Common use of Capacity Deficiency Clause in Contracts

Capacity Deficiency. To the extent that Seller has constructed the Facility in accordance with Good Utility Practice, and met all other requirements for the Commercial Operation Date under Section 3.4(b) of this Agreement, including, without limitation, the requirement that the Actual Facility Size as of the Commercial Operation Date is at least of the proposed nameplate capacity of the Facility as set forth in Exhibit A, but a Capacity Deficiency exists on the Commercial Operation Date as permitted by Section 3.4(b), then (i) on the Commercial Operation Date, the Contract Maximum Amount shall be automatically and temporarily reduced commensurate with the Capacity Deficiency, which reduced Contract Maximum Amount shall be stated in a notice from Buyer to Seller, which notice shall be binding absent manifest error, and (ii) Seller shall have a period of following the Commercial Operation Date to attempt to increase the Actual Facility Size to an amount not to exceed the proposed nameplate capacity of the Facility as set forth in Exhibit A (the “Additional Construction Period”). On the earlier of (A) the date that (I)(x) the portions of the Facility constructed during the Additional Construction Period have been completed in all material respects (excepting punchlist items that do not affect the ability of the Facility, Network Upgrades, Related Transmission Facilities, Phase II Network Upgrades and Phase II Related Transmission Facilities to operate as intended hereunder) in accordance with this Agreement and are capable of regular commercial operation in accordance with Good Utility Practice and the manufacturer’s guidelines for all material components of the Facility, (y) all requirements of the ISO-NE Rules and ISO-NE Practices for the delivery of the Products to Buyer have been satisfied and (z) all performance testing for such portions of the Facility has been successfully completed (provided that all of the conditions precedent set forth in Section 3.4(b) remain satisfied after giving effect to the portions of the Facility constructed during the Additional Construction Period); and (II) Seller has delivered to Buyer the Additional Construction Certificates and certificates of insurance evidencing the coverages required under Section 3.5(i) for the Facility after giving effect to the portions of the Facility constructed during the Additional Construction Period and (B) the last day of the Additional Construction Period, the Contract Maximum Amount and the Operating Period Security shall be automatically and permanently adjusted commensurate with the Actual Facility Size as certified by an Independent Engineer, as provided in Section 3.4(b)(xiv)(A) or in any Additional Construction IE Certificate delivered pursuant to this Section 3.3(b). Notwithstanding anything to the contrary in this Section 3.3(b),

Capacity Deficiency. To the extent that Seller has constructed the Facility in accordance with Good Utility Practice, and met all other requirements for the Commercial Operation Date under Section 3.4(b) of this Agreement, including, without limitation, the requirement that the Actual Facility Size as of the Commercial Operation Date is at least of the proposed nameplate capacity of the Facility as set forth in Exhibit A, but a Capacity Deficiency exists on the Commercial Operation Date as permitted by Section 3.4(b), then (i) on the Commercial Operation Date, the Contract Maximum Amount shall be automatically and temporarily reduced commensurate with the Capacity Deficiency, which reduced Contract Maximum Amount shall be stated in a notice from Buyer to Seller, which notice shall be binding absent manifest error, and (ii) Seller shall have a period of following the Commercial Operation Date to attempt to increase the Actual Facility Size to an amount not to exceed the proposed nameplate capacity of the Facility as set forth in Exhibit A (the “Additional Construction Period”). On the earlier of (A) the date that (I)(x) the portions of the Facility constructed during the Additional Construction Period have been completed in all material respects (excepting punchlist items that do not affect the ability of the Facility, Network Upgrades, Related Transmission Facilities, Phase II Network Upgrades and Phase II Related Transmission Facilities to operate as intended hereunder) in accordance with this Agreement and are capable of regular commercial operation in accordance with Good Utility Practice and the manufacturer’s guidelines for all material components of the Facility, (y) all requirements of the ISO-NE Rules and ISO-NE Practices for the delivery of the Products to Buyer have been satisfied and (z) all performance testing for such portions of the Facility has been successfully completed (provided that all of the conditions precedent set forth in Section 3.4(b) remain satisfied after giving effect to the portions of the Facility constructed during the Additional Construction Period); and (II) Seller has delivered to Buyer the Additional Construction Certificates and certificates of insurance evidencing the coverages required under Section 3.5(i) for the Facility after giving effect to the portions of the Facility constructed during the Additional Construction Period and (B) the last day of the Additional Construction Period, the Contract Maximum Amount and the Operating Period Security shall be automatically and permanently adjusted commensurate with the Actual Facility Size as certified by an Independent Engineer, as provided in Section 3.4(b)(xiv)(A) or in any Additional Construction IE Certificate delivered pursuant to this Section 3.3(b). Notwithstanding anything to the contrary in this Section 3.3(b),, (x) the Services Term shall commence on the Commercial Operation Date, and

Capacity Deficiency. To the extent that Seller has constructed the Facility in accordance with Good Utility Practice, and met all other requirements for the Commercial Operation Date under Section 3.4(b) of this Agreement, including, without limitation, the requirement that the Actual Facility Size as of the Commercial Operation Date is at least of the proposed nameplate capacity of the Facility as set forth in Exhibit A, but a Capacity Deficiency exists on the Commercial Operation Date as permitted by Section 3.4(b), then (i) on the Commercial Operation Date, the Contract Maximum Amount shall be automatically and temporarily reduced commensurate with the Capacity Deficiency, which reduced Contract Maximum Amount shall be stated in a notice from Buyer to Seller, which notice shall be binding absent manifest error, and (ii) Seller shall have a period of following the Commercial Operation Date to attempt to increase the Actual Facility Size to an amount not to exceed the proposed nameplate capacity of the Facility as set forth in Exhibit A (the “Additional Construction Period”). On the earlier of (A) the date that (I)(x) the portions of the Facility constructed during the Additional Construction Period have been completed in all material respects (excepting punchlist items that do not affect the ability of the Facility, Network Upgrades, Related Transmission Facilities, Phase II Network Upgrades and Phase II Related Transmission Facilities to operate as intended hereunder) in accordance with this Agreement and are capable of regular commercial operation in accordance with Good Utility Practice and the manufacturer’s guidelines for all material components of the Facility, (y) all requirements of the ISO-NE Rules and ISO-NE Practices for the delivery of the Products to Buyer have been satisfied and (z) all performance testing for such portions of the Facility has been successfully completed (provided that all of the conditions precedent set forth in Section 3.4(b) remain satisfied after giving effect to the portions of the Facility constructed during the Additional Construction Period); and (II) Seller has delivered to Buyer the Additional Construction Certificates and certificates of insurance evidencing the coverages required under Section 3.5(i) for the Facility after giving effect to the portions of the Facility constructed during the Additional Construction Period and (B) the last day of the Additional Construction Period, the Contract Maximum Amount and the Operating Period Security shall be automatically and permanently adjusted commensurate with the Actual Facility Size as certified by an Independent Engineer, as provided in Section 3.4(b)(xiv)(A) or in any Additional Construction IE Certificate delivered pursuant to this Section 3.3(b). Notwithstanding anything to the contrary in this Section 3.3(b),, (x) the Services Term shall commence on the Commercial Operation Date, and

Capacity Deficiency. To the extent that Seller has constructed the Facility in accordance with Good Utility PracticeSection 3.3(a), and met all other requirements for the Commercial Operation Date under Section 3.4(b) of this Agreement, including, without limitation, the requirement that the Actual Facility Size as of the Commercial Operation Date is at least of the proposed nameplate capacity of the Facility as set forth in Exhibit AMW, but a Capacity Deficiency exists on the Commercial Operation Date as permitted by Section 3.4(b), then (i) on the Commercial Operation Date, the Contract Maximum Amount shall be automatically and temporarily reduced commensurate with the Capacity Deficiency, which reduced Contract Maximum Amount shall be stated in a notice from Buyer to Seller, which notice shall be binding absent manifest error, and (ii) Seller shall have a period of following the Commercial Operation Date to attempt to increase the Actual Facility Size to an amount not equal to exceed at least the proposed nameplate capacity of the Facility as set forth in Exhibit A (the “Additional Construction Period”). On the earlier of (A) the date that (I)(x) the portions of the Facility constructed during the Additional Construction Period have been completed in all material respects (excepting punchlist items that do not affect the ability of the Facility, Network Upgrades, Related Transmission Facilities, Phase II COD Network Upgrades and Phase II Related Transmission Facilities to operate as intended hereunder) in accordance with this Agreement and are capable of regular commercial operation in accordance with Good Utility Practice and the manufacturer’s guidelines for all material components of the Facility, (y) all requirements of the ISO-NE Rules and ISO-NE Practices for the delivery of the Products to Buyer have been satisfied and (z) all performance testing for such portions of the Facility has been successfully completed (provided that all of the conditions precedent set forth in Section 3.4(b) remain satisfied after giving effect to the portions of the Facility constructed during the Additional Construction Period); and (II) Seller has delivered to Buyer the Additional Construction Certificates and certificates of insurance evidencing the coverages required under Section 3.5(i) for the Facility after giving effect to the portions of the Facility constructed during the Additional Construction Period and (B) the last day of the Additional Construction Period, the Contract Maximum Amount and the Operating Period Security shall be automatically and permanently adjusted commensurate with the Actual Facility Size as certified by an Independent Engineer, as provided in Section 3.4(b)(xiv)(A3.4(b)(xiii)(A) or in any Additional Construction IE Certificate delivered pursuant to this Section 3.3(b). Notwithstanding anything to the contrary in this Section 3.3(b),, (x) the Services Term shall commence on the Commercial Operation Date, and