivalent Forced Outage Factor and Liquidated Damages) and Section 4.6(a) (RTE Test and Liquidated Damages), as applicable; in all cases in which Company submits a Notice of Disagreement for a given Quarterly Report, Company shall have the right to set-off or draw all or any portion of the amount of liquidated damages for the Measurement Period in question, as applicable, as calculated on the basis of the shortfall(s) in the achievement of the Performance Metric(s) in question, as shown in such Notice of Disagreement; and in the event of any disagreement as to the liquidated damages owed under clause (ia) and (iib) above: if the amount set-off or drawn by the Company exceeds the amount of liquidated damages for such Measurement Period that are eventually found to be payable for the LD Period in question as determined under Section 2 (Quarterly Report Disagreements) of Attachment S (Quarterly Reporting and Dispute Resolution by Independent Evaluator) to this Agreement, Company shall promptly (and in no event more than forty-five (45) Business Days from the date of such determination) repay such excess to Seller together with, unless the Parties otherwise agree in writing, interest from the date of Company’s set-off or draw until the date that such excess is repaid to Seller at the average Prime Rate for such period; and if Company does not exercise its rights to set-off or draw liquidated damages for such Measurement Period, or does not set-off or draw the full amount of the liquidated damages for such period eventually found to be payable for the LD Period in question as determined under Section 2 (Quarterly Report Disagreements) of Attachment S (Quarterly Reporting and Dispute Resolution by Independent Evaluator) to this Agreement, Seller shall promptly, upon such determination as aforesaid, pay to Company the amount of liquidated damages that are found to be owing together with, unless otherwise agreed by the Parties in writing, interest on the amount of such liquidated damages that went unpaid from the applicable LD Assessment Date for such liquidated damages until the date such liquidated damages are paid to Company in full at the average Prime Rate for such period, and Company shall have the right, at its option, to set-off such interest for the amounts to be paid to Seller under Section 4.1 (Lump Sum Payment) of this Agreement or to draw from the Operating Period Security. Any delay by Company in exercising its rights to set-off liquidated damages and/or interest from the amounts to be paid to Seller under Section 4.1 (Lump Sum Payment) of this Agreement, or to draw such liquidated damages and/or interest from the Operating Period Security, shall not constitute a waiver by Company of its right to do so.