Common use of Commercial Operation Clause in Contracts

Commercial Operation. Each Unit will achieve Commercial Operation on the first date when each of the following has occurred: (a) Mechanical Completion has occurred, (b) the Field Commissioning and Acceptance Test (FCAT) and the Converter Commissioning Test (CCT) have been completed in accordance with Appendix A, (c) the Unit is safely generating electric power, and (d) the Seller has delivered a certificate, including a Punch List (if required), in the form of Exhibit C hereto (a “Commercial Operation Certificate”). Each Project will achieve Commercial Operation when every Unit comprising such Project has achieved Commercial Operation. If the Buyer agrees with such Commercial Operation Certificate and the Punch List, the Buyer shall promptly countersign such Commercial Operation Certificate. If the Buyer does not countersign or object to any such Commercial Operation Certificate and/or Punch List within twenty (20) days after receipt, such Commercial Operation Certificate and/or Punch List shall be deemed confirmed and agreed to by the Buyer on the date that such Commercial Operation Certificate and/or Punch List was originally delivered to the Buyer. If the Buyer provides timely notice that it disputes such Commercial Operation Certificate, the Seller shall either (i) at its sole cost and expense, immediately correct and/or remedy the defects, deficiencies and other conditions so as to achieve Commercial Operation, or (ii) request that the matter be submitted to the dispute resolution procedures set forth in Article 32. If the Buyer provides timely notice that it disputes the Punch List, the Seller shall either (A) modify the Punch List, or (B) request that the matter be submitted to the dispute resolution procedures set forth in Article 32. The foregoing procedures shall be repeated as necessary. Once the Punch List is established, the Seller shall complete all items listed on the Punch List at its sole cost and expense and to the Buyer’s satisfaction as promptly as possible.

Commercial Operation. Each Unit will achieve Seller’s obligation to Deliver the Products and Buyer’s obligation to pay Seller for such Products commences on the Commercial Operation Date; provided, that Energy and RECs generated by the Facility prior to the Commercial Operation Date (the “Test Period”) shall not be deemed Products. The Commercial Operation Date shall occur on the first date when each on which the Facility is substantially completed as described in Exhibit A and capable of the following has occurred: (a) Mechanical Completion has occurred, (b) the Field Commissioning and Acceptance Test (FCAT) and the Converter Commissioning Test (CCT) have been completed regular commercial operation in accordance with Appendix AGood Utility Practice, (c) the Unit is safely generating electric powermanufacturer’s guidelines for all material components of the Facility, all requirements of the Interconnection Tariff, ISO-NE Rules and ISO-NE Practices for the delivery of the Products to Buyer have been satisfied, and (d) all performance testing for the Facility has been successfully completed, provided Seller has delivered a certificatealso satisfied the following conditions precedent as of such date: completion of all interconnection facilities, including final acceptance and authorization to interconnect the Facility from Buyer in accordance with the fully executed Interconnection Agreement; Seller has obtained and demonstrated possession of all Permits required for the lawful construction and operation of the Facility, for the interconnection of the Facility to Buyer’s distribution system and for Seller to perform its obligations under this Agreement, including but not limited to Permits related to environmental matters, all as set forth on Exhibit B; Seller continues to have a Punch List (if required)Statement of Qualification from the DOER pursuant to 225 CMR 14.05 qualifying the Facility as a RPS Class I Renewable Generation Unit for an Eligible Technology; Seller has acquired all real property rights needed to construct and operate the Facility, to interconnect the Facility to Buyer’s distribution system and to perform Seller’s obligations under this Agreement; Seller has established all ISO-NE-related accounts and entered into all ISO-NE-related agreements required for the performance of Seller’s obligations in connection with the Facility and this Agreement, which agreements shall be in full force and effect, including the registration of the Facility in the form GIS; Seller has provided to Buyer I.3.9 confirmation from ISO-NE regarding approval of Exhibit C hereto generation entry, has submitted the Asset Registration Form (a “as defined in ISO-NE Practices) for the Facility to ISO-NE and has taken such other actions as are necessary to effect the transfer of the Energy to Buyer in the ISO Settlement Market System; Seller has successfully completed all pre-operational testing and commissioning in accordance with manufacturer guidelines; Seller has satisfied all Critical Milestones that precede the Commercial Operation Certificate”). Each Project will achieve Commercial Operation when every Unit comprising such Project has achieved Commercial Operation. If the Buyer agrees with such Commercial Operation Certificate Date in Section 3.1; no Default or Event of Default by Seller shall have occurred and remain uncured; and the Punch ListFacility is owned or leased by, and under the Buyer shall promptly countersign such Commercial Operation Certificate. If the Buyer does not countersign or object to any such Commercial Operation Certificate and/or Punch List within twenty (20) days after receiptcare, such Commercial Operation Certificate and/or Punch List shall be deemed confirmed custody and agreed to by the Buyer on the date that such Commercial Operation Certificate and/or Punch List was originally delivered to the Buyer. If the Buyer provides timely notice that it disputes such Commercial Operation Certificatecontrol of, the Seller shall either (i) at its sole cost and expense, immediately correct and/or remedy the defects, deficiencies and other conditions so as to achieve Commercial Operation, or (ii) request that the matter be submitted to the dispute resolution procedures set forth in Article 32. If the Buyer provides timely notice that it disputes the Punch List, the Seller shall either (A) modify the Punch List, or (B) request that the matter be submitted to the dispute resolution procedures set forth in Article 32. The foregoing procedures shall be repeated as necessary. Once the Punch List is established, the Seller shall complete all items listed on the Punch List at its sole cost and expense and to the Buyer’s satisfaction as promptly as possibleSeller.

Commercial Operation. Each Unit will Seller must achieve Commercial Operation on the first date when each of the following has occurredFacility by the Required Commercial Operation Date, provided that the Required Commercial Operation Date will be extended day for day for up to one hundred and eighty (180) days in the aggregate due to delay caused by: (a) Mechanical Completion has occurreda Force Majeure Event, (b) a delay in interconnection and synchronization of the Field Commissioning and Acceptance Test Facility to the PSE grid, or (FCATc) and any material breach of this Agreement by PSE, except in each case of (a) through (c) to the Converter Commissioning Test extent attributable to Seller’s action or inaction, including (CCTwithout limitation) have been completed breach of this agreement, willful misconduct, negligence, or Seller's failure to take commercially reasonable actions in accordance with Appendix A, (c) Prudent Operating Practices. Seller and the Unit is safely generating electric power, Licensed Professional Engineer must complete and (d) submit the Seller has delivered a certificate, including a Punch List (if required), in the form of Exhibit C hereto (a “Commercial Operation Certificate”). Each Project will achieve Commercial Operation Certificate attached hereto as Appendix C to PSE when every Unit comprising such Project the Facility has achieved Commercial Operation. If Upon receipt of such notice of Commercial Operation, PSE will have the Buyer agrees with such right, but not the obligation, to inspect the Facility prior to the Commercial Operation Certificate Date, and will grant or deny Seller authorization in writing to commence the sale of Solar Output and all other Attributes pursuant to Section 4 within seven (7) Business Days upon PSE finding that Seller has satisfied all Commercial Operation obligations and requirements under this BESSA and the Punch ListInterconnection Agreement (“Commercial Operation Authorization”). If Seller has not actually achieved Commercial Operation, Seller must promptly resolve any issues or deficiencies with respect to Commercial Operation and resubmit the Buyer shall promptly countersign such Commercial Operation Certificate. If the Buyer does not countersign or object to any such Commercial Operation Certificate and/or Punch List within twenty (20) days after receipt, such Commercial Operation Certificate and/or Punch List shall be deemed confirmed and agreed to by the Buyer on the date that such Commercial Operation Certificate and/or Punch List was originally delivered to the Buyer. If the Buyer provides timely notice that it disputes such Commercial Operation Certificate, the Seller shall either (i) at its sole cost and expense, immediately correct and/or remedy the defects, deficiencies and other conditions so as to achieve Commercial Operation, or (ii) request that the matter be submitted to the dispute resolution procedures set forth in Article 32. If the Buyer provides timely notice that it disputes the Punch List, the Seller shall either (A) modify the Punch List, or (B) request that the matter be submitted to the dispute resolution procedures set forth in Article 32. The foregoing procedures shall be repeated as necessary. Once the Punch List is established, the Seller shall complete all items listed on the Punch List at its sole cost and expense and to the Buyer’s satisfaction as promptly as possible.

Commercial Operation. Each Unit will Seller must achieve Commercial Operation on the first date when each of the following has occurredFacility by the Required Commercial Operation Date, provided that the Required Commercial Operation Date will be extended day for day for up to one hundred and eighty (180) days in the aggregate due to delay caused by: (a) Mechanical Completion has occurreda Force Majeure Event, (b) a delay in interconnection and synchronization of the Field Commissioning and Acceptance Test Facility to the PSE grid, or (FCATc) and any material breach of this Agreement by PSE, except in each case of (a) through (c) to the Converter Commissioning Test extent attributable to Seller’s action or inaction, including (CCTwithout limitation) have been completed breach of this agreement, willful misconduct, negligence, or Seller's failure to take commercially reasonable actions in accordance with Appendix A, (c) Prudent Operating Practices. Seller and the Unit is safely generating electric power, Licensed Professional Engineer must complete and (d) submit the Seller has delivered a certificate, including a Punch List (if required), in the form of Exhibit C hereto (a “Commercial Operation Certificate”). Each Project will achieve Commercial Operation Certificate attached hereto as Appendix C to PSE when every Unit comprising such Project the Facility has achieved Commercial Operation. If Upon receipt of such notice of Commercial Operation, PSE will have the Buyer agrees with such right, but not the obligation, to inspect the Facility prior to the Commercial Operation Certificate Date, and will grant or deny Seller authorization in writing to commence the sale of Solar Output and all other Attributes pursuant to Section 4 within seven (7) Business Days upon PSE finding that Seller has satisfied all Commercial Operation obligations and requirements under this PPA and the Punch ListInterconnection Agreement (“Commercial Operation Authorization”). If Seller has not actually achieved Commercial Operation, Seller must promptly resolve any issues or deficiencies with respect to Commercial Operation and resubmit the Buyer shall promptly countersign such Commercial Operation Certificate. If the Buyer does not countersign or object to any such Commercial Operation Certificate and/or Punch List within twenty (20) days after receipt, such Commercial Operation Certificate and/or Punch List shall be deemed confirmed and agreed to by the Buyer on the date that such Commercial Operation Certificate and/or Punch List was originally delivered to the Buyer. If the Buyer provides timely notice that it disputes such Commercial Operation Certificate, the Seller shall either (i) at its sole cost and expense, immediately correct and/or remedy the defects, deficiencies and other conditions so as to achieve Commercial Operation, or (ii) request that the matter be submitted to the dispute resolution procedures set forth in Article 32. If the Buyer provides timely notice that it disputes the Punch List, the Seller shall either (A) modify the Punch List, or (B) request that the matter be submitted to the dispute resolution procedures set forth in Article 32. The foregoing procedures shall be repeated as necessary. Once the Punch List is established, the Seller shall complete all items listed on the Punch List at its sole cost and expense and to the Buyer’s satisfaction as promptly as possible.

Commercial Operation. Each Unit will achieve Commercial Operation on the first date when each of the following has occurred: (a) Mechanical Completion has occurred, (b) the Field Commissioning and Acceptance Test (FCAT) and the Converter Commissioning Test (CCT) have been completed in accordance with Appendix A, (c) the Unit is safely generating electric power, and (d) the Seller has delivered a certificate, including a Punch List (if required), in the form included in Section 8.2 of Exhibit C hereto Appendix A (a “Commercial Operation Turbine Completion Certificate”). Each Project will achieve Commercial Operation when every Unit comprising such Project has achieved Commercial Operation. If the Buyer agrees with such Commercial Operation Certificate and the Punch List, the Buyer shall promptly countersign such Commercial Operation Certificate. If the Buyer does not countersign or object to any such Commercial Operation Certificate and/or Punch List within twenty (20) days after receipt, such Commercial Operation Certificate and/or Punch List shall be deemed confirmed and agreed to by the Buyer on the date that such Commercial Operation Certificate and/or Punch List was originally delivered to the Buyer. If the Buyer provides timely notice that it disputes such Commercial Operation Certificate, the Seller shall either (i) at its sole cost and expense, immediately correct and/or remedy the defects, deficiencies and other conditions so as to achieve Commercial Operation, or (ii) request that the matter be submitted to the dispute resolution procedures set forth in Article 32. If the Buyer provides timely notice that it disputes the Punch List, the Seller shall either (A) modify the Punch List, or (B) request that the matter be submitted to the dispute resolution procedures set forth in Article 32. The foregoing procedures shall be repeated as necessary. Once the Punch List is established, the Seller shall complete all items listed on the Punch List at its sole cost and expense and to the Buyer’s satisfaction as promptly as possible.

Commercial Operation. Each Unit will achieve Commercial Operation Subject to Clause 4.1.2, Seller shall procure that the Facility achieves the Final Commercial Operation Date no later than the Required Commercial Operation Date. [Note: The reference here and elsewhere to the Final Commercial Operation Date assumes that the Facility consists of more than one Unit.] The date for achievement of the Required Commercial Operation Date shall be extended for any delay attributable to any Force Majeure Event. The Commercial Operation Date shall occur upon the satisfaction or occurrence, or, pursuant to Clause 4.1.4, deemed satisfaction, of all of the following conditions: Seller has successfully completed the Performance Tests in accordance with Schedule 5 or, in respect of the Performance Tests, has paid the relevant Performance Liquidated Damages (if any) to Purchaser pursuant to Clause 3.4.2; the Facility has met the requirements for initial synchronisation with and interconnection of the Facility to the Transmission System, and has demonstrated the reliability of its communications systems and communications with Seller in accordance with the requirements of Schedule 5 and the Interconnection Agreement; and certificates of insurance evidencing the coverages required by Clause 14 have been obtained and provided to Seller. Each condition specified in Clauses 4.1.3(a) and 4.1.3(b) shall be satisfied by the receipt by each Party of a declaration from the Independent Engineer that such condition has been satisfied. If the Facility is unable to satisfy any condition referred to in Clause 4.1.3 due to a Deemed Commissioning Event the Facility shall be deemed to have satisfied that condition and, provided that all the other conditions referred to in Clause 4.1.3 have been satisfied or deemed to have been satisfied, to be providing Available Capacity at [92]% of the Rated Capacity (or, if the Net Dependable Capacity has been determined, the Contracted Capacity) for the purposes of payments to be made by Purchaser pursuant to Clause 11.1 until such time as that condition shall have been satisfied or the Facility is no longer unable to satisfy that condition due to the Deemed Commissioning Event. Construction Milestones Seller agrees to notify Purchaser promptly of any failure to meet a Construction Milestone. The time permitted to meet each Construction Milestone shall be extended by any period during which Seller is unable to proceed with the construction of the Facility because of a Force Majeure Event. EIA Report Seller shall: procure that an Environmental Impact Assessment is conducted for the Site by an independent environmental engineer selected by Seller; and provide Purchaser, on or before the issue of full notice to proceed under the agreement relating to the procurement and construction of the Facility, with a copy of the EIA Report. The EIA Report shall either include: a confirmation from the independent environmental engineer that the Site has been inspected for Environmental Contamination and that no conditions involving Environmental Contamination exist at, or under, the Site and that the Site materially complies with all applicable Environmental Laws; or if the independent environmental engineer is unable to provide such a confirmation, details of any Environmental Contamination existing at, or under, the Site and/or material breaches of applicable Environmental Laws together with a rectification plan produced by Seller for ensuring that such Environmental Contamination and/or material breaches of applicable Environmental Laws can be rectified so that the Project will, as at the Final Commercial Operation Date, be in material compliance with all applicable Environmental Laws. Initial Notifications Seller shall promptly notify Purchaser of the issue of a full notice to proceed under the EPC Agreement. The issue of a full notice to proceed under the EPC Agreement constitutes the commencement of the Construction Period for the purposes of this Agreement. Seller shall provide Purchaser as soon as possible with a copy of the notice from the Lenders that Seller has satisfied each initial condition precedent to draw on the first credit and other facilities made available under the Financing Agreements. Progress Reports and Meetings Seller shall submit to Purchaser, on or before the [15th] day of each month occurring during the Construction Period, a progress report (which report may be any report Seller receives from the EPC Contractors under the EPC Agreement) for the previous month in a form reasonably satisfactory to Purchaser. Each progress report shall accurately inform Purchaser of the current status of the development, design, procurement and construction of the Facility, the progress achieved and the likelihood that each Construction Milestone will be achieved. The Parties shall hold periodic progress meetings during the Construction Period at such times and locations to be agreed between the Parties to review matters relating to the development, design, procurement and construction of the Facility and Seller shall provide such information as may reasonably be requested by Purchaser in relation to Seller’s obligations to develop, design, procure and construct the Facility in accordance with this Agreement. Purchaser’s Rights During Construction Period Purchaser may monitor the construction, start-up, and testing of the Facility during the Construction Period, and Seller shall comply with all reasonable requests of Purchaser with respect to start-up and testing in accordance with the Testing Procedures and the other provisions of this Agreement. Seller shall cooperate in such physical inspections of the Facility as may be reasonably requested by Purchaser during the Construction Period. All persons visiting the Facility on behalf of Purchaser shall comply with all of Seller’s applicable health and safety rules and requirements. Purchaser’s monitoring and inspection of the Facility shall not be construed as endorsing the design or construction of the Facility by Purchaser nor as any warranty of safety, durability or reliability of the Facility. Test Energy Seller shall coordinate the production and delivery of Test Energy with Purchaser in accordance with Schedule 5 and the Testing Procedures and Purchaser shall cooperate with Seller to schedule and facilitate Seller’s testing of the Facility. In the event Seller requests Purchaser to dispatch Test Energy pursuant to this Clause 4.7 which relates to testing undertaken at Seller’s option, Purchaser shall purchase such Test Energy in accordance with Clause 11.1 and Schedule 4. After the Commercial Operation Date for any Unit or the Final Commercial Operation Date for the Facility, Purchaser shall dispatch that Unit or the Facility respectively and accept delivery of all Test Energy when reasonably requested to do so by Seller to accommodate Seller’s testing of any Unit or the Facility, including that testing of any Unit or the Facility which Seller is required or permitted to perform, or cause to be performed, pursuant to this Agreement. Purchaser shall not be required to purchase such Test Energy in amounts greater than the amount of energy associated with the Contracted Capacity or, in the case where the Test Energy is produced during a test of the level of Net Dependable Capacity, the Net Dependable Capacity. Facility Operator Seller has submitted to Purchaser the identity of the proposed Operator together with a statement of its credentials. If at any time, Seller wishes to change the entity performing the role of the Operator, it shall submit details of the proposed replacement Operator at least [6] months prior to the effective date of the change giving its identity and a statement of its credentials. Purchaser shall not withhold or delay its approval to such change, provided that the proposed replacement Operator shall have the necessary skills, qualifications, experience and reputation to perform the role of the Operator. The appointment of the Operator by Seller pursuant to Clause 4.8.1 shall not relieve Seller of: performance of any of its obligations under this Agreement; or any liability resulting from any act or omission of Seller under this Agreement that, had that act or omission been an act or omission of Seller, would have constituted a breach of this Agreement. Operating Committee and Operating Procedures Each Party shall each appoint one representative and one alternate representative to act in matters relating to the Parties’ performance of their obligations under this Agreement and to develop arrangements for the generation, delivery, and receipt of power and energy under this Agreement. Such representatives shall constitute the Operating Committee. The Parties shall notify each other in writing of such appointments and any changes to the Operating Committee. The Operating Committee shall have no authority to modify the terms or conditions of this Agreement in writing, orally, by conduct or otherwise. The Parties shall comply with the Operating Procedures. The scope of the Operating Procedures is limited to rules relating to planning in operational or longer term timescales for the Transmission System, the day-to-day operation of the Transmission System, and the scheduling, dispatch and operation of the Facility as it relates to the operation of the Transmission System. The Parties shall comply with the Grid Code and any relevant Distribution Code when they are brought into force by EAC through licences or any other means. Subject to Clauses 4.9.4 and 10.5(e), the Parties may from time to time agree changes to the Operating Procedures. Seller may not withhold its consent to a change to the Operating Procedures proposed by Purchaser if each of the following has occurredcriteria are satisfied: (a) Mechanical Completion has occurredthe changes are consistent with Good Utility Practice, (b) the Field Commissioning Grid Code, any relevant Distribution Code, the Operating Characteristics and Acceptance Test (FCAT) this Clause 4.9; the changes will apply equally to the operating procedures for all other independent generating plant in [ ] of similar size and technology; if the Converter Commissioning Test (CCT) have been completed changes relate to the manner in accordance with Appendix Awhich Dispatch Instructions are issued, (c) such changes will provide an objective means of recording Dispatch Instructions given by Purchaser that provides at least as much certainty as to the Unit is safely generating electric powernature of each Dispatch Instruction given by Purchaser as that provided for by the current means by which Dispatch Instructions are given by Purchaser pursuant to the Operating Procedures as at the date of this Agreement; the changes are notified to Seller in writing, and (d) such notice to specify a date, being not earlier than 3 months after the Seller has delivered a certificatedate of the notice, including a Punch List (if requiredon which they are, subject to Clause 4.9.4(g), in to be implemented; the form changes are discussed with Seller by Purchaser prior to implementation and any reasonable objections, comments or changes requested by Seller are incorporated into the changes; the changes relate to the operation of Exhibit C hereto (a “Commercial Operation Certificate”). Each Project will achieve Commercial Operation when every Unit comprising such Project has achieved Commercial Operation. If or the Buyer agrees with such Commercial Operation Certificate Facility as it relates to the operation of the Purchaser System and the Punch List, the Buyer shall promptly countersign such Commercial Operation Certificate. If the Buyer does not countersign or object do not: relate to any such Commercial Operation Certificate and/or Punch List within twenty (20) days after receiptaspect of the operation and maintenance of a Unit or the Facility which is, such Commercial Operation Certificate and/or Punch List shall be deemed confirmed and agreed to by the Buyer on as at the date that such Commercial Operation Certificate and/or Punch List was originally delivered to of this Agreement, dealt with in this Agreement (other than by means of the Buyer. If Operating Procedures as at the Buyer provides timely notice that it disputes such Commercial Operation Certificate, the Seller shall either (i) at its sole cost and expense, immediately correct and/or remedy the defects, deficiencies and other conditions so as to achieve Commercial Operation, or (ii) request that the matter be submitted to the dispute resolution procedures set forth in Article 32. If the Buyer provides timely notice that it disputes the Punch List, the Seller shall either (A) date of this Agreement); modify the Punch List, or (B) request that the matter be submitted to the dispute resolution procedures set forth in Article 32. The foregoing procedures shall be repeated as necessary. Once the Punch List is established, the Seller shall complete all items listed on the Punch List at its sole cost and expense and to the Buyer’s satisfaction as promptly as possible.any existing:

Commercial Operation. Each Unit will achieve Seller’s obligation to Deliver the Products and Buyer’s obligation to pay Seller for such Products commences on the Commercial Operation Date; provided, that Energy and RECs generated by the Facility prior to the Commercial Operation Date (the “Test Period”) shall not be deemed Products. The Commercial Operation Date shall occur on the first date when each on which the Facility as described in Exhibit A is completed (subject, if applicable, to a Capacity Deficiency so long as the Actual Facility Size on the Commercial Operation Date is (1) at least ninety percent (90%) of the following has occurred: proposed nameplate capacity of the Facility as set forth in Exhibit A, and (a2) Mechanical Completion has occurred, not more than ten (b10) MW less than the Field Commissioning and Acceptance Test (FCATproposed nameplate capacity of the Facility set forth in Exhibit A) and capable of regular commercial operation in accordance with Good Utility Practice, the Converter Commissioning Test manufacturer’s guidelines for all material components of the Facility, all requirements of the ISO-NE Rules and ISO-NE Practices for the delivery of the Products to the Buyer have been satisfied, and all performance testing for the Facility has been successfully completed, provided Seller has also satisfied the following conditions precedent as of such date: completion of all transmission and interconnection facilities and any Network Upgrades, including final acceptance and authorization to interconnect the Facility from ISO-NE or the Interconnecting Utility in accordance with the fully executed Interconnection Agreement; all Related Transmission Facilities as set forth in Exhibit E are complete and in-service; Seller has obtained and demonstrated possession of all Permits required for the lawful construction and operation of the Facility, for the interconnection of the Facility to the Interconnecting Utility (CCTincluding any Network Upgrades) and for Seller to perform its obligations under this Agreement, including but not limited to Permits related to environmental matters, all as set forth on Exhibit B; Seller has obtained qualification by the applicable regulatory authority for the state of [Connecticut or Massachusetts] qualifying the Facility as a RPS Class I Renewable Generation Unit; All Related Transmission Approvals have been received; Seller has acquired all real property rights needed to construct and operate the Facility, to interconnect the Facility to the Interconnecting Utility, to construct the Network Upgrades (to the extent that it is Seller’s responsibility to do so) and to perform Seller’s obligations under this Agreement; Seller has established all ISO-NE-related accounts and entered into all ISO-NE-related agreements required for the performance of Seller’s obligations in connection with the Facility and this Agreement, which agreements shall be in full force and effect, including the registration of the Facility in the GIS; Seller has provided to Buyer I.3.9 Confirmation from ISO-NE regarding approval of generation entry, has submitted the Asset Registration Form (as defined in ISO-NE Practices) for the Facility to ISO-NE and has taken such other actions as are necessary to effect the transfer of the Energy to Buyer in the ISO Settlement Market System; Seller has successfully completed all pre-operational testing and commissioning in accordance with manufacturer guidelines; Seller has satisfied all Critical Milestones that precede the Commercial Operation Date in Section 3.1; no Default or Event of Default by Seller shall have occurred and remain uncured; the Facility is owned or leased by, and under the care, custody and control of, Seller. Seller has delivered to Buyer: an Independent Engineer’s certification stating (i) that the Facility has been completed in all material respects (excepting punchlist items that do not materially and adversely affect the ability of the Facility to operate as intended hereunder) in accordance with Appendix A, (c) the Unit is safely generating electric powerthis Agreement, and (dii) the Actual Facility Size; certificates of insurance evidencing the coverages required under Section 3.5(i); and the Operating Period Security; and Seller has delivered a certificate, including a Punch List (if required), in the form of Exhibit C hereto (a “Commercial Operation Certificate”). Each Project will achieve Commercial Operation when every Unit comprising such Project has achieved Commercial Operation. If the Buyer agrees with such Commercial Operation Certificate and the Punch List, the Buyer shall promptly countersign such Commercial Operation Certificate. If the Buyer does not countersign or object to any such Commercial Operation Certificate and/or Punch List within twenty (20) days after receipt, such Commercial Operation Certificate and/or Punch List shall be deemed confirmed and agreed to by the Buyer on the date that such Commercial Operation Certificate and/or Punch List was originally delivered to the Buyer. If the Buyer provides timely notice demonstrated that it disputes such Commercial Operation Certificate, the Seller shall either (i) at its sole cost can reliably transmit real time data and expense, immediately correct and/or remedy the defects, deficiencies and other conditions so as measurements to achieve Commercial Operation, or (ii) request that the matter be submitted to the dispute resolution procedures set forth in Article 32. If the Buyer provides timely notice that it disputes the Punch List, the Seller shall either (A) modify the Punch List, or (B) request that the matter be submitted to the dispute resolution procedures set forth in Article 32. The foregoing procedures shall be repeated as necessary. Once the Punch List is established, the Seller shall complete all items listed on the Punch List at its sole cost and expense and to the Buyer’s satisfaction as promptly as possibleISO-NE.