Right to Demand Independent Engineering Assessment and Modification. (1) If an Event of Default described in Section 8.1A(6) (performance standards, EAF and EFOR) or (7) (performance standards, unit trips) occurs, the Company shall, prior to exercising its rights under Section 8.2A (Notice of Default) or Section 8.2B (Right to Terminate/Notice of Termination) on the basis thereof, give written notice to the Seller that it will obtain an Independent Engineering Assessment concerning the failure to meet the specified warranted levels. Within thirty (30) Days after receipt by the Seller of such notice, a president, vice president, or other authorized delegate of the Company and the Seller, both having full authority to settle the matter, shall personally meet in Hawaii and attempt in good faith to make the determination described in Section 8.2C(2). If these officials reach agreement on a determination, the provisions of Sections 8.2C(3) and (4) shall apply thereto. If no meeting takes place within thirty (30) Days of the Seller’s receipt of the aforesaid written notice, or if agreement between these officials is not reached within forty-five (45) Days of the Seller’s receipt of such notice, the Company may at any time thereafter require that an Independent Engineering Assessment be conducted in accordance with Section 3.3D except that in every instance all costs of such Independent Engineering Assessment shall be borne by the Seller.
(2) The representatives of the Parties or the Qualified Independent Engineering Company based on the Independent Engineering Assessment, as applicable, shall determine whether there are commercially reasonable changes in the Facility, or in the manner in which the Seller operates the Facility, which (i) could be implemented within two hundred and seventy (270) Days (or such other time period which the Company and the Seller mutually agree upon) after the Qualified Independent Engineering Company’s or the representatives’ decision, and (ii) could reasonably be expected to result in future operation of the Facility in each Contract Year at the following levels:
(a) An EAF not less than eighty-three percent (83.0%) computed in accordance with Section 3.2D(1);
(b) An EFOR not to exceed ten percent (10.0%) computed in accordance with Section 3.2D(2);
(c) The Facility shall have the capability, within Good Engineering and Operating Practices and within the design limitations of the Facility equipment, of producing the Firm Capacity; and
(d) No more than four (4) Unit Trips in any Contract Year.
Right to Demand Independent Engineering Assessment and Modification. (1) If an Event of Default described in Section 8.1(A)(10), or Section 8.1(A)(11) occurs, Company shall, prior to exercising its rights under Section 8.2(A) (Notice of Default) or Section 8.2(B) (Right to Terminate) on the basis thereof, give written notice to Seller that it will obtain an Independent Engineering Assessment concerning the failure to meet the specified warranted levels. Within thirty (30) Days after receipt by Seller of such notice, a president, vice president, or other authorized delegate of Company and Seller, both having full authority to settle the matter, shall personally meet in Hawaii and attempt in good faith to make the determination described in Section 8.2(C)(2). If these officials reach agreement on a determination, the provisions of Section 8.2(C)(3) and Section 8.2(C)(4) shall apply thereto. If no meeting takes place within thirty (30) Days of Seller’s receipt of the aforesaid written notice, or if agreement between these officials is not reached within forty-five (45) Days of Seller’s receipt of such notice, Company may at any time thereafter require that an Independent Engineering Assessment be conducted in accordance with Section 3.3(B) (Company Right to Require Independent Engineering Assessment) except that in every instance all costs and expenses of such Independent Engineering Assessment shall be borne by Seller.
Right to Demand Independent Engineering Assessment and Modification
