Common use of PURPA Acknowledgements Clause in Contracts

PURPA Acknowledgements. (a) The Parties acknowledge and agree that: (i) Under the Existing CECO 2 PPA, NEA was entitled to all rights afforded to a “qualifying facility” (as defined in 18 C.F.R. Part 292) (“QF”) under applicable law, including, but not limited to, PURPA, for as long as the Facility maintained its status as a QF, and (ii) The consideration for NEA’s agreement to amend and restate the Existing CECO 2 PPA and to waive its rights under PURPA, as provided in Section 6.3(c) below, is the execution and delivery of this Agreement by CECO. (b) It is the express intent of the Parties that this Agreement shall be deemed a successor to, replacement of and substitute for the Existing CECO 2 PPA, which is being amended and restated in its entirety as of the Effective Date. (c) As of the Effective Date, NEA forever relinquishes and waives any rights it may have or may have in the future under PURPA or any federal or state regulation, act or order implementing PURPA, to require CECO or any of its affiliates to purchase electricity and or capacity generated at the Facility. NEA shall cause any third party successor to NEA’s rights and interest in the Facility to agree to be bound by the foregoing waiver. NEA shall indemnify, defend and hold CECO and its partners, shareholders, members, directors, officers, employees and agents harmless from and against all liabilities, damages, losses, penalties, claims, demands, suits and proceedings of any nature whatsoever suffered or incurred by CECO arising out of any failure by NEA to comply with the waiver of PURPA rights set forth in this Section 6.3 (c). (d) As of the Effective Date and continuing throughout the Term, each Party hereby irrevocably waives its right to seek or support, and agrees not to seek or support, in any way, including, but not limited to, seeking or supporting through application, complaint, petition, motion, filing before any Governmental Entity (including, without limitation, DTE and FERC), rule, regulation or statute: (i) reconsideration by DTE of its approval of this Agreement; (ii) modification or invalidation of this Agreement or any term or condition contained herein (including, without limitation, any pricing provision herein); or (iii) disallowance or impairment, in whole or in part, of CECO’s right to fully and timely recover from its customers its costs of purchasing electricity and capacity pursuant to this Agreement. (e) Nothing contained herein shall be deemed or construed as (i) a waiver by either Party of any right to challenge any attempt by DTE, FERC or any other Governmental Entity to disallow rate recovery or modify, amend or supplement this Agreement or (ii) an acknowledgment by any such Party that DTE, FERC or any other Governmental Entity would have such authority if it so attempted. (f) As of the Effective Date, NEA’s and CECO’s obligations under this Agreement are expressly not conditioned on the maintenance of the QF status of the Facility under PURPA, and this Agreement shall remain binding upon the Parties without regard to whether the Facility or any other source of power delivered to CECO under this Agreement is, was or remains a QF. Each Party shall obtain and maintain all permits or licenses necessary for it to perform its obligations under this Agreement. (g) The Parties acknowledge and agree that, to the extent this Agreement is or becomes subject to review pursuant to the Federal Power Act, the standard of review for any change or modification to the pricing provisions of this Agreement proposed by any Person who is not a party hereto or FERC acting sua sponte shall be the “public interest” standard of review set forth in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 000 X.X. 000 (1956) and Federal Power Commission v.

PURPA Acknowledgements. (a) The Parties acknowledge and agree that: (i) Under the Existing CECO 2 NEA A PPA, NEA was entitled to all rights afforded to a “qualifying facility” (as defined in 18 C.F.R. Part 292) (“QF”) under applicable law, including, but not limited to, PURPA, for as long as the Facility maintained its status as a QF, and (ii) The consideration for NEA’s agreement to amend and restate the Existing CECO 2 NEA A PPA and to waive its rights under PURPA, as provided in Section 6.3(c) below, is the execution and delivery of this Agreement by CECOBECO. (b) It is the express intent of the Parties that this Agreement shall be deemed a successor to, replacement of and substitute for the Existing CECO 2 NEA A PPA, which is being amended and restated in its entirety as of the Effective Date. (c) As of the Effective Date, NEA forever relinquishes and waives any rights it may have or may have in the future under PURPA or any federal or state regulation, act or order implementing PURPA, to require CECO BECO or any of its affiliates to purchase electricity and or capacity generated at the Facility. NEA shall cause any third party successor to NEA’s rights and interest in the Facility to agree to be bound by the foregoing waiver. NEA shall indemnify, defend and hold CECO BECO and its partners, shareholders, members, directors, officers, employees and agents harmless from and against all liabilities, damages, losses, penalties, claims, demands, suits and proceedings of any nature whatsoever suffered or incurred by CECO BECO arising out of any failure by NEA to comply with the waiver of PURPA rights set forth in this Section 6.3 (c6.3(c). (d) As of the Effective Date and continuing throughout the Term, each Party hereby irrevocably waives its right to seek or support, and agrees not to seek or support, in any way, including, but not limited to, seeking or supporting through application, complaint, petition, motion, filing before any Governmental Entity (including, without limitation, DTE and FERC), rule, regulation or statute: (i) reconsideration by DTE of its approval of this Agreement; (ii) modification or invalidation of this Agreement or any term or condition contained herein (including, without limitation, any pricing provision herein); or (iii) disallowance or impairment, in whole or in part, of CECOBECO’s right to fully and timely recover from its customers its costs of purchasing electricity and capacity pursuant to this Agreement. (e) Nothing contained herein shall be deemed or construed as (i) a waiver by either Party of any right to challenge any attempt by DTE, FERC or any other Governmental Entity to disallow rate recovery or modify, amend or supplement this Agreement or (ii) an acknowledgment by any such Party that DTE, FERC or any other Governmental Entity would have such authority if it so attempted. (f) As of the Effective Date, NEA’s and CECOBECO’s obligations under this Agreement are expressly not conditioned on the maintenance of the QF status of the Facility under PURPA, and this Agreement shall remain binding upon the Parties without regard to whether the Facility or any other source of power delivered to CECO BECO under this Agreement is, was or remains a QF. Each Party shall obtain and maintain all permits or licenses necessary for it to perform its obligations under this Agreement. (g) The Parties acknowledge and agree that, to the extent this Agreement is or becomes subject to review pursuant to the Federal Power Act, the standard of review for any change or modification to the pricing provisions of this Agreement proposed by any Person who is not a party hereto or FERC acting sua sponte shall be the “public interest” standard of review set forth in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 000 X.X. 000 (1956) and Federal Power Commission v.

PURPA Acknowledgements. (a) The Parties acknowledge and agree that: (i) Under the Existing CECO 2 NEA A PPA, NEA was entitled to all rights afforded to a “qualifying facility” (as defined in 18 C.F.R. Part 292) (“QF”) under applicable law, including, but not limited to, PURPA, for as long as the Facility maintained its status as a QF, and (ii) The consideration for NEA’s agreement to amend and restate the Existing CECO 2 NEA A PPA and to waive its rights under PURPA, as provided in Section 6.3(c) below, is the execution and delivery of this Agreement by CECOBECO. (b) It is the express intent of the Parties that this Agreement shall be deemed a successor to, replacement of and substitute for the Existing CECO 2 NEA A PPA, which is being amended and restated in its entirety as of the Effective Date. (c) As of the Effective Date, NEA forever relinquishes and waives any rights it may have or may have in the future under PURPA or any federal or state regulation, act or order implementing PURPA, to require CECO BECO or any of its affiliates to purchase electricity and or capacity generated at the Facility. NEA shall cause any third party successor to NEA’s rights and interest in the Facility to agree to be bound by the foregoing waiver. NEA shall indemnify, defend and hold CECO BECO and its partners, shareholders, members, directors, officers, employees and agents harmless from and against all liabilities, damages, losses, penalties, claims, demands, suits and proceedings of any nature whatsoever suffered or incurred by CECO BECO arising out of any failure by NEA to comply with the waiver of PURPA rights set forth in this Section 6.3 (c6.3(c). (d) As of the Effective Date and continuing throughout the Term, each Party hereby irrevocably waives its right to seek or support, and agrees not to seek or support, in any way, including, but not limited to, seeking or supporting through application, complaint, petition, motion, filing before any Governmental Entity (including, without limitation, DTE and FERC), rule, regulation or statute: (i) reconsideration by DTE of its approval of this Agreement; (ii) modification or invalidation of this Agreement or any term or condition contained herein (including, without limitation, any pricing provision herein); or (iii) disallowance or impairment, in whole or in part, of CECOBECO’s right to fully and timely recover from its customers its costs of purchasing electricity and capacity pursuant to this Agreement. (e) Nothing contained herein shall be deemed or construed as (i) a waiver by either Party of any right to challenge any attempt by DTE, FERC or any other Governmental Entity to disallow rate recovery or modify, amend or supplement this Agreement or (ii) an acknowledgment by any such Party that DTE, FERC or any other Governmental Entity would have such authority if it so attempted. (f) As of the Effective Date, NEA’s and CECOBECO’s obligations under this Agreement are expressly not conditioned on the maintenance of the QF status of the Facility under PURPA, and this Agreement shall remain binding upon the Parties without regard to whether the Facility or any other source of power delivered to CECO BECO under this Agreement is, was or remains a QF. Each Party shall obtain and maintain all permits or licenses necessary for it to perform its obligations under this Agreement. (g) The Parties acknowledge and agree that, to the extent this Agreement is or becomes subject to review pursuant to the Federal Power Act, the standard of review for any change or modification to the pricing provisions of this Agreement proposed by any Person who is not a party hereto or FERC acting sua sponte shall be the “public interest” standard of review set forth in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 000 X.X. 000 (1956) and Federal Power Commission v.v. Sierra Pacific Power Co., 350 U.S. 348 (1956) (the “Mobile-Sierra” doctrine).

PURPA Acknowledgements. (a) The Parties acknowledge and agree that: (i) Under the Existing CECO 2 NEA B PPA, NEA was entitled to all rights afforded to a “qualifying facility” (as defined in 18 C.F.R. Part 292) (“QF”) under applicable law, including, but not limited to, PURPA, for as long as the Facility maintained its status as a QF, and (ii) The consideration for NEA’s agreement to amend and restate the Existing CECO 2 NEA B PPA and to waive its rights under PURPA, as provided in Section 6.3(c) below, is the execution and delivery of this Agreement by CECOBECO. (b) It is the express intent of the Parties that this Agreement shall be deemed a successor to, replacement of and substitute for the Existing CECO 2 NEA B PPA, which is being amended and restated in its entirety as of the Effective Date. (c) As of the Effective Date, NEA forever relinquishes and waives any rights it may have or may have in the future under PURPA or any federal or state regulation, act or order implementing PURPA, to require CECO BECO or any of its affiliates to purchase electricity and or capacity generated at the Facility. NEA shall cause any third party successor to NEA’s rights and interest in the Facility to agree to be bound by the foregoing waiver. NEA shall indemnify, defend and hold CECO BECO and its partners, shareholders, members, directors, officers, employees and agents harmless from and against all liabilities, damages, losses, penalties, claims, demands, suits and proceedings of any nature whatsoever suffered or incurred by CECO BECO arising out of any failure by NEA to comply with the waiver of PURPA rights set forth in this Section 6.3 (c6.3(c). (d) As of the Effective Date and continuing throughout the Term, each Party hereby irrevocably waives its right to seek or support, and agrees not to seek or support, in any way, including, but not limited to, seeking or supporting through application, complaint, petition, motion, filing before any Governmental Entity (including, without limitation, DTE and FERC), rule, regulation or statute: (i) reconsideration by DTE of its approval of this Agreement; (ii) modification or invalidation of this Agreement or any term or condition contained herein (including, without limitation, any pricing provision herein); or (iii) disallowance or impairment, in whole or in part, of CECOBECO’s right to fully and timely recover from its customers its costs of purchasing electricity and capacity pursuant to this Agreement. (e) Nothing contained herein shall be deemed or construed as (i) a waiver by either Party of any right to challenge any attempt by DTE, FERC or any other Governmental Entity to disallow rate recovery or modify, amend or supplement this Agreement or (ii) an acknowledgment by any such Party that DTE, FERC or any other Governmental Entity would have such authority if it so attempted. (f) As of the Effective Date, NEA’s and CECOBECO’s obligations under this Agreement are expressly not conditioned on the maintenance of the QF status of the Facility under PURPA, and this Agreement shall remain binding upon the Parties without regard to whether the Facility or any other source of power delivered to CECO BECO under this Agreement is, was or remains a QF. Each Party shall obtain and maintain all permits or licenses necessary for it to perform its obligations under this Agreement. (g) The Parties acknowledge and agree that, to the extent this Agreement is or becomes subject to review pursuant to the Federal Power Act, the standard of review for any change or modification to the pricing provisions of this Agreement proposed by any Person who is not a party hereto or FERC acting sua sponte shall be the “public interest” standard of review set forth in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 000 X.X. 000 (1956) and Federal Power Commission v.

PURPA Acknowledgements. (a) The Parties acknowledge and agree that: : (i) Under The rates paid by JCP&L to NJEA under the Existing CECO 2 PPA, NEA was entitled to all rights afforded to a “qualifying facility” PPA were based on JCP&L's "avoided cost" (as defined in 18 C.F.R. Part 292) at the time the Existing PPA was negotiated; (“QF”ii) Under the Existing PPA, NJEA was entitled to all rights afforded to a "qualifying facility" (as defined in 18 C.F.R. Part 292)("QF") under applicable law, including, but not limited to, PURPA, for as long as the Facility maintained its status as a QF, and ; and (iiiii) The consideration for NEA’s NJEA's agreement to amend and restate the Existing CECO 2 PPA and to waive its rights under PURPA, as provided in Section 6.3(c15.2(c) below, is the execution and delivery of this Agreement by CECOAgreement. (b) It is the express intent of the Parties that this Agreement shall be deemed a successor to, replacement of and substitute for the Existing CECO 2 PPA, which is being amended and restated in its entirety as of the Effective Date. (c) As of the Effective Date, NEA NJEA forever relinquishes and waives any rights it may have or may have in the future under PURPA or any federal or state regulation, act or order implementing PURPA, to require CECO JCP&L or any of its affiliates to purchase electricity and or capacity generated at the Facility. NEA NJEA shall cause any third party successor to NEA’s NJEA's rights and interest in the Facility to agree to be bound by the foregoing waiver. NEA NJEA shall indemnify, defend and hold CECO JCP&L and its partners, shareholders, members, directors, officers, employees and agents harmless from and against all liabilities, damages, losses, penalties, claims, demands, suits and proceedings of any nature whatsoever suffered or incurred by CECO JCP&L arising out of any failure by NEA NJEA to comply with the waiver of PURPA rights set forth in this Section 6.3 (c15.2(c). (d) This Agreement is being entered into by JCP&L pursuant to and under the authority of the New Jersey Competition Act. Notwithstanding the foregoing, as of the Effective Date and continuing throughout the Term, this Agreement shall be a valid and binding agreement of the Parties and shall not be amended, modified, supplemented or terminated as a result of any repeal, amendment or interpretation of the New Jersey Competition Act or for any other reason except as expressly provided for herein. (e) As of the Effective Date and continuing throughout the Term, each Party hereby irrevocably waives its right to seek or support, and agrees not to seek or support, in any way, including, but not limited to, seeking or supporting through application, complaint, petition, motion, filing before any Governmental Entity governmental authority (including, without limitation, DTE BPU and FERC), rule, regulation or statute: (i) reconsideration by DTE the BPU of its approval of this Agreement; (ii) modification or invalidation of this Agreement or any term or condition contained herein (including, without limitation, any pricing provision herein); or (iii) disallowance or impairment, in whole or in part, of CECO’s JCP&L's right to fully and timely recover from its customers its costs of purchasing electricity and capacity pursuant to this Agreement. (ef) Nothing contained herein shall be deemed or construed as (i) a waiver by either Party of any right to challenge any attempt by DTEthe BPU, FERC or any other Governmental Entity governmental authority to disallow rate recovery or modify, amend or supplement this Agreement or (ii) an acknowledgment by any such Party that DTEthe BPU, FERC or any other Governmental Entity governmental authority would have such authority if it so attempted. (fg) As of the Effective Date, NEA’s NJEA's and CECO’s JCP&L's obligations under this Agreement are expressly not conditioned on the maintenance of the QF status of the Facility under PURPA, and this Agreement shall remain binding upon the Parties without regard to whether the Facility or any other source of power delivered to CECO JCP&L under this Agreement is, was is or remains a QF. Each Party shall obtain and maintain all permits or licenses necessary for it to perform its obligations under this Agreement. (gh) The Parties acknowledge and agree that, to the extent this Agreement is or becomes subject to review pursuant to the Federal Power Act, the standard of review for any change or modification to the pricing provisions of this Agreement proposed by any Person who is not a party hereto or FERC acting sua sponte shall be the “"public interest” " standard of review set forth in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 000 X.X. 000 (1956) and Federal Power Commission v.v. Sierra Pacific Power Co., 350 U.S. 348 (1956) (the "Mobile-Sierra" doctrine).