Common use of Service to be Provided Clause in Contracts

Service to be Provided. 1. The Authority agrees to sell and the Company agrees to purchase for resale under the provisions of this Agreement the Expansion Power and energy associated with Existing Allocations of Expansion Power as defined in Provision K below. 2. At the Authority’s option, the Company also will also purchase for resale under the provisions of this Agreement Expansion Power and energy associated with Additional Allocations of Expansion Power as defined in Provision K below and for all other deliveries of Expansion Power (“New Allocations”). Alternatively, Authority may sell Expansion Power and energy associated with such Additional and New Allocations directly to the individual Expansion Power Customer receiving such allocations, in which case the Company shall provide only unbundled retail transmission service for such Additional Allocations under this Agreement, provided however that once this option is exercised by the Authority for one customer, all Additional and New Allocations thereafter made shall be sold by the Authority directly to the customer receiving such allocations. 3. Transmission service for all New Allocations shall be governed in all respects by the provisions of Part IV of the Open Access Tariff of the New York Independent System Operator, Inc. or any successor thereto (“NYISO”), as filed with the FERC and in effect from time to time (“OATT”), and the retail delivery provisions of Rate Schedules S.C. No. 2-D, S.C. No. 3, S.C. No. 3-A and S.C. No. 4 of the Company’s Retail Tariff P.S.C. No. 207 – Electricity or successor thereto, approved by the PSC and in effect from time to time (“Retail Tariff”), and not by the provisions of this Agreement. Except as provided in the preceding subsection, the Company shall continue to purchase and resell any Expansion Power and energy which it is contractually obligated to purchase for resale to customers receiving such New Allocations by the existing provisions of the EP Resale Contract governing such unbundled purchases and resales. Such purchases and resales of unbundled Expansion Power and energy shall continue to be governed by the EP Resale Contract or such other agreements as may be in effect between the Company and the Authority from time to time. With respect to such matters, the Parties have removed the provisions of the EP Resale Contract addressing such unbundled purchases and resales of Expansion Power and energy from this Agreement, which are not subject to the FERC’s jurisdiction under the Federal Power Act. Accordingly, the Parties agree that their removal of these non-jurisdictional provisions from this Agreement is not intended to and does not affect in any way the continuing validity and enforceability of these non-jurisdictional provisions of the EP Resale Contract, which remain a valid and binding contract between the Company and the Authority under New York law. 4. The Company shall resell Expansion Power and energy made available to it under this Agreement to Expansion Power Customers in the amounts of their individual Existing and, as applicable, Additional Allocations, provided that it is determined prior to initiation of service or increase in allocation to any such Expansion Power customer that such Customer is capable of being served by the Company’s system in the Company’s judgment. 5. In connection with the resale of Existing and Additional Allocations of Expansion Power and energy, the Company shall not impose upon Expansion Power Customers conditions (other than those specifically set forth in this Agreement and the associated Expansion Power Allocation and Service Agreement and its attached Schedules A and B) which are materially different from those conditions it imposes on the Company’s other customers of similar characteristics. The resale by the Company of such Expansion Power shall be in accordance with the terms and conditions provided herein. Contracts for the resale and delivery of Existing and Additional Allocations of Expansion Power and energy by the Company shall incorporate this Agreement by reference. Such contracts shall be consistent with the terms and conditions of Provision H of this Agreement. 6. To the extent that the Authority elects to sell Expansion Power and energy associated with Additional Allocations directly to Expansion Power Customers receiving such allocations, the Company shall be relieved of any obligation to pay the Authority the charges established in Provision B of this Agreement, including without limitation the NYISO Charges as defined therein, and Expansion Power and energy associated with such Additional Allocations shall not be included in such Expansion Power Customer’s demands subject to the charges established in subparts (a), (b) or (c) of part 2 of Provision H hereof or in subparts (a) or (b) of part 3 of Provision H hereof, but shall be included in such customer’s demands under subparts (d) and (e) of part 2 of Provision H hereof and subparts (c) and (d) of part 3 of Provision H hereof, so that this Agreement shall not apply to sales of Expansion Power and energy associated with such Additional Allocations (which shall instead be made by the Authority directly to the customer) but shall apply to the transmission and delivery of such power and energy to such customer.