Common use of Purchase and Sale of Capacity Credits Clause in Contracts

Purchase and Sale of Capacity Credits. (a) Subject to the terms and conditions herein, Seller shall sell and deliver Capacity Credits to Buyer, and, in consideration thereof, Buyer shall make Monthly Payments to Seller in accordance with Section 4.1. Seller shall deliver Capacity Credits from the Facility to satisfy the Contract Quantity unless and to the extent that Seller determines that the Capacity Credits from the Facility will not be sufficient to satisfy the Contract Quantity. In such circumstances, Seller shall have the right to deliver Capacity Credits from any other Planning Resource within MISO South to satisfy its obligations hereunder to deliver the Contract Quantity of Capacity Credits for each Planning Period during the Capacity Credit Term; provided, however, that, if Seller delivers any Capacity Credits from another Planning Resource within MISO South, Seller shall use Commercially Reasonable Efforts to deliver Buyer Capacity Credits from a Planning Resource located within Local Resource Zone 9. (b) Seller shall, at its own expense, timely execute and file all documents (including any applicable request for qualification as a capacity resource) and take all other actions (including identifying and complying with certification, accreditation, offering, and scheduling procedures) necessary or advisable to obtain all Capacity Credits included in the Contract Quantity for each Planning Period during the Capacity Credit Term. Seller shall transfer to Buyer custody of, and grant Buyer title to, all Capacity Credits included in the Contract Quantity for each Planning Period during the Capacity Credit Term no later than the earliest to occur of: (i) 12:00 p.m. (noon) central time on the March 5th immediately preceding the applicable Planning Period, provided that a Planning Period is the same as a Planning Year, (ii) ten (10) Business Days before any MISO deadline applicable to the filing of any MISO resource adequacy plan for such Planning Period,

Purchase and Sale of Capacity Credits. (a) Subject to the terms and conditions herein, Seller shall sell and deliver Capacity Credits to Buyer, and, in consideration thereof, Buyer shall make Monthly Payments to Seller in accordance with Section 4.1. Seller shall deliver Capacity Credits from the Facility to satisfy the Contract Quantity unless and to the extent that Seller determines that the Capacity Credits from the Facility will not be sufficient to satisfy the Contract Quantity. In such circumstances, Seller shall have the right to deliver Capacity Credits from any other Planning Resource within MISO South to satisfy its obligations hereunder to deliver the Contract Quantity of Capacity Credits for each Planning Period during the Capacity Credit Term; provided, however, that, if Seller delivers any Capacity Credits from another Planning Resource within MISO South, Seller shall use Commercially Reasonable Efforts to deliver Buyer Capacity Credits from a Planning Resource located within Local Resource Zone 9. (b) Seller shall, at its own expense, timely execute and file all documents (including any applicable request for qualification as a capacity resource) and take all other actions (including identifying and complying with certification, accreditation, offering, and scheduling certification procedures) necessary or advisable to obtain all Capacity Credits included in the Contract Quantity for each Planning Period during the Capacity Credit Term. Seller shall transfer to Buyer custody of, and grant Buyer title to, all Capacity Credits included in the Contract Quantity for each Planning Period during the Capacity Credit Term no later than the earliest to occur of: (i) 12:00 p.m. (noon) central time on the March 5th 1st immediately preceding the applicable Planning Period, provided that a Planning Period is the same as a Planning Year, (ii) ten (10) Business Days before any MISO deadline applicable to the filing of any MISO resource adequacy plan for such Planning Period,, (iii) ten (10) Business Days before the first day of the MISO incremental capacity auction for such Planning Period, or (iv) ten (10) Business Days before any applicable MISO deadline regarding the use of Capacity Credits to satisfy MISO’s resource adequacy requirements (such earliest date, the “Delivery Deadline”). To the extent the transfer to Buyer of custody of, or the granting to Buyer of title to, Capacity Credits hereunder requires Buyer to take any action, Seller shall cooperate with Buyer and use Commercially Reasonable Efforts to assist Buyer in connection therewith. (c) Without limiting Section 3.1(b), under the MISO Rules in effect as of the Effective Date, Seller shall accomplish delivery of the Contract Quantity for a particular Planning Period during the Capacity Credit Term by (i) submitting the appropriate transaction(s) and related data, information and documentation in MECT or as otherwise required to electronically assign and transfer such Capacity Credits to Buyer utilizing MECT counterparty code [ ] or such other code provided in written instructions sent to Seller from Buyer and (ii) ensuring that sufficient Capacity Credits are available in Seller’s MECT account to allow Buyer to confirm the transaction(s) as soon as practicable, but in any event no later than the Delivery Deadline, and giving Buyer prompt written notice of such submittal. Buyer shall accomplish receipt of such Contract Quantity by confirming the appropriate transaction(s) submitted by Seller in MECT as soon as practicable, but in any event no later than ten (10) Business Days after the Delivery Deadline (the “Receipt Deadline”). The submitting and confirming of the appropriate transaction(s) in MECT shall be conducted by the Parties in accordance with the requirements of the MISO Rules. Buyer shall have no obligation to accept delivery of any Capacity Credits for a Planning Period delivered after the Delivery Deadline for such Planning Period. (d) In the event that Section 3.1(c) does not address the actions required for the Parties to effectuate the transfer of Capacity Credits as contemplated herein, including due to any change in Law, the Parties agree to negotiate in good faith to amend this Agreement in order to address the issue in a manner that preserves the relative positions of each Party and is consistent with the allocation of risks, costs and pricing, and responsibilities hereunder, including Section 3.1(b). (e) In the event that a Planning Period will no longer be the same as a Planning Year (as defined in the MISO Rules) (i.e., XXXX will replace the Planning Year with another period of time for purposes of measuring and administering MISO’s resource adequacy requirements), the Parties shall amend this Agreement as soon as practicable after the Parties become or are made aware of such event in order to address the change in Planning Period in a manner that would result in the same aggregate number of Capacity Credits being transferred by Seller to Buyer hereunder at the same aggregate price as would have been the case had there not been a change in the Planning Period. If the Parties are unable to agree on such amendment to this Agreement within sixty (60) days of the initiation of such amendment process, then either Buyer or Seller shall have the right to refer the resolution of such amendment hereunder to arbitration in accordance with the terms of this Section 3.1(e). The amendment of this Agreement in accordance with this Section 3.1(e) shall be resolved by binding, self-administered arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) in effect at the time of the arbitration (the “Arbitration Rules”), and all such proceedings shall be subject to the Federal Arbitration Act. The Parties shall continue to perform their respective obligations under this Agreement during the pendency of any such arbitration. The arbitrator shall be required to be an individual who has not previously been an employee or independent contractor of either Party and who does not have a direct or indirect interest in either Party or the subject matter of the arbitration. The arbitrator shall determine all questions of fact and law relating to the subject matter of the arbitration, including all procedural aspects of the arbitration conducted pursuant hereto. In making any determination, the arbitrator shall apply the governing law of this Agreement. All arbitration shall take place in the City of Houston, Texas, unless otherwise agreed to by the Parties. Any Party desiring arbitration pursuant to this Section 3.1(e) shall serve on the other Party and the Houston, Texas office of AAA, in accordance with the Arbitration Rules, a notice of intent to arbitrate (“Arbitration Notice”). If the Parties cannot agree upon an arbitrator within twenty (20) days of the filing of an Arbitration Notice, then the arbitrator shall be selected in accordance with the Arbitration Rules. Not later than fifteen (15) days prior to the hearing date set by the arbitrator (which hearing date shall occur as soon as practicable, but in no event later than forty-five (45) days after the arbitrator is selected), each party shall submit a proposal regarding the amendment of this Agreement. The arbitrator shall conduct the arbitration so that a final written determination is made or rendered as soon as practicable, but in no event later than thirty (30) days after the hearing date. The decision of the arbitrator shall be final and binding on both Parties and there shall be no appeal from or reexamination of the final determination. Such decision may be enforced in any court having jurisdiction. The Parties shall each be responsible for paying one- half of the fees and expenses of the arbitrator and shall otherwise be responsible for their own costs and expenses incurred in connection with such arbitration.

Purchase and Sale of Capacity Credits. (a) Subject to the terms and conditions herein, Seller shall sell and deliver Capacity Credits to Buyer, and, in consideration thereof, Buyer shall make Monthly Payments to Seller in accordance with Section 4.1. Seller shall deliver Capacity Credits from the Facility to satisfy the Contract Quantity unless and to the extent that Seller determines that the Capacity Credits from the Facility will not be sufficient to satisfy the Contract Quantity. In such circumstances, Seller shall have the right to deliver Capacity Credits from any other Planning Resource within MISO South to satisfy its obligations hereunder to deliver the Contract Quantity of Capacity Credits for each Planning Period during the Capacity Credit Term; provided, however, that, if Seller delivers any Capacity Credits from another Planning Resource within MISO South, Seller shall use Commercially Reasonable Efforts to deliver Buyer Capacity Credits from a Planning Resource located within Local Resource Zone 910. (b) Seller shall, at its own expense, timely execute and file all documents (including any applicable request for qualification as a capacity resource) and take all other actions (including identifying and complying with certification, accreditation, offering, and scheduling procedures) necessary or advisable to obtain all Capacity Credits included in the Contract Quantity for each Planning Period during the Capacity Credit Term. Seller shall transfer to Buyer custody of, and grant Buyer title to, all Capacity Credits included in the Contract Quantity for each Planning Period during the Capacity Credit Term no later than the earliest to occur of: (i) 12:00 p.m. (noon) central time on the March 5th immediately preceding the applicable Planning Period, provided that a Planning Period is the same as a Planning Year, (ii) ten (10) Business Days before any MISO deadline applicable to the filing of any MISO resource adequacy plan for such Planning Period,

Purchase and Sale of Capacity Credits. (a) Subject to the terms and conditions herein, Seller shall sell and deliver Capacity Credits to Buyer, and, in consideration thereof, Buyer shall make Monthly Payments to Seller in accordance with Section 4.1. Seller shall deliver Capacity Credits from the Facility to satisfy the Contract Quantity unless and to the extent that Seller determines that the Capacity Credits from the Facility will not be sufficient to satisfy the Contract Quantity. In such circumstances, Seller shall have the right to deliver Capacity Credits from any other Planning Resource within MISO South to satisfy its obligations hereunder to deliver the Contract Quantity of Capacity Credits for each Planning Period during the Capacity Credit Term; provided, however, that, if Seller delivers any Capacity Credits from another Planning Resource within MISO South, Seller shall use Commercially Reasonable Efforts to deliver Buyer Capacity Credits from a Planning Resource located within Local Resource Zone 98. (b) Seller shall, at its own expense, timely execute and file all documents (including any applicable request for qualification as a capacity resource) and take all other actions (including identifying and complying with certification, accreditation, offering, and scheduling procedures) necessary or advisable to obtain all Capacity Credits included in the Contract Quantity for each Planning Period during the Capacity Credit Term. Seller shall transfer to Buyer custody of, and grant Buyer title to, all Capacity Credits included in the Contract Quantity for each Planning Period during the Capacity Credit Term no later than the earliest to occur of: (i) 12:00 p.m. (noon) central time on the March 5th immediately preceding the applicable Planning Period, provided that a Planning Period is the same as a Planning Year, (ii) ten (10) Business Days before any MISO deadline applicable to the filing of any MISO resource adequacy plan for such Planning Period, (iii) ten (10) Business Days before the first day of the MISO planning resource auction for such Planning Period, or (iv) ten (10) Business Days before any applicable MISO deadline regarding the use of Capacity Credits to satisfy MISO’s resource adequacy requirements (such earliest date, the “Delivery Deadline”). To the extent the transfer to Buyer of custody of, or the granting to Buyer of title to, Capacity Credits hereunder requires Buyer to take any action, Seller shall cooperate with Buyer and use Commercially Reasonable Efforts to assist Buyer in connection therewith. (c) Without limiting Section 3.1(b), under the MISO Rules in effect as of the Effective Date, Seller shall accomplish delivery of the Contract Quantity for a particular Planning Period during the Capacity Credit Term by (i) submitting the appropriate transaction(s) and related data, information and documentation in MECT or as otherwise required to electronically assign and transfer such Capacity Credits to Buyer utilizing MECT counterparty code [ ] or such other code provided in written instructions sent to Seller from Buyer and (ii) ensuring that sufficient Capacity Credits are available in Seller’s MECT account to allow Buyer to confirm the transaction(s) as soon as practicable, but in any event no later than the Delivery Deadline, and giving Buyer prompt written notice of such submittal. Buyer shall accomplish receipt of such Contract Quantity by confirming the appropriate transaction(s) submitted by Seller in MECT as soon as practicable, but in any event no later than ten (10) Business Days after the Delivery Deadline (the “Receipt Deadline”). The submitting and confirming of the appropriate transaction(s) in MECT shall be conducted by the Parties in accordance with the requirements of the MISO Rules. Buyer shall have no obligation to accept delivery of any Capacity Credits for a Planning Period delivered after the Delivery Deadline for such Planning Period. (d) In the event that Section 3.1(c) does not address the actions required for the Parties to effectuate the transfer of Capacity Credits as contemplated herein, including due to any change in Law, the Parties agree to negotiate in good faith to amend this Agreement in order to address the issue in a manner that preserves the relative positions of each Party and is consistent with the allocation of risks, costs and pricing, and responsibilities hereunder, including Section 3.1(b). City of Houston, Texas, (e) In the event that a Planning Period will no longer be the same as a Planning Year (as defined in the MISO Rules) (i.e., XXXX will replace the Planning Year with another period of time for purposes of measuring and administering MISO’s resource adequacy requirements), the Parties shall amend this Agreement as soon as practicable after the Parties become or are made aware of such event in order to address the change in Planning Period in a manner that would result in the same aggregate number of Capacity Credits being transferred by Seller to Buyer hereunder at the same aggregate price as would have been the case had there not been a change in the Planning Period. If the Parties are unable to agree on such amendment to this Agreement within sixty (60) days of the initiation of such amendment process, then either Buyer or Seller shall have the right to refer the resolution of the matters in dispute with respect to such amendment to arbitration in accordance with the terms of this Section 3.1(e). The amendment of this Agreement in accordance with this Section 3.1(e) shall be resolved by binding, self- administered arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) in effect at the time of the arbitration (the “Arbitration Rules”), and all such proceedings shall be subject to the Federal Arbitration Act. The Parties shall continue to perform their respective obligations under this Agreement during the pendency of any such arbitration. The arbitrator shall be required to be an individual who has not previously been an employee or independent contractor of either Party and who does not have a direct or indirect interest in either Party or the subject matter of the arbitration. The arbitrator shall determine all questions of fact and law relating to the subject matter of the arbitration, including all procedural aspects of the arbitration conducted pursuant hereto. In making any determination, the arbitrator shall apply the governing law of this Agreement. All arbitration shall take place in the unless otherwise agreed to by the Parties. Any Party desiring arbitration pursuant to this Section 3.1(e) shall serve on the other Party and the Houston, Texas office of AAA, in accordance with the Arbitration Rules, a notice of intent to arbitrate (“Arbitration Notice”). If the Parties cannot agree upon an arbitrator within twenty (20) days of the filing of an Arbitration Notice, then the arbitrator shall be selected in accordance with the Arbitration Rules. Not later than fifteen (15) days prior to the hearing date set by the arbitrator (which hearing date shall occur as soon as practicable, but in no event later than forty-five (45) days after the arbitrator is selected), each party shall submit a proposal regarding the matters in dispute with respect to such amendment required to be made to this Agreement pursuant to this Section 3.1(e). The arbitrator shall conduct the arbitration so that a final written determination is made or rendered as soon as practicable, but in no event later than thirty (30) days after the hearing date. The decision of the arbitrator shall be final and binding on both Parties and there shall be no appeal from or reexamination of the final determination. Such decision may be enforced in any court having jurisdiction. The Parties shall each be responsible for paying one-half of the fees and expenses of the arbitrator and shall otherwise be responsible for their own costs and expenses incurred in connection with such arbitration.