Common use of Other Rights and Remedies Clause in Contracts

Other Rights and Remedies. If any Provider Default described under Section 11.2 has occurred and Customer has terminated this Agreement as a result thereof in accordance with the terms of Section 12.1.1 above, then, subject to Section 12.3, Provider’s sole liability to Customer in respect of such Provider Default shall be the payment of an amount not to exceed the then-present value (discounted at the prevailing prime rate of interest as published in The Wall Street Journal on the day preceding the date of determination) of the cash flows equal to the product of (i) the positive difference, if any, of the price per kWh for commercially available, utility-provided energy in the applicable market(s) (which shall not include related charges such as delivery, service, distribution, or taxes) minus the kWh Rate of Energy hereunder (as such kWh Rate would have been escalated over time pursuant to the terms hereof) hereof, multiplied by (ii) the number of days remaining in the term of the Agreement times the expected daily number of kWh of Energy to be delivered under this Agreement, calculated by dividing the Estimated Year 1 Production set forth in the applicable Exhibit A, adjusted for as-built System, by 365; provided that, for the avoidance of doubt, in the event of a Provider Default with respect to Section 11.3, the remedies with respect to such default shall be governed by the remedies set forth in Section 11.3. Except as provided in Sections 10.2.3 and 12.1.1, Customer shall have no right to terminate this Agreement and shall have no other remedies.

Other Rights and Remedies. If any Provider Default described under Section 11.2 has occurred and Customer has terminated this Agreement as a result thereof in accordance with the terms of Section 12.1.1 above, then, subject to Section 12.3, Provider’s sole liability Provider shall pay to Customer in respect of such Provider Default shall be the payment of an amount not to exceed the then-present value (discounted at the prevailing prime rate of interest as published in The Wall Street Journal on the day preceding the date of determination) of (a) the cash flows equal to the product of (i) the positive difference, if any, of the price per kWh for commercially available, utility-provided energy in the applicable market(s) (which shall not include related charges such as delivery, service, distribution, or taxes) minus the kWh Rate of Energy hereunder (as such kWh Rate would have been escalated over time pursuant to the terms hereof) hereof, multiplied by (ii) the number of days remaining in the term of the this Agreement had it not been terminated times the expected daily number of kWh of Energy to be delivered under this Agreement, calculated by dividing the Estimated Year 1 Production set forth in the applicable Exhibit ASchedule B, adjusted for as-built System, by 365; provided that, for . Provider’s payment to Customer of the avoidance of doubt, in the event of a Provider Default with respect to Section 11.3, the remedies with respect to such default shall be governed by the remedies amounts set forth in this Section 11.3. Except 12.1.2 shall not in any way limit the other remedies at law or in equity that Customer may pursue as provided in damages for Provider’s breach of this Agreement; provided, however, that such damages pursued by Customer are subject to the limitation provisions of Sections 10.2.3 12.3 and 12.1.1, Customer shall have no right to terminate this Agreement and shall have no other remedies12.5.

Other Rights and Remedies. If any Provider Default described under Section 11.2 has occurred and Customer has terminated this Agreement as a result thereof in accordance with the terms of Section 12.1.1 above, then, subject to Section 12.3, Provider’s sole liability to Customer in respect of such Provider Default shall be the payment of an amount not to exceed the then-present value (discounted at the prevailing prime rate of interest as published in The Wall Street Journal on the day preceding the date of determination) of the cash flows equal to the product of (i) the positive difference, if any, of the price per kWh for commercially available, utility-provided energy in the applicable market(s) (which shall not include related charges such as delivery, service, distribution, or taxes) minus the kWh Rate of Energy hereunder (as such kWh Rate would have been escalated over time pursuant to the terms hereof) hereof, multiplied by (ii) the number of days remaining in the term of the Agreement times the expected daily number of kWh of Energy to be delivered under this Agreement, calculated by dividing the Estimated Year 1 Production set forth in the applicable Exhibit ASchedule B, adjusted for as-as- built System, by 365; provided that, for the avoidance of doubt, in the event of a Provider Default with respect to Section 11.3, the remedies with respect to such default shall be governed by the remedies set forth in Section 11.3. Except as provided in Sections 10.2.3 10.3.3 and 12.1.1, Customer shall have no right to terminate this Agreement and shall have no other remedies.