Common use of XXXX Capacity Test Termination Rights Clause in Contracts

XXXX Capacity Test Termination Rights. The Parties acknowledge that, although the intent of the liquidated damages payable under Section 2.7(a) (XXXX Capacity Test and Liquidated Damages) is to compensate Company for the damages that Company would incur if the XXXX fails to demonstrate satisfaction of the XXXX Capacity Performance Metric during a XXXX Measurement Period, such liquidated damages are not intended to compensate Company for the damages that Company would incur if a pattern of underperformance establishes a reasonable expectation that the XXXX is likely to continue to substantially underperform the Company's expectations. Accordingly, and without limitation to Company's rights under said Section 2.7(a) (XXXX Capacity Test and Liquidated Damages) for those XXXX Measurement Periods during which the XXXX fails to demonstrate satisfaction of the XXXX Capacity Performance Metric, substantial underperformance shall give rise to a termination right as set forth in this Section 2.7(b) (XXXX Capacity Test Termination Rights). If the XXXX is in the Lowest XXXX Capacity Bandwidth for any two XXXX Measurement Periods during a 12-month period, an 18-month cure period (the "XXXX Capacity Cure Period") will commence on the Day following the close of the second such XXXX Measurement Period. For each XXXX Measurement Period during such XXXX Capacity Cure Period, XXXX Capacity Tests shall continue to be conducted as set forth in Attachment W (XXXX Tests) and liquidated damages paid and accepted as set forth in Section 2.7(a) (XXXX Capacity Test and Liquidated Damages); provided, however, that if the Seller fails to demonstrate satisfaction of the XXXX Capacity Performance Metric prior to the expiration of the XXXX Capacity Cure Period, such failure shall constitute an Event of Default under Section 15.1(d) of this Agreement for which Company shall have the rights (including but not limited to the termination rights) set forth in Article 15 (Events of Default) and Article 16 (Damages in the Event of Termination by Company).

XXXX Capacity Test Termination Rights. The Parties acknowledge that, although the intent of the liquidated damages payable under Section 2.7(a2.8(a) (XXXX Capacity Test and Liquidated Damages) is to compensate Company for the damages that Company would incur if the XXXX fails to demonstrate satisfaction of the XXXX Capacity Performance Metric during a XXXX Measurement Period, such liquidated damages are not intended to compensate Company for the damages that Company would incur if a pattern of underperformance establishes a reasonable expectation that the XXXX is likely to continue to substantially underperform the Company's expectations. Accordingly, and without limitation to Company's rights under said Section 2.7(a2.8(a) (XXXX Capacity Test and Liquidated Damages) for those XXXX Measurement Periods during which the XXXX fails to demonstrate satisfaction of the XXXX Capacity Performance Metric, substantial underperformance shall give rise to a termination right as set forth in this Section 2.7(b2.8(b) (XXXX Capacity Test Termination Rights). If the XXXX is in the Lowest XXXX Capacity Bandwidth for any two XXXX Measurement Periods during a 12-month period, an 18-month cure period (the "XXXX Capacity Cure Period") will commence on the Day following the close of the second such XXXX Measurement Period. For each XXXX Measurement Period during such XXXX Capacity Cure Period, XXXX Capacity Tests shall continue to be conducted as set forth in Attachment W (XXXX Tests) and liquidated damages paid and accepted as set forth in Section 2.7(a2.8(a) (XXXX Capacity Test and Liquidated Damages); provided, however, that if the Seller fails to demonstrate satisfaction of the XXXX Capacity Performance Metric prior to the expiration of the XXXX Capacity Cure Period, such failure shall constitute an Event of Default under Section 15.1(d15.1(e) of this Agreement for which Company shall have the rights (including but not limited to the termination rights) set forth in Article 15 (Events of Default) and Article 16 (Damages in the Event of Termination by Company).

XXXX Capacity Test Termination Rights. The Parties acknowledge that, although the intent of the liquidated damages payable under Section 2.7(a) (XXXX Capacity Test and Liquidated Damages) is to compensate Company for the damages that Company would incur if the XXXX fails to demonstrate satisfaction of the XXXX Capacity Performance Metric during a XXXX Measurement Period, such liquidated damages are not intended to compensate Company for the damages that Company would incur if a pattern of underperformance establishes a reasonable expectation that the XXXX is likely to continue to substantially underperform the Company's expectations. Accordingly, and without limitation to Company's rights under said Section 2.7(a) (XXXX Capacity Test and Liquidated Damages) for those XXXX Measurement Periods during which the XXXX fails to demonstrate satisfaction of the XXXX Capacity Performance Metric, substantial underperformance shall give rise to a termination right as set forth in this Section 2.7(b) (XXXX Capacity Test Termination Rights). If the XXXX is in the Lowest XXXX Capacity Bandwidth for any two XXXX Measurement Periods during a 12-month period, an 18-month cure period (the "XXXX Capacity Cure Period") will commence on the Day following the close of the second such XXXX Measurement Period. For each XXXX Measurement Period during such XXXX Capacity Cure Period, XXXX Capacity Tests shall continue to be conducted as set forth in Attachment W (XXXX Tests) and liquidated damages paid and accepted as set forth in Section 2.7(a) (XXXX Capacity Test and Liquidated Damages); provided, however, that if the Seller Subscriber Organization fails to demonstrate satisfaction of the XXXX Capacity Performance Metric prior to the expiration of the XXXX Capacity Cure Period, such failure shall constitute an Event of Default under Section 15.1(d) of this Agreement for which Company shall have the rights (including but not limited to the termination rights) set forth in Article 15 (Events of Default) and Article 16 (Damages in the Event of Termination by Company).

XXXX Capacity Test Termination Rights. The Parties acknowledge that, although the intent of the liquidated damages payable under Section 2.7(a) (XXXX Capacity Test and Liquidated Damages) is to compensate Company for the damages that Company would incur if the XXXX fails to demonstrate satisfaction of the XXXX Capacity Performance Metric during a XXXX Measurement Period, such liquidated damages are not intended to compensate Company for the damages that Company would incur if a pattern of underperformance establishes a reasonable expectation that the XXXX is likely to continue to substantially underperform the Company's expectations. Accordingly, and without limitation to Company's rights under said Section 2.7(a) (XXXX Capacity Test and Liquidated Damages) for those XXXX Measurement Periods during which the XXXX fails to demonstrate satisfaction of the XXXX Capacity Performance Metric, substantial underperformance shall give rise to a termination right as set forth in this Section 2.7(b) (XXXX Capacity Test Termination Rights). If the XXXX is in the Lowest XXXX Capacity Bandwidth for any two XXXX Measurement Periods during a 12-month period, an 18-month cure period (the "XXXX Capacity Cure Period") will commence on the Day following the close of the second such XXXX Measurement Period. For each XXXX Measurement Period during such XXXX Capacity Cure Period, XXXX Capacity Tests shall continue to be conducted as set forth in Attachment W (XXXX TestsCapacity Test) and liquidated damages paid and accepted as set forth in Section 2.7(a) (XXXX Capacity Test and Liquidated Damages); provided, however, that if the Seller fails to demonstrate satisfaction of the XXXX Capacity Performance Metric prior to the expiration of the XXXX Capacity Cure Period, such failure shall constitute an Event of Default under Section 15.1(d) of this Agreement for which Company shall have the rights (including but not limited to the termination rights) set forth in Article 15 (Events of Default) and Article 16 (Damages in the Event of Termination by Company).

XXXX Capacity Test Termination Rights. The Parties acknowledge that, although the intent of the liquidated damages payable under Section 2.7(a2.8(a) (XXXX Capacity Test and Liquidated Damages) is to compensate Company for the damages that Company would incur if the XXXX fails to demonstrate satisfaction of the XXXX Capacity Performance Metric during a XXXX Measurement Period, such liquidated damages are not intended to compensate Company for the damages that Company would incur if a pattern of underperformance establishes a reasonable expectation that the XXXX is likely to continue to substantially underperform the Company's expectations. Accordingly, and without limitation to Company's rights under said Section 2.7(a2.8(a) (XXXX Capacity Test and Liquidated Damages) for those XXXX Measurement Periods during which the XXXX fails to demonstrate satisfaction of the XXXX Capacity Performance Metric, substantial underperformance shall give rise to a termination right as set forth in this Section 2.7(b2.8(b) (XXXX Capacity Test Termination Rights). If the XXXX is in the Lowest XXXX Capacity Bandwidth for any two XXXX Measurement Periods during a 12-month period, an 18-month cure period (the "XXXX Capacity Cure Period") will commence on the Day following the close of the second such XXXX Measurement Period. For each XXXX Measurement Period during such XXXX Capacity Cure Period, XXXX Capacity Tests shall continue to be conducted as set forth in Attachment W (XXXX TestsCapacity Test) and liquidated damages paid and accepted as set forth in Section 2.7(a2.8(a) (XXXX Capacity Test and Liquidated Damages); provided, however, that if the Seller fails to demonstrate satisfaction of the XXXX Capacity Performance Metric prior to the expiration of the XXXX Capacity Cure Period, such failure shall constitute an Event of Default under Section 15.1(d15.1(e) of this Agreement for which Company shall have the rights (including but not limited to the termination rights) set forth in Article 15 (Events of Default) and Article 16 (Damages in the Event of Termination by Company).