Common use of Annual Equivalent Availability Factor Termination Rights Clause in Contracts

Annual Equivalent Availability Factor Termination Rights. The Parties acknowledge that, although the intent of the liquidated damages payable under Section 4.4(a) (Annual Equivalent Availability Factor and Liquidated Damages) is to compensate Company for the damages that Company would incur if the Seller fails to achieve the EAF Performance Metric for a 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 Facility is likely to continue to substantially underperform the EAF Performance Metric. Accordingly, and without limitation to Company’s rights under said Section 4.4(a) (Annual Equivalent Availability Factor and Liquidated Damages) for those Measurement Periods during which the Seller failed to achieve the EAF Performance Metric, the failure of the Seller to achieve, for each of four (4) consecutive Measurement Periods, an Annual EAF of not less than 75% shall constitute an Event of Default under Section 6.1(d) of this Agreement for which Company shall have the rights (including but not limited to the termination rights) set forth in Article 6 (Events of Default; Remedies; Termination); provided, however, that if a Measurement Period for which the aforementioned 75% threshold is not achieved falls within a Capacity Cure Period, such Measurement Period shall be excluded from the calculation of the aforementioned “four (4) consecutive Measurement Periods” if the failure to achieve the aforementioned 75% threshold was the result of unavailability caused by the process of carrying out the repairs to or replacements of the Facility and/or Storage Unit(s) necessary to remedy the failure of the Facility to achieve the Capacity Performance Metric.

Annual Equivalent Availability Factor Termination Rights. The Parties acknowledge that, although the intent of the liquidated damages payable under Section 4.4(a) (Annual Equivalent Availability Factor and Liquidated Damages) is to compensate Company for the damages that Company would incur if the Seller fails to achieve the EAF Performance Metric for a 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 Facility is likely to continue to substantially underperform the EAF Performance Metric. Accordingly, and without limitation to Company’s rights under said Section 4.4(a) (Annual Equivalent Availability Factor and Liquidated Damages) for those Measurement Periods during which the Seller failed to achieve the EAF Performance Metric), the failure of the Seller to achieve, for each of four (4) consecutive Measurement Periods, achieve an Annual EAF of not less than 75% for any Measurement Period shall constitute an Event of Default under Section 6.1(d) of this Agreement for which Company shall have the rights (including but not limited to the termination rights) set forth in Article 6 (Events of Default; Remedies; Termination); provided, however, that if a Measurement Period for which the aforementioned 75% threshold is not achieved falls within a Capacity Cure Period, such Measurement Period shall be excluded from the calculation of the aforementioned “four (4) consecutive Measurement Periods” if the failure to achieve the aforementioned 75% threshold was the result of unavailability caused by the process of carrying out the repairs to or replacements of the Facility and/or Storage Unit(s) necessary to remedy the failure of the Facility to achieve the Capacity Performance Metric, any portion of a Measurement Period which also falls within a Capacity Cure Period, shall be excluded from the Annual EAF calculation. Equivalent Forced Outage Factor Performance Metric.

Annual Equivalent Availability Factor Termination Rights. The Parties acknowledge that, although the intent of the liquidated damages payable under Section 4.4(a) (Annual Equivalent Availability Factor and Liquidated Damages) is to compensate Company for the damages that Company would incur if the Seller fails to achieve the EAF Performance Metric for a 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 Facility is likely to continue to substantially underperform the EAF Performance Metric. Accordingly, and without limitation to Company’s rights under said Section 4.4(a) (Annual Equivalent Availability Factor and Liquidated Damages) for those Measurement Periods during which the Seller failed to achieve the EAF Performance Metric, the failure of the Seller to achieve, for each of four (4) consecutive Measurement Periods, an Annual EAF of not less than 75% shall constitute an Event of Default under Section 6.1(d) of this Agreement for which Company shall have the rights (including but not limited to the termination rights) set forth in Article 6 (Events of Default; Remedies; Termination); provided, however, that if a Measurement Period for which the aforementioned 75% threshold is not achieved falls within a Capacity Cure Period, such Measurement Period shall be excluded from the calculation of the aforementioned “four (4) consecutive Measurement Periods” if the failure to achieve the aforementioned 75% threshold was the result of unavailability caused by the process of carrying out the repairs to or replacements of the Facility and/or Storage Unit(s) necessary to remedy the failure of the Facility to achieve the Capacity Performance Metric.Metric.‌‌