Common use of XXXX Annual Equivalent Availability Factor and Liquidated Damages Clause in Contracts

XXXX Annual Equivalent Availability Factor and Liquidated Damages. For each XXXX Measurement Period following the Commercial Operations Date, a XXXX Annual Equivalent Availability Factor shall be calculated as set forth in Attachment X (XXXX Annual Equivalent Availability Factor). If the XXXX Annual Equivalent Availability Factor for such XXXX Measurement Period is less than 97% (the "XXXX EAF Performance Metric"), Seller shall pay, and Company shall accept, as liquidated damages for such shortfall, the amount set forth in the following table (on a progressive basis) upon proper demand at the end the current XXXX Measurement Period: XXXX Annual Equivalent Availability Factor Liquidated Damage Amount Tier 1 85.0% - 96.9% For each one-tenth of one percent (0.001) by which the XXXX Annual Equivalent Availability Factor falls below 97% but equal to or above 85%, an amount equal to one-tenth of one percent (0.001) of the XXXX Allocated Portion of the Lump Sum Payment for the XXXX Measurement Period in question; plus Tier 2 80.0% - 84.9% For each one-tenth of one percent (0.001) by which the XXXX Annual Equivalent Availability Factor falls below 85% but equal to or above 80%, an amount equal to two-tenths of one percent (0.002) of the XXXX Allocated Portion of the Lump Sum Payment for the XXXX Measurement Period in question; plus Tier 3 75.0% - 79.9% For each one-tenth of one percent (0.001) by which the XXXX Annual Equivalent Availability Factor falls below 80% but equal to or above 75%, an amount equal to three-tenths of one percent (0.003) of the XXXX Allocated Portion of the Lump Sum Payment for the XXXX Measurement Period in question; plus Tier 4 Below 75.0% For each one-tenth of one percent (0.001) by which the XXXX Annual Equivalent Availability Factor falls below 75%, an amount equal to four-tenths of one percent (0.004) of the XXXX Allocated Portion of the Lump Sum Payment for the XXXX Measurement Period in question. Such liquidated damages shall be due within thirty (30) Days after the first to occur of the end of such XXXX Measurement Period or the end of Term. In the event Seller fails to pay Company amounts of liquidated damages due under this Section 2.9(a) (XXXX Annual Equivalent Availability Factor and Liquidated Damages) within thirty (30) Days of receipt of Company's written demand, Company may, without limitation to any other remedy Company may have, set-off such amounts due against payments it is otherwise obligated to make under this Agreement. For purposes of determining liquidated damages under this Section 2.9(a) (XXXX Annual Equivalent Availability Factor and Liquidated Damages), the XXXX Annual Equivalent Availability Factor for the XXXX Measurement Period in question shall be rounded to the nearest one-tenth of one percent (0.001). Each Party agrees and acknowledges that (i) the damages that Company would incur if the Seller fails to achieve the XXXX EAF Performance Metric for a XXXX Measurement Period would be difficult or impossible to calculate with certainty and (ii) the aforesaid liquidated damages are an appropriate approximation of such damages.

XXXX Annual Equivalent Availability Factor and Liquidated Damages. For each XXXX Measurement Period following the Commercial Operations Date, a XXXX Annual Equivalent Availability Factor shall be calculated as set forth in Attachment X (XXXX Annual Equivalent Availability Factor). If the XXXX Annual Equivalent Availability Factor for such XXXX Measurement Period is less than 97% (the "XXXX EAF Performance Metric"), Seller shall pay, and Company shall accept, as liquidated damages for such shortfall, the amount set forth in the following table (on a progressive basis) upon proper demand at the end the current XXXX Measurement Period: XXXX Annual Equivalent Availability Factor Liquidated Damage Amount Tier 1 85.0% - 96.9% For each one-tenth of one percent (0.001) by which the XXXX Annual Equivalent Availability Factor falls below 97% but equal to or above 85%, an amount equal to one-tenth of one percent (0.001) of the XXXX Allocated Portion of the Lump Sum Payment for the XXXX Measurement Period in question; plus Tier 2 80.0% - 84.9% For each one-tenth of one percent (0.001) by which the XXXX Annual Equivalent Availability Factor falls below 85% but equal to or above 80%, an amount equal to two-tenths of one percent (0.002) of the XXXX Allocated Portion of the Lump Sum Payment for the XXXX Measurement Period in question; plus Tier 3 75.0% - 79.9% For each one-tenth of one percent (0.001) by which the XXXX Annual Equivalent Availability Factor falls below 80% but equal to or above 75%, an amount equal to three-tenths of one percent (0.003) of the XXXX Allocated Portion of the Lump Sum Payment for the XXXX Measurement Period in question; plus Tier 4 Below 75.0% For each one-tenth of one percent (0.001) by which the XXXX Annual Equivalent Availability Factor falls below 75%, an amount equal to four-tenths of one percent (0.004) of the XXXX Allocated Portion of the Lump Sum Payment for the XXXX Measurement Period in question. Such liquidated damages shall be due within thirty (30) Days after the first to occur of the end of such XXXX Measurement Period or the end of Term. In the event Seller fails to pay Company amounts of liquidated damages due under this Section 2.9(a2.8(a) (XXXX Annual Equivalent Availability Factor and Liquidated Damages) within thirty (30) Days of receipt of Company's written demand, Company may, without limitation to any other remedy Company may have, set-off such amounts due against payments it is otherwise obligated to make under this Agreement. For purposes of determining liquidated damages under this Section 2.9(a2.8(a) (XXXX Annual Equivalent Availability Factor and Liquidated Damages), the XXXX Annual Equivalent Availability Factor for the XXXX Measurement Period in question shall be rounded to the nearest one-tenth of one percent (0.001). Each Party agrees and acknowledges that (i) the damages that Company would incur if the Seller fails to achieve the XXXX EAF Performance Metric for a XXXX Measurement Period would be difficult or impossible to calculate with certainty and (ii) the aforesaid liquidated damages are an appropriate approximation of such damages.

XXXX Annual Equivalent Availability Factor and Liquidated Damages. For each XXXX Measurement Period following the Commercial Operations Date, a XXXX Annual Equivalent Availability Factor shall be calculated as set forth in Attachment X (XXXX Annual Equivalent Availability Factor). If the XXXX Annual Equivalent Availability Factor for such XXXX Measurement Period is less than 97% (the "XXXX EAF Performance Metric"), Seller Subscriber Organization shall pay, and Company shall accept, as liquidated damages for such shortfall, the amount set forth in the following table (on a progressive basis) upon proper demand at the end the current XXXX Measurement Period: XXXX Annual Equivalent Availability Factor Liquidated Damage Amount Tier 1 85.0% - 96.9% For each one-tenth of one percent (0.001) by which the 85.0% - 96.9% XXXX Annual Equivalent Availability Factor falls below 97% but equal to or above 85%, an amount equal to one-tenth of one percent (0.001) of the XXXX Allocated Portion of the Lump Sum Payment for the XXXX Measurement Period in question; plus Tier 2 80.0% - 84.9% For each one-tenth of one percent (0.001) by which the 80.0% - 84.9% XXXX Annual Equivalent Availability Factor falls below 85% but equal to or above 80%, an amount equal to two-tenths of one percent (0.002) of the XXXX Allocated Portion of the Lump Sum Payment for the XXXX Measurement Period in question; plus Tier 3 75.0% - 79.9% For each one-tenth of one percent (0.001) by which the 75.0% - 79.9% XXXX Annual Equivalent Availability Factor falls below 80% but equal to or above 75%, an amount equal to three-tenths of one percent (0.003) of the XXXX Allocated Portion of the Lump Sum Payment for the XXXX Measurement Period in question; plus Tier 4 Below 75.0% For each one-tenth of one percent (0.001) by which the Below 75.0% XXXX Annual Equivalent Availability Factor falls below 75%, an amount equal to four-tenths of one percent (0.004) of the XXXX Allocated Portion of the Lump Sum Payment for the XXXX Measurement Period in question. Such liquidated damages shall be due within thirty (30) Days after the first to occur of the end of such XXXX Measurement Period or the end of Term. In the event Seller Subscriber Organization fails to pay Company amounts of liquidated damages due under this Section 2.9(a2.8(a) (XXXX Annual Equivalent Availability Factor and Liquidated Damages) within thirty (30) Days of receipt of Company's written demand, Company may, without limitation to any other remedy Company may have, set-off such amounts due against payments it is otherwise obligated to make under this Agreement. For purposes of determining liquidated damages under this Section 2.9(a2.8(a) (XXXX Annual Equivalent Availability Factor and Liquidated Damages), the XXXX Annual Equivalent Availability Factor for the XXXX Measurement Period in question shall be rounded to the nearest one-one- tenth of one percent (0.001). Each Party agrees and acknowledges that (i) the damages that Company would incur if the Seller Subscriber Organization fails to achieve the XXXX EAF Performance Metric for a XXXX Measurement Period would be difficult or impossible to calculate with certainty and (ii) the aforesaid liquidated damages are an appropriate approximation of such damages.

XXXX Annual Equivalent Availability Factor and Liquidated Damages. For each XXXX Measurement Period following the Commercial Operations Date, a XXXX Annual Equivalent Availability Factor shall be calculated as set forth in Attachment X (XXXX Annual Equivalent Availability Factor). If the XXXX Annual Equivalent Availability Factor for such XXXX Measurement Period is less than 97% (the "XXXX EAF Performance Metric"), Seller shall pay, in accordance with Section 2.12 (Payment of Liquidated Damages for Failure to Achieve Performance Metrics; Limitation on Liquidated Damages), and Company shall accept, as liquidated damages for such shortfall, the amount set forth in the following table (on a progressive basis) upon proper demand at the end the current XXXX Measurement Period: XXXX Annual Equivalent Availability Factor Liquidated Damage Amount Tier 1 85.0% - 96.9% For each one-tenth of one percent (0.001) by which the XXXX Annual Equivalent Availability Factor falls below 97% but equal to or above 85%, an amount equal to one-tenth of one percent (0.001) of the XXXX Allocated Portion of the Lump Sum Payment for the XXXX Measurement Period in question; plus Tier 2 80.0% - 84.9% For each one-tenth of one percent (0.001) by which the XXXX Annual Equivalent Availability Factor falls below 85% but equal to or above 80%, an amount equal to two-tenths of one percent (0.002) of the XXXX Allocated Portion of the Lump Sum Payment for the XXXX Measurement Period in question; plus Tier 3 75.0% - 79.9% For each one-tenth of one percent (0.001) by which the XXXX Annual Equivalent Availability Factor falls below 80% but equal to or above 75%, an amount equal to three-tenths of one percent (0.003) of the XXXX Allocated Portion of the Lump Sum Payment for the XXXX Measurement Period in question; plus Tier 4 Below 75.0% For each one-tenth of one percent (0.001) by which the XXXX Annual Equivalent Availability Factor falls below 75%, an amount equal to four-tenths of one percent (0.004) of the XXXX Allocated Portion of the Lump Sum Payment for the XXXX Measurement Period in question. Such liquidated damages shall be due within thirty (30) Days after the first to occur of the end of such XXXX Measurement Period or the end of Term. In the event Seller fails to pay Company amounts of liquidated damages due under this Section 2.9(a) (XXXX Annual Equivalent Availability Factor and Liquidated Damages) within thirty (30) Days of receipt of Company's written demand, Company may, without limitation to any other remedy Company may have, set-off such amounts due against payments it is otherwise obligated to make under this Agreement. For purposes of determining liquidated damages under this Section 2.9(a2.8(a) (XXXX Annual Equivalent Availability Factor and Liquidated Damages), the XXXX Annual Equivalent Availability Factor for the XXXX Measurement Period in question shall be rounded to the nearest one-tenth of one percent (0.001). Each Party agrees and acknowledges that (i) the damages that Company would incur if the Seller fails to achieve the XXXX EAF Performance Metric for a XXXX Measurement Period would be difficult or impossible to calculate with certainty and (ii) the aforesaid liquidated damages are an appropriate approximation of such damages.

XXXX Annual Equivalent Availability Factor and Liquidated Damages. For each XXXX Measurement Period following the Commercial Operations Date, a XXXX Annual Equivalent Availability Factor shall be calculated as set forth in Attachment X (XXXX Annual Equivalent Availability Factor). If the XXXX Annual Equivalent Availability Factor for such XXXX Measurement Period is less than 97% (the "XXXX EAF Performance Metric"), Seller Subscriber Organization shall pay, and Company shall accept, as liquidated damages for such shortfall, the amount set forth in the following table (on a progressive basis) upon proper demand at the end the current XXXX Measurement Period: XXXX Annual Equivalent Availability Factor Liquidated Damage Amount Tier 1 85.0% - 96.9% For each one-tenth of one percent (0.001) by which the XXXX Annual Equivalent Availability Factor falls below 97% but equal to or above 85%, an amount equal to one-tenth of one percent (0.001) of the XXXX Allocated Portion of the Lump Sum Payment for the XXXX Measurement Period in question; plus Tier 2 80.0% - 84.9% For each one-tenth of one percent (0.001) by which the XXXX Annual Equivalent Availability Factor falls below 85% but equal to or above 80%, an amount equal to two-tenths of one percent (0.002) of the XXXX Allocated Portion of the Lump Sum Payment for the XXXX Measurement Period in question; plus Tier 3 75.0% - 79.9% For each one-tenth of one percent (0.001) by which the XXXX Annual Equivalent Availability Factor falls below 80% but equal to or above 75%, an amount equal to three-tenths of one percent (0.003) of the XXXX Allocated Portion of the Lump Sum Payment for the XXXX Measurement Period in question; plus Tier 4 Below 75.0% For each one-tenth of one percent (0.001) by which the XXXX Annual Equivalent Availability Factor falls below 75%, an amount equal to four-tenths of one percent (0.004) of the XXXX Allocated Portion of the Lump Sum Payment for the XXXX Measurement Period in question. Such liquidated damages shall be due within thirty (30) Days after the first to occur of the end of such XXXX Measurement Period or the end of Term. In the event Seller Subscriber Organization fails to pay Company amounts of liquidated damages due under this Section 2.9(a2.8(a) (XXXX Annual Equivalent Availability Factor and Liquidated Damages) within thirty (30) Days of receipt of Company's written demand, Company may, without limitation to any other remedy Company may have, set-off such amounts due against payments it is otherwise obligated to make under this Agreement. For purposes of determining liquidated damages under this Section 2.9(a2.8(a) (XXXX Annual Equivalent Availability Factor and Liquidated Damages), the XXXX Annual Equivalent Availability Factor for the XXXX Measurement Period in question shall be rounded to the nearest one-tenth of one percent (0.001). Each Party agrees and acknowledges that (i) the damages that Company would incur if the Seller Subscriber Organization fails to achieve the XXXX EAF Performance Metric for a XXXX Measurement Period would be difficult or impossible to calculate with certainty and (ii) the aforesaid liquidated damages are an appropriate approximation of such damages.

XXXX Annual Equivalent Availability Factor and Liquidated Damages. For each XXXX Measurement Period following the Commercial Operations Date, a XXXX Annual Equivalent Availability Factor shall be calculated as set forth in Attachment X (XXXX Annual Equivalent Availability Factor). If the XXXX Annual Equivalent Availability Factor for such XXXX Measurement Period is less than 97% (the "XXXX EAF Performance Metric"), Seller shall pay, in accordance with Section 2.12 (Payment of Liquidated Damages for Failure to Achieve Performance Metrics; Limitation on Liquidated Damages), and Company shall accept, as liquidated damages for such shortfall, the amount set forth in the following table (on a progressive basis) upon proper demand at the end the current XXXX Measurement Period: XXXX Annual Equivalent Availability Factor Liquidated Damage Amount Tier 1 85.0% - 96.9% For each one-tenth of one percent (0.001) by which the 85.0% - 96.9% XXXX Annual Equivalent Availability Factor falls below 97% but equal to or above 85%, an amount equal to one-tenth of one percent (0.001) of the XXXX Allocated Portion of the Lump Sum Payment for the XXXX Measurement Period in question; plus Tier 2 80.0% - 84.9% For each one-tenth of one percent (0.001) by which the 80.0% - 84.9% XXXX Annual Equivalent Availability Factor falls below 85% but equal to or above 80%, an amount equal to two-tenths of one percent (0.002) of the XXXX Allocated Portion of the Lump Sum Payment for the XXXX Measurement Period in question; plus Tier 3 75.0% - 79.9% For each one-tenth of one percent (0.001) by which the 75.0% - 79.9% XXXX Annual Equivalent Availability Factor falls below 80% but equal to or above 75%, an amount equal to three-tenths of one percent (0.003) of the XXXX Allocated Portion of the Lump Sum Payment for the XXXX Measurement Period in question; plus Tier 4 Below 75.0% For each one-tenth of one percent (0.001) by which the Below 75.0% XXXX Annual Equivalent Availability Factor falls below 75%, an amount equal to four-tenths of one percent (0.004) of the XXXX Allocated Portion of the Lump Sum Payment for the XXXX Measurement Period in question. Such liquidated damages shall be due within thirty (30) Days after the first to occur of the end of such XXXX Measurement Period or the end of Term. In the event Seller fails to pay Company amounts of liquidated damages due under this Section 2.9(a) (XXXX Annual Equivalent Availability Factor and Liquidated Damages) within thirty (30) Days of receipt of Company's written demand, Company may, without limitation to any other remedy Company may have, set-off such amounts due against payments it is otherwise obligated to make under this Agreement. For purposes of determining liquidated damages under this Section 2.9(a2.8(a) (XXXX Annual Equivalent Availability Factor and Liquidated Damages), the XXXX Annual Equivalent Availability Factor for the XXXX Measurement Period in question shall be rounded to the nearest one-one- tenth of one percent (0.001). Each Party agrees and acknowledges that (i) the damages that Company would incur if the Seller fails to achieve the XXXX EAF Performance Metric for a XXXX Measurement Period would be difficult or impossible to calculate with certainty and (ii) the aforesaid liquidated damages are an appropriate approximation of such damages.