Common use of Allowable Upgrades Clause in Contracts

Allowable Upgrades. In the event that Seller seeks to upgrade the Facility in a manner that does not increase the Nameplate Capacity Rating of the Facility, but which is reasonably likely to cause an increase in the Expected Net Output (as such term is defined as of the Effective Date) by more than ten percent (10%), such upgrades may only be made subject to the following requirements: The proposed upgrades must not cause Seller to fail to meet the current eligibility requirements for either the standard power purchase agreement or standard prices, to breach its Generation Interconnection Agreement, or necessitate Network Upgrades in order to maintain designated network status. At least six (6) months in advance of the scheduled installation date for the proposed upgrades, Seller must send written notice to Utility containing a detailed description of the proposed upgrades and their impact on Expected Net Output and a revised 12 x 24 delivery schedule and requesting indicative pricing for the incremental additional Net Output expected to be generated as a result of the upgrades. Within thirty (30) days after receiving such a request, Utility must respond with indicative pricing for the expected incremental additional Net Output to be generated as a result of the upgrades in excess of ten percent (10%) of the Expected Net Output (as such term is defined as of the Effective Date). Within thirty (30) days after receiving indicative pricing, Seller may request a draft amendment to this Agreement to reflect revised pricing for the remainder of the term, effective upon completion of the upgrades. If it is not reasonably feasible to separately meter the incremental additional Net Output resulting from the proposed upgrades, Utility may create a blended rate based on the proportion the expected incremental additional Net Output bears to the expected total Net Output following the installation of the upgrades. Within ninety (90) days after the date on which upgrades are installed under subsections (a), (b), or (c) of this Section 6.7.3, Seller is obligated to provide Utility with an As-Built Supplement describing in detail Facility, as modified by the allowable upgrades, which As-Built Supplement will be incorporated into Exhibits B and C of this Agreement and to submit an updated estimate of net output to be incorporated into Exhibit A of this Agreement. If Seller wishes to install upgrades that would cause the Facility to increase its Nameplate Capacity Rating, Seller may elect to terminate the Agreement and may choose to enter a new standard or new non-standard power purchase agreement, based on applicable eligibility requirements, at the then-current avoided cost pricing; provided that such termination of this Agreement will be treated as a termination for a Seller Event of Default for which Seller will owe Utility Termination Damages. In such case, notwithstanding any other provision in this Agreement to the contrary, with respect to any portion of the period in which Seller owes Utility Termination Damages in which Seller is contractually obligated to deliver output under the new agreement, the Cost to Cover will be calculated based on the pricing set forth in the new agreement. If Seller elects under this Section to terminate the Agreement under this Section and enter into a new non-standard power purchase agreement, Seller will not be liable for damages for any default caused by Seller’s failure to maintain eligibility for a standard power purchase agreement and will only be liable for Termination Damages under Section 11.5.

Allowable Upgrades. In the event that Seller seeks to upgrade the Facility in a manner that does not increase the Nameplate Capacity Rating of the Facility, but which is reasonably likely to cause an increase in the Expected Net Output (as such term is defined as of the Effective Date) by more than ten percent (10%), such upgrades may only be made subject to the following requirements: : (a) The proposed upgrades must not cause Seller to fail to meet the current eligibility requirements for either the standard power purchase agreement or standard prices, to breach its Generation Interconnection Agreement, or necessitate Network Upgrades in order to maintain designated network status. . (b) At least six (6) months in advance of the scheduled installation date for the proposed upgrades, Seller must send written notice to Utility containing a detailed description of the proposed upgrades and their impact on Expected Net Output and a revised 12 x 24 delivery schedule and requesting indicative pricing for the incremental additional Net Output expected to be generated as a result of the upgrades. . (c) Within thirty (30) days after receiving such a request, Utility must respond with indicative pricing for the expected incremental additional Net Output to be generated as a result of the upgrades in excess of ten percent (10%) of the Expected Net Output (as such term is defined as of the Effective Date). . (d) Within thirty (30) days after receiving indicative pricing, Seller may request a draft amendment to this Agreement to reflect revised pricing for the remainder of the term, effective upon completion of the upgrades. If it is not reasonably feasible to separately meter the incremental additional Net Output resulting from the proposed upgrades, Utility may create a blended rate based on the proportion the expected incremental additional Net Output bears to the expected total Net Output following the installation of the upgrades. Within ninety (90) days after the date on which upgrades are installed under subsections (a), (b), or (c) of this Section 6.7.3, Seller is obligated to provide Utility with an As-Built Supplement describing in detail Facility, as modified by the allowable upgrades, which As-Built Supplement will be incorporated into Exhibits B and C of this Agreement and to submit an updated estimate of net output to be incorporated into Exhibit A of this Agreement. If Seller wishes to install upgrades that would cause the Facility to increase its Nameplate Capacity Rating, Seller may elect to terminate the Agreement and may choose to enter a new standard or new SAMPLE non-standard power purchase agreement, based on applicable eligibility requirements, at the then-current avoided cost pricing; provided that such termination of this Agreement will be treated as a termination for a Seller Event of Default for which Seller will owe Utility Termination Damages. In such case, notwithstanding any other provision in this Agreement to the contrary, with respect to any portion of the period in which Seller owes Utility Termination Damages in which Seller is contractually obligated to deliver output under the new agreement, the Cost to Cover will be calculated based on the pricing set forth in the new agreement. If Seller elects under this Section to terminate the Agreement under this Section and enter into a new non-standard power purchase agreement, Seller will not be liable for damages for any default caused by Seller’s failure to maintain eligibility for a standard power purchase agreement and will only be liable for Termination Damages under Section 11.5.

Allowable Upgrades. In the event that Seller seeks to upgrade the Facility in a manner that does not increase the Nameplate Capacity Rating of the Facility, but which is reasonably likely to cause an increase in the Expected Net Output (as such term is defined as of the Effective Date) by more than ten percent (10%), such upgrades may only be made subject to the following requirements: : (a) The proposed upgrades must not cause Seller to fail to meet the current eligibility requirements for either the standard power purchase agreement or standard prices, to breach its Generation Interconnection Agreement, or necessitate Network Upgrades in order to maintain designated network status. . (b) At least six (6) months in advance of the scheduled installation date for the proposed upgrades, Seller must send written notice to Utility containing a detailed description of the proposed upgrades and their impact on Expected Net Output and a revised 12 x 24 delivery schedule and requesting indicative pricing for the incremental additional Net Output expected to be generated as a result of the upgrades. . (c) Within thirty (30) days after receiving such a request, Utility must respond with indicative pricing for the expected incremental additional Net Output to be generated as a result of the upgrades in excess of ten percent (10%) of the Expected Net Output (as such term is defined as of the Effective Date). . (d) Within thirty (30) days after receiving indicative pricing, Seller may request a draft amendment to this Agreement to reflect revised pricing for the remainder of the term, effective upon completion of the upgrades. If it is not reasonably feasible to separately meter the incremental additional Net Output resulting from the proposed upgrades, Utility may create a blended rate based on the proportion the expected incremental additional Net Output bears to the expected total Net Output following the installation of the upgrades. Within ninety (90) days after the date on which upgrades are installed under subsections (a), (b), or (c) of this Section 6.7.3, Seller is obligated to provide Utility with an As-Built Supplement describing in detail Facility, as modified by the allowable upgrades, which As-Built Supplement will be incorporated into Exhibits B and C of this Agreement and to submit an updated estimate of net output to be incorporated into Exhibit A of this Agreement. If Seller wishes to install upgrades that would cause the Facility to increase its Nameplate Capacity Rating, Seller may elect to terminate the Agreement and may choose to enter a new standard or new non-standard power purchase agreement, based on applicable eligibility requirements, at the then-current avoided cost pricing; provided that such termination of this Agreement will be treated as a termination for a Seller Event of Default for which Seller will owe Utility Termination Damages. In such case, notwithstanding any other provision in this Agreement to the contrary, with respect to any portion of the period in which Seller owes Utility Termination Damages in which Seller is contractually obligated to deliver output under the new agreement, the Cost to Cover will be calculated based on the pricing set forth in the new agreement. If Seller elects under this Section to terminate the Agreement under this Section and enter into a new non-standard power purchase agreement, Seller will not be liable for damages for any default caused by Seller’s failure to maintain eligibility for a standard power purchase agreement and will only be liable for Termination Damages under Section 11.5.