Common use of Owner Defaults Clause in Contracts

Owner Defaults. Except to the extent excused as a result of an event of Force Majeure in accordance with Article XV, the occurrence of one or more of the following events shall constitute a default by Owner under this Agreement (an “Owner Default”), provided that an event of Force Majeure shall not excuse an event described in clause (a), clause (h), or clause (i): (a) Owner’s failure to pay any undisputed amount due to Distribution Company under this Agreement by the due date, which failure is not cured within ten (10) days after the receipt by Owner of a written demand from Distribution Company that such amount is due and owing and has not been timely paid. (b) Owner’s failure to satisfy (other than solely as a result of an HQUS Delay) any of the Critical Milestones in clauses (i), (iii), (iv), (v), or (vii) of Section 4.1(a) by the dates set forth therefor, as the same may be extended in accordance with Section 4.1(c), 4.1(d) or 4.1(e). (c) The failure of the NECEC Transmission Line to be capable of operating at or above 1,040 MW as of the Commercial Operation Date, where Distribution Company has also not agreed in writing to begin transmission service hereunder notwithstanding such operating capability, or to be capable of operating at or above 1,075 MW as of the earlier of the Remediation Date or the end of the Remediation Period. (d) Owner’s failure to comply in any material respect with the provisions of Section 5.1.1(a)(ii) and, if such failure is susceptible to cure, such failure continues for thirty (30) days after receipt by Owner of written notice thereof from Distribution Company, unless such cure shall reasonably require a longer period, in which case Owner shall be provided an additional thirty (30) days to complete such cure so long as Owner has promptly commenced such cure and thereafter diligently pursues such cure. (e) A Non-Excused Outage pursuant to which the average Hourly Availability of the NECEC Transmission Line over any calendar month is less than the Minimum Average Availability for such calendar month (whether as a result of a physical condition, legal impediment or otherwise), unless otherwise excused under Section 7.2, occurs and continues for more than ninety (90) consecutive days or more than one hundred twenty (120) days in any twelve (12) month period, provided, however, that if (i) Owner presents to Distribution Company before the end of a Non-Excused Outage that would otherwise constitute an Owner Default under this clause (e), a request to delay termination of this Agreement for a period not to exceed twelve (12) months, together with a detailed plan (including reasonably satisfactory evidence of Owner’s financial and technical capability to timely effectuate such plan) acceptable to Distribution Company, acting reasonably, to restore the capability of the NECEC Transmission Line to provide Firm Transmission Service in full within such period, and (ii) Owner posts Credit Support (in addition to the Owner Security) in an amount equal to $5,000 per MWh/h of the Contract Maximum Amount for each such six-month portion of such period, Distribution Company shall forbear terminating this Agreement under this clause (e) for such period, provided that, during any such period, Distribution Company’s obligation to make Transmission Service Payments shall continue to be reduced to the extent Firm Transmission Service is then being provided at less than the Minimum Average Availability. Any additional Credit Support provided under this Section 14.1(e) shall be returned to Owner if Owner is providing Firm Transmission Service in full at the end of the period of forbearance. In the event Owner is not providing Firm Transmission Service in full at the end of such period of forbearance, or if Owner fails to exercise diligent, commercially reasonable efforts consistent with Good Utility Practice to timely effectuate such plan, an Owner Default shall be deemed to have occurred and Distribution Company shall have the rights and remedies set forth in Section 14.4, which, for the avoidance of doubt, shall include recourse against any Credit Support posted by Owner. (f) Owner’s failure to comply in any material respect with the provisions of Article XVI. (g) Owner’s failure to perform or comply with any of its obligations under this Agreement, other than those described in clauses (a), (b), (c), (d), (e) or (f) above, in each case, in any material respect, and, if such failure is susceptible to cure, such failure continues for thirty (30) days after the receipt by Owner of written notice thereof from Distribution Company, unless such cure shall reasonably require a longer period, in which case Owner shall be provided an additional thirty (30) days to complete such cure so long as Owner has promptly commenced such cure and thereafter diligently pursues such cure. (h) Any representation or warranty made by Owner in this Agreement is false or misleading at the time made in any material respect. (i) Any Insolvency Event occurs with respect to Owner.

Owner Defaults. Except to the extent excused as a result of an event of Force Majeure in accordance with Article XV, the occurrence of one or more of the following events shall constitute a default by Owner under this Agreement (an “Owner Default”), ; provided that an event of Force Majeure shall not excuse an event described in clause (a), clause (h), ) or clause (i): (a) Owner’s failure to pay any undisputed amount due to Distribution Company Purchaser under this Agreement by the due date, which failure is not cured within ten (10) days after the receipt by Owner of a written demand from Distribution Company Purchaser that such amount is due and owing and has not been timely paid. (b) Owner’s failure to satisfy (other than solely as a result of an HQUS a Purchaser Delay) any of the Critical Milestones in clauses (i), (iii), (iv), (v), or (vii) of Section 4.1(a) by the dates set forth therefor, as the same may be extended in accordance with Section 4.1(c), Section 4.1(d) ), or Section 4.1(e). (c) The failure of the NECEC Transmission Line to be capable of operating at or above 1,040 MW as of the Commercial Operation Date (where the Québec Line is capable of operating at or above 1,040 MW as of the Commercial Operation Date), where Distribution Company has also not agreed in writing to begin transmission service hereunder under the Distribution Company TSA notwithstanding such operating capability, or to be capable of operating at or above 1,075 MW as of the earlier of the Owner Remediation Date or the end of the Remediation Period (where the Québec Line is capable of operating at or above 1,075 MW as of the earlier of the Owner Remediation Date or the end of the Remediation Period), where Distribution Company has also not agreed in writing to begin transmission service under the Distribution Company TSA notwithstanding such operating capability. (d) Owner’s failure to comply in any material respect with the provisions of Section 5.1.1(a)(ii) and, if such failure is susceptible to cure, such failure continues for thirty (30) days after receipt by Owner of written notice thereof from Distribution CompanyPurchaser, unless such cure shall reasonably require a longer period, in which case Owner shall be provided an additional thirty (30) days to complete such cure so long as Owner has promptly commenced such cure and thereafter diligently pursues such cure. (e) A Non-Excused Outage pursuant to which (A) the Hourly Availability of the NECEC Transmission Line is less than one hundred percent (100%) for more than ninety (90) consecutive days and the average Hourly Availability of the NECEC Transmission Line over any each calendar month in which the ninety (90) consecutive days occur is less than the Minimum Average Availability for each such calendar month (whether as a result of a physical condition, legal impediment or otherwise), unless otherwise excused under Section 7.2, occurs and continues or (B) the Hourly Availability of the NECEC Transmission Line is less than one hundred percent (100%) for more than ninety (90) consecutive days or more than one hundred twenty (120) days in any twelve (12) month periodperiod and the average Hourly Availability of the NECEC Transmission Line over each calendar month in which any such day occurs is less than the Minimum Average Availability for each such month (whether as a result of a physical condition, legal impediment or otherwise) in each case, unless otherwise excused under Section 7.2, provided, however, that if (i) Owner presents to Purchaser and Distribution Company (before the Purchaser Term) or Purchaser (during the Purchaser Term) before the end of a Non-Excused Outage that would otherwise constitute an Owner Default under this clause (e), a request to delay termination of this Agreement for a period not to exceed twelve (12) months, together with a detailed plan (including reasonably satisfactory evidence of Owner’s financial and technical capability to timely effectuate such plan) acceptable to Distribution CompanyCompany and Purchaser (before the Purchaser Term) or Purchaser (during the Purchaser Term), each acting reasonably, to restore the capability of the NECEC Transmission Line to provide Firm Transmission Service in full within such period, and (ii) prior to the start of the Purchaser Term, Owner posts Credit Support (with Distribution Company as set forth in addition to the Owner SecuritySection 14.2(e) in an amount equal to $5,000 per MWh/h of the Contract Maximum Amount for each such six-month portion of such period, Distribution Company TSA, Purchaser shall forbear terminating this Agreement under this clause (e) for such period, provided that, during any such period, Distribution CompanyPurchaser’s obligation to make Transmission Service Payments shall continue to be reduced to the extent Firm Transmission Service is then being provided at less than the Minimum Average Availability. Any additional Credit Support provided under this Section 14.1(e) shall be returned to Owner if Owner is providing Firm Transmission Service in full at the end of the period of forbearance. In the event Owner is not providing Firm Transmission Service in full at the end of such period of forbearance, or if Owner fails to exercise diligent, commercially reasonable efforts consistent with Good Utility Practice to timely effectuate such plan, an Owner Default shall be deemed to have occurred and Distribution Company Purchaser shall have the rights and remedies set forth in Section 14.4, which, for the avoidance of doubt, shall include recourse against any Credit Support posted by Owner14.6 and Section 14.7. (f) Owner’s failure to comply in any material respect with the provisions of Article XVI. (g) Owner’s failure to perform or comply with any of its obligations under this Agreement, other than those described in clauses (a), (b), (c), (d), or (e) or (f) above, in each case, in any material respect, and, if such failure is susceptible to cure, such failure continues for thirty (30) days after the receipt by Owner of written notice thereof from Distribution CompanyPurchaser, unless such cure shall reasonably require a longer period, in which case Owner shall be provided an additional thirty (30) days to complete such cure so long as Owner has promptly commenced such cure and thereafter diligently pursues such cure. (h) Any representation or warranty made by Owner in this Agreement is false or misleading at the time made in any material respect. (i) Any Insolvency Event occurs with respect to Owner. (j) An Owner Default (as defined in the Distribution Company TSA) that is not attributable to the operating capability of the Québec Line, or an Owner Default (as defined in the 110 MW TSA), occurs and is continuing.

Owner Defaults. Except to the extent excused as a result of an event of Force Majeure in accordance with Article XV, the occurrence of one or more of the following events shall constitute a default by Owner under this Agreement (an “Owner Default”), ; provided that an event of Force Majeure shall not excuse an event described in clause (a), clause (h), g) or clause (ih): (a) Owner’s failure to pay any undisputed amount due to Distribution Company Purchaser under this Agreement by the due date, which failure is not cured within ten (10) days after the receipt by Owner of a written demand from Distribution Company Purchaser that such amount is due and owing and has not been timely paid. (b) Owner’s failure to satisfy (other than solely as a result of an HQUS a Purchaser Delay) any of the Critical Milestones in clauses (i), (iii), (iv), (v), or (vii) of Section 4.1(a) by the dates set forth therefor, as the same may be extended in accordance with Section 4.1(c), Section 4.1(d) or Section 4.1(e). (c) The failure of the NECEC Transmission Line to be capable of operating at or above 1,040 MW as of the Commercial Operation Date, where Distribution Company has also not agreed in writing to begin transmission service hereunder notwithstanding such operating capability, or to be capable of operating at or above 1,075 MW as of the earlier of the Remediation Date or the end of the Remediation Period. (d) Owner’s failure to comply in any material respect with the provisions of Section 5.1.1(a)(ii) and, if such failure is susceptible to cure, such failure continues for thirty (30) days after receipt by Owner of written notice thereof from Distribution CompanyPurchaser, unless such cure shall reasonably require a longer period, in which case Owner shall be provided an additional thirty (30) days to complete such cure so long as Owner has promptly commenced such cure and thereafter diligently pursues such cure. (ed) A Non-Excused Outage pursuant to which (A) the Hourly Availability of the NECEC Transmission Line is less than one hundred percent (100%) for more than ninety (90) consecutive days and the average Hourly Availability of the NECEC Transmission Line over any each calendar month in which the ninety (90) consecutive days occur is less than the Minimum Average Availability for each such calendar month (whether as a result of a physical condition, legal impediment or otherwise), unless otherwise excused under Section 7.2, occurs and continues or (B) the Hourly Availability of the NECEC Transmission Line is less than one hundred percent (100%) for more than ninety (90) consecutive days or more than one hundred twenty (120) days in any twelve (12) month periodperiod and the average Hourly Availability of the NECEC Transmission Line over each calendar month in which any such day occurs is less than the Minimum Average Availability for each such month (whether as a result of a physical condition, legal impediment or otherwise) in each case, unless otherwise excused under Section 7.2, provided, however, that if (i) Owner presents to Distribution Company RFP Sponsors and Purchaser (during the Initial Purchaser Term) or Purchaser (during the Second Purchaser Term) before the end of a Non-Excused Outage that would otherwise constitute an Owner Default under this clause (ed), a request to delay termination of this Agreement for a period not to exceed twelve (12) months, together with a detailed plan (including reasonably satisfactory evidence of Owner’s financial and technical capability to timely effectuate such plan) acceptable to Distribution CompanyRFP Sponsors and Purchaser (during the Initial Purchaser Term) or Purchaser (during the Second Purchaser Term), each acting reasonably, to restore the capability of the NECEC Transmission Line to provide Firm Transmission Service in full within such period, and (ii) during the Initial Purchaser Term, Owner posts Credit Support (with RFP Sponsors as set forth in addition to the Owner SecuritySection 14.2(e) in an amount equal to $5,000 per MWh/h of the Contract Maximum Amount for each such six-month portion of such periodRFP Sponsor TSAs, Distribution Company Purchaser shall forbear terminating this Agreement under this clause (ed) for such period, provided that, during any such period, Distribution CompanyPurchaser’s obligation to make Transmission Service Payments shall continue to be reduced to the extent Firm Transmission Service is then being provided at less than the Minimum Average Availability. Any additional Credit Support provided under this Section 14.1(e) shall be returned to Owner if Owner is providing Firm Transmission Service in full at the end of the period of forbearance. In the event Owner is not providing Firm Transmission Service in full at the end of such period of forbearance, or if Owner fails to exercise diligent, commercially reasonable efforts consistent with Good Utility Practice to timely effectuate such plan, an Owner Default shall be deemed to have occurred and Distribution Company Purchaser shall have the rights and remedies set forth in Section 14.4, which, for 14.6 and Section 14.7 of the avoidance of doubt, shall include recourse against any Credit Support posted by OwnerPurchaser TSAs. (fe) Owner’s failure to comply in any material respect with the provisions of Article XVI. (gf) Owner’s failure to perform or comply with any of its obligations under this Agreement, other than those described in clauses (a), (b), (c), (d), (e) or (fd) above, in each case, in any material respect, and, if such failure is susceptible to cure, such failure continues for thirty (30) days after the receipt by Owner of written notice thereof from Distribution CompanyPurchaser, unless such cure shall reasonably require a longer period, in which case Owner shall be provided an additional thirty (30) days to complete such cure so long as Owner has promptly commenced such cure and thereafter diligently pursues such cure. (hg) Any representation or warranty made by Owner in this Agreement is false or misleading at the time made in any material respect. (ih) Any Insolvency Event occurs with respect to Owner. (i) An Owner Default (as defined in) any Purchaser TSA occurs and is continuing.