FIVE-YEAR SHORTFALL Clause Samples

FIVE-YEAR SHORTFALL. If, at any time during a Five Year Period, a shortfall in a Minimum Five-Year Volume (a "Volume Shortfall") would arise in respect of a Minimum Volume Facility (taking into account Section 4.11), calculated on the assumptions that: (a) during each remaining Contract Year of the Five -Year Period, TimberWest would harvest the maximum volume available to it under the Crown Timber Tenures associated with the Minimum Volume Facility; and (b) the proportion of the total harvest of the Crown Timber Tenures associated with the Minimum Volume Facility comprised of sawlogs and the chip recovery factor for the Minimum Volume Facility would be the same as those for the current Contract Year; FCCL may, at any time before the end of the first Fiscal Quarter after the fourth Contract Year of any Five Year Period, deliver a notice containing the particulars specified in Section 4.3 for a Remedy Notice (a "Five-Year Remedy Notice") to TimberWest in respect of all or any part of such Volume Shortfall and TimberWest will, within five Business Days after the date on which TimberWest receives the Five-Year Remedy Notice, pay to FCCL: (c) an amount equal to the Excess Cost of the Volume Shortfall; or (d) if, within two Business Days after such Five-Year Remedy Notice is given, TimberWest delivers to FCCL reasonable evidence of a lower cost source of Chips of similar volume, species and quality and which: (i) are available to FCCL for outright purchase, including the production of Chips by TimberWest from the Minimum Volume Facility which was the subject of such shortfall; or (ii) were purchased at any time during the 10 Business Days immediately preceding the date on which the Remedy Notice is delivered on an arm's length bona fide, spot market basis; an amount equal to the Excess Cost calculated on the basis of such lower cost, and when such payment is made, TimberWest will be credited, for the purposes of the applicable Minimum Five Year Volume, as having delivered to FCCL, during the Five Year Period, the volume of Chips in respect of which the Five-Year Remedy Notice was given.