Common use of Indemnities for Failure to Deliver Contract Quantity Clause in Contracts

Indemnities for Failure to Deliver Contract Quantity. Subject to any adjustments made pursuant to Section 4.4 and requests from Buyer pursuant to Section 4.6(b)(i), Seller agrees to indemnify, defend and hold harmless Buyer from any penalties, fines or costs assessed against Buyer by the CPUC or the CAISO, to the extent not otherwise paid by Seller to Buyer under Section 4.7(b), resulting from any of the following: Seller’s failure to provide any portion of the Designated RA Capacity due to a non-Excusable Event; Seller’s failure to provide notice of the non-availability of any portion of Designated RA Capacity as required under Article 3, Section 4.4 and Section 4.5; or A Unit Scheduling Coordinator’s failure to timely submit accurate Supply Plans that identify Xxxxx’s right to the Designated RA Xxxxxxxx purchased hereunder. With respect to the foregoing, the Parties shall use commercially reasonable efforts to minimize such penalties, fines and costs; provided, that in no event shall Buyer be required to use or change its utilization of its owned or controlled assets or market positions to minimize these penalties and fines. If Seller fails to pay the foregoing penalties, fines or costs, or fails to reimburse Buyer for those penalties, fines or costs, then Buyer may offset those penalties, fines or costs against any future amounts it may owe to Seller under this Confirmation. Monthly RA Capacity Payment In accordance with the terms of Section 9 of the WSPP Agreement, Buyer shall make a Monthly RA Capacity Payment to Seller for each Unit, in arrears, after the applicable Showing Month. Each Unit’s Monthly RA Capacity Payment shall be equal to the product of (a) the applicable Contract Price for that Monthly Delivery Period, (b) the Designated RA Capacity for the Monthly Delivery Period, and (c) 1,000, rounded to the nearest xxxxx (i.e., two decimal places); provided, however, that the Monthly RA Capacity Payment shall be prorated to reflect any portion of Designated RA Capacity that was not delivered pursuant to Section 4.4 at the time of the CAISO filing for the respective Showing Month. RA CAPACITY PRICE TABLE Contract Month RAR Capacity Price ($/kW-month) January $X.XX February $X.XX March $X.XX April $X.XX May $X.XX June $X.XX July $X.XX August $X.XX September $X.XX October $X.XX November $X.XX December $X.XX Allocation of Other Payments and Costs Seller shall be entitled to receive and retain all revenues Buyer is not expressly entitled to receive pursuant to this Agreement, including all revenues that Seller may receive from the CAISO or any other third party with respect to any Unit for (a) start-up, shut-down, and minimum load costs, (b) revenue for ancillary services, (c) energy sales, (d) any revenues for black start or reactive power services, or (e) the sale of the unit-contingent call rights on the generation capacity of the Unit to provide energy to a third party, so long as such rights do not confer on such third party the right to claim any portion of the RA Capacity sold hereunder in order to make an RAR Showing, LAR Showing, Flexible RAR Showing, as may be applicable, or any similar capacity or resource adequacy showing with the CAISO or CPUC. Xxxxx acknowledges and agrees that all Availability Incentive Payments are for the benefit of Seller and for Seller’s account, and that Seller shall receive, retain, or be entitled to receive all credits, payments, and revenues, if any, resulting from Seller achieving or exceeding Availability Standards. Any Non-Availability Charges are the responsibility of Seller, and for Seller’s account and Seller shall be responsible for all fees, charges, or penalties, if any, resulting from Seller failing to achieve Availability Standards. However, Buyer shall be entitled to receive and retain all revenues associated with the Designated RA Capacity of any Unit during the Delivery Period (including any capacity or availability revenues from RMR Agreements for any Unit, Reliability Compensation Services Tariff, and Residual Unit Commitment capacity payments, but excluding payments described in clauses (a) through (e) above). In accordance with Section 4.9 of this Confirmation and Sections 9 and 28 of the WSPP Agreement, all such Buyer revenues actually received by Seller, or a Unit’s Scheduling Coordinator, owner, or operator shall be remitted to Buyer, and Seller shall indemnify Buyer for any such revenues that Seller does not remit to Buyer, owner, or operator, and Seller shall pay such revenues received by it to Buyer if the Unit’s Scheduling Coordinator, owner, or operator fails to remit those revenues to Buyer. If Seller or the Unit’s Scheduling Coordinator, owner, or operator (as applicable) fails to pay such revenues to Buyer, Buyer may offset any amounts owing to it for such revenues pursuant to Section 28 of the WSPP Agreement against any future amounts it may owe to Seller under this Confirmation. If a centralized capacity market develops within the CAISO region, Buyer will have exclusive rights to offer, bid, or otherwise submit Designated RA Capacity provided to Buyer pursuant to this Confirmation for re-sale in such market, and retain and receive any and all related revenues.

Indemnities for Failure to Deliver Contract Quantity. Subject If Buyer is unable to any adjustments made purchase Replacement Capacity, then in lieu of damages pursuant to Section 4.4 and requests from 5.2(b)(i)(B) with respect to the portion of Contract Quantity that Buyer pursuant to Section 4.6(b)(i)has not replaced, Seller agrees to indemnify, defend and hold harmless Buyer from any penalties, fines or costs assessed against Buyer by the CPUC or the CPUC, CAISO, to the extent not otherwise paid by Seller to Buyer under Section 4.7(b)or any Governmental Body having jurisdiction, resulting from any of the following: Seller’s failure to provide any portion of the Designated RA Capacity due to a non-Excusable Event; Contract Quantity or any portion of the Replacement Capacity, Seller’s failure to provide timely notice of the non-availability of any portion of Designated RA Capacity as required under Article 3the Contract Quantity, Section 4.4 and Section 4.5; or A Unit Scheduling CoordinatorUnit’s SC’s failure to timely submit accurate Supply Plans that identify Xxxxx’s right to the Designated RA Xxxxxxxx purchased Unit Contract Quantity to be delivered hereunder, or, any other failure by Seller to perform its obligations under this Confirmation. With respect to the foregoing, the Parties shall use commercially reasonable efforts to minimize such penalties, fines and costs; provided, that in no event shall Buyer be required to use or change its utilization of its owned or controlled assets or market positions to minimize these penalties and fines. If Seller fails to pay the foregoing penalties, fines or and costs, or fails . Seller will have no obligation to reimburse Buyer for those penalties, fines or costs, then Buyer may offset those penalties, fines or costs against any future amounts it may owe to Seller under this ConfirmationSection 5.3 in respect to the portion of Contract Quantity for which Seller has paid damages under Section 5.2. Monthly RA Capacity Payment In accordance with It is further agreed that (i) the terms of amounts payable under this Section 9 of the WSPP Agreement, Buyer shall make a Monthly RA Capacity Payment to Seller for each Unit, in arrears, after the applicable Showing Month. Each Unit’s Monthly RA Capacity Payment 5.3 shall be equal to the product of calculated on a $/kW-month basis and (aii) the applicable Contract Price for that Monthly Delivery Period, (b) the Designated RA Capacity for the Monthly Delivery Period, and (c) 1,000, rounded to the nearest xxxxx (i.e., two decimal places); provided, however, that the Monthly RA Capacity Payment shall be prorated to reflect any portion of Designated RA Capacity that was not delivered pursuant to Section 4.4 at the time of the CAISO filing for the respective Showing Month. RA CAPACITY PRICE TABLE Contract Month RAR Capacity Price (in $/kW-month) January $X.XX February $X.XX March $X.XX April $X.XX May $X.XX June $X.XX July $X.XX August $X.XX September $X.XX October $X.XX November $X.XX December $X.XX Allocation of Other Payments and Costs Seller shall be entitled to receive and retain all revenues Buyer is not expressly entitled to receive subtracted from any amounts payable under this Section 5.3 for purposes of determining the amount payable by Seller pursuant to this Agreement, including all revenues that Seller may receive from the CAISO or any other third party with respect to any Unit for (a) start-up, shut-down, and minimum load costs, (b) revenue for ancillary services, (c) energy sales, (d) any revenues for black start or reactive power services, or (e) the sale of the unit-contingent call rights on the generation capacity of the Unit to provide energy to a third party, so long as such rights do not confer on such third party the right to claim any portion of the RA Capacity sold hereunder in order to make an RAR Showing, LAR Showing, Flexible RAR Showing, as may be applicable, or any similar capacity or resource adequacy showing with the CAISO or CPUC. Xxxxx acknowledges and agrees that all Availability Incentive Payments are for the benefit of Seller and for Seller’s account, and that Seller shall receive, retain, or be entitled to receive all credits, payments, and revenues, if any, resulting from Seller achieving or exceeding Availability Standards. Any Non-Availability Charges are the responsibility of Seller, and for Seller’s account and Seller shall be responsible for all fees, charges, or penalties, if any, resulting from Seller failing to achieve Availability Standards. However, Buyer shall be entitled to receive and retain all revenues associated with the Designated RA Capacity of any Unit during the Delivery Period (including any capacity or availability revenues from RMR Agreements for any Unit, Reliability Compensation Services Tariff, and Residual Unit Commitment capacity payments, but excluding payments described in clauses (a) through (e) above). In accordance with Section 4.9 of this Confirmation and Sections 9 and 28 of the WSPP Agreement, all such Buyer revenues actually received by Seller, or a Unit’s Scheduling Coordinator, owner, or operator shall be remitted to Buyer, and Seller shall indemnify Buyer for any such revenues that Seller does not remit to Buyer, owner, or operator, and Seller shall pay such revenues received by it to Buyer if the Unit’s Scheduling Coordinator, owner, or operator fails to remit those revenues to Buyer. If Seller or the Unit’s Scheduling Coordinator, owner, or operator (as applicable) fails to pay such revenues to Buyer, Buyer may offset any amounts owing to it for such revenues pursuant to Section 28 of the WSPP Agreement against any future amounts it may owe to Seller under this Confirmation. If a centralized capacity market develops within the CAISO region, Buyer will have exclusive rights to offer, bid, or otherwise submit Designated RA Capacity provided to Buyer pursuant to this Confirmation for re-sale in such market, and retain and receive any and all related revenues5.3.

Indemnities for Failure to Deliver Contract Quantity. Subject If Buyer is unable to any adjustments made or does not purchase Replacement Capacity, then in lieu of damages pursuant to Section 4.4 and requests from Buyer pursuant 5.2(b)(i)(B) with respect to Section 4.6(b)(i)the portion of Contract Quantity that Xxxxx has not replaced, Seller agrees to indemnify, defend and hold harmless Buyer from any penalties, fines or costs assessed against Buyer by the CPUC or the CPUC, CAISO, to the extent not otherwise paid by Seller to Buyer under Section 4.7(b)or any Governmental Body having jurisdiction, resulting from any of the following: Seller’s failure to provide any portion of the Designated RA Capacity due to a non-Excusable Event; Contract Quantity or any portion of the Replacement Capacity, Seller’s failure to provide notice timely Notice of the non-availability of any portion of Designated RA Capacity as required under Article 3the Contract Quantity, Section 4.4 and Section 4.5; or A Unit Scheduling CoordinatorUnit’s SC’s failure to submit timely submit and accurate Supply Plans that identify Xxxxx’s right to the Designated RA Xxxxxxxx purchased Unit Contract Quantity to be delivered hereunder, or, any other failure by Seller to perform its obligations under this Confirmation. With respect to the foregoing, the Parties shall use commercially reasonable efforts to minimize such penalties, fines and costs; provided, that in no event shall Buyer be required to use or change its utilization of its owned or controlled assets or market positions to minimize these penalties and fines. If Seller fails to pay the foregoing penalties, fines or and costs, or fails . Seller will have no obligation to reimburse Buyer for those penalties, fines or costs, then Buyer may offset those penalties, fines or costs against any future amounts it may owe to Seller under this ConfirmationSection 5.3 in respect to the portion of Contract Quantity for which Seller has paid damages under Section 5.2. Monthly RA Capacity Payment In accordance with It is further agreed that (i) the terms of amounts payable under this Section 9 of the WSPP Agreement, Buyer shall make a Monthly RA Capacity Payment to Seller for each Unit, in arrears, after the applicable Showing Month. Each Unit’s Monthly RA Capacity Payment 5.3 shall be equal to the product of calculated on a $/kW-month basis and (aii) the applicable Contract Price for that Monthly Delivery Period, (b) the Designated RA Capacity for the Monthly Delivery Period, and (c) 1,000, rounded to the nearest xxxxx (i.e., two decimal places); provided, however, that the Monthly RA Capacity Payment shall be prorated to reflect any portion of Designated RA Capacity that was not delivered pursuant to Section 4.4 at the time of the CAISO filing for the respective Showing Month. RA CAPACITY PRICE TABLE Contract Month RAR Capacity Price (in $/kW-month) January $X.XX February $X.XX March $X.XX April $X.XX May $X.XX June $X.XX July $X.XX August $X.XX September $X.XX October $X.XX November $X.XX December $X.XX Allocation of Other Payments and Costs Seller shall be entitled to receive and retain all revenues Buyer is not expressly entitled to receive subtracted from any amounts payable under this Section 5.3 for purposes of determining the amount payable by Seller pursuant to this Agreement, including all revenues that Seller may receive from the CAISO or any other third party with respect to any Unit for (a) start-up, shut-down, and minimum load costs, (b) revenue for ancillary services, (c) energy sales, (d) any revenues for black start or reactive power services, or (e) the sale of the unit-contingent call rights on the generation capacity of the Unit to provide energy to a third party, so long as such rights do not confer on such third party the right to claim any portion of the RA Capacity sold hereunder in order to make an RAR Showing, LAR Showing, Flexible RAR Showing, as may be applicable, or any similar capacity or resource adequacy showing with the CAISO or CPUC. Xxxxx acknowledges and agrees that all Availability Incentive Payments are for the benefit of Seller and for Seller’s account, and that Seller shall receive, retain, or be entitled to receive all credits, payments, and revenues, if any, resulting from Seller achieving or exceeding Availability Standards. Any Non-Availability Charges are the responsibility of Seller, and for Seller’s account and Seller shall be responsible for all fees, charges, or penalties, if any, resulting from Seller failing to achieve Availability Standards. However, Buyer shall be entitled to receive and retain all revenues associated with the Designated RA Capacity of any Unit during the Delivery Period (including any capacity or availability revenues from RMR Agreements for any Unit, Reliability Compensation Services Tariff, and Residual Unit Commitment capacity payments, but excluding payments described in clauses (a) through (e) above). In accordance with Section 4.9 of this Confirmation and Sections 9 and 28 of the WSPP Agreement, all such Buyer revenues actually received by Seller, or a Unit’s Scheduling Coordinator, owner, or operator shall be remitted to Buyer, and Seller shall indemnify Buyer for any such revenues that Seller does not remit to Buyer, owner, or operator, and Seller shall pay such revenues received by it to Buyer if the Unit’s Scheduling Coordinator, owner, or operator fails to remit those revenues to Buyer. If Seller or the Unit’s Scheduling Coordinator, owner, or operator (as applicable) fails to pay such revenues to Buyer, Buyer may offset any amounts owing to it for such revenues pursuant to Section 28 of the WSPP Agreement against any future amounts it may owe to Seller under this Confirmation. If a centralized capacity market develops within the CAISO region, Buyer will have exclusive rights to offer, bid, or otherwise submit Designated RA Capacity provided to Buyer pursuant to this Confirmation for re-sale in such market, and retain and receive any and all related revenues5.3.

Indemnities for Failure to Deliver Contract Quantity. Subject If Buyer is unable to any adjustments made purchase Replacement Capacity, then in lieu of damages pursuant to Section 4.4 and requests from 5.2(b)(i)(B) with respect to the portion of Contract Quantity that Buyer pursuant to Section 4.6(b)(i)has not replaced, Seller agrees to indemnify, defend and hold harmless Buyer from any penalties, fines or costs assessed against Buyer by the CPUC or the CPUC, CAISO, to the extent not otherwise paid by Seller to Buyer under Section 4.7(b)or any Governmental Body having jurisdiction, resulting from any of the following: Seller’s failure to provide any portion of the Designated RA Capacity due to a non-Excusable Event; Contract Quantity or any portion of the Replacement Capacity, Seller’s failure to provide timely notice of the non-availability of any portion of Designated RA Capacity as required under Article 3the Contract Quantity, Section 4.4 and Section 4.5; or A Unit Scheduling CoordinatorAn Import Resource’s SC’s failure to timely submit accurate Supply Plans that identify Xxxxx’s right to the Designated RA Xxxxxxxx purchased Import Contract Quantity to be delivered hereunder, or, any other failure by Seller to perform its obligations under this Confirmation. With respect to the foregoing, the Parties shall use commercially reasonable efforts to minimize such penalties, fines and costs; provided, that in no event shall Buyer be required to use or change its utilization of its owned or controlled assets or market positions to minimize these penalties and fines. If Seller fails to pay the foregoing penalties, fines or and costs, or fails . Seller will have no obligation to reimburse Buyer for those penalties, fines or costs, then Buyer may offset those penalties, fines or costs against any future amounts it may owe to Seller under this ConfirmationSection 5.3 in respect to the portion of Contract Quantity for which Seller has paid damages under Section 5.2. Monthly RA Capacity Payment In accordance with It is further agreed that (i) the terms of amounts payable under this Section 9 of the WSPP Agreement, Buyer shall make a Monthly RA Capacity Payment to Seller for each Unit, in arrears, after the applicable Showing Month. Each Unit’s Monthly RA Capacity Payment 5.3 shall be equal to the product of calculated on a $/kW-month basis and (aii) the applicable Contract Price for that Monthly Delivery Period, (b) the Designated RA Capacity for the Monthly Delivery Period, and (c) 1,000, rounded to the nearest xxxxx (i.e., two decimal places); provided, however, that the Monthly RA Capacity Payment shall be prorated to reflect any portion of Designated RA Capacity that was not delivered pursuant to Section 4.4 at the time of the CAISO filing for the respective Showing Month. RA CAPACITY PRICE TABLE Contract Month RAR Capacity Price (in $/kW-month) January $X.XX February $X.XX March $X.XX April $X.XX May $X.XX June $X.XX July $X.XX August $X.XX September $X.XX October $X.XX November $X.XX December $X.XX Allocation of Other Payments and Costs Seller shall be entitled to receive and retain all revenues Buyer is not expressly entitled to receive subtracted from any amounts payable under this Section 5.3 for purposes of determining the amount payable by Seller pursuant to this Agreement, including all revenues that Seller may receive from the CAISO or any other third party with respect to any Unit for (a) start-up, shut-down, and minimum load costs, (b) revenue for ancillary services, (c) energy sales, (d) any revenues for black start or reactive power services, or (e) the sale of the unit-contingent call rights on the generation capacity of the Unit to provide energy to a third party, so long as such rights do not confer on such third party the right to claim any portion of the RA Capacity sold hereunder in order to make an RAR Showing, LAR Showing, Flexible RAR Showing, as may be applicable, or any similar capacity or resource adequacy showing with the CAISO or CPUC. Xxxxx acknowledges and agrees that all Availability Incentive Payments are for the benefit of Seller and for Seller’s account, and that Seller shall receive, retain, or be entitled to receive all credits, payments, and revenues, if any, resulting from Seller achieving or exceeding Availability Standards. Any Non-Availability Charges are the responsibility of Seller, and for Seller’s account and Seller shall be responsible for all fees, charges, or penalties, if any, resulting from Seller failing to achieve Availability Standards. However, Buyer shall be entitled to receive and retain all revenues associated with the Designated RA Capacity of any Unit during the Delivery Period (including any capacity or availability revenues from RMR Agreements for any Unit, Reliability Compensation Services Tariff, and Residual Unit Commitment capacity payments, but excluding payments described in clauses (a) through (e) above). In accordance with Section 4.9 of this Confirmation and Sections 9 and 28 of the WSPP Agreement, all such Buyer revenues actually received by Seller, or a Unit’s Scheduling Coordinator, owner, or operator shall be remitted to Buyer, and Seller shall indemnify Buyer for any such revenues that Seller does not remit to Buyer, owner, or operator, and Seller shall pay such revenues received by it to Buyer if the Unit’s Scheduling Coordinator, owner, or operator fails to remit those revenues to Buyer. If Seller or the Unit’s Scheduling Coordinator, owner, or operator (as applicable) fails to pay such revenues to Buyer, Buyer may offset any amounts owing to it for such revenues pursuant to Section 28 of the WSPP Agreement against any future amounts it may owe to Seller under this Confirmation. If a centralized capacity market develops within the CAISO region, Buyer will have exclusive rights to offer, bid, or otherwise submit Designated RA Capacity provided to Buyer pursuant to this Confirmation for re-sale in such market, and retain and receive any and all related revenues5.3.

Indemnities for Failure to Deliver Contract Quantity. Subject to any adjustments made pursuant to Section 4.4 and requests from Buyer pursuant to Section 4.6(b)(i), Seller agrees to indemnify, defend and hold harmless Buyer from any penalties, fines or costs assessed against Buyer by the CPUC or the CAISO, to the extent not otherwise paid by Seller to Buyer under Section 4.7(b), CAISO resulting from any of the following: Seller’s failure to provide deliver any portion of the Designated RA Capacity due to a non-Excusable Event; Seller’s failure to provide notice Contract Quantity of the non-availability of Product for any portion of Designated RA the Delivery Period and such failure results in the imposition of penalties, fines or costs assessed against Buyer with the exception of CAISO Capacity Procurement Mechanism costs, as required under Article 3, described in Section 4.4 and Section 4.5; or 2.7(c). A Unit Scheduling CoordinatorUnit’s SC’s failure to timely or accurately submit accurate Supply Plans that identify XxxxxBuyer’s right to the Designated RA Xxxxxxxx Contract Quantity purchased hereunderhereunder for each day of the Delivery Period. With respect to the foregoing, the Parties shall use commercially reasonable efforts to minimize such penalties, fines and costs; provided, that in no event shall Buyer be required to use or change its utilization of its owned or controlled assets or market positions to minimize these penalties penalties, fines, and finescosts. If Seller fails to pay deliver any portion of the foregoing penaltiesContract Quantity of Product and such failure results in CAISO Capacity Procurement Mechanism costs imposed on Buyer due to an insufficient monthly Resource Adequacy plan, fines or costs, or fails Seller agrees to reimburse indemnify Buyer for those penalties, fines or costs, then from these costs less any damages assessed under Section 2.6(a); Buyer’s Re-Sale of Product Buyer may offset those penaltiesre-sell all or a portion of the Product purchased under this Confirmation (“Resold Product”); provided that such re-sell right does not include the ability to offer any portion of Product into the CSP. If Buyer re-sells Resold Product, fines or costs against any future amounts it may owe Seller agrees, and agrees to Seller cause the Unit’s SC, to follow Buyer’s instructions with respect to providing such Resold Product to subsequent purchasers of such Resold Product to the extent such instructions are consistent with Seller’s obligations under this Confirmation. Monthly RA Capacity Payment In accordance with the terms of Section 9 of the WSPP Agreement, Buyer shall make a Monthly RA Capacity Payment to Seller for each Unit, in arrears, after the applicable Showing Month. Each Unit’s Monthly RA Capacity Payment shall be equal to the product of (a) the applicable Contract Price for that Monthly Delivery Period, (b) the Designated RA Capacity for the Monthly Delivery Periodfurther agrees, and (c) 1,000, rounded agrees to the nearest xxxxx (i.e., two decimal places); provided, however, that the Monthly RA Capacity Payment shall be prorated to reflect any portion of Designated RA Capacity that was not delivered pursuant to Section 4.4 at the time of the CAISO filing for the respective Showing Month. RA CAPACITY PRICE TABLE Contract Month RAR Capacity Price ($/kW-month) January $X.XX February $X.XX March $X.XX April $X.XX May $X.XX June $X.XX July $X.XX August $X.XX September $X.XX October $X.XX November $X.XX December $X.XX Allocation of Other Payments and Costs Seller shall be entitled to receive and retain all revenues Buyer is not expressly entitled to receive pursuant to this Agreement, including all revenues that Seller may receive from the CAISO or any other third party with respect to any Unit for (a) start-up, shut-down, and minimum load costs, (b) revenue for ancillary services, (c) energy sales, (d) any revenues for black start or reactive power services, or (e) the sale of the unit-contingent call rights on the generation capacity of the Unit to provide energy to a third party, so long as such rights do not confer on such third party the right to claim any portion of the RA Capacity sold hereunder in order to make an RAR Showing, LAR Showing, Flexible RAR Showing, as may be applicable, or any similar capacity or resource adequacy showing with the CAISO or CPUC. Xxxxx acknowledges and agrees that all Availability Incentive Payments are for the benefit of Seller and for Seller’s account, and that Seller shall receive, retain, or be entitled to receive all credits, payments, and revenues, if any, resulting from Seller achieving or exceeding Availability Standards. Any Non-Availability Charges are the responsibility of Seller, and for Seller’s account and Seller shall be responsible for all fees, charges, or penalties, if any, resulting from Seller failing to achieve Availability Standards. However, Buyer shall be entitled to receive and retain all revenues associated with the Designated RA Capacity of any Unit during the Delivery Period (including any capacity or availability revenues from RMR Agreements for any Unit, Reliability Compensation Services Tariff, and Residual Unit Commitment capacity payments, but excluding payments described in clauses (a) through (e) above). In accordance with Section 4.9 of this Confirmation and Sections 9 and 28 of the WSPP Agreement, all such Buyer revenues actually received by Seller, or a Unit’s Scheduling Coordinator, owner, or operator shall be remitted to Buyer, and Seller shall indemnify Buyer for any such revenues that Seller does not remit to Buyer, owner, or operator, and Seller shall pay such revenues received by it to Buyer if cause the Unit’s Scheduling CoordinatorSC, owner, to take all commercially reasonable actions and execute any and all documents or operator fails instruments reasonably necessary to remit those revenues allow such subsequent purchasers to use such Resold Product in a manner consistent with Buyer’s rights under this Confirmation. If Buyer incurs any liability to any purchaser of such Resold Product due to the failure of Seller or the Unit’s Scheduling CoordinatorSC to comply with the terms of this Confirmation, ownerthen Seller shall be liable to Buyer for any liabilities Seller would have incurred under this Confirmation if Buyer had not resold the Product, or operator (as applicable) fails including without limitation, pursuant to pay such revenues Sections 2.6 and 2.7. If Buyer exercises its right to Buyerre-sell the Resold Product, Buyer may offset shall notify Seller in writing that such sale has occurred and provide Seller with the information described in Appendix D no later than two (2) Business Days before the deadline for the Compliance Showings applicable to the relevant Showing Month. Buyer shall notify Seller of any amounts owing to it for such revenues pursuant to Section 28 subsequent changes or further resale of the WSPP Agreement against any future amounts it may owe Resold Product, by providing Seller with written updates to Seller under the information in Appendix D in accordance with the deadlines described in this Confirmation. If a centralized capacity market develops within the CAISO region, Buyer will have exclusive rights to offer, bid, or otherwise submit Designated RA Capacity provided to Buyer pursuant to this Confirmation for re-sale in such market, and retain and receive any and all related revenuesSection 2.8(b).

Indemnities for Failure to Deliver Contract Quantity. Subject If Buyer is unable to any adjustments made or does not purchase Replacement Capacity, then in lieu of damages pursuant to Section 4.4 and requests from Buyer pursuant 5.2(b)(i)(B) with respect to Section 4.6(b)(i)the portion of Contract Quantity that Xxxxx has not replaced, Seller agrees to indemnify, defend and hold harmless Buyer from any penalties, fines or costs assessed against Buyer by the CPUC or the CPUC, CAISO, to the extent not otherwise paid by Seller to Buyer under Section 4.7(b)or any Governmental Body having jurisdiction, resulting from any of the following: Seller’s failure to provide any portion of the Designated RA Capacity due to a non-Excusable Event; Contract Quantity or any portion of the Replacement Capacity, Seller’s failure to provide notice timely Notice of the non-availability of any portion of Designated RA Capacity as required under Article 3the Contract Quantity, Section 4.4 and Section 4.5; or A Unit Scheduling CoordinatorAn Import Resource’s SC’s failure to submit timely submit and accurate Supply Plans that identify Xxxxx’s right to the Designated RA Xxxxxxxx purchased Import Contract Quantity to be delivered hereunder, or, any other failure by Seller to perform its obligations under this Confirmation. With respect to the foregoing, the Parties shall use commercially reasonable efforts to minimize such penalties, fines and costs; provided, that in no event shall Buyer be required to use or change its utilization of its owned or controlled assets or market positions to minimize these penalties and fines. If Seller fails to pay the foregoing penalties, fines or and costs, or fails . Seller will have no obligation to reimburse Buyer for those penalties, fines or costs, then Buyer may offset those penalties, fines or costs against any future amounts it may owe to Seller under this ConfirmationSection 5.3 in respect to the portion of Contract Quantity for which Seller has paid damages under Section 5.2. Monthly RA Capacity Payment In accordance with It is further agreed that (i) the terms of amounts payable under this Section 9 of the WSPP Agreement, Buyer shall make a Monthly RA Capacity Payment to Seller for each Unit, in arrears, after the applicable Showing Month. Each Unit’s Monthly RA Capacity Payment 5.3 shall be equal to the product of calculated on a $/kW-month basis and (aii) the applicable Contract Price for that Monthly Delivery Period, (b) the Designated RA Capacity for the Monthly Delivery Period, and (c) 1,000, rounded to the nearest xxxxx (i.e., two decimal places); provided, however, that the Monthly RA Capacity Payment shall be prorated to reflect any portion of Designated RA Capacity that was not delivered pursuant to Section 4.4 at the time of the CAISO filing for the respective Showing Month. RA CAPACITY PRICE TABLE Contract Month RAR Capacity Price (in $/kW-month) January $X.XX February $X.XX March $X.XX April $X.XX May $X.XX June $X.XX July $X.XX August $X.XX September $X.XX October $X.XX November $X.XX December $X.XX Allocation of Other Payments and Costs Seller shall be entitled to receive and retain all revenues Buyer is not expressly entitled to receive subtracted from any amounts payable under this Section 5.3 for purposes of determining the amount payable by Seller pursuant to this Agreement, including all revenues that Seller may receive from the CAISO or any other third party with respect to any Unit for (a) start-up, shut-down, and minimum load costs, (b) revenue for ancillary services, (c) energy sales, (d) any revenues for black start or reactive power services, or (e) the sale of the unit-contingent call rights on the generation capacity of the Unit to provide energy to a third party, so long as such rights do not confer on such third party the right to claim any portion of the RA Capacity sold hereunder in order to make an RAR Showing, LAR Showing, Flexible RAR Showing, as may be applicable, or any similar capacity or resource adequacy showing with the CAISO or CPUC. Xxxxx acknowledges and agrees that all Availability Incentive Payments are for the benefit of Seller and for Seller’s account, and that Seller shall receive, retain, or be entitled to receive all credits, payments, and revenues, if any, resulting from Seller achieving or exceeding Availability Standards. Any Non-Availability Charges are the responsibility of Seller, and for Seller’s account and Seller shall be responsible for all fees, charges, or penalties, if any, resulting from Seller failing to achieve Availability Standards. However, Buyer shall be entitled to receive and retain all revenues associated with the Designated RA Capacity of any Unit during the Delivery Period (including any capacity or availability revenues from RMR Agreements for any Unit, Reliability Compensation Services Tariff, and Residual Unit Commitment capacity payments, but excluding payments described in clauses (a) through (e) above). In accordance with Section 4.9 of this Confirmation and Sections 9 and 28 of the WSPP Agreement, all such Buyer revenues actually received by Seller, or a Unit’s Scheduling Coordinator, owner, or operator shall be remitted to Buyer, and Seller shall indemnify Buyer for any such revenues that Seller does not remit to Buyer, owner, or operator, and Seller shall pay such revenues received by it to Buyer if the Unit’s Scheduling Coordinator, owner, or operator fails to remit those revenues to Buyer. If Seller or the Unit’s Scheduling Coordinator, owner, or operator (as applicable) fails to pay such revenues to Buyer, Buyer may offset any amounts owing to it for such revenues pursuant to Section 28 of the WSPP Agreement against any future amounts it may owe to Seller under this Confirmation. If a centralized capacity market develops within the CAISO region, Buyer will have exclusive rights to offer, bid, or otherwise submit Designated RA Capacity provided to Buyer pursuant to this Confirmation for re-sale in such market, and retain and receive any and all related revenues5.3.