Common use of RPS and EPS Compliance Clause in Contracts

RPS and EPS Compliance. (a) Seller warrants and guarantees that, upon receipt of notice from the CEC that each New Facility and each Existing Facility are CEC Certified, (which in the case of an Existing Facility must occur on or before the Delivery Commencement Date thereof), and at all times thereafter until the expiration or earlier termination of the Agreement Term, such Facility shall be CEC Certified and the Energy that is delivered to Buyer at the Points of Delivery from such Facility (including the Facility Energy and the associated Environmental Attributes) shall be both RPS Compliant and EPS Compliant, provided, however, if and to the extent a Change in Law occurs during such period that causes any Facility, its Facility Energy or the associated Environmental Attributes to no longer be RPS Compliant and EPS Compliant, then Seller shall use its best commercial efforts to remove such Facility and provide a Substitution Facility as provided in Section 3.11(b) and Section 3.11(d) even if such occurrence and substitution occurs after the end of the Third Development Period. In the event that Seller is unable to provide such a Substitution Facility, it shall not be an Event of Default if following the Delivery Commencement or Commercial Operation Date, as applicable, Seller uses commercially reasonable efforts to comply with such Change in Law. In the event of such Change in Law resulting in partial or total loss of compliance, for each MWh of Delivered Energy that is not RPS Compliant and EPS Compliant Buyer shall be entitled to retain from each payment to be made to Seller under Section 6.1 a portion therefrom equal to the positive difference between (i) the price of the Delivered Energy pursuant to Section 6.1 and (ii) the average of the on-peak and off-peak Energy prices, weighted by the number of hours in the on-peak and off-peak periods, during each month that such Facility (including the Facility Energy and the associated Environmental Attributes) is not RPS Compliant and EPS Compliant, as listed in the Intercontinental Exchange Palo Verde Electricity Price Index or its successor index, or any other index mutually agreed by the Parties; provided that in no event during such period shall Buyer be obligated to pay Seller an amount that is greater than the Contract Price for Facility Energy that is not RPS Compliant and EPS Compliant. Buyer shall release such retained amount, which shall be calculated without interest of any kind, within forty-five (45) days following the receipt of evidence from Seller that the applicable Facility has become RPS Compliant and EPS Compliant, but only if and to the extent that the Environmental Attributes generated during the period of non-compliance can be attributed towards Buyer’s requirements under the RPS Law and the requirements of California Public Utilities Code Section 399.16(b)(1). From time to time and at any time requested by Buyer, Seller will furnish to Buyer or Governmental Authorities or other Persons designated by Buyer, all certificates and other documentation reasonably requested by Buyer in order to demonstrate that each Facility, the Facility Energy, and the associated Environmental Attributes are RPS Compliant and EPS Compliant. However, (x) if a Facility remains unable to be RPS Compliant and EPS Compliant as a result of the Change in Law after six (6) months following such Change in Law, then Buyer may provide notice to Seller electing to remove such Facility from the Project, which notice shall contain a document in the form of a revised Appendix B reflecting such removal, and upon delivery of such notice the relevant Facility will be a Former Facility, the Project Net Capacity will be reduced by the amount of the Facility Net Capacity associated with such Facility and the revised Appendix B shall be binding upon the Parties as if set forth herein, and (y) if all of the Facilities remain unable to be RPS Compliant and EPS Compliant as a result of the Change in Law after six (6) months following such Change in Law, then either Party may terminate this Agreement upon thirty (30) days advance written notice to the other; provided that, in either case, such six (6) month period shall be extended for a period that does not exceed an additional six (6) months if Seller shall furnish to Buyer a written opinion by an independent consultant selected by Seller and acceptable to Buyer (in its reasonable discretion) to the effect that Seller, using its reasonable commercial efforts, is capable of making an affected Facility (including the Facility Energy and associated Environmental Attributes) RPS Compliant and EPS Compliant within such additional period. Except as provided above in connection with a Change in Law, in the event that one or some of the New Facilities or Existing Facilities, but not all Facilities, are not CEC Certified after the CEC Certification Deadline for such Facility, and the Energy that is delivered to Buyer at the Points of Delivery from such Facilities (including the Facility Energy and the associated Environmental Attributes) shall not be both RPS Compliant and EPS Compliant, then such Facilities shall be removed unless Buyer agrees to purchase Energy at the applicable index price as listed in the Intercontinental Exchange Palo Verde Electricity Price Index or its successor index. (b) The Parties acknowledge that WREGIS may not currently permit Seller to obtain WREGIS Certificates for an amount of Energy equal to the Parasitic Load, whether or not Energy generated by the Facility, or energy from another source, serves such Parasitic Load. In the event that (i) the WREGIS Operating Rules permit Seller to obtain WREGIS Certificates for Energy generated by a Facility that would serve some or all of the Parasitic Load in the absence of Energy acquired by Seller to serve such Parasitic Load from a source other than such Facility, (ii) Seller elects, in its sole discretion, to acquire Energy from a source other than such Facility to serve some or all of its Parasitic Load, and (iii) such geothermal Energy generated by such Facility that would have served the Parasitic Load in the absence of the acquisition of Energy by Seller as described in (ii) above is RPS Compliant and EPS Compliant, such amounts of geothermal Energy generated by such Facility shall for the purposes of this Agreement constitute Facility Energy and shall be sold to Buyer in accordance with the provisions of this Agreement. Without limiting any other available method of acquiring Energy from a source other than the applicable Facility to serve some or all of its Parasitic Load, Seller will have the right to install, or cause to be installed, solar photovoltaic energy generating systems or other renewable energy generating systems at any Site to supply Parasitic Load, but the installation of such equipment and any other method of acquiring Energy from a source other than a Facility to serve some or all of its Parasitic Load will not result in an increase in the Facility Net Capacity or Maximum Generation, unless otherwise mutually agreed by the Parties.

RPS and EPS Compliance. (a) Seller warrants and guarantees that, upon receipt of that from the time it receives notice from the CEC that each New the Facility and each Existing Facility are is CEC Certified, (which in the case of an Existing Facility must occur on or before the Delivery Commencement Date thereof), and at all times thereafter until the expiration or earlier termination of the Agreement TermAgreement, such Facility shall be CEC Certified and the Energy that is delivered to Buyer at the Points of Delivery from such Facility (including the Facility Energy and the associated Environmental Attributes) shall be both RPS Compliant and EPS Compliant, provided, however, Compliant (if and EPS Law is applicable to the extent Facility), except if the Facility fails to be RPS Compliant or EPS Compliant (if EPS Law is applicable to the Facility) as a result of (i) a Change in Law making it impossible, after the use of commercially reasonable efforts as required under Section 7.7(b), for the Facility to be RPS Compliant or EPS Complaint, or (ii) any repeal of the RPS Law or EPS Law. (b) If a Change in Law occurs during such period after the Commercial Operation Date that causes any Facility, its Facility Energy (x) does not repeal the RPS Law or the associated Environmental Attributes EPS Law, (y) causes the Facility to no longer cease to be RPS Compliant and/or EPS Compliant and EPS Compliant(z) reduces the value to Buyer of the Environmental Attributes, then Seller shall use its best commercial efforts to remove such Facility and provide a Substitution Facility as provided in Section 3.11(b) and Section 3.11(d) even if such occurrence and substitution occurs after the end of the Third Development Period. In the event that Seller is unable to provide such a Substitution Facility, it shall not be an Event of Default if following the Delivery Commencement or Commercial Operation Date, as applicable, Seller uses commercially reasonable efforts to comply with such Change in LawLaw and cause the Facility to be RPS Compliant and EPS Compliant. In If, notwithstanding such commercially reasonable efforts, the event of such Change in Law resulting in partial or total loss of compliance, for each MWh of Delivered Energy that Facility is still not RPS Compliant and EPS Compliant due to the occurrence of a Change in Law, then Buyer shall have the option to change the Contract Price to the Pnode Price (the “Pnode Price Option”) or such other index price as mutually agreed to by the Parties in writing; provided such Pnode Price Option must be entitled to retain from each payment exercised in writing no later than two (2) years following an applicable Change in Law. If Buyer exercises the Pnode Price Option, the Contract Price shall be the Pnode Price for the respective hours in which Facility Energy was generated despite the failure of the Facility to be made to Seller under Section 6.1 a portion therefrom equal to the positive difference between (i) the price of the Delivered Energy pursuant to Section 6.1 and (ii) the average of the on-peak and off-peak Energy prices, weighted by the number of hours in the on-peak and off-peak periods, during each month that such Facility (including the Facility Energy and the associated Environmental Attributes) is not RPS Compliant and EPS Compliant, as listed in the Intercontinental Exchange Palo Verde Electricity Price Index or its successor index, or any other index mutually agreed by the Parties; provided that in no event during such period shall Buyer be obligated to pay unless Seller an amount delivers Replacement Product that is greater than the Contract Price for Facility Energy that is not RPS Compliant and EPS Compliant. Buyer shall release such retained amount, which shall be calculated without interest of any kind, within forty-five (45) days following the receipt of evidence Compliant from Seller that the applicable Facility has become a RPS Compliant and EPS Compliant, but only if and Compliant source. If Buyer exercises the Pnode Price Option: (i) the Pnode Price shall be subject to the extent limitation that the average price for Facility Energy paid by Buyer in any Month shall not exceed the Contract Price nor be less than eighty-five percent (85%) of the Contract Price; (ii) Seller shall retain the Environmental Attributes generated during Attributes; and (iii) Buyer shall be entitled to the period of non-compliance can be attributed towards Buyer’s requirements under the RPS Law and the requirements of California Public Utilities Code Section 399.16(b)(1). Capacity Rights generated. (c) From time to time and at any time requested by Buyer or Buyer’s Authorized Representative, Seller will furnish to Buyer or Buyer, Buyer’s Authorized Representative, Governmental Authorities Authorities, or other Persons designated by any Buyer, all certificates and other documentation reasonably requested by Buyer or Buyer’s Authorized Representative in order to demonstrate that each the Facility, the Facility Energy, and the associated Environmental Attributes were or are RPS Compliant and EPS Compliant. However, (x) if a Facility remains unable to be RPS Compliant and EPS Compliant as a result of the Change in Law after six (6) months following such Change in Law, then Buyer may provide notice to Seller electing to remove such Facility from the Project, which notice shall contain a document in the form of a revised Appendix B reflecting such removal, and upon delivery of such notice the relevant Facility will be a Former Facility, the Project Net Capacity will be reduced by the amount of the Facility Net Capacity associated with such Facility and the revised Appendix B shall be binding upon the Parties as if set forth herein, and (y) if all of the Facilities remain unable to be RPS Compliant and EPS Compliant as a result of the Change in Law after six (6) months following such Change in Law, then either Party may terminate this Agreement upon thirty (30) days advance written notice to the other; provided that, in either case, such six (6) month period shall be extended for a period that does not exceed an additional six (6) months if Seller shall furnish to Buyer a written opinion by an independent consultant selected by Seller and acceptable to Buyer (in its reasonable discretion) to the effect that Seller, using its reasonable commercial efforts, is capable of making an affected Facility (including the Facility Energy and associated Environmental Attributes) RPS Compliant and EPS Compliant within such additional period. Except as provided above in connection with a Change in Law, in the event that one or some of the New Facilities or Existing Facilities, but not all Facilities, are not CEC Certified after the CEC Certification Deadline for such Facility, and the Energy that is delivered to Buyer at the Points of Delivery from such Facilities (including the Facility Energy and the associated Environmental Attributes) shall not be both RPS Compliant and EPS Compliant, then such Facilities shall be removed unless Buyer agrees to purchase Energy at the applicable index price as listed in the Intercontinental Exchange Palo Verde Electricity Price Index or its successor index. (b) The Parties acknowledge that WREGIS may not currently permit Seller to obtain WREGIS Certificates for an amount of Energy equal to the Parasitic Load, whether or not Energy generated by the Facility, or energy from another source, serves such Parasitic Load. In the event that (i) the WREGIS Operating Rules permit Seller to obtain WREGIS Certificates for Energy generated by a Facility that would serve some or all of the Parasitic Load in the absence of Energy acquired by Seller to serve such Parasitic Load from a source other than such Facility, (ii) Seller elects, in its sole discretion, to acquire Energy from a source other than such Facility to serve some or all of its Parasitic Load, and (iii) such geothermal Energy generated by such Facility that would have served the Parasitic Load in the absence of the acquisition of Energy by Seller as described in (ii) above is RPS Compliant and EPS Compliant, such amounts of geothermal Energy generated by such Facility shall for the purposes of this Agreement constitute Facility Energy and shall be sold to Buyer in accordance with the provisions of this Agreement. Without limiting any other available method of acquiring Energy from a source other than the applicable Facility to serve some or all of its Parasitic Load, Seller will have the right to install, or cause to be installed, solar photovoltaic energy generating systems or other renewable energy generating systems at any Site to supply Parasitic Load, but the installation of such equipment and any other method of acquiring Energy from a source other than a Facility to serve some or all of its Parasitic Load will not result in an increase in the Facility Net Capacity or Maximum Generation, unless otherwise mutually agreed by the Parties.

RPS and EPS Compliance. (a) Seller warrants and guarantees that, upon receipt of that from the time it receives notice from the CEC that each New the Facility and each Existing Facility are is CEC Certified, (which in the case of an Existing Facility must occur on or before the Delivery Commencement Date thereof), and at all times thereafter until the expiration or earlier termination of the Agreement TermAgreement, such Facility shall be CEC Certified and the Energy that is delivered to Buyer at the Points of Delivery from such Facility (including the Facility Energy and the associated Environmental Attributes) shall be both RPS Compliant and EPS Compliant, provided, however, Compliant (if and EPS Law is applicable to the extent Facility), except if the Facility fails to be RPS Compliant or EPS Compliant (if EPS Law is applicable to the Facility) as a result of (i) a Change in Law making it impossible, after the use of commercially reasonable efforts as required under Section 7.7(b), for the Facility to be RPS Compliant or EPS Complaint, or (ii) any repeal of the RPS Law or EPS Law. (b) If a Change in Law occurs during such period after the Commercial Operation Date that causes any Facility, its Facility Energy (x) does not repeal the RPS Law or the associated Environmental Attributes EPS Law, (y) causes the Facility to no longer cease to be RPS Compliant and/or EPS Compliant and EPS Compliant(z) reduces the value to Buyer of the Environmental Attributes, then Seller shall use its best commercial efforts to remove such Facility and provide a Substitution Facility as provided in Section 3.11(b) and Section 3.11(d) even if such occurrence and substitution occurs after the end of the Third Development Period. In the event that Seller is unable to provide such a Substitution Facility, it shall not be an Event of Default if following the Delivery Commencement or Commercial Operation Date, as applicable, Seller uses commercially reasonable efforts to comply with such Change in LawLaw and cause the Facility to be RPS Compliant and EPS Compliant. In If, notwithstanding such commercially reasonable efforts, the event of such Change in Law resulting in partial or total loss of compliance, for each MWh of Delivered Energy that Facility is still not RPS Compliant and EPS Compliant due to the occurrence of a Change in Law, then Buyer shall have the option to change the Contract Price to the PNode Price (the “PNode Price Option”) or such other index price as mutually agreed to by the Parties in writing; provided such PNode Price Option must be entitled to retain from each payment exercised in writing no later than two (2) years following an applicable Change in Law. If Buyer exercises the PNode Price Option, the Contract Price shall be the PNode Price for the respective hours in which Facility Energy was generated despite the failure of the Facility to be made to Seller under Section 6.1 a portion therefrom equal to the positive difference between (i) the price of the Delivered Energy pursuant to Section 6.1 and (ii) the average of the on-peak and off-peak Energy prices, weighted by the number of hours in the on-peak and off-peak periods, during each month that such Facility (including the Facility Energy and the associated Environmental Attributes) is not RPS Compliant and EPS Compliant, as listed in the Intercontinental Exchange Palo Verde Electricity Price Index or its successor index, or any other index mutually agreed by the Parties; provided that in no event during such period shall Buyer be obligated to pay unless Seller an amount delivers Replacement Product that is greater than the Contract Price for Facility Energy that is not RPS Compliant and EPS Compliant. Buyer shall release such retained amount, which shall be calculated without interest of any kind, within forty-five (45) days following the receipt of evidence Compliant from Seller that the applicable Facility has become a RPS Compliant and EPS Compliant, but only if and Compliant source. If Buyer exercises the PNode Price Option: (i) the PNode Price shall be subject to the extent limitation that the average price for Facility Energy paid by Buyer in any Month shall not exceed the Contract Price nor be less than eighty-five percent (85%) of the Contract Price; (ii) Seller shall retain the Environmental Attributes generated during and Seller shall be relieved of its obligations hereunder related thereto; and (iii) Buyer shall be entitled to the period of non-compliance can be attributed towards Buyer’s requirements under the RPS Law and the requirements of California Public Utilities Code Section 399.16(b)(1). Capacity Rights generated. (c) From time to time and at any time requested by Buyer▇▇▇▇▇ or ▇▇▇▇▇’s Authorized Representative, Seller will furnish to Buyer or Buyer, ▇▇▇▇▇’s Authorized Representative, Governmental Authorities Authorities, or other Persons designated by any Buyer, all certificates and other documentation reasonably requested by Buyer ▇▇▇▇▇ or Buyer’s Authorized Representative in order to demonstrate that each the Facility, the Facility Energy, and the associated Environmental Attributes were or are RPS Compliant and EPS Compliant. However, (x) if a Facility remains unable to be RPS Compliant and EPS Compliant as a result of the Change in Law after six (6) months following such Change in Law, then Buyer may provide notice to Seller electing to remove such Facility from the Project, which notice shall contain a document in the form of a revised Appendix B reflecting such removal, and upon delivery of such notice the relevant Facility will be a Former Facility, the Project Net Capacity will be reduced by the amount of the Facility Net Capacity associated with such Facility and the revised Appendix B shall be binding upon the Parties as if set forth herein, and (y) if all of the Facilities remain unable to be RPS Compliant and EPS Compliant as a result of the Change in Law after six (6) months following such Change in Law, then either Party may terminate this Agreement upon thirty (30) days advance written notice to the other; provided that, in either case, such six (6) month period shall be extended for a period that does not exceed an additional six (6) months if Seller shall furnish to Buyer a written opinion by an independent consultant selected by Seller and acceptable to Buyer (in its reasonable discretion) to the effect that Seller, using its reasonable commercial efforts, is capable of making an affected Facility (including the Facility Energy and associated Environmental Attributes) RPS Compliant and EPS Compliant within such additional period. Except as provided above in connection with a Change in Law, in the event that one or some of the New Facilities or Existing Facilities, but not all Facilities, are not CEC Certified after the CEC Certification Deadline for such Facility, and the Energy that is delivered to Buyer at the Points of Delivery from such Facilities (including the Facility Energy and the associated Environmental Attributes) shall not be both RPS Compliant and EPS Compliant, then such Facilities shall be removed unless Buyer agrees to purchase Energy at the applicable index price as listed in the Intercontinental Exchange Palo Verde Electricity Price Index or its successor index. (b) The Parties acknowledge that WREGIS may not currently permit Seller to obtain WREGIS Certificates for an amount of Energy equal to the Parasitic Load, whether or not Energy generated by the Facility, or energy from another source, serves such Parasitic Load. In the event that (i) the WREGIS Operating Rules permit Seller to obtain WREGIS Certificates for Energy generated by a Facility that would serve some or all of the Parasitic Load in the absence of Energy acquired by Seller to serve such Parasitic Load from a source other than such Facility, (ii) Seller elects, in its sole discretion, to acquire Energy from a source other than such Facility to serve some or all of its Parasitic Load, and (iii) such geothermal Energy generated by such Facility that would have served the Parasitic Load in the absence of the acquisition of Energy by Seller as described in (ii) above is RPS Compliant and EPS Compliant, such amounts of geothermal Energy generated by such Facility shall for the purposes of this Agreement constitute Facility Energy and shall be sold to Buyer in accordance with the provisions of this Agreement. Without limiting any other available method of acquiring Energy from a source other than the applicable Facility to serve some or all of its Parasitic Load, Seller will have the right to install, or cause to be installed, solar photovoltaic energy generating systems or other renewable energy generating systems at any Site to supply Parasitic Load, but the installation of such equipment and any other method of acquiring Energy from a source other than a Facility to serve some or all of its Parasitic Load will not result in an increase in the Facility Net Capacity or Maximum Generation, unless otherwise mutually agreed by the Parties.

RPS and EPS Compliance. ‌ (a) Seller warrants and guarantees that, upon the receipt of notice from the CEC that each New the Facility and each Existing Facility are is CEC Certified, (which in the case of an Existing Facility must occur on or before the Delivery Commencement Date thereof), and at all times thereafter until the expiration or earlier termination of the Agreement Term, such Facility shall be CEC Certified and the Energy that is delivered to Buyer at the Points of Delivery from such Facility (including the Facility Energy and the associated Environmental Attributes) shall be both RPS Compliant and EPS Compliant, provided, however, if and to the extent a Change in Law occurs during such period that causes any the Facility, its the Facility Energy or the associated Environmental Attributes to no longer be RPS Compliant and EPS Compliant, then Seller shall use its best commercial efforts to remove such Facility and provide a Substitution Facility as provided in Section 3.11(b) and Section 3.11(d) even if such occurrence and substitution occurs after the end of the Third Development Period. In the event that Seller is unable to provide such a Substitution Facility, it shall not be an Event of Default if following the Delivery Commencement or Commercial Operation Date, as applicable, Seller uses commercially reasonable efforts to comply with such Change in Law. In the event of such Change in Law resulting in partial or total loss of compliance, for each MWh of Delivered Energy that is not RPS Compliant and EPS Compliant Buyer shall be entitled to retain from each payment to be made to Seller under Section 6.1 6.1(b) a portion therefrom equal to the positive difference between (i) the price of the Delivered Energy pursuant to Section 6.1 6.1(b) and (ii) the average of the on-peak and off-peak Energy prices, weighted by the number of hours in the on-peak and off-peak periods, during each month that such the Facility (including the Facility Energy and the associated Environmental Attributes) is not RPS Compliant and EPS Compliant, as listed in the Intercontinental Exchange Dow ▇▇▇▇▇ Palo Verde Electricity Price Index or its successor index, or any other index mutually agreed by the PartiesIndex; provided that in no event during such period shall Buyer be obligated to pay Seller an amount for Facility Energy that is greater than the Contract Price for Facility Energy that is not RPS Compliant and EPS CompliantPrice. Buyer shall release such retained amount, which shall be calculated without interest of any kind, within forty-five (45) days following the receipt of evidence from Seller that the applicable Facility has become RPS Compliant and EPS Compliant, but only if and to the extent that the Environmental Attributes generated during the period of non-compliance can be attributed towards Buyer’s requirements under the RPS Law and the requirements of California Public Utilities Code Section 399.16(b)(1). From time to time and at any time requested by Buyer, Seller will furnish to Buyer or Governmental Authorities or other Persons designated by Buyer, all certificates and other documentation reasonably requested by Buyer in order to demonstrate that each the Facility, the Facility Energy, and the associated Environmental Attributes are RPS Compliant and EPS Compliant. However, (x) if a the Facility remains unable to be RPS Compliant and EPS Compliant as a result of the Change in Law after six (6) months following such Change in Law, then Buyer may provide notice to Seller electing to remove such Facility from the Project, which notice shall contain a document in the form of a revised Appendix B reflecting such removal, and upon delivery of such notice the relevant Facility will be a Former Facility, the Project Net Capacity will be reduced by the amount of the Facility Net Capacity associated with such Facility and the revised Appendix B shall be binding upon the Parties as if set forth herein, and (y) if all of the Facilities remain unable to be RPS Compliant and EPS Compliant as a result of the Change in Law after six (6) months following such Change in Law, then either Party may terminate this Agreement upon thirty (30) days advance written notice to the other; provided that, in either case, that such six (6) month period shall be extended for a period that does not exceed an additional six (6) months if Seller shall furnish to Buyer a written opinion by an independent consultant selected by Seller and acceptable to Buyer (in its reasonable discretion) to the effect that Seller, using its reasonable commercial efforts, is capable of making an affected the Facility (including the Facility Energy and associated Environmental Attributes) RPS Compliant and EPS Compliant within such additional period. Except as provided above in connection with a Change in Law, in the event that one or some of the New Facilities or Existing Facilities, but not all Facilities, are not CEC Certified after the CEC Certification Deadline for such Facility, and the Energy that is delivered to Buyer at the Points of Delivery from such Facilities (including the Facility Energy and the associated Environmental Attributes) shall not be both RPS Compliant and EPS Compliant, then such Facilities shall be removed unless Buyer agrees to purchase Energy at the applicable index price as listed in the Intercontinental Exchange Palo Verde Electricity Price Index or its successor index. (b) The Parties acknowledge that WREGIS may does not currently permit Seller to obtain WREGIS Certificates for an amount of Energy equal to the Parasitic Load, whether or not Energy generated by the Facility, or energy from another source, serves such Parasitic Load. In the event that (i) WREGIS changes the WREGIS Operating Rules to permit Seller to obtain WREGIS Certificates for Energy generated by a the Facility that would serve some or all of the Parasitic Load in the absence of Energy acquired by Seller to serve such Parasitic Load from a source other than such the Facility, (ii) Seller elects, in its sole discretion, to acquire Energy from a source other than such the Facility to serve some or all of its Parasitic Load, and (iii) such geothermal Energy generated by such the Facility that would have served the Parasitic Load in the absence of the acquisition of Energy by Seller as described in (ii) above is RPS Compliant and EPS Compliant, such amounts of geothermal Energy generated by such the Facility shall for the purposes of this Agreement constitute Facility Energy and shall be sold to Buyer in accordance with the provisions of this Agreement. Without limiting any other available method of acquiring Energy from a source other than the applicable Facility to serve some or all of its Parasitic Load, Seller will have the right to install, or cause to be installed, solar photovoltaic energy generating systems or other renewable energy generating systems at any Site to supply Parasitic Load, but the installation of such equipment and any other method of acquiring Energy from a source other than a Facility to serve some or all of its Parasitic Load will not result in an increase in the Facility Net Capacity or Maximum Generation, unless otherwise mutually agreed by the Parties.

RPS and EPS Compliance. (a) Seller warrants and guarantees that, upon receipt of from the time it receives notice from the CEC that each New the Facility and each Existing Facility are is CEC Certified, (which in the case of an Existing Facility must occur on or before the Delivery Commencement Date thereof), and at all times thereafter until the expiration or earlier termination of the Agreement TermAgreement, such Facility shall be CEC Certified and the Energy that is delivered to Buyer at the Points of Delivery from such Facility (including the Facility Energy and the associated Environmental Attributes) shall be both RPS Compliant and EPS Compliant, provided, however. (b) Notwithstanding Section 7.7(a), if and to the extent a Change in Law occurs during such period after the Commercial Operation Date that causes any Facility, its the Facility Energy or the associated Environmental Attributes to no longer cease to be both RPS Compliant and EPS Compliant, then Seller shall use its best commercial efforts to remove such Facility and provide a Substitution Facility as provided in Section 3.11(b) and Section 3.11(d) even if such occurrence and substitution occurs after the end of the Third Development Period. In the event that Seller is unable to provide such a Substitution Facility, it shall not be an Event of Default if following the Delivery Commencement or Commercial Operation Date, as applicable, Seller uses commercially reasonable efforts to comply with such Change in Law, which efforts shall include incurring up to One Million One Hundred Twenty-Five Thousand Dollars ($1,125,000) in any Contract Year, or Four Million Five Hundred Thousand Dollars ($4,500,000) in the aggregate over the Agreement Term in costs and expenses, including registration fees, volumetric expenses, license renewal fees, external consultant fees, and capital costs, but excluding lobbying activities, to cause the Facility to be both RPS Compliant and EPS Compliant. In If, notwithstanding such commercially reasonable efforts, the event of such Change in Law resulting in partial or total loss of compliance, for each MWh of Delivered Energy that Facility is still not RPS Compliant and EPS Compliant due to the occurrence of a Change in Law, each Buyer shall be entitled remain obligated to retain from each payment to be made to Seller under Section 6.1 a portion therefrom equal to purchase its proportionate share based on the positive difference between (i) the price Buyers’ Percentage of Facility Output of the Delivered Energy pursuant to Section 6.1 and (ii) the average of the on-peak and off-peak Energy prices, weighted by the number of hours in the on-peak and off-peak periods, during each month that such Facility (including the Facility Energy and the associated Environmental Attributes) is not RPS Compliant and EPS Compliant, as listed in the Intercontinental Exchange Palo Verde Electricity Price Index or its successor index, or any other index mutually agreed by the Parties; provided that in no event during such period shall Buyer be obligated to pay Seller an amount that is greater than the Contract Price for Facility Energy that is not RPS Compliant and EPS Compliant. Buyer shall release such retained amount, which shall be calculated without interest of any kind, within forty-five (45) days following the receipt of evidence from Seller that Products at the applicable Facility has become RPS Compliant and EPS Compliant, but only if and to the extent that the Environmental Attributes generated during the period of non-compliance can be attributed towards Buyer’s requirements under the RPS Law and the requirements of California Public Utilities Code Section 399.16(b)(1). full Contract Price. (c) From time to time and at any time requested by Buyerany Buyer or any of its Authorized Representatives, Seller will furnish to Buyer or each Buyer, Governmental Authorities Authorities, or other Persons designated by any Buyer, all certificates and other documentation reasonably requested by any Buyer or such Authorized Representatives in order to demonstrate that each the Facility, the Facility Energy, and the associated Environmental Attributes were or are RPS Compliant and EPS Compliant. However, (x) if a Facility remains unable to be RPS Compliant and EPS Compliant as a result of the Change in Law after six (6) months following such Change in Law, then Buyer may provide notice to Seller electing to remove such Facility from the Project, which notice shall contain a document in the form of a revised Appendix B reflecting such removal, and upon delivery of such notice the relevant Facility will be a Former Facility, the Project Net Capacity will be reduced by the amount of the Facility Net Capacity associated with such Facility and the revised Appendix B shall be binding upon the Parties as if set forth herein, and (y) if all of the Facilities remain unable to be RPS Compliant and EPS Compliant as a result of the Change in Law after six (6) months following such Change in Law, then either Party may terminate this Agreement upon thirty (30) days advance written notice to the other; provided that, in either case, such six (6) month period shall be extended for a period that does not exceed an additional six (6) months if Seller shall furnish to Buyer a written opinion by an independent consultant selected by Seller and acceptable to Buyer (in its reasonable discretion) to the effect that Seller, using its reasonable commercial efforts, is capable of making an affected Facility (including the Facility Energy and associated Environmental Attributes) RPS Compliant and EPS Compliant within such additional period. Except as provided above in connection with a Change in Law, in the event that one or some of the New Facilities or Existing Facilities, but not all Facilities, are not CEC Certified after the CEC Certification Deadline for such Facility, and the Energy that is delivered to Buyer at the Points of Delivery from such Facilities (including the Facility Energy and the associated Environmental Attributes) shall not be both RPS Compliant and EPS Compliant, then such Facilities shall be removed unless Buyer agrees to purchase Energy at the applicable index price as listed in the Intercontinental Exchange Palo Verde Electricity Price Index or its successor index. (b) The Parties acknowledge that WREGIS may not currently permit Seller to obtain WREGIS Certificates for an amount of Energy equal to the Parasitic Load, whether or not Energy generated by the Facility, or energy from another source, serves such Parasitic Load. In the event that (i) the WREGIS Operating Rules permit Seller to obtain WREGIS Certificates for Energy generated by a Facility that would serve some or all of the Parasitic Load in the absence of Energy acquired by Seller to serve such Parasitic Load from a source other than such Facility, (ii) Seller elects, in its sole discretion, to acquire Energy from a source other than such Facility to serve some or all of its Parasitic Load, and (iii) such geothermal Energy generated by such Facility that would have served the Parasitic Load in the absence of the acquisition of Energy by Seller as described in (ii) above is RPS Compliant and EPS Compliant, such amounts of geothermal Energy generated by such Facility shall for the purposes of this Agreement constitute Facility Energy and shall be sold to Buyer in accordance with the provisions of this Agreement. Without limiting any other available method of acquiring Energy from a source other than the applicable Facility to serve some or all of its Parasitic Load, Seller will have the right to install, or cause to be installed, solar photovoltaic energy generating systems or other renewable energy generating systems at any Site to supply Parasitic Load, but the installation of such equipment and any other method of acquiring Energy from a source other than a Facility to serve some or all of its Parasitic Load will not result in an increase in the Facility Net Capacity or Maximum Generation, unless otherwise mutually agreed by the Parties.