Common use of Availability Guaranty Clause in Contracts

Availability Guaranty. (A) On or before the date that is sixty (60) Days after the Commercial Operation Date, Seller shall provide Buyers with the Production Model. The Production Model shall be used for purposes of calculating Expected Amounts and any amount of Deemed Delivered Energy. Periodically throughout the Term but no more often than twice in each Year during the Term, if a Party believes that the Production Model does not contain the proper variables or inputs or yields incorrect results when it is used to calculate an Expected Amount or any amount of Deemed Delivered Energy, such Party may propose an adjustment or correction to the Production Model, and if the Parties are not able to resolve such issues within sixty (60) Days of the initial notice of the suspected inaccuracy, then the Parties shall submit such dispute to an independent engineering company with experience with solar production models to resolve such issue and selected by Seller in its reasonable discretion. (B) Seller guarantees that the actual Availability of the Facility shall be at least percent ( %) (the “Guaranteed Availability”) measured over each Availability Day. From time to time, Buyers may, if Buyers’ data indicates that one or more consecutive Availability Days constitute Availability Unsatisfactory Days, request that Seller provide, and Seller shall provide, a report of the Expected Amount (calculated using the Production Model) for such Availability Day or Availability Days. If Seller did not achieve the Guaranteed Availability for one or more such Availability Days, Buyers may provide Seller with written notice that the Facility did not achieve the Guaranteed Availability for such Availability Day or Availability Days (an “Availability Underperformance Notice”). If an Availability Underperformance Notice is delivered, then: (i) if an Availability Satisfactory Day occurs or has occurred during the Availability LD Cure Period established under such Availability Underperformance Notice, then (1) such Availability LD Cure Period shall end, (2) such Availability LD Cure Period shall not resume, (3) no Availability Damage Period shall commence as a result of the occurrence of such Availability Underperformance Notice, and (4) Seller shall not be in default or owe damages as a result of such Availability Underperformance Notice; or (ii) if an Availability Satisfactory Day does not occur or has not occurred during the Availability LD Cure Period established under such Availability Underperformance Notice, Seller shall, for each Availability Day occurring the end of after such Availability LD Cure Period and before the earlier of (A) the occurrence of an Availability Satisfactory Day or (B) the termination or expiration of this PPA (such period, an “Availability Damage Period”), pay liquidated damages to Buyers (pro-rata to each Buyer in proportion to the LG&E Percentage or KU Percentage, as applicable) equal to the Availability Damages over such Availability Damage Period. For the avoidance of doubt, the occurrence of an Availability Satisfactory Day will cure any and all Availability Unsatisfactory Days that occurred within the Availability LD Cure Period to which such Availability Satisfactory Day occurred. (C) The “LD Monetary Factor” for an Availability Day is equal to the lesser of (i) MWh or (ii) the greater of (1) the LD Avoided Cost Input for such Availability Day or (2) the LD REC Input for such Availability Day. If items (1) and (2) in the preceding sentence are the same amount, item (ii) shall be such amount. If items (i) and (ii) are equal, the LD Monetary Factor shall be MWh. (D) In the event liquidated damages become due under Section 8.3(B) Buyers shall, no more frequently than once per Month, calculate and issue a statement to Seller for the amount due Buyers for the amount due under Section 8.3(B). Seller shall pay the amounts due under each such invoice within thirty (30) Days of receipt thereof. (E) Each Party agrees and acknowledges that (i) the damages that Buyers would incur due to the Facility’s failure to achieve the Guaranteed Availability would be difficult or impossible to predict with certainty, (ii) the amount contemplated by this provision are a fair and reasonable calculation of such damages, and (iii) the required payment by Seller under this Section 8.3 shall be Buyers’ sole remedy and Seller’s sole liability for the matters covered by this Section 8.3; provided, that the obligations of Seller under Section 10.3 and the associated Event of Default described in Section 12.1(C) shall not be deemed to be a matter covered by this Section 8.3.

Availability Guaranty. ‌ (A) On or before the date that is sixty (60) Days days after the Commercial Operation Date, Seller shall provide Buyers with the Production Model. The Production Model shall be used for purposes of calculating to calculate the Expected Amounts and any amount of Deemed Delivered EnergyAmount. Periodically throughout the Term but no more often than twice in each Year during the Term, if If a Party believes that the Production Model does not contain the proper variables or inputs or yields incorrect results when it is used to calculate an Expected Amount or any amount of Deemed Delivered Energyinaccurate, such Party may propose an adjustment or correction to the Production Model, and if the Parties are not able to resolve such issues within sixty (60) Days of the initial notice of the suspected inaccuracy, then the Parties shall submit such dispute to an independent engineering company with experience with solar production models to resolve such issue and selected by Seller in its reasonable discretion.issue.‌ (B) Seller guarantees that the actual Availability of the Facility shall be at least percent ( %) (the “Guaranteed Availability”) measured over each Availability Day. From time to time, Buyers may, if Buyers’ data indicates that one or more consecutive Availability Days constitute an Availability Unsatisfactory DaysDay has occurred, request that Seller provide, and Seller shall provide, a report of the Expected Amount (calculated determined using the Production Model) for such ; provided that, outside of any Availability Day LD Cure Period or Availability DaysDefault Period, Buyers shall be limited to making such requests no more than five (5) times in any Month. If Seller did does not achieve the Guaranteed Availability for one or more such any Availability DaysDay, Buyers may provide Seller with written notice that the Facility did not achieve the Guaranteed Availability for such Availability Day or Availability Days (an “Availability Underperformance Notice”). If an Availability Underperformance Notice is delivered, then: (i) if an Availability Satisfactory Day occurs or has occurred during the Availability LD Cure Period established under such Availability Underperformance NoticePeriod, then (1) such Availability LD Cure Period shall end, (2) such Availability LD Cure Period shall not resume, (3) no Availability Damage Period shall commence as a result of the occurrence of such Availability Underperformance Notice, and (4) Seller shall not be in default or owe damages as a result of such Availability Underperformance Noticehereunder; or (ii) if an Availability Satisfactory Day does not occur or has not occurred during the Availability LD Cure Period established under such Availability Underperformance Notice, Seller shall, for each Availability Day occurring the end of after such Availability LD Cure Period and before the earlier of (A) the occurrence of an Availability Satisfactory Day or (B) the termination or expiration of this PPA (such period, an “Availability Damage Period”), pay liquidated damages to Buyers (pro-rata to each Buyer in proportion to the LG&E Percentage or KU Percentage, as applicable) equal to the Availability Damages over such Availability Damage Period. For the avoidance of doubt, the occurrence of an Availability Satisfactory Day will cure any and all Availability Unsatisfactory Days that occurred within the Availability LD Cure Period to which such Availability Satisfactory Day occurred. (C) The “LD Monetary Factor” for an Availability Day is equal to the lesser of (i) MWh or (ii) the greater of (1) the LD Avoided Cost Input for such Availability Day or (2) the LD REC Input for such Availability Day. If items (1) and (2) in the preceding sentence are the same amount, item (ii) shall be such amount. If items (i) and (ii) are equal, the LD Monetary Factor shall be MWh. (D) In the event liquidated damages become due under Section 8.3(B) Buyers shall, no more frequently than once per Month, calculate and issue a statement to Seller for the amount due Buyers for the amount due under Section 8.3(B). Seller shall pay the amounts due under each such invoice within thirty (30) Days of receipt thereof. (E) Each Party agrees and acknowledges that (i) the damages that Buyers would incur due to the Facility’s failure to achieve the Guaranteed Availability would be difficult or impossible to predict with certainty, (ii) the amount contemplated by this provision are a fair and reasonable calculation of such damages, and (iii) the required payment by Seller under this Section 8.3 shall be Buyers’ sole remedy and Seller’s sole liability for the matters covered by this Section 8.3; provided, that the obligations of Seller under Section 10.3 and the associated Event of Default described in Section 12.1(C) shall not be deemed to be a matter covered by this Section 8.3.and

Availability Guaranty. (A) On or before the date that is sixty (60) Days days after the Commercial Operation Date, Seller shall provide Buyers with the Production Model. The Production Model shall be used for purposes of calculating to calculate the Expected Amounts and any amount of Deemed Delivered EnergyAmount. Periodically throughout the Term but no more often than twice in each Year during the Term, if If a Party believes that the Production Model does not contain the proper variables or inputs or yields incorrect results when it is used to calculate an Expected Amount or any amount of Deemed Delivered Energyinaccurate, such Party may propose an adjustment or correction to the Production Model, and if the Parties are not able to resolve such issues within sixty (60) Days of the initial notice of the suspected inaccuracy, then the Parties shall submit such dispute to an independent engineering company with experience with solar production models to resolve such issue and selected by Seller in its reasonable discretionissue. (B) Seller guarantees that the actual Availability of the Facility shall be at least percent ( %) (the “Guaranteed Availability”) measured over each Availability Day. From time to time, Buyers may, if Buyers’ data indicates that one or more consecutive Availability Days constitute an CONFIDENTIAL INFORMATION REDACTED Availability Unsatisfactory DaysDay has occurred, request that Seller provide, and Seller shall provide, a report of the Expected Amount (calculated determined using the Production Model) for such ; provided that, outside of any Availability Day LD Cure Period or Availability DaysDefault Period, Buyers shall be limited to making such requests no more than five (5) times in any Month. If Seller did does not achieve the Guaranteed Availability for one or more such any Availability DaysDay, Buyers may provide Seller with written notice that the Facility did not achieve the Guaranteed Availability for such Availability Day or Availability Days (an “Availability Underperformance Notice”). If an Availability Underperformance Notice is delivered, then: (i) if an Availability Satisfactory Day occurs or has occurred during the Availability LD Cure Period established under such Availability Underperformance NoticePeriod, then (1) such Availability LD Cure Period shall end, (2) such Availability LD Cure Period shall not resume, (3) no Availability Damage Period shall commence as a result of the occurrence of such Availability Underperformance Notice, and (4) Seller shall not be in default or owe damages as a result of such Availability Underperformance Noticehereunder; or (ii) if an Availability Satisfactory Day does not occur or has not occurred during the Availability LD Cure Period established under such Availability Underperformance Notice, Seller shall, for each Availability Day occurring the end of after such Availability LD Cure Period and before the earlier of (A) the occurrence of an Availability Satisfactory Day or (B) the termination or expiration of this PPA (such period, an “Availability Damage Period”), pay liquidated damages to Buyers (pro-rata to each Buyer in proportion to the LG&E Percentage or KU Percentage, as applicable) equal to the Availability Damages over such Availability Damage Period. For the avoidance of doubt, the occurrence of an Availability Satisfactory Day will cure any and all Availability Unsatisfactory Days that occurred within the Availability LD Cure Period to which such Availability Satisfactory Day occurred. (C) The “LD Monetary Factor” for an Availability Day is equal to the lesser of (i) MWh or (ii) the greater of (1) the LD Avoided Cost Input for such Availability Day or (2) the LD REC Input for such Availability Day. If items (1) and (2) in the preceding sentence are the same amount, item (ii) shall be such amount. If items (i) and (ii) are equal, the LD Monetary Factor shall be MWh. (D) In the event liquidated damages become due under Section 8.3(B) Buyers shall, no more frequently than once per Month, calculate and issue a statement to Seller for the amount due Buyers for the amount due under Section 8.3(B). Seller shall pay the amounts due under each such invoice within thirty (30) Days of receipt thereof. (E) Each Party agrees and acknowledges that (i) the damages that Buyers would incur due to the Facility’s failure to achieve the Guaranteed Availability would be difficult or impossible to predict with certainty, (ii) the amount contemplated by this provision are a fair and reasonable calculation of such damages, and (iii) the required payment by Seller under this Section 8.3 shall be Buyers’ sole remedy and Seller’s sole liability for the matters covered by this Section 8.3; provided, that the obligations of Seller under Section 10.3 and the associated Event of Default described in Section 12.1(C) shall not be deemed to be a matter covered by this Section 8.3.and