Common use of Alternate Capacity and Replacement Units Clause in Contracts

Alternate Capacity and Replacement Units. (a) The “Notification Deadline” in respect of a Showing Month shall be fifteen (15) Business Days before the relevant deadlines for the corresponding RAR Showings, LAR Showings and/or Flexible RAR Showings for such Showing Month. (b) If Seller desires to provide the Contract Quantity of Product for any Showing Month from a generating unit other than the Unit (a “Replacement Unit”), then Seller may, at no additional cost to Buyer, provide Buyer with Alternate Capacity from one or more Replacement Units, up to the Contract Quantity, for the applicable Showing Month; provided that in each case, Seller shall notify Buyer in writing of its intent to provide Alternate Capacity and identify such Replacement Units no later than the Notification Deadline. If Seller notifies Buyer in writing as to the particular Replacement Units and such Units meet the requirements of the Product description in Article 3 and notice provisions in this Section 4.5, then such Replacement Units shall be automatically deemed a Unit for purposes of this Confirmation for the remaining portion of that Showing Month, provided however that the Replacement Unit shall not be a coal-fired generating facility. (c) Seller shall not be liable for damages and/or required to indemnify Buyer for penalties or fines pursuant to the terms of Sections 4.7 and 4.8 hereof if Seller notified Buyer, no later than the Notification Deadline, of Seller’s intent not to provide Alternate Capacity in an amount equal to the Contract Quantity of that Showing Month due to a Planned Outage of the Units and/or reduction in the Unit NQC or Unit EFC of the Units.

Alternate Capacity and Replacement Units. (a) The “Notification Deadline” in respect of for a given Showing Month shall be fifteen (15) Business Days before the earlier of the relevant deadlines for (a) the corresponding CPUC RAR Showings, LAR Showings and/or Flexible RAR Showings FCR Showings, as applicable for such that Showing Month. , or (b) submission of the CAISO supply plan filings applicable to that Showing Month. If Seller is unable to provide the full Contract Quantity for any Showing Month for any reason, including, without limitation, due to one of the reasons specified in Section 4.4, or Seller desires to provide the Contract Quantity of Product for any Showing Month from a different generating unit other than the Unit (a “Replacement Unit”), then Seller may, at no additional cost to Buyer, provide Buyer with Alternate Capacity from one or more Replacement Units, with the total amount of Product provided to Buyer from the Unit and Replacement Units up to an amount equal to the Contract Quantity, Quantity for the applicable Showing Month; provided that in each case, Seller shall notify Buyer in writing of its intent the amount of Product that Seller will not be able to deliver from the Unit and the portion of the Contract Quantity for which Seller intends, as applicable (i) not to provide or (ii) to provide Alternate Capacity and identify such Replacement Units meeting the above requirements no later than the Notification Deadline. If Seller notifies Buyer in writing as to the particular Replacement Units in accordance with this Section 4.5 and such Replacement Units otherwise meet the requirements of the Product description in Article 3 and notice provisions in a Unit under this Section 4.5Confirmation, then such Replacement Units shall be automatically deemed a Unit for purposes of this Confirmation for that Showing Month. With respect to a Contingent Firm RA Product, if Seller does not provide Alternate Capacity in an amount equal to the remaining portion of Contract Quantity for that Showing Month, provided however that the Replacement Unit then Buyer may, but shall not be a coal-fired generating facility. (c) required to, purchase replacement Product. In the event that Seller fails to provide the Contract Quantity to Buyer, Seller shall not be liable for damages and/or required to indemnify Buyer for penalties or fines pursuant to the terms of Sections 4.7 and 4.8 hereof if Seller notified Buyer, no later than has delivered written notice of such failure to Buyer by the Notification Deadline, of Seller’s intent not to provide Alternate Capacity in an amount equal to the Contract Quantity of that Showing Month due to a Planned Outage of the Units and/or reduction in the Unit NQC or Unit EFC of the Units.

Alternate Capacity and Replacement Units. (a) The “Notification Deadline” in respect of a If Seller is unable to provide the full Contract Quantity for any Showing Month shall be fifteen (15) Business Days before for any reason, including, without limitation, due to one of the relevant deadlines for the corresponding RAR Showingsreasons specified in Section 4.4, LAR Showings and/or Flexible RAR Showings for such Showing Month. (b) If or Seller desires to provide the Contract Quantity of Product for any Showing Month from a different generating unit other than the Unit (a “Replacement Unit”), then Seller may, at no additional cost to Buyer, provide Buyer with Alternate Capacity from one or more Replacement Units, with the total amount of Product provided to Buyer from the Unit and Replacement Units up to an amount equal to the Contract Quantity, Quantity for the applicable Showing Month; provided that in each case, Seller shall notify Buyer in writing of its intent (i) not to provide Alternate or (ii) to provide Alternative Capacity and identify such Replacement Units meeting the above requirements no later than the Notification Deadlineten (10) Business Days before that Showing Month’s applicable deadlines for Buyer’s RAR Showings, LAR Showings, and/or FCR Showings. If Seller notifies Buyer in writing as to the particular Replacement Units and such Units meet the requirements of the Product description in Article 3 and notice provisions in this Section 4.5, then such Replacement Units shall be automatically deemed a Unit for purposes of this Confirmation for that Showing Month. With respect to a Contingent Firm RA Product, if Seller does not provide Alternate Capacity in an amount equal to the remaining portion of Contract Quantity for that Showing Month, provided however that the Replacement Unit then Buyer may, but shall not be a coal-fired generating facility. (c) required to, purchase replacement Product. Seller shall not be liable for damages and/or required to indemnify Buyer for penalties or fines pursuant to the terms of Sections 4.7 and 4.8 hereof if the failure to deliver the full Contract Quantity is due to Force Majeure, any Planned Outage or any reduction of the RA Capacity of any Unit and Seller notified Buyer, no later than the Notification Deadlineten (10) Business Days before that Showing Month’s relevant deadlines for Buyer’s RAR Showings, LAR Showings, and/or FCR Showings, as applicable, of Seller’s intent not to provide Alternate Capacity in an amount equal to the Contract Quantity of that Showing Month. Delivery of Product Seller shall provide Buyer with the Designated RA Capacity of Product for each Showing Month due consistent with the following: Seller shall, on a timely basis, submit, or cause the Unit’s SC to submit, Supply Plans to identify and confirm the Designated RA Capacity provided to Buyer for each Showing Month so that the total amount of Designated RA Capacity identified and confirmed for such Showing Month equals the Designated RA Capacity, unless specifically requested not to do so by the Buyer. Seller shall cause the Unit’s Scheduling Coordinator to submit written notification to Buyer, no later than ten (10) Business Days before the applicable RAR Showings, LAR Showings and/or FCR Showings deadlines for each Showing Month, that Buyer will be credited with the Designated RA Capacity for such Showing Month in the Unit’s Scheduling Coordinator Supply Plan so that the Designated RA Capacity credited equals the Designated RA Capacity for such Showing Month. Once the Buyer and Seller’s Supply Plans with respect to the Contract Quantity from the Unit have been accepted by CAISO for the Showing Month, the Product and Designated RA Capacity will be deemed to have been delivered and provided in full by Seller to Buyer, and to have been received and accepted in full by Buyer. Damages for Failure to Provide or Receive Designated RA Capacity If Seller fails to provide Buyer with the Designated RA Capacity of Product for any Showing Month then the following shall apply: Buyer may, but shall not be required to, replace any portion of the Designated RA Capacity not provided by Seller with capacity having equivalent RAR Attributes, LAR Attributes and/or FCR Attributes as the Designated RA Capacity not provided by Seller, provided, that, if any portion of the Designated RA Capacity that Buyer is seeking to replace is Designated RA Capacity having RAR Attributes and no LAR Attributes (such capacity shall also include FCR Attributes if this is a Flexible Capacity Product) and no such RAR capacity is available, then Buyer may replace such portion of the Designated RA Capacity with capacity having RAR Attributes and LAR Attributes (as well as FCR Attributes if this is a Flexible Capacity Product) (“Replacement Capacity”). Such Replacement Capacity may be provided by CAISO to Buyer pursuant to the Tariff. Buyer may enter into purchase transactions with one or more parties to replace any portion of Designated RA Capacity not provided by Seller. Additionally, Buyer may enter into one or more arrangements to repurchase its obligation to sell and deliver capacity to another party and, to the extent such transactions are done at prevailing market prices, such arrangements shall be considered equivalent to the procurement of Replacement Capacity. Buyer shall use commercially reasonable efforts to minimize damages when procuring any Replacement Capacity. Seller shall pay to Buyer at the time set forth in the Master Agreement, the following damages in lieu of damages specified in the Master Agreement: an amount equal to the positive difference, if any, between (i) the sum of (A) the actual cost paid by Buyer for any Replacement Capacity, plus (B) each Capacity Replacement Price times the amount of the Designated RA Capacity neither provided by Seller nor purchased by Buyer pursuant to Section 4.7(a), and (ii) the Designated RA Capacity not provided for the applicable Showing Month times the Contract Price for that month. If Seller fails to pay these damages, then Buyer may offset those damages owed it against any future amounts it may owe to Seller under this Confirmation pursuant to the Master Agreement. Buyer shall pay to Seller the damages set forth in Section 21.3 of the Master Agreement for any Product not received and accepted by Buyer. Indemnities for Failure to Deliver Contract Quantity Seller agrees to pay to Buyer the Capacity Replacement Price as provided in Section 4.7 of this Confirmation for any failure to deliver or provide the Product, resulting from any of the following: Seller’s failure to provide any portion of the Designated RA Capacity; Seller’s failure to provide notice of the non-availability of any portion of Designated RA Capacity before delivery as required under Section 4.6; A Unit Scheduling Coordinator’s failure to timely submit Supply Plans that identify Buyer’s right to the Designated RA Capacity purchased hereunder; or A Unit Scheduling Coordinator’s failure to submit accurate Supply Plans that identify Buyer’s right to the Designated RA Capacity purchased hereunder. With respect to the foregoing, the Parties shall use commercially reasonable efforts to minimize such penalties, fines and costs; provided, that in no event shall Buyer be required to use or change its utilization of its owned or controlled assets or market positions to minimize these penalties and fines. If Seller fails to pay the foregoing amounts, or fails to reimburse Buyer for those amounts, then Buyer may offset those amounts against any future amounts it may owe to Seller under this Confirmation. Monthly RA Capacity Payment In accordance with the terms of Section 9 of the WSPP Agreement, Buyer shall make a Monthly RA Capacity Payment to Seller for each Unit, in arrears, after the applicable Showing Month. Each Unit's Monthly RA Capacity Payment shall be equal to the product of (a) the applicable Contract Price for that Monthly Delivery Period, (b) the Designated RA Capacity for the Monthly Delivery Period, and (c) 1,000. The final product of this Monthly RA Capacity Payment calculation shall be rounded to the nearest xxxxx (i.e., two decimal places). If the CPUC allows Buyer to apply the capacity of a Unit that is on, or is scheduled to be on, an Outage towards the Buyer’s RAR, then Seller shall be deemed to have provided Buyer the Product form the capacity of such Unit. Allocation of Other Payments and Costs Seller may retain any revenues it may receive from the CAISO or any other third party with respect to any Unit for (a) start-up, shut-down, and minimum load costs, (b) capacity revenue for ancillary services, (c) energy sales, (d) any revenues for black start or reactive power services, or (e) the sale of the unit-contingent call rights on the generation capacity of the Unit to provide energy to a Planned Outage third party, so long as such rights do not confer on such third party the right to claim any portion of the Units and/or reduction RA Capacity sold hereunder in order to make an RAR Showing, LAR Showing, FCR Showing, or any similar capacity or resource adequacy showing with the CAISO or CPUC. Buyer acknowledges and agrees that all Availability Incentive Payments are for the benefit of Seller and for Seller’s account, and that Seller shall receive, retain, or be entitled to receive all credits, payments, and revenues, if any, resulting from Seller achieving or exceeding Availability Standards. The Parties acknowledge and agree that any Non-Availability Charges are the responsibility of Seller, and for Seller’s account and Seller shall be responsible for all fees, charges, or penalties, if any, resulting from Seller failing to achieve Availability Standards. However, Buyer shall be entitled to receive and retain all revenues associated with the Designated RA Capacity of any Unit NQC during the Delivery Period (including any capacity or availability revenues from RMR Agreements for any Unit, Reliability Compensation Services Tariff, and Residual Unit EFC Commitment capacity payments, but excluding payments described in clauses (a) through (c) above). In accordance with Section 4.9 of this Confirmation and the UnitsMaster Agreement, all such revenues received by Seller, or a Unit’s SC, owner, or operator shall be remitted to Buyer, and Seller shall pay such revenues to Buyer if the Unit’s SC, owner, or operator fails to remit those revenues to Buyer. If Seller fails to pay such revenues to Buyer, Buyer may offset any amounts owing to it for such revenues pursuant to the Master Agreement against any future amounts it may owe to Seller under this Confirmation. If a centralized capacity market develops within the CAISO region, Buyer will have exclusive rights to offer, bid, or otherwise submit Designated RA Capacity provided to Buyer pursuant to this Confirmation for re-sale in such market, and retain and receive any and all related revenues.

Alternate Capacity and Replacement Units. (a) The “Notification Deadline” in respect of a If Seller is unable to provide the full Contract Quantity for any Showing Month shall be fifteen (15) Business Days before for any reason, including, without limitation, due to one of the relevant deadlines for the corresponding RAR Showingsreasons specified in Section 4.4, LAR Showings and/or Flexible RAR Showings for such Showing Month. (b) If or Seller desires to provide the Contract Quantity of Product for any Showing Month from a different generating unit other than the Unit (a “Replacement Unit”), then Seller may, at no additional cost to Buyer, provide Buyer with Alternate Capacity from one or more Replacement Units, with the total amount of Product provided to Buyer from the Unit and Replacement Units up to an amount equal to the Contract Quantity, Quantity for the applicable Showing Month; provided that in each case, Seller shall notify Buyer in writing no later than the Notification Deadline for such Showing Month of its intent to provide Alternate Capacity Product from and identify such alternate unit that (i) has the same Resource Category and Flexible Capacity Category as the Unit originally identified in Article 2, (ii) such alternate unit is accepted by the CAISO, and (iii) such alternate unit otherwise satisfies the requirements of this Confirmation (a “Replacement Units Unit”). Seller will identify the Replacement Unit(s) and Quantity by providing Buyer with the specific Unit information contemplated in Article 2 no later than the Notification DeadlineDeadline for the relevant Showing Month. If Seller notifies Buyer in writing as to the particular Replacement Units and such Units meet the requirements of the Product description in Article 3 and notice provisions in this Section 4.5, then such Replacement Units shall be automatically deemed a Unit for purposes of this Confirmation for that Showing Month. (b) With respect to a Contingent Firm RA Product, if Seller does not provide Alternate Capacity in an amount equal to the remaining portion of Contract Quantity for that Showing Month, provided however that the Replacement Unit then Buyer may, but shall not be a coal-fired generating facility. (c) required to, purchase replacement Product. Seller shall not be liable for damages and/or required to indemnify Buyer for penalties or fines pursuant to the terms of Sections 4.7 and 4.8 hereof if the failure to deliver the full Contract Quantity is due to Force Majeure, any Planned Outage or any reduction of the RA Capacity of any Unit and Seller notified Buyer, no later than the Notification Deadlineten (10) Business Days before that Showing Month’s relevant deadlines for Buyer’s RAR Showings, LAR Showings, and/or FCR Showings, as applicable, of Seller’s intent not to provide Alternate Capacity in an amount equal to the Contract Quantity of that Showing Month due to a Planned Outage of the Units and/or reduction in the Unit NQC or Unit EFC of the UnitsMonth.

Alternate Capacity and Replacement Units. (a) The “Notification Deadline” in respect of a If Seller elects or is unable to provide the full Contract Quantity for any Showing Month shall be fifteen (15) Business Days before for any reason, including, without limitation, due to one of the relevant deadlines for the corresponding RAR Showingsreasons specified in Section 4.4, LAR Showings and/or Flexible RAR Showings for such Showing Month. (b) If or Seller desires to provide the Contract Quantity of Product for any Showing Month from a different generating unit other than the Unit (a “Replacement Unit”), then Seller maySeller, at no additional cost to Buyer, may provide Buyer with Alternate Capacity from one or more Replacement Units, with the total amount of Product provided to Buyer from the Unit and Replacement Units up to an amount equal to the Contract Quantity, Quantity for the applicable Showing Month; provided that in each case, Seller shall notify Buyer in writing of its intent to provide Alternate Capacity and identify such Replacement Units no later than the Notification Deadline. If Seller notifies Buyer in writing as to the particular Replacement Units and such Units meet the requirements of the Product description in Article 3 and notice provisions in this Section 4.5, then such Replacement Units shall be automatically deemed a Unit for purposes of this Confirmation for the remaining portion of that Showing Month, provided however . that the Replacement Unit shall not be a coal-fired generating facility. (c) Showing Month and Seller shall not be liable to Buyer or any other party for damages damages, including any cover costs, and/or required to indemnify Buyer for costs, penalties or fines pursuant to the terms of Sections 4.7 and 4.8 hereof if and only if Seller notified Buyer, no later than the Notification Deadline, has provided Buyer with timely notice pursuant to this Section 4.5(a) of Seller’s intent not to provide Alternate Capacity in an amount equal to the Contract Quantity of that Showing Month. (b) If Seller is unable to provide the full Contract Quantity for any Showing Month for any reason, including, without limitation, due to a Planned Outage one of the Units and/or reduction reasons specified in Section 4.4 and Seller does not provide Alternate Capacity in an amount equal to that which allows Seller to provide the Unit NQC or Unit EFC of the Unitsfull Contract Quantity for that Showing Month, then Buyer may, but shall not be required to, purchase Replacement Capacity.