Common use of Forward Capacity Market Participation Clause in Contracts

Forward Capacity Market Participation. Seller shall participate in the ISO-NE’s Forward Capacity Auction Qualification (“FCAQ”) process for, and take all other necessary and appropriate actions to qualify for, the Forward Capacity Auction (“FCA”) for the first full Capacity Commitment Period during the Services Term with a summer Seasonal Claimed Capability and a winter Seasonal Claimed Capability in each case not less than the respective maximum Seasonal Claimed Capabilities as determined by ISO-NE for Seller’s project as described in the Bid, including qualifying the Seasonal Claimed Capabilities described in the Bid for Capacity Capability Interconnection Standard-equivalent interconnection. Notwithstanding the above, actual Seller participation in any FCA or obtaining a Capacity Supply Obligation shall not be required, but may be pursued at the option of Seller. Seller will provide Buyer with copies of all technical reports and studies provided to and/or by ISO-NE as part of the FCAQ process for the Facility, as described in this Section 3.7, at the same time when those materials are provided to and/or by ISO-NE. Seller shall use commercially reasonable efforts, consistent with Good Utility Practice, to maximize the summer and winter Seasonal Claimed Capabilities for the Facility consistent with the technical reports and studies provided to and/or by ISO-NE and with the Bid. Seller will provide Buyer with written notice of the summer and winter Seasonal Claimed Capabilities for the Facility and the Network Upgrades required to satisfy both the Network Capability Interconnection Standard and the equivalent of the Capacity Capability Interconnection Standard at the Interconnection Point at those Seasonal Claimed Capabilities within fifteen (15) days after the determination thereof by ISO-NE.

Forward Capacity Market Participation. (a) Seller shall participate in the ISO-NE’s Forward Capacity Auction Qualification (“FCAQ”) process for, and take all other necessary and appropriate actions to qualify for, the Forward Capacity Auction (“FCA”) for each Interconnection Point for the first full Capacity Commitment Period during the Services Term with a summer Seasonal Claimed Capability and a winter Seasonal Claimed Capability in each case not less than the respective maximum Seasonal Claimed Capabilities as determined by ISO-NE for Seller’s project as described in the Bid, each Interconnection Point including qualifying the maximum Seasonal Claimed Capabilities described in the Bid for Capacity Capability Interconnection StandardStandard interconnection determined by ISO-equivalent interconnectionNE for each Interconnection Point. Notwithstanding the above, actual Seller participation in any FCA or obtaining a Capacity Supply Obligation shall not be required, but may be pursued at the option of Seller. Seller will provide Buyer with copies of all technical reports and studies provided to and/or by ISO-NE as part of the FCAQ process for the Facility, as described in this Section 3.7, at the same time promptly after when those materials are provided to and/or by ISO-NE. In the FCAQ process, Seller shall use commercially reasonable efforts, consistent with Good Utility Practice, to maximize the summer and winter Seasonal Claimed Capabilities qualified for the Facility each Interconnection Point consistent with the technical reports and studies provided to and/or by ISO-NE and with the Bid. Seller will provide Buyer with written notice of the summer and winter Seasonal Claimed Capabilities for the Facility each Interconnection Point and the Network Upgrades required to satisfy both the Network Capability Interconnection Standard and the equivalent of the Capacity Capability Interconnection Standard at the each Interconnection Point at those Seasonal Claimed Capabilities within fifteen (15) days after the determination thereof by ISO-NE. (b) In the event that all CCIS Network Upgrades have not been placed in service under the Interconnection Agreement(s) as of the Commercial Operation Date, Seller shall provide Buyer with Credit Support on the Commercial Operation Date (the “CCIS Network Upgrade Security”) in an amount equal to the greater of (x) per MWh per hour of Contract Maximum Amount for the Delivery Point(s) where such CCIS Network Upgrades have not been placed in service (the “Per MWh CCIS Network Upgrade Security”) or (y) fifty-three and ninety-six hundredths percent (53.96%) of the estimated cost of such CCIS Network Upgrades that have not been placed in service as of the Commercial Operation Date under Interconnection Agreement(s), as stated in the certification of Seller’s officer delivered pursuant to Section 3.4(b)(xiii)(C); provided that if, on any date after the Commercial Operation Date, the Interconnecting Utility or any other Transmission Provider provides an updated estimate of the outstanding cost of the CCIS Network Upgrades that have not been placed in service as of such date under the Interconnection Agreement(s), (A) Seller shall promptly provide that updated estimate to Buyer, and (B) the required level of the CCIS Network Upgrade Security will be recalculated to be the greater of the Per MWH CCIS Network Upgrade Security or fifty-three and ninety-six hundredths percent (53.96%) of the amount of such updated estimate of the cost of the CCIS Network Upgrades that have not been placed in service as of such date. With respect to such CCIS Network Upgrades not placed in service under the Interconnection Agreement(s) on the Commercial Operation Date, and without limiting Buyer’s rights and remedies with respect to the Event of Default under Section 9.2(d): (i) If all such CCIS Network Upgrades are placed in service on or prior to , Buyer shall return the CCIS Network Upgrade Security to Seller as provided in Section 6.2; (ii) If all such CCIS Network Upgrades are not placed in service on or prior to , without limiting any Buyer’s rights and remedies under Section 9.3 (including any rights to a Termination Payment), , Seller shall pay Buyer liquidated damages in the amount of the Per MWh CCIS Network Upgrade Security, and to the extent that Seller fails to make such payment, Buyer may draw on the CCIS Network Upgrade Security for such liquidated damages for an amount up to the Per MWh CCIS Network Upgrade Security. Any undrawn portion of the CCIS Network Upgrade Security shall remain outstanding until the earlier of (A) a breach or default by Seller under the Interconnection Agreement(s) or the termination of the Interconnection Agreement(s) and (B) the date on which the CCIS Network Upgrades are placed in service. In the event that Seller defaults under or breaches the Interconnection Agreement(s) or any of the Interconnection Agreement(s) is terminated prior to the CCIS Network Upgrades being placed in service, Seller shall pay Buyer liquidated damages in the amount of the remaining CCIS Network Upgrade Security on such date, and to the extent that Seller fails to make such payment, Buyer may draw on the CCIS Network Upgrade Security for such liquidated damages. On the date on which all CCIS Network Upgrades are placed in service, Buyer shall return the undrawn portion of the CCIS Network Upgrade Security to Seller as provided in Section 6.2. Each Party agrees and acknowledges that (x) the damages and losses (including without limitation the loss of environmental, reliability and economic benefits contemplated under this Agreement) that the Parties would incur due to a failure by Seller to complete the CCIS Network Upgrades by would be difficult or impossible to predict with certainty, and (y) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore the liquidated damages agreed to by the Parties and set forth herein are a fair and reasonable calculation of such damages; and (iii) In the event that Seller breaches or defaults under the Interconnection Agreement(s) prior to the completion of the CCIS Network Upgrades, Seller shall notify Buyer of such breach or default, and Buyer may, but shall have no obligation to, complete the CCIS Network Upgrades at its own expense or in conjunction with the other purchasers of the Energy and RECs, in which case Seller will execute and deliver all documents and take any and all other actions as Buyer reasonably requests in order for Buyer to complete the CCIS Network Upgrades; provided, however, that Buyer acknowledges that certain other purchasers of the Energy and RECs will have a similar right to complete the CCIS Network Upgrades, and Buyer is solely responsible for reaching agreement with such other purchasers with respect to any election to complete the CCIS Network Upgrades.

Forward Capacity Market Participation. Seller shall participate in the ISO-NE’s Forward Capacity Auction Qualification (“FCAQ”) process for, and take all other necessary and appropriate actions to qualify for, the Forward Capacity Auction (“FCA”) for the first full Capacity Commitment Period during the Services Term with a summer Seasonal Claimed Capability and a winter Seasonal Claimed Capability in each case not less than the respective maximum Seasonal Claimed Capabilities as determined by ISO-NE for Seller’s project as described in the Bid, including qualifying the Seasonal Claimed Capabilities described in the Bid for Capacity Capability Interconnection Standard-equivalent level interconnection. Notwithstanding the above, actual Seller participation in any FCA or obtaining a Capacity Supply Obligation shall not be required, but may be pursued at the option of the Seller. Seller will provide Buyer with copies of all technical reports and studies provided to and/or by ISO-NE as part of the FCAQ process for the Facility, as described in this Section 3.7, at the same time when those materials are provided to and/or by ISO-NE. Seller shall use commercially reasonable efforts, consistent with Good Utility Practice, to maximize the summer and winter Seasonal Claimed Capabilities for the Facility consistent with the technical reports and studies provided to and/or by ISO-NE and with the Bid. Seller will provide Buyer with written notice of the summer and winter Seasonal Claimed Capabilities for the Facility and the Network Upgrades required to satisfy both the Network Capability Interconnection Standard and the equivalent of the Capacity Capability Interconnection Standard at the Interconnection Point at those Seasonal Claimed Capabilities within fifteen (15) days after the determination thereof by ISO-NE.

Forward Capacity Market Participation. Seller shall participate in the ISO-ISO- NE’s Forward Capacity Auction Qualification (“FCAQ”) process for, and take all other necessary and appropriate actions to qualify for, the Forward Capacity Auction (“FCA”) for the first full Capacity Commitment Period during the Services Term with a summer Seasonal Claimed Capability and a winter Seasonal Claimed Capability in each case not less than the respective aggregate maximum summer and winter Seasonal Claimed Capabilities for the Facility and all Additional Facilities collectively with a Capacity Capability Interconnection Standard interconnection, as determined by ISO-NE for Seller’s project as described in the Bid, including qualifying Facility and all Additional Facilities during the Seasonal Claimed Capabilities described in the Bid for Capacity Capability Interconnection Standard-equivalent interconnectionFCAQ process. Notwithstanding the above, actual Seller participation in any FCA or any other capacity market or obtaining a Capacity Supply Obligation shall not be required, but may be pursued at the option of Seller. Seller will provide Buyer with copies of all technical reports and studies provided to and/or by ISO-NE as part of the FCAQ process for the FacilityFacility and all Additional Facilities, as described in this Section 3.7, at the same time when those materials are provided to and/or by ISO-NE. Seller shall use commercially reasonable efforts, consistent with Good Utility Practice, to maximize the summer and winter Seasonal Claimed Capabilities for the Facility and all Additional Facilities consistent with the technical reports and studies provided to and/or by ISO-NE and with the BidNE. Seller will provide Buyer with written notice of the summer and winter Seasonal Claimed Capabilities for the Facility and all Additional Facilities and the Network Upgrades required to satisfy both the Network Capability Interconnection Standard and the equivalent of the Capacity Capability Interconnection Standard at the Interconnection Point at those Seasonal Claimed Capabilities within fifteen (15) days after the determination thereof by ISO-NE. Section 4.1 (a) of the Agreement shall be modified by deleting (i) the sentence “The obligations for Seller to sell and Deliver the Products and for Buyer to purchase and receive the same hereunder are Unit Contingent and shall be subject to the operation of the Facility” and replacing it with “The obligations for Seller to sell and Deliver the Products and for Buyer to purchase and receive the same hereunder are Unit Contingent and shall be subject to the operation of the Facility and all Additional Facilities” and (ii) the sentence “To maximize the value of the Products and without limiting the application of Section 4.7(g), to the extent consistent with ISO-NE Rules and Good Utility Practice, Seller shall use commercially reasonable efforts to maximize the production and Delivery of Energy during the time periods of anticipated peak load and peak Energy and REC prices in New England and in order to maximize the production of RECs that are eligible under the Clean Peak Standard (subject to Sections 4.1(b) and 4.1(c))” and replacing it with “To maximize the value of the Products and without limiting the application of Section 4.7(g), to the extent consistent with ISO-NE Rules and Good Utility Practice, Seller shall use commercially reasonable efforts to maximize the production and Delivery of Energy and the production and delivery of energy from all Additional Facilities during the time periods of anticipated peak load and peak Energy prices in New England.” Section 4.1 (b) of the Agreement shall be deleted in its entirety and replaced with the following:

Forward Capacity Market Participation. Seller shall participate in the ISO-ISO- NE’s Forward Capacity Auction Qualification (“FCAQ”) process for, and take all other necessary and appropriate actions to qualify for, the Forward Capacity Auction (“FCA”) for the first full Capacity Commitment Period during the Services Term with a summer Seasonal Claimed Capability and a winter Seasonal Claimed Capability in each case not less than the respective aggregate maximum summer and winter Seasonal Claimed Capabilities for the Facility and all Additional Facilities collectively with a Capacity Capability Interconnection Standard interconnection, as determined by ISO-NE for Seller’s project as described in the Bid, including qualifying Facility and all Additional Facilities during the Seasonal Claimed Capabilities described in the Bid for Capacity Capability Interconnection Standard-equivalent interconnectionFCAQ process. Notwithstanding the above, actual Seller participation in any FCA or any other capacity market or obtaining a Capacity Supply Obligation shall not be required, but may be pursued at the option of Seller. Seller will provide Buyer with copies of all technical reports and studies provided to and/or by ISO-NE as part of the FCAQ process for the FacilityFacility and all Additional Facilities, as described in this Section 3.7, at the same time when those materials are provided to and/or by ISO-NE. Seller shall use commercially reasonable efforts, consistent with Good Utility Practice, to maximize the summer and winter Seasonal Claimed Capabilities for the Facility and all Additional Facilities consistent with the technical reports and studies provided to and/or by ISO-NE and with the BidNE. Seller will provide Buyer with written notice of the summer and winter Seasonal Claimed Capabilities for the Facility and all Additional Facilities and the Network Upgrades required to satisfy both the Network Capability Interconnection Standard and the equivalent of the Capacity Capability Interconnection Standard at the Interconnection Point at those Seasonal Claimed Capabilities within fifteen (15) days after the determination thereof by ISO-NE. Section 4.1 (a) of the Agreement shall be modified by deleting (i) the sentence “The obligations for Seller to sell and Deliver the Products and for Buyer to purchase and receive the same hereunder are Unit Contingent and shall be subject to the operation of the Facility” and replacing it with “The obligations for Seller to sell and Deliver the Products and for Buyer to purchase and receive the same hereunder are Unit Contingent and shall be subject to the operation of the Facility and all Additional Facilities” and (ii) the sentence “To maximize the value of the Products and without limiting the application of Section 4.7(g), to the extent consistent with ISO- NE Rules and Good Utility Practice, Seller shall use commercially reasonable efforts to maximize the production and Delivery of Energy during the time periods of anticipated peak load and peak Energy and REC prices in New England and in order to maximize the production of RECs that are eligible under the Clean Peak Standard (subject to Sections 4.1(b) and 4.1(c))” and replacing it with “To maximize the value of the Products and without limiting the application of Section 4.7(g), to the extent consistent with ISO-NE Rules and Good Utility Practice, Seller shall use commercially reasonable efforts to maximize the production and Delivery of Energy and the production and delivery of energy from all Additional Facilities during the time periods of anticipated peak load and peak Energy prices in New England.”

Forward Capacity Market Participation. Seller shall participate in the ISO-ISO- NE’s Forward Capacity Auction Qualification (“FCAQ”) process for, and take all other necessary and appropriate actions to qualify for, the Forward Capacity Auction (“FCA”) for the first full Capacity Commitment Period during the Services Term with a summer Seasonal Claimed Capability and a winter Seasonal Claimed Capability in each case not less than the respective aggregate maximum summer and winter Seasonal Claimed Capabilities for the Facility and all Additional Facilities collectively with a Capacity Capability Interconnection Standard interconnection, as determined by ISO-NE for Seller’s project as described in the Bid, including qualifying Facility and all Additional Facilities during the Seasonal Claimed Capabilities described in the Bid for Capacity Capability Interconnection Standard-equivalent interconnectionFCAQ process. Notwithstanding the above, actual Seller participation in any FCA or any other capacity market or obtaining a Capacity Supply Obligation shall not be required, but may be pursued at the option of Seller. Seller will provide Buyer with copies of all technical reports and studies provided to and/or by ISO-NE as part of the FCAQ process for the FacilityFacility and all Additional Facilities, as described in this Section 3.7, at the same time when those materials are provided to and/or by ISO-NE. Seller shall use commercially reasonable efforts, consistent with Good Utility Practice, to maximize the summer and winter Seasonal Claimed Capabilities for the Facility and all Additional Facilities consistent with the technical reports and studies provided to and/or by ISO-NE and with the BidNE. Seller will provide Buyer with written notice of the summer and winter Seasonal Claimed Capabilities for the Facility and all Additional Facilities and the Network Upgrades required to satisfy both the Network Capability Interconnection Standard and the equivalent of the Capacity Capability Interconnection Standard at the Interconnection Point at those Seasonal Claimed Capabilities within fifteen (15) days after the determination thereof by ISO-NE. Section 4.1 (a) of the Agreement shall be modified by deleting (i) the sentence “The obligations for Seller to sell and Deliver the Products and for Buyer to purchase and receive the same hereunder are Unit Contingent and shall be subject to the operation of the Facility” and replacing it with “The obligations for Seller to sell and Deliver the Products and for Buyer to purchase and receive the same hereunder are Unit Contingent and shall be subject to the operation of the Facility and all Additional Facilities” and (ii) the sentence “To maximize the value of the Products and without limiting the application of Section 4.7(g), to the extent consistent with ISO- NE Rules and Good Utility Practice, Seller shall use commercially reasonable efforts to maximize the production and Delivery of Energy during the time periods of anticipated peak load and peak Energy and REC prices in New England and in order to maximize the production of RECs that are eligible under the Clean Peak Standard (subject to Sections 4.1(b) and 4.1(c))” and replacing it with “To maximize the value of the Products and without limiting the application of Section 4.7(g), to the extent consistent with ISO-NE Rules and Good Utility Practice, Seller shall use commercially reasonable efforts to maximize the production and Delivery of Energy and the production and delivery of energy from all Additional Facilities during the time periods of anticipated peak load and peak Energy prices in New England.” Section 4.1 (b) of the Agreement shall be deleted in its entirety and replaced with the following: