Common use of Upon an Operating Deficiency Clause in Contracts

Upon an Operating Deficiency. If, at any time during the Term, Manager determines in the exercise of its good faith judgment that it cannot Operate the Managed Facilities in all material respects in accordance with the Operating Standard and Operating Limitations as provided herein and that the proximate cause thereof is an Operating Deficiency Cause, Manager shall be entitled to provide notice of such determination to Owner (an “Operating Deficiency Notice”), which Operating Deficiency Notice shall allege with reasonable specificity the details of the non-compliance with the Operating Standard or Operating Limitations. For purposes of the preceding sentence, an “Operating Deficiency Cause” shall mean any one or more of the following: (a) any failure by Owner to fund a Funds Request issued pursuant to Section 5.5.2; or (b) any interference by Owner or its agents or representatives in any material respect with the Operation of the Managed Facilities. Within fifteen (15) days after receipt of any Operating Deficiency Notice, Owner shall respond in detail to such allegation and, if the matter is not resolved by the Parties within forty five (45) days after Owner’s response, the matter shall be referred to the Expert for Expert Resolution in accordance with Article XVII. If the Expert determines that the Managed Facilities are not being Operated in accordance with the Operating Standard or Operating Limitations in one or more material respects as provided herein and that the proximate cause of such non-compliance is an Operating Deficiency Cause, then an “Operating Limitations Deficiency” shall be deemed to exist, and, unless Owner shall within fifteen (15) days of the Expert’s determination fund the subject Funds Request or cease the actions that interfere with the Operation of the Managed Facilities by Manager, then Manager shall have the right, in its discretion, exercisable within thirty (30) days of the Expert’s determination by written notice to Owner, to terminate this Agreement, such termination to be effective twelve (12) months following delivery of Manager’s notice of termination unless Owner shall agree to an earlier termination date. A Termination Fee shall not be payable by Owner upon a termination by Manager pursuant to this Section 16.2.3.

Upon an Operating Deficiency. If, at any time during the Term, Manager determines in the exercise of its good faith judgment that it cannot Operate the Managed Facilities in all material respects in accordance with the Operating Standard and Operating Limitations as provided herein and that the proximate cause thereof is an Operating Deficiency Cause, Manager shall be entitled to provide notice of such determination to Owner (an “Operating Deficiency Notice”), which Operating Deficiency Notice shall allege with reasonable specificity the details of the non-compliance with the Operating Standard or Operating Limitations. For purposes of the preceding sentence, an “Operating Deficiency Cause” shall mean any one or more of the following: (a) any failure by Owner (other than any such failure caused by any Affiliate of Manager) to fund 702580413 11172554 51 a Funds Request issued pursuant to Section 5.5.2; or (b) any interference by Owner or its agents or representatives (other than any Affiliate of Manager) in any material respect with the Operation of the Managed Facilities. Within fifteen (15) days after receipt of any Operating Deficiency Notice, Owner shall respond in detail to such allegation and, if the matter is not resolved by the Parties within forty five (45) days after Owner’s response, the matter shall be referred to the Expert for Expert Resolution in accordance with Article XVII. If the Expert determines that the Managed Facilities are not being Operated in accordance with the Operating Standard or Operating Limitations in one or more material respects as provided herein and that the proximate cause of such non-compliance is an Operating Deficiency Cause, then an “Operating Limitations Deficiency” Deficiency shall be deemed to exist, and, unless Owner shall within fifteen (15) days of the Expert’s determination fund the subject Funds Request or cease the actions that interfere with the Operation of the Managed Facilities by Manager, then Manager shall have the right, in its discretion, exercisable within thirty (30) days of the Expert’s determination by written notice to Owner, to terminate this Agreement, such termination to be effective twelve (12) months following delivery of Manager’s notice of termination unless Owner shall agree to an earlier termination date. A Termination Fee shall not be payable by Owner upon a termination by Manager pursuant to this Section 16.2.3.