Revision of Facility Net Capacity. No less than thirty (30) days prior to a Facility’s Commercial Operation, Seller has the right, (a) without Buyer’s consent, to reduce the Facility Net Capacity for such Facility, or (b) with Buyer’s consent, to increase the Facility Net Capacity for such Facility, in either case by providing notice to Buyer stating the reduced or increased Facility Net Capacity (“Revised Net Capacity”) and evidence reasonably demonstrating
(i) the sustained operation of the Facility for at least five (5) consecutive hours at a delivery rate of at least ninety percent (90%) of the Revised Net Capacity (net of providing the full requirements for Parasitic Load and net of transmission losses) as measured by the Electric Metering Devices at the Primary Point of Delivery, as adjusted to reflect nominal resource temperature and flow rates and other environmental conditions in accordance with the Performance Testing Conditions Criteria for such Facility, and (ii) the delivery of Energy equal to at least the product of ninety percent (90%) of the Revised Net Capacity for each of one hundred twenty (120) consecutive hours (net of providing the full requirements for Parasitic Load and net of transmission losses) as measured by the Electric Metering Devices at the Primary Point of Delivery, as adjusted to reflect resource temperature and flow rates and other environmental conditions in accordance with the Performance Testing Conditions Criteria for such Facility. Notwithstanding the prior sentence, no reduction to Facility Net Capacity pursuant to this Section 3.9 shall reduce the Minimum Capacity. Buyer shall either accept or reject a notice increasing the Facility Net Capacity in its reasonable discretion by delivering a notice to Seller in writing within thirty (30) days. If Buyer fails to respond within thirty (30) days, it shall be deemed to have accepted the notice. If Xxxxx rejects the notice, Buyer shall state in detail the reasons for its rejection. The Parties shall immediately meet and confer to address Xxxxx’s concerns. Upon Xxxxx’s acceptance, or deemed acceptance, of the notice, the Facility Net Capacity will be revised to equal the Revised Net Capacity specified in the notice, effective as of the date that Seller provided its notice to Buyer. If Xxxxx rejects a proposal to increase the Facility Net Capacity, the Facility Net Capacity will remain unchanged. Notwithstanding anything to the contrary in the first sentence of this Section 3.9, if Seller provides a notice r...
Revision of Facility Net Capacity. Prior to the end of the Third Development Period, Seller has the right to revise the Facility Net Capacity for a Facility by providing notice to Buyer stating the revised Facility Net Capacity (“Revised Net Capacity”) and evidence reasonably demonstrating (a) the sustained operation of the Facility for at least 5 consecutive hours at a delivery rate of at least ninety percent (90%) of the Revised Net Capacity (net of providing the full requirements for Parasitic Load and net of transmission losses) as measured by the Electric Metering Devices at the Points of Delivery, as adjusted to reflect nominal resource temperature and flow rates and other environmental conditions, and (ii) the delivery of Energy equal to at least the product of ninety percent (90%) of the Revised Net Capacity and 120 hours during a period of 120 consecutive hours (net of providing the full requirements for Parasitic Load and net of transmission losses) as measured by the Electric Metering Devices at the Points of Delivery, as adjusted to reflect resource temperature and flow rates and other environmental conditions. Notwithstanding the prior sentence, Seller shall not have the right to revise the Facility Net Capacity to the extent that such revised Facility Net Capacity would cause the Project Net Capacity to exceed the First Development Period Maximum Capacity during the First Development Period, the Second Development Period Maximum Capacity during the Second Development Period, or the Third Development Period Maximum Capacity during the Third Development Period. Seller shall submit an amended GeothermEx report supporting such Revised Net Capacity. Buyer shall either accept or reject the notice in its reasonable discretion by delivering a notice to Seller in writing within fifteen (15)
