Common use of Committed Capacity/Capacity Delivery Date Clause in Contracts

Committed Capacity/Capacity Delivery Date. 7.1 If the RF/QF commits to sell capacity to DEF, the amount of which shall be determined in accordance with this Section 7. Subject to Section 7.3, the Committed Capacity is set at kW, with an expected Capacity Delivery Date on or before the Required Capacity Delivery Date. 7.2 Capacity testing of the Facility (each such test a Committed Capacity Test) shall be performed in accordance with the procedures set forth in Section 8. The Demonstration Period for the first Committed Capacity Test shall commence no earlier than ninety (90) days before the Required Capacity Delivery Date and testing must be completed before the Avoided Unit In-Service Date or an earlier date in Appendix E. The first Committed Capacity Test shall not be successfully completed unless the Facility demonstrates a Capacity of at least one hundred percent (100%) of the Committed Capacity set forth in Section 7.1. Subject to Section 8.1, the RF/QF may schedule and perform up to three (3) Committed Capacity Tests to satisfy the requirements of the Contract with respect to the first Committed Capacity Test. 7.3 In addition to the first Committed Capacity Test, DEF shall have the right to require the RF/QF, after notice of no less than ten (10) Business Days prior to such proposed event, to validate the Committed Capacity by means of a Committed Capacity Test at any time, up to two (2) times per year, the results of which shall be provided to DEF within seven (7) calendar days of the conclusion of such test. On and after the date of such requested Committed Capacity Test, and until the completion of a subsequent Committed Capacity Test, the Committed Capacity shall be set at the lower of the Capacity tested or the Committed Capacity as set forth in Section 7.1. Provided however, any such second test requested within a twelve (12) month period must be for cause. 7.4 Notwithstanding anything contrary to the terms hereof, the Committed Capacity may not exceed the amount set forth in Section 7.1 without the consent of DEF, which consent shall be granted in DEF's sole discretion. 7.5 Unless Option B or D as contained in Appendix D or Appendix E is chosen by RF/QF, DEF shall make no Capacity Payments to the RF/QF prior to the Avoided Unit In-Service Date. 7.6 The RF/QF shall be entitled to receive Capacity Payments beginning on the Capacity Delivery Date, provided the Capacity Delivery Date occurs before the Required Capacity Delivery Date (or such later date permitted by DEF) and the following Delivery Date Conditions (defined below) have been satisfied. If the Capacity Delivery Date does not occur before the Required Capacity Delivery Date, DEF shall immediately be entitled to draw down the Completion/Performance Security in full in its sole discretion. 7.6.1 A certificate addressed to DEF from a Licensed Professional Engineer (reasonably acceptable to DEF in all respects) stating: (a) the nameplate capacity rating or capability of the Facility at the anticipated time of commercial operation and through the term of this Contract assuming the use of Prudent Regulated Utility Practices, must be between 95% and 105% of the “Expected Nameplate Capacity Rating;” (b) that the Facility is able to generate electric Energy reliably in amounts expected by this Contract and in accordance with all other terms and conditions hereof; (c) that start- up testing of the Facility has been completed; and (d) that, pursuant to Section 10.5, all system protection and control and Automatic Generation Control devices are installed and operational. 7.6.2 A certificate addressed to DEF from a Licensed Professional Engineer (reasonably acceptable to DEF in all respects) stating, in conformance with the requirements of the interconnection agreement, that: (a) all required interconnection facilities have been constructed; (b) all required interconnection tests have been completed; and (c) the Facility is physically interconnected with the Transmission System in conformance with the interconnection agreement and able to deliver energy consistent with the terms of this Contract. 7.6.3 A certificate addressed from a Licensed Professional Engineer (reasonably acceptable to DEF in all respects) stating that the RF/QF has obtained or entered into all permits and agreements including, but not limited to Project Contracts with respect to the Facility necessary for land control, construction, ownership, operation, and maintenance of the Facility (the “Project Contracts”). RF/QF must provide copies of any or all Project Contracts requested by DEF. 7.6.4 An opinion from a law firm or attorney, registered or licensed in the State of Florida (reasonably acceptable to DEF in all respects), stating, after all appropriate and reasonable inquiry, that: (a) the RF/QF has obtained or entered into all Project Contracts; (b) neither RF/QF nor the Facility is in violation of, or subject to any liability under any applicable law; and (c) RF/QF has duly filed and had recorded all of the agreements, documents, instruments, mortgages, deeds of trust, and other writings.

Committed Capacity/Capacity Delivery Date. 7.1 If the RF/QF 5.1 The QS commits to sell and deliver firm capacity to DEFFPL at the Delivery Point, the amount of which shall be determined in accordance with this Section 75 (the “Committed Capacity”). Subject to Section 7.3, 5.3 the Committed Capacity is set at kWshall be KW, with an expected Capacity Delivery Date on delivery date no later than the in-service date of the Avoided Unit or before as otherwise specified in Appendix E (the Required “Guaranteed Capacity Delivery Date”). 7.2 Capacity testing 5.2 Testing of the capacity of the Facility (each such test test, a “Committed Capacity Test”) shall be performed in accordance with the procedures set forth in Section 86. The Demonstration Period (defined herein) for the first Committed Capacity Test shall commence no earlier than ninety six (906) days before months prior to the Required Capacity Delivery Date and testing must be completed before by 11:59 p.m. on the Avoided Unit In-Service Date or an earlier date in Appendix E. prior to the Guaranteed Delivery Date. The first Committed Capacity Test shall not be deemed successfully completed unless when the QS demonstrates to FPL’s satisfaction that the Facility demonstrates a Capacity can make available capacity of at least one hundred percent (100%) of the Committed Capacity set forth in Section 7.15.1. Subject to Section 8.16.1, the RF/QF QS may schedule and perform up to three (3) Committed Capacity Tests to satisfy the capacity requirements of the Contract with respect to the first Committed Capacity TestContract. 7.3 In addition to the first Committed Capacity Test, DEF 5.3 FPL shall have the right to require the RF/QFQS, after by notice of no less than ten (10) Business Days business days prior to such proposed eventtest, to validate the Committed Capacity of the Facility by means of a subsequent Committed Capacity Test Tests as follows: (a) once per each Summer period and once per each Winter period at FPL’s sole discretion,(b) at any timetime the QS is unable to comply with any material obligation under this Contract for a period of thirty (30) days or more in the aggregate as a consequence of an event of Force Majeure, up and (c) at any time the QS fails in three consecutive months to two achieve an Annual Capacity Billing Factor, as defined in Appendix B (2) times per yearthe “ACBF”), the equal to or greater than 70%. The results of which any such test shall be provided to DEF FPL within seven (7) calendar days of the conclusion of such test. On and after the date of such requested Committed Capacity Test, and until the completion of a subsequent Committed Capacity Test, the Committed Capacity shall be set at deemed as the lower of the Capacity tested capacity or the Committed Capacity as set forth in Section 7.1. Provided however, any such second test requested within a twelve (12) month period must be for cause5.1. 7.4 5.4 Notwithstanding anything contrary to the terms hereofcontrary herein, the Committed Capacity may shall not exceed the amount set forth in Section 7.1 5.1 without the prior written consent of DEFFPL, which such consent shall be granted in DEF's sole discretionnot unreasonably withheld. 7.5 Unless Option B or D as contained in Appendix D or Appendix E is chosen by RF/QF, DEF shall make no Capacity Payments to the RF/QF prior to the Avoided Unit In-Service Date. 7.6 5.5 The RF/QF shall be entitled to receive Capacity Payments beginning on the “Capacity Delivery Date, provided ” shall be defined as the first calendar day immediately after the date following the last to occur of (a) the Facility’s successful completion of the first Committed Capacity Delivery Date occurs before Test but no earlier than the Required Capacity Delivery Date commencement date for deliveries of firm capacity and energy (or as such later date permitted by DEFis specified in Appendix E) and (b) the satisfaction by QS of the following Delivery Date Conditions (defined below) have been satisfied. If the Capacity Delivery Date does not occur before the Required Capacity Delivery Date, DEF shall immediately be entitled to draw down the Completion/Performance Security in full in its sole discretion). 7.6.1 5.1 A certificate addressed to DEF FPL from a Licensed Professional Engineer (reasonably acceptable to DEF FPL in all respects) stating: (a) the nameplate capacity rating or capability of the Facility at the anticipated time of commercial operation and through the term of this Contract assuming the use of Prudent Regulated Utility Practicesoperation, which must be between 95% and 105at least 94% of the “Expected Nameplate Capacity Rating;” ; (b) that the Facility is able to generate electric Energy energy reliably in amounts expected by this Contract Agreement and in accordance with all other terms and conditions hereof; (c) that start- up testing Start-Up Testing of the Facility has been completed; and (d) that, pursuant to Section 10.58.4, all system protection and control and Automatic Generation Control devices are installed and operational. 7.6.2 A certificate addressed to DEF from a Licensed Professional Engineer (reasonably acceptable to DEF in all respects) stating, in conformance with the requirements of the interconnection agreement, that: (a) all required interconnection facilities have been constructed; (b) all required interconnection tests have been completed; and (c) the Facility is physically interconnected with the Transmission System in conformance with the interconnection agreement and able to deliver energy consistent with the terms of this Contract. 7.6.3 A certificate addressed from a Licensed Professional Engineer (reasonably acceptable to DEF in all respects) stating that the RF/QF has obtained or entered into all permits and agreements including, but not limited to Project Contracts with respect to the Facility necessary for land control, construction, ownership, operation, and maintenance of the Facility (the “Project Contracts”). RF/QF must provide copies of any or all Project Contracts requested by DEF. 7.6.4 An opinion from a law firm or attorney, registered or licensed in the State of Florida (reasonably acceptable to DEF in all respects), stating, after all appropriate and reasonable inquiry, that: (a) the RF/QF has obtained or entered into all Project Contracts; (b) neither RF/QF nor the Facility is in violation of, or subject to any liability under any applicable law; and (c) RF/QF has duly filed and had recorded all of the agreements, documents, instruments, mortgages, deeds of trust, and other writings.

Committed Capacity/Capacity Delivery Date. 7.1 If the RF/QF 5.1 The QS commits to sell and deliver firm capacity to DEFGULF POWER at the Delivery Point, the amount of which shall be determined in accordance with this Section 75 (the “Committed Capacity”). Subject to Section 7.3, 5.3 the Committed Capacity is set at kWshall be KW, with an expected Capacity Delivery Date on delivery date no later than the in-service date of the Avoided Unit or before as otherwise specified in Appendix E (the Required “Guaranteed Capacity Delivery Date”). 7.2 Capacity testing 5.2 Testing of the capacity of the Facility (each such test test, a “Committed Capacity Test”) shall be performed in accordance with the procedures set forth in Section 86. The Demonstration Period (defined herein) for the first Committed Capacity Test shall commence no earlier than ninety six (906) days before months prior to the Required Capacity Delivery Date and testing must be completed before by 11:59 p.m. on the Avoided Unit In-Service Date or an earlier date in Appendix E. prior to the Guaranteed Delivery Date. The first Committed Capacity Test shall not be deemed successfully completed unless when the QS demonstrates to GULF POWER’s satisfaction that the Facility demonstrates a Capacity can make available capacity of at least one hundred percent (100%) of the Committed Capacity set forth in Section 7.15.1. Subject to Section 8.16.1, the RF/QF QS may schedule and perform up to three (3) Committed Capacity Tests to satisfy the capacity requirements of the Contract with respect to the first Committed Capacity TestContract. 7.3 In addition to the first Committed Capacity Test, DEF 5.3 GULF POWER shall have the right to require the RF/QFQS, after by notice of no less than ten (10) Business Days business days prior to such proposed eventtest, to validate the Committed Capacity of the Facility by means of a subsequent Committed Capacity Test Tests as follows: (a) once per each Summer period and once per each Winter period at GULF POWER’s sole discretion,(b) at any timetime the QS is unable to comply with any material obligation under this Contract for a period of thirty (30) days or more in the aggregate as a consequence of an event of Force Majeure, up and (c) at any time the QS fails in three consecutive months to two achieve an Annual Capacity Billing Factor, as defined in Appendix B (2) times per yearthe “ACBF”), the equal to or greater than 70%. The results of which any such test shall be provided to DEF GULF POWER within seven (7) calendar days of the conclusion of such test. On and after the date of such requested Committed Capacity Test, and until the completion of a subsequent Committed Capacity Test, the Committed Capacity shall be set at deemed as the lower of the Capacity tested capacity or the Committed Capacity as set forth in Section 7.1. Provided however, any such second test requested within a twelve (12) month period must be for cause5.1. 7.4 5.4 Notwithstanding anything contrary to the terms hereofcontrary herein, the Committed Capacity may shall not exceed the amount set forth in Section 7.1 5.1 without the prior written consent of DEFGULF POWER, which such consent shall be granted in DEF's sole discretionnot unreasonably withheld. 7.5 Unless Option B or D as contained in Appendix D or Appendix E is chosen by RF/QF, DEF shall make no Capacity Payments to the RF/QF prior to the Avoided Unit In-Service Date. 7.6 5.5 The RF/QF shall be entitled to receive Capacity Payments beginning on the “Capacity Delivery Date, provided ” shall be defined as the first calendar day immediately after the date following the last to occur of (a) the Facility’s successful completion of the first Committed Capacity Delivery Date occurs before Test but no earlier than the Required Capacity Delivery Date commencement date for deliveries of firm capacity and energy (or as such later date permitted by DEFis specified in Appendix E) and (b) the satisfaction by QS of the following Delivery Date Conditions (defined below) have been satisfied. If the Capacity Delivery Date does not occur before the Required Capacity Delivery Date, DEF shall immediately be entitled to draw down the Completion/Performance Security in full in its sole discretion). 7.6.1 5.5.1 A certificate addressed to DEF GULF POWER from a Licensed Professional Engineer (reasonably acceptable to DEF GULF POWER in all respects) stating: (a) the nameplate capacity rating or capability of the Facility at the anticipated time of commercial operation and through the term of this Contract assuming the use of Prudent Regulated Utility Practicesoperation, which must be between 95% and 105at least 94% of the “Expected Nameplate Capacity Rating;” ; (b) that the Facility is able to generate electric Energy energy reliably in amounts expected by this Contract Agreement and in accordance with all other terms and conditions hereof; (c) that start- up testing Start-Up Testing of the Facility has been completed; and (d) that, pursuant to Section 10.58.4, all system protection and control and Automatic Generation Control devices are installed and operational. 7.6.2 5.5.2 A certificate addressed to DEF GULF POWER from a Licensed Professional Engineer (reasonably acceptable to DEF GULF POWER in all respects) stating, in conformance with the requirements of the interconnection agreementInterconnection Agreement, that: (a) all required interconnection facilities have been constructed; (b) all required interconnection tests have been completed; and (c) the Facility is physically interconnected with the Transmission System in conformance with the interconnection agreement Interconnection Agreement and able to deliver energy consistent with the terms of this ContractAgreement. 7.6.3 5.5.3 A certificate addressed from a Licensed Professional Engineer (reasonably acceptable to DEF GULF POWER in all respects) stating that the RF/QF QS has obtained or entered into all permits and agreements including, but not limited to Project Contracts with respect to the Facility necessary for land control, construction, ownership, operation, and maintenance of the Facility (the “Project ContractsRequired Agreements”). RF/QF QS must provide copies of any or all Project Contracts Required Agreements requested by DEFGULF POWER. 7.6.4 5.5.4 An opinion from a law firm or attorney, registered or licensed in the State of Florida (reasonably acceptable to DEF GULF POWER in all respects), stating, after all appropriate and reasonable inquiry, that: (a) the RF/QF QS has obtained or entered into all Project ContractsRequired Agreements; (b) neither RF/QF QS nor the Facility is in violation of, of or subject to any liability under any applicable law; and (c) RF/QF QS has duly filed and had recorded all of the agreements, documents, instruments, mortgages, deeds of trust, and other writingswritings described in Section 9.7. 5.5.5 GULF POWER has received the Completion/Performance Security ((a) through (e), the “Commercial Operation Conditions”). GULF POWER shall have ten (10) Business Days after receipt either to confirm to QS that all of the Delivery Date Conditions have been satisfied or have occurred, or to state with specificity what GULF POWER reasonably believes has not been satisfied. 5.6 The QS shall be entitled to receive capacity payments beginning on the Capacity Delivery Date, provided, the Capacity Delivery Date occurs on or before the in-service date of the Avoided Unit (or such later date permitted by GULF POWER pursuant to the following sentence). If the Capacity Delivery Date does not occur on or before the Guaranteed Capacity Delivery Date, GULF POWER shall be entitled to the Completion/Performance Security (as set forth in Section 9) in full, and in addition, has the right but not the obligation to allow the QS up to an additional five (5) months to achieve the Capacity Delivery Date. If the QS fails to achieve the Capacity Delivery Date either by (a) the Guaranteed Delivery Date or b) such later date as permitted by GULF POWER, GULF POWER shall have no obligation to make any capacity payments under this Contract and GULF POWER will be permitted to terminate this Contract, consistent with the terms herein, without further obligations, duties or liability to the QS.

Committed Capacity/Capacity Delivery Date. 7.1 If the RF/QF 5.1 The QS commits to sell and deliver firm capacity to DEFFPL at the Delivery Point, the amount of which shall be determined in accordance with this Section 75 (the “Committed Capacity”). Subject to Section 7.3, 5.3 the Committed Capacity is set at kWshall be KW, with an expected Capacity Delivery Date on delivery date no later than the in-service date of the Avoided Unit or before as otherwise specified in Appendix E (the Required “Guaranteed Capacity Delivery Date”). 7.2 Capacity testing 5.2 Testing of the capacity of the Facility (each such test test, a “Committed Capacity Test”) shall be performed in accordance with the procedures set forth in Section 86. The Demonstration Period (defined herein) for the first Committed Capacity Test shall commence no earlier than ninety six (906) days before months prior to the Required Capacity Delivery Date and testing must be completed before by 11:59 p.m. EST on the Avoided Unit In-Service Date or an earlier date in Appendix E. prior to the Guaranteed Delivery Date. The first Committed Capacity Test shall not be deemed successfully completed unless when the QS demonstrates to FPL’s satisfaction that the Facility demonstrates a Capacity can make available capacity of at least one hundred percent (100%) of the Committed Capacity set forth in Section 7.15.1. Subject to Section 8.16.1, the RF/QF QS may schedule and perform up to three (3) Committed Capacity Tests to satisfy the capacity requirements of the Contract with respect to the first Committed Capacity TestContract. 7.3 In addition to the first Committed Capacity Test, DEF 5.3 FPL shall have the right to require the RF/QFQS, after by notice of no less than ten (10) Business Days business days prior to such proposed eventtest, to validate the Committed Capacity of the Facility by means of a subsequent Committed Capacity Test Tests as follows: (a) once per each Summer period and once per each Winter period at FPL’s sole discretion,(b) at any timetime the QS is unable to comply with any material obligation under this Contract for a period of thirty (30) days or more in the aggregate as a consequence of an event of Force Majeure, up and (c) at any time the QS fails in three consecutive months to two achieve an Annual Capacity Billing Factor, as defined in Appendix B (2) times per yearthe “ACBF”), the equal to or greater than 70%. The results of which any such test shall be provided to DEF FPL within seven (7) calendar days of the conclusion of such test. On and after the date of such requested Committed Capacity Test, and until the completion of a subsequent Committed Capacity Test, the Committed Capacity shall be set at deemed as the lower of the Capacity tested capacity or the Committed Capacity as set forth in Section 7.1. Provided however, any such second test requested within a twelve (12) month period must be for cause5.1. 7.4 5.4 Notwithstanding anything contrary to the terms hereofcontrary herein, the Committed Capacity may shall not exceed the amount set forth in Section 7.1 5.1 without the prior written consent of DEFFPL, which such consent shall be granted in DEF's sole discretionnot unreasonably withheld. 7.5 Unless Option B or D as contained in Appendix D or Appendix E is chosen by RF/QF, DEF shall make no Capacity Payments to the RF/QF prior to the Avoided Unit In-Service Date. 7.6 5.5 The RF/QF shall be entitled to receive Capacity Payments beginning on the “Capacity Delivery Date, provided ” shall be defined as the first calendar day immediately after the date following the last to occur of (a) the Facility’s successful completion of the first Committed Capacity Delivery Date occurs before Test but no earlier than the Required Capacity Delivery Date commencement date for deliveries of firm capacity and energy (or as such later date permitted by DEFis specified in Appendix E) and (b) the satisfaction by QS of the following Delivery Date Conditions (defined below) have been satisfied. If the Capacity Delivery Date does not occur before the Required Capacity Delivery Date, DEF shall immediately be entitled to draw down the Completion/Performance Security in full in its sole discretion). 7.6.1 5.1 A certificate addressed to DEF FPL from a Licensed Professional Engineer (reasonably acceptable to DEF FPL in all respects) stating: (a) the nameplate capacity rating or capability of the Facility at the anticipated time of commercial operation and through the term of this Contract assuming the use of Prudent Regulated Utility Practicesoperation, which must be between 95% and 105at least 94% of the “Expected Nameplate Capacity Rating;” ; (b) that the Facility is able to generate electric Energy energy reliably in amounts expected by this Contract Agreement and in accordance with all other terms and conditions hereof; (c) that start- up testing Start-Up Testing of the Facility has been completed; and (d) that, pursuant to Section 10.58.4, all system protection and control and Automatic Generation Control devices are installed and operational. 7.6.2 A certificate addressed to DEF from a Licensed Professional Engineer (reasonably acceptable to DEF in all respects) stating, in conformance with the requirements of the interconnection agreement, that: (a) all required interconnection facilities have been constructed; (b) all required interconnection tests have been completed; and (c) the Facility is physically interconnected with the Transmission System in conformance with the interconnection agreement and able to deliver energy consistent with the terms of this Contract. 7.6.3 A certificate addressed from a Licensed Professional Engineer (reasonably acceptable to DEF in all respects) stating that the RF/QF has obtained or entered into all permits and agreements including, but not limited to Project Contracts with respect to the Facility necessary for land control, construction, ownership, operation, and maintenance of the Facility (the “Project Contracts”). RF/QF must provide copies of any or all Project Contracts requested by DEF. 7.6.4 An opinion from a law firm or attorney, registered or licensed in the State of Florida (reasonably acceptable to DEF in all respects), stating, after all appropriate and reasonable inquiry, that: (a) the RF/QF has obtained or entered into all Project Contracts; (b) neither RF/QF nor the Facility is in violation of, or subject to any liability under any applicable law; and (c) RF/QF has duly filed and had recorded all of the agreements, documents, instruments, mortgages, deeds of trust, and other writings.

Committed Capacity/Capacity Delivery Date. 7.1 If the RF/QF 5.1 The QS commits to sell and deliver firm capacity to DEFFPL at the Delivery Point, the amount of which shall be determined in accordance with this Section 75 (the “Committed Capacity”). Subject to Section 7.3, 5.3 the Committed Capacity is set at kWshall be KW, with an expected Capacity Delivery Date on delivery date no later than the in-service date of the Avoided Unit or before as otherwise specified in Appendix E (the Required “Guaranteed Capacity Delivery Date”). 7.2 Capacity testing 5.2 Testing of the capacity of the Facility (each such test test, a “Committed Capacity Test”) shall be performed in accordance with the procedures set forth in Section 86. The Demonstration Period (defined herein) for the first Committed Capacity Test shall commence no earlier than ninety six (906) days before months prior to the Required Capacity Delivery Date and testing must be completed before by 11:59 p.m. EST on the Avoided Unit In-Service Date or an earlier date in Appendix E. prior to the Guaranteed Delivery Date. The first Committed Capacity Test shall not be deemed successfully completed unless when the QS demonstrates to FPL’s satisfaction that the Facility demonstrates a Capacity can make available capacity of at least one hundred percent (100%) of the Committed Capacity set forth in Section 7.15.1. Subject to Section 8.16.1, the RF/QF QS may schedule and perform up to three (3) Committed Capacity Tests to satisfy the capacity requirements of the Contract with respect to the first Committed Capacity TestContract. 7.3 In addition to the first Committed Capacity Test, DEF 5.3 FPL shall have the right to require the RF/QFQS, after by notice of no less than ten (10) Business Days business days prior to such proposed eventtest, to validate the Committed Capacity of the Facility by means of a subsequent Committed Capacity Test Tests as follows: (a) once per each Summer period and once per each Winter period at FPL’s sole discretion,(b) at any timetime the QS is unable to comply with any material obligation under this Contract for a period of thirty (30) days or more in the aggregate as a consequence of an event of Force Majeure, up and (c) at any time the QS fails in three consecutive months to two achieve an Annual Capacity Billing Factor, as defined in Appendix B (2) times per yearthe “ACBF”), the equal to or greater than 70%. The results of which any such test shall be provided to DEF FPL within seven (7) calendar days of the conclusion of such test. On and after the date of such requested Committed Capacity Test, and until the completion of a subsequent Committed Capacity Test, the Committed Capacity shall be set at deemed as the lower of the Capacity tested capacity or the Committed Capacity as set forth in Section 7.1. Provided however, any such second test requested within a twelve (12) month period must be for cause5.1. 7.4 5.4 Notwithstanding anything contrary to the terms hereofcontrary herein, the Committed Capacity may shall not exceed the amount set forth in Section 7.1 5.1 without the prior written consent of DEFFPL, which such consent shall be granted in DEF's sole discretionnot unreasonably withheld. 7.5 Unless Option B or D as contained in Appendix D or Appendix E is chosen by RF/QF, DEF shall make no Capacity Payments to the RF/QF prior to the Avoided Unit In-Service Date. 7.6 5.5 The RF/QF shall be entitled to receive Capacity Payments beginning on the “Capacity Delivery Date, provided ” shall be defined as the first calendar day immediately after the date following the last to occur of (a) the Facility’s successful completion of the first Committed Capacity Delivery Date occurs before Test but no earlier than the Required Capacity Delivery Date commencement date for deliveries of firm capacity and energy (or as such later date permitted by DEFis specified in Appendix E) and (b) the satisfaction by QS of the following Delivery Date Conditions (defined below) have been satisfied. If the Capacity Delivery Date does not occur before the Required Capacity Delivery Date, DEF shall immediately be entitled to draw down the Completion/Performance Security in full in its sole discretion). 7.6.1 5.5.1 A certificate addressed to DEF FPL from a Licensed Professional Engineer (reasonably acceptable to DEF FPL in all respects) stating: (a) the nameplate capacity rating or capability of the Facility at the anticipated time of commercial operation and through the term of this Contract assuming the use of Prudent Regulated Utility Practicesoperation, which must be between 95% and 105at least 94% of the “Expected Nameplate Capacity Rating;” ; (b) that the Facility is able to generate electric Energy energy reliably in amounts expected by this Contract Agreement and in accordance with all other terms and conditions hereof; (c) that start- up testing Start-Up Testing of the Facility has been completed; and (d) that, pursuant to Section 10.58.4, all system protection and control and Automatic Generation Control devices are installed and operational. 7.6.2 5.5.2 A certificate addressed to DEF FPL from a Licensed Professional Engineer (reasonably acceptable to DEF FPL in all respects) stating, in conformance with the requirements of the interconnection agreementInterconnection Agreement, that: (a) all required interconnection facilities have been constructed; (b) all required interconnection tests have been completed; and (c) the Facility is physically interconnected with the Transmission System in conformance with the interconnection agreement Interconnection Agreement and able to deliver energy consistent with the terms of this ContractAgreement. 7.6.3 5.5.3 A certificate addressed from a Licensed Professional Engineer (reasonably acceptable to DEF FPL in all respects) stating that the RF/QF QS has obtained or entered into all permits and agreements including, but not limited to Project Contracts with respect to the Facility necessary for land control, construction, ownership, operation, and maintenance of the Facility (the “Project ContractsRequired Agreements”). RF/QF QS must provide copies of any or all Project Contracts Required Agreements requested by DEFFPL. 7.6.4 5.5.4 An opinion from a law firm or attorney, registered or licensed in the State of Florida (reasonably acceptable to DEF FPL in all respects), stating, after all appropriate and reasonable inquiry, that: (a) the RF/QF QS has obtained or entered into all Project ContractsRequired Agreements; (b) neither RF/QF QS nor the Facility is in violation of, of or subject to any liability under any applicable law; and (c) RF/QF QS has duly filed and had recorded all of the agreements, documents, instruments, mortgages, deeds of trust, and other writingswritings described in Section 9.7. 5.5.5 FPL has received the Completion/Performance Security ((a) through (e), the “Commercial Operation Conditions”). FPL shall have ten (10) Business Days after receipt either to confirm to QS that all of the Delivery Date Conditions have been satisfied or have occurred, or to state with specificity what FPL reasonably believes has not been satisfied. 5.6 The QS shall be entitled to receive capacity payments beginning on the Capacity Delivery Date, provided, the Capacity Delivery Date occurs on or before the in-service date of the Avoided Unit (or such later date permitted by FPL pursuant to the following sentence). If the Capacity Delivery Date does not occur on or before the Guaranteed Capacity Delivery Date, FPL shall be entitled to the Completion/Performance Security (as set forth in Section 9) in full, and in addition, has the right but not the obligation to allow the QS up to an additional five (5) months to achieve the Capacity Delivery Date. If the QS fails to achieve the Capacity Delivery Date either by (a) the Guaranteed Delivery Date or b) such later date as permitted by FPL, FPL shall have no obligation to make any capacity payments under this Contract and FPL will be permitted to terminate this Contract, consistent with the terms herein, without further obligations, duties or liability to the QS. Issued by: Xxxxxxx Xxxxx, Director, Rates and Tariffs Effective: June 5, 2018