Common use of Failure to Produce Clause in Contracts

Failure to Produce. If during any Tranche, the Nuclear Group fails to generate in the aggregate an amount of electric energy sufficient to support the creation of ZECs pursuant to the ZEC Program in an amount equal to at least eighty-five percent (85%) of the applicable Tranche Cap Amount (the “Threshold Amount”), then the Annual ZEC Cap Amount and the Tranche Cap Amount applicable to the Nuclear Group in the immediately subsequent Tranche shall decrease by the applicable Annual ZEC Cap Reduction Amount and the applicable Tranche Cap EXECUTION VERSION Reduction Amount, respectively. If, during any subsequent Tranche, the Nuclear Group generates in the aggregate an amount of electric energy sufficient to support the creation of ZECs pursuant to the ZEC Program in an amount at or above the new lower cap and obligation, the Annual ZEC Cap Amount and Tranche Cap Amount will be restored for the Nuclear Group in subsequent Tranches. Subject to Sections 2.2, 3.2 and 12.1(b), but notwithstanding any other provision in this Agreement to the contrary, the cap reductions described in this Section 5.2(a) shall be NYSERDA’s sole remedy for Seller’s failure to produce the Threshold Amount and transfer ZECs to the NYSERDA ZEC Account, in accordance with the terms of this Agreement, through the Contract Term;

Failure to Produce. If during any Tranche, the Nuclear Group fails to generate in the aggregate an amount of electric energy sufficient to support the creation of ZECs pursuant to the ZEC Program in an amount equal to at least eighty-five percent (85%) of the applicable Tranche Cap Amount (the “Threshold Amount”), then the Annual ZEC Cap Amount and the Tranche Cap Amount applicable to the Nuclear Group in the immediately subsequent Tranche shall decrease by the applicable Annual ZEC Cap Reduction Amount and the applicable Tranche Cap EXECUTION VERSION Reduction Amount, respectively. If, during any subsequent Tranche, the Nuclear Group generates in the aggregate an amount of electric energy sufficient to support the creation of ZECs pursuant to the ZEC Program in an amount at or above the new lower cap and obligation, the Annual ZEC Cap Amount and Tranche Cap Amount will be restored for the Nuclear Group in subsequent Tranches. Subject to Sections 2.2, 3.2 and 12.1(b), but notwithstanding any other provision in this Agreement to the contrary, the cap reductions described in this Section 5.2(a) shall be NYSERDA’s sole remedy for Seller’s failure to produce the Threshold Amount and transfer ZECs to the NYSERDA ZEC Account, in accordance with the terms of this Agreement, through the Contract Term;