Environmental Attributes. (a) Without limiting Section 4.2, Seller shall, at its own expense: (i) by the Delivery Term Commencement Date, (A) cause the Generating Facility, Storage Facility, Contract Capacity, Storage Capacity, Contract Energy, Storage Energy, and/or Environmental Attributes (as applicable) to be certified and otherwise qualified for and registered with all programs or systems that are Applicable Environmental Attribute Programs as of the Delivery Term Commencement Date (subject to the last sentence of Section 4.2(e)) and (B) otherwise qualify for, and enter into all agreements and make all other arrangements (and, without limiting the foregoing, obtain all necessary accounts) to obtain and transfer to Buyer, (1) the Environmental Attributes under each Applicable Environmental Attribute Programs referenced in clause (A) above and (2) the Guaranteed Environmental Attributes; (ii) at all times comply with all reporting and other requirements of the Applicable Environmental Attribute Programs and Applicable Guaranteed Programs, including required reporting of the amount and type of Energy generated by the Facility and source of any Replacement EAs; and (iii) upon the request of Buyer from time to time, (A) deliver or cause to be delivered to Buyer such attestations/certifications of Environmental Attributes and Replacement EAs and other documentation as may be required or advisable in Buyer’s reasonable discretion to comply with or otherwise participate in any Applicable Environmental Attribute Program or Applicable Guaranteed Program or to obtain and transfer to Buyer custody of, and give effect to and evidence the title of Buyer (as contemplated by Section 7.7(a)) in, all the Environmental Attributes and Replacement EAs and (B) otherwise provide full cooperation in connection with ▇▇▇▇▇’s retirement or other use of the Environmental Attributes and Replacement EAs. (b) The transfer of Environmental Attributes (and any Replacement EAs) to Buyer shall be accomplished by the means specified by Buyer, which may include the documentation described in Section 4.3(a)(iii) and/or by electronic delivery pursuant to any renewable energy or environmental attribute program or monitoring, tracking, certification or trading system designated by Buyer that is an Applicable Environmental Attribute Program (or, in the case of Replacement EAs, that applies to such Replacement EAs), and shall be completed by Seller by the EA Transfer Deadline. For each MW of Contract Capacity and Storage Capacity or each MWh of Contract Energy and Storage Energy injected at the Injection Point for financial delivery to Buyer, as applicable, throughout the Delivery Term (even if some of such Contract Capacity, Storage Capacity, Storage Energy or Contract Energy is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion for any reason), Seller shall be required to obtain and transfer to Buyer the Guaranteed Environmental Attributes and any environmental attributes for which, if such MW or MWh were generated by the Facility from photovoltaic solar energy conversion and delivered to Buyer according to this Agreement, such MW or MWh would be eligible (subject to the last sentence of Section 4.2(e)), all by the EA Transfer Deadline. To the extent Seller does not provide Environmental Attributes to satisfy its obligations pursuant to the preceding sentence for any MW of Contract Capacity and Storage Capacity or MWh of Contract Energy and Storage Energy (e.g., because such MW or MWh is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion for any reason or, in the case of the Guaranteed Environmental Attributes, because the Applicable Guaranteed Program is no longer an Applicable Environmental Attribute Program due to the breach, negligence (including gross negligence), fraud, willful misconduct or other act or omission of Seller, its Affiliates or Subcontractors, or any of their respective directors, officers, partners, members, trustees, employees, agents or representatives), then Seller shall satisfy such obligations by providing Replacement EAs for such MW or MWh. For any such Environmental Attribute (or Replacement EA) that Seller does not provide to Buyer (provided that Seller shall first be required to use best efforts to provide such Environmental Attribute or Replacement EA) according to the two (2) immediately preceding sentences by the EA Transfer Deadline, Seller shall pay to Buyer an amount equal to the greater of (i) the Reference EA Compliance Payment applicable to such Environmental Attribute (or Replacement EA) or (ii) the average of at least two (2) price quotes obtained by Buyer from nationally recognized brokers during the first month following the month in which the corresponding MW was recognized or MWh was generated), for the sale and delivery of Replacement EAs that are eligible for the Required Qualified Programs corresponding to such Environmental Attribute (or Replacement EA). Any amounts payable pursuant to the immediately preceding sentence shall be included on the Monthly Invoice covering the month in which the EA Transfer Deadline occurs. (c) The Parties acknowledge and agree that it is difficult or impossible to determine with precision the amount of damages that would or might be incurred by Buyer as a result of Seller’s failure to provide to Buyer the Environmental Attributes (and/or Replacement EAs) (i) required according to equal to at least the Annual Guaranteed Energy Quantity, in either case, shall not constitute, in and of itself, such a breach, default or Event of Default.
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Environmental Attributes. (a) Without limiting Section 4.2, Seller shall, at its own expense:
(i) by the Delivery Term Commencement Date, (A) cause the Generating Facility, Storage Facility, Contract Capacity, Storage Capacity, Contract Energy, Storage Energy, and/or Environmental Attributes (as applicable) to be certified and otherwise qualified for and registered with all programs or systems that are Applicable Environmental Attribute Programs as of the Delivery Term Commencement Date (subject to the last sentence of Section 4.2(e)) and (B) otherwise qualify for, and enter into all agreements and make all other arrangements (and, without limiting the foregoing, obtain all necessary accounts) to obtain and transfer to Buyer, (1) the Environmental Attributes under each Applicable Environmental Attribute Programs referenced in clause (A) above and (2) the Guaranteed Environmental Attributes;
(ii) at all times comply with all reporting and other requirements of the Applicable Environmental Attribute Programs and Applicable Guaranteed Programs, including required reporting of the amount and type of Energy generated by the Facility and source of any Replacement EAs; and
(iii) upon the request of Buyer from time to time, (A) deliver or cause to be delivered to Buyer such attestations/certifications of Environmental Attributes and Replacement EAs and other documentation as may be required or advisable in Buyer’s reasonable discretion to comply with or otherwise participate in any Applicable Environmental Attribute Program or Applicable Guaranteed Program or to obtain and transfer to Buyer custody of, and give effect to and evidence the title of Buyer (as contemplated by Section 7.7(a)) in, all the Environmental Attributes and Replacement EAs and (B) otherwise provide full cooperation in connection with ▇▇▇▇▇’s retirement or other use of the Environmental Attributes and Replacement EAs.
(b) The transfer of Environmental Attributes (and any Replacement EAs) to Buyer shall be accomplished by the means specified by Buyer, which may include the documentation described in Section 4.3(a)(iii) and/or by electronic delivery pursuant to any renewable energy or environmental attribute program or monitoring, tracking, certification or trading system designated by Buyer that is an Applicable Environmental Attribute Program (or, in the case of Replacement EAs, that applies to such Replacement EAs), and shall be completed by Seller by the EA Transfer Deadline. For each MW of Contract Capacity and Storage Capacity or each MWh of Contract Energy and Storage Energy injected at the Injection Point for financial delivery to Buyer, as applicable, throughout the Delivery Term (even if some of such Contract Capacity, Storage Capacity, Storage Energy or Contract Energy is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion for any reason), Seller shall be required to obtain and transfer to Buyer the Guaranteed Environmental Attributes and any environmental attributes for which, if such MW or MWh were generated by the Facility from photovoltaic solar energy conversion and delivered to Buyer according to this Agreement, such MW or MWh would be eligible (subject to the last sentence of Section 4.2(e)), all by the EA Transfer Deadline. To the extent Seller does not provide Environmental Attributes to satisfy its obligations pursuant to the preceding sentence for any MW of Contract Capacity and Storage Capacity or MWh of Contract Energy and Storage Energy (e.g., because such MW or MWh is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion for any reason or, in the case of the Guaranteed Environmental Attributes, because the Applicable Guaranteed Program is no longer an Applicable Environmental Attribute Program due to the breach, negligence (including gross negligence), fraud, willful misconduct or other act or omission of Seller, its Affiliates or Subcontractors, or any of their respective directors, officers, partners, members, trustees, employees, agents or representatives), then Seller shall satisfy such obligations by providing Replacement EAs for such MW or MWh. For any such Environmental Attribute (or Replacement EA) that Seller does not provide to Buyer (provided that Seller shall first be required to use best efforts to provide such Environmental Attribute or Replacement EA) according to the two (2) immediately preceding sentences by the EA Transfer Deadline, Seller shall pay to Buyer an amount equal to the greater of (i) the Reference EA Compliance Payment applicable to such Environmental Attribute (or Replacement EA) or (ii) the average of at least two (2) price quotes obtained by Buyer from nationally recognized brokers during the first month following the month in which the corresponding MW was recognized or MWh was generated), for the sale and delivery of Replacement EAs that are eligible for the Required Qualified Programs corresponding to such Environmental Attribute (or Replacement EA). Any amounts payable pursuant to the immediately preceding sentence shall be included on the Monthly Invoice covering the month in which the EA Transfer Deadline occurs.
(c) The Parties acknowledge and agree that it is difficult or impossible to determine with precision the amount of damages that would or might be incurred by Buyer as a result of Seller’s failure to provide to Buyer the Environmental Attributes (and/or Replacement EAs) (i) required according to equal to at least the Annual Guaranteed Energy Quantity, in either case, shall not constitute, in and of itself, such a breach, default or Event of Default.to
Appears in 2 contracts
Environmental Attributes. (a) Without limiting Section 4.2, Seller shall, at its own expense:
(i) by the Delivery Term Commencement Date, (A) cause the Generating Facility, Storage Facility, Contract Capacity, Storage Capacity, Contract Energy, Storage Energy, and/or Environmental Attributes (as applicable) to be certified and otherwise qualified for and registered with all programs or systems that are Applicable Environmental Attribute Programs as of the Delivery Term Commencement Date (subject to the last sentence of Section 4.2(e)) and (B) otherwise qualify for, and enter into all agreements and make all other arrangements (and, without limiting the foregoing, obtain all necessary accounts) to obtain and transfer to Buyer, (1) the Environmental Attributes under each Applicable Environmental Attribute Programs referenced in clause (A) above and (2) the Guaranteed Environmental Attributes;
(ii) at all times comply with all reporting and other requirements of the Applicable Environmental Attribute Programs and Applicable Guaranteed Programs, including required reporting of the amount and type of Energy generated by the Facility and source of any Replacement EAs; and
(iii) upon the request of Buyer from time to time, (A) deliver or cause to be delivered to Buyer such attestations/certifications of Environmental Attributes and Replacement EAs and other documentation as may be required or advisable in Buyer’s reasonable discretion to comply with or otherwise participate in any Applicable Environmental Attribute Program or Applicable Guaranteed Program or to obtain and transfer to Buyer custody of, and give effect to and evidence the title of Buyer (as contemplated by Section 7.7(a)) in, all the Environmental Attributes and Replacement EAs and (B) otherwise provide full cooperation in connection with ▇▇▇▇▇’s retirement or other use of the Environmental Attributes and Replacement EAs.
(b) The transfer of Environmental Attributes (and any Replacement EAs) to Buyer shall be accomplished by the means specified by Buyer, which may include the documentation described in Section 4.3(a)(iii) and/or by electronic delivery pursuant to any renewable energy or environmental attribute program or monitoring, tracking, certification or trading system designated by Buyer that is an Applicable Environmental Attribute Program (or, in the case of Replacement EAs, that applies to such Replacement EAs), and shall be completed by Seller by the EA Transfer Deadline. For each MW of Contract Capacity and Storage Capacity or each MWh of Contract Energy and Storage Energy injected at the Injection Point for financial delivery to Buyer, as applicable, throughout the Delivery Term (even if some of such Contract Capacity, Storage Capacity, Storage Energy or Contract Energy is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion wind power for any reason), Seller shall be required to obtain and transfer to Buyer the Guaranteed Environmental Attributes and any environmental attributes for which, if such MW or MWh were generated by the Facility from photovoltaic solar energy conversion wind power and delivered to Buyer according to this Agreement, such MW or MWh would be eligible (subject to the last sentence of Section 4.2(e)), all by the EA Transfer Deadline. To the extent Seller does not provide Environmental Attributes to satisfy its obligations pursuant to the preceding sentence for any MW of Contract Capacity and Storage Capacity or MWh of Contract Energy and Storage Energy (e.g., because such MW or MWh is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion wind power for any reason or, in the case of the Guaranteed Environmental Attributes, because the Applicable Guaranteed Program is no longer an Applicable Environmental Attribute Program due to the breach, negligence (including gross negligence), fraud, willful misconduct or other act or omission of Seller, its Affiliates or Subcontractors, or any of their respective directors, officers, partners, members, trustees, employees, agents or representatives), then Seller shall satisfy such obligations by providing Replacement EAs for such MW or MWh. For any such Environmental Attribute (or Replacement EA) that Seller does not provide to Buyer (provided that Seller shall first be required to use best efforts to provide such Environmental Attribute or Replacement EA) according to the two (2) immediately preceding sentences by the EA Transfer Deadline, Seller shall pay to Buyer an amount equal to the greater of (i) the Reference EA Compliance Payment applicable to such Environmental Attribute (or Replacement EA) or (ii) the average of at least two (2) price quotes obtained by Buyer from nationally recognized brokers during the first month following the month in which the corresponding MW was recognized or MWh was generated), for the sale and delivery of Replacement EAs that are eligible for the Required Qualified Programs corresponding to such Environmental Attribute (or Replacement EA). Any amounts payable pursuant to the immediately preceding sentence shall be included on the Monthly Invoice covering the month in which the EA Transfer Deadline occurs.
(c) The Parties acknowledge and agree that it is difficult or impossible to determine with precision the amount of damages that would or might be incurred by Buyer as a result of Seller’s failure to provide to Buyer the Environmental Attributes (and/or Replacement EAs) (i) required according to reasonable estimate of fair compensation for the losses that may reasonably be anticipated from each such failure, (E) the Parties irrevocably waive their respective rights to claim to any court or arbitral tribunal the adjustment of equal to at least the Annual Guaranteed Energy Quantity, in either case, shall not constitute, in and of itself, such a breach, default or Event of Default.
Appears in 1 contract
Sources: Power Purchase Agreement
Environmental Attributes. (a) Without limiting Section 4.2, Seller shall, at its own expense:
(i) by the Delivery Term Commencement Date, (A) cause the Generating Facility, Storage Facility, Contract Capacity, Storage Capacity, Contract Energy, Storage Energy, and/or Environmental Attributes (as applicable) to be certified and otherwise qualified for and registered with all programs or systems that are Applicable Environmental Attribute Programs as of the Delivery Term Commencement Date (subject to the last sentence of Section 4.2(e)) and (B) otherwise qualify for, and enter into all agreements and make all other arrangements (and, without limiting the foregoing, obtain all necessary accounts) to obtain and transfer to Buyer, (1) the Environmental Attributes under each Applicable Environmental Attribute Programs referenced in clause (A) above and (2) the Guaranteed Environmental Attributes;
(ii) at all times comply with all reporting and other requirements of the Applicable Environmental Attribute Programs and Applicable Guaranteed Programs, including required reporting of the amount and type of Energy generated by the Facility and source of any Replacement EAs; and
(iii) upon the request of Buyer from time to time, (A) deliver or cause to be delivered to Buyer such attestations/certifications of Environmental Attributes and Replacement EAs and other documentation as may be required or advisable in Buyer’s reasonable discretion to comply with or otherwise participate in any Applicable Environmental Attribute Program or Applicable Guaranteed Program or to obtain and transfer to Buyer custody of, and give effect to and evidence the title of Buyer (as contemplated by Section 7.7(a)) in, all the Environmental Attributes and Replacement EAs and (B) otherwise provide full cooperation in connection with ▇▇▇▇▇Buyer’s retirement or other use of the Environmental Attributes and Replacement EAs.
(b) The transfer of Environmental Attributes (and any Replacement EAs) to Buyer shall be accomplished by the means specified by Buyer, which may include the documentation described in Section 4.3(a)(iii) and/or by electronic delivery pursuant to any renewable energy or environmental attribute program or monitoring, tracking, certification or trading system designated by Buyer that is an Applicable Environmental Attribute Program (or, in the case of Replacement EAs, that applies to such Replacement EAs), and shall be completed by Seller by the EA Transfer Deadline. For each MW of Contract Capacity and Storage Capacity or each MWh of Contract Energy and Storage Energy injected at the Injection Point for financial delivery to Buyer, as applicable, throughout the Delivery Term (even if some of such Contract Capacity, Storage Capacity, Storage Energy or Contract Energy is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion for any reason), Seller shall be required to obtain and transfer to Buyer the Guaranteed Environmental Attributes and any environmental attributes for which, if such MW or MWh were generated by the Facility from photovoltaic solar energy conversion and delivered to Buyer according to this Agreement, such MW or MWh would be eligible (subject to the last sentence of Section 4.2(e)), all by the EA Transfer Deadline. To the extent Seller does not provide Environmental Attributes to satisfy its obligations pursuant to the preceding sentence for any MW of Contract Capacity and Storage Capacity or MWh of Contract Energy and Storage Energy (e.g., because such MW or MWh is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion for any reason or, in the case of the Guaranteed Environmental Attributes, because the Applicable Guaranteed Program is no longer an Applicable Environmental Attribute Program due to the breach, negligence (including gross negligence), fraud, willful misconduct or other act or omission of Seller, its Affiliates or Subcontractors, or any of their respective directors, officers, partners, members, trustees, employees, agents or representatives), then Seller shall satisfy such obligations by providing Replacement EAs for such MW or MWh. For any such Environmental Attribute (or Replacement EA) that Seller does not provide to Buyer (provided that Seller shall first be required to use best efforts to provide such Environmental Attribute or Replacement EA) according to the two (2) immediately preceding sentences by the EA Transfer Deadline, Seller shall pay to Buyer an amount equal to the greater of (i) the Reference EA Compliance Payment applicable to such Environmental Attribute (or Replacement EA) or (ii) the average of at least two (2) price quotes obtained by Buyer from nationally recognized brokers during the first month following the month in which the corresponding MW was recognized or MWh was generated), for the sale and delivery of Replacement EAs that are eligible for the Required Qualified Programs corresponding to such Environmental Attribute (or Replacement EA). Any amounts payable pursuant to the immediately preceding sentence shall be included on the Monthly Invoice covering the month in which the EA Transfer Deadline occurs.
(c) The Parties acknowledge and agree that it is difficult or impossible to determine with precision the amount of damages that would or might be incurred by Buyer as a result of Seller’s failure to provide to Buyer the Environmental Attributes THE PARTIES ACKNOWLEDGE AND AGREE THAT IT IS DIFFICULT OR IMPOSSIBLE TO DETERMINE WITH PRECISION THE AMOUNT OF DAMAGES THAT WOULD OR MIGHT BE INCURRED BY BUYER AS A RESULT OF SELLER’S FAILURE TO PROVIDE TO BUYER THE ENVIRONMENTAL ATTRIBUTES (and/or Replacement EAsAND/OR REPLACEMENT EAS) (iI) required according to equal to at least the Annual Guaranteed Energy QuantityREQUIRED ACCORDING TO SECTION 4.3(b) FOR EACH MW OF CONTRACT CAPACITY AND STORAGE CAPACITY OR EACH MWH OF CONTRACT ENERGY AND STORAGE ENERGY OR (II) THAT WOULD HAVE BEEN REQUIRED ACCORDING TO SECTION 4.3(b) IF SELLER HAD PROVIDED DELIVERED ENERGY TO BUYER AT THE ENERGY FINANCIAL DELIVERY POINT IN EACH CONTRACT YEAR EQUAL TO AT LEAST THE ANNUAL GUARANTEED ENERGY QUANTITY. IT IS UNDERSTOOD AND AGREED BY THE PARTIES THAT (A) BUYER SHALL BE DAMAGED BY THE FAILURE OF SELLER TO MEET SUCH OBLIGATIONS, in either case(B) IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX THE ACTUAL DAMAGES RESULTING THEREFROM, shall not constitute(C) ANY SUMS THAT WOULD BE CREDITABLE OR PAYABLE UNDER SECTION 4.3(b) OR SECTION 6.1 ARE IN THE NATURE OF LIQUIDATED DAMAGES, in and of itselfAND NOT A PENALTY, such a breachAND ARE FAIR AND REASONABLE, default or Event of DefaultAND SHALL BE PAID REGARDLESS OF THE AMOUNT OF DAMAGES THAT BUYER ACTUALLY SUSTAINS, (D) EACH PAYMENT REPRESENTS A REASONABLE ESTIMATE OF FAIR COMPENSATION FOR THE LOSSES THAT MAY REASONABLY BE ANTICIPATED FROM EACH SUCH FAILURE, (E) THE PARTIES IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO CLAIM TO ANY COURT OR ARBITRAL TRIBUNAL THE ADJUSTMENT OF ANY SUCH SUMS, AND (F) WITHOUT LIMITING SECTION 15.2, ANY SUMS THAT WOULD BE CREDITABLE OR PAYABLE UNDER SECTION 4.3(b) OR SECTION 6.1 ARE BUYER’S EXCLUSIVE DAMAGES ARISING OUT OF SELLER’S FAILURE TO PROVIDE TO BUYER THE ENVIRONMENTAL ATTRIBUTES (AND/OR REPLACEMENT EAS) (I) REQUIRED ACCORDING TO SECTION 4.3(b) FOR EACH MW OF CONTRACT CAPACITY AND STORAGE CAPACITY OR EACH MWH OF CONTRACT ENERGY AND STORAGE ENERGY OR (II) THAT WOULD HAVE BEEN REQUIRED ACCORDING TO SECTION 4.3(b) IF SELLER HAD PROVIDED DELIVERED ENERGY TO BUYER AT THE ENERGY FINANCIAL DELIVERY POINT IN EACH CONTRACT YEAR EQUAL TO AT LEAST THE ANNUAL GUARANTEED ENERGY QUANTITY OR TO DELIVER DELIVERED ENERGY TO BUYER AT THE ENERGY FINANCIAL DELIVERY POINT IN AN AMOUNT EQUAL TO OR ABOVE THE ANNUAL GUARANTEED ENERGY QUANTITY, PROVIDED, THAT (1) SELLER ACTUALLY CREDITS OR PAYS BUYER ANY SUCH AMOUNT AND (2) ANY SUCH CREDIT OR PAYMENT SHALL NOT LIMIT BUYER’S RIGHTS OR REMEDIES FOR ANY BREACH, DEFAULT OR EVENT OF DEFAULT OF SELLER UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT SELLER AND BUYER AGREE THAT, IF THE CONDITION PART (I) OF THE FOREGOING PROVISO IS SATISFIED, SELLER’S FAILURE TO PROVIDE TO BUYER THE ENVIRONMENTAL ATTRIBUTES (AND/OR REPLACEMENT EAS) (X) REQUIRED ACCORDING TO SECTION 4.3(b) FOR EACH MW OF CONTRACT CAPACITY AND STORAGE CAPACITY OR EACH MWH OF CONTRACT ENERGY AND STORAGE ENERGY OR (Y) THAT WOULD HAVE BEEN REQUIRED ACCORDING TO SECTION 4.3(b) IF SELLER HAD PROVIDED DELIVERED ENERGY TO BUYER AT THE ENERGY FINANCIAL DELIVERY POINT IN EACH CONTRACT YEAR EQUAL TO AT LEAST THE ANNUAL GUARANTEED ENERGY QUANTITY, IN EITHER CASE, SHALL NOT CONSTITUTE, IN AND OF ITSELF, SUCH A BREACH, DEFAULT OR EVENT OF DEFAULT.
Appears in 1 contract
Sources: Power Purchase Agreement
Environmental Attributes. (a) Without limiting Section 4.2, Seller shall, at its own expense:
(i) by the Delivery Term Commencement Date, (A) cause the Generating Facility, Storage Facility, Contract Capacity, Storage Capacity, Contract Energy, Storage Energy, Energy and/or Environmental Attributes (as applicable) to be certified and otherwise qualified for and registered with all programs or systems that are Applicable Environmental Attribute Programs as of the Delivery Term Commencement Date (subject to the last sentence of Section 4.2(e)) and (B) otherwise qualify for, and enter into all agreements and make all other arrangements (and, without limiting the foregoing, obtain all necessary accounts) to obtain and transfer to Buyer, (1) the Environmental Attributes under each Applicable Environmental Attribute Programs referenced in clause clause
(A) above and (2) the Guaranteed Environmental Attributes;
(ii) at all times comply with all reporting and other requirements of the Applicable Environmental Attribute Programs and Applicable Guaranteed Programs, including required reporting of the amount and type of Energy generated by the Facility and source of any Replacement EAs; and
(iii) upon the request of Buyer from time to time, (A) deliver or cause to be delivered to Buyer such attestations/certifications of Environmental Attributes and Replacement EAs and other documentation as may be required or advisable in Buyer’s reasonable discretion to comply with or otherwise participate in any Applicable Environmental Attribute Program or Applicable Guaranteed Program or to obtain and transfer to Buyer custody of, and give effect to and evidence the title of Buyer (as contemplated by Section 7.7(a)) in, all the Environmental Attributes and Replacement EAs and (B) otherwise provide full cooperation in connection with ▇▇▇▇▇Buyer’s retirement or other use of the Environmental Attributes and Replacement EAs.
(b) The transfer of Environmental Attributes (and any Replacement EAs) to Buyer shall be accomplished by the means specified by Buyer, which may include the documentation described in Section 4.3(a)(iii) and/or by electronic delivery pursuant to any renewable energy or environmental attribute program or monitoring, tracking, certification or trading system designated by Buyer that is an Applicable Environmental Attribute Program (or, in the case of Replacement EAs, that applies to such Replacement EAs), and shall be completed by Seller by the EA Transfer Deadline. For each MW of Contract Capacity and Storage Capacity or each MWh of Contract Energy and Storage Energy injected at the Injection Point for financial delivery to Buyer, as applicable, throughout the Delivery Term (even if some of such Contract Capacity, Storage Capacity, Storage Energy Capacity or Contract Energy is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion for any reason), Seller shall be required to obtain and transfer to Buyer the Guaranteed Environmental Attributes and any environmental attributes for which, if such MW or MWh were generated by the Facility from photovoltaic solar energy conversion and delivered to Buyer according to this Agreement, such MW or MWh would be eligible (subject to the last sentence of Section 4.2(e)), all by the EA Transfer Deadline. To the extent Seller does not provide Environmental Attributes to satisfy its obligations pursuant to the preceding sentence for any MW of Contract Capacity and Storage Capacity or MWh of Contract Energy and Storage Energy (e.g., because such MW or MWh is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion for any reason or, in the case of the Guaranteed Environmental Attributes, because the Applicable Guaranteed Program is no longer an Applicable Environmental Attribute Program due to the breach, negligence (including gross negligence), fraud, willful misconduct or other act or omission of Seller, its Affiliates or Subcontractors, or any of their respective directors, officers, partners, members, trustees, employees, agents or representatives), then Seller shall satisfy such obligations by providing Replacement EAs for such MW or MWh. For any such Environmental Attribute (or Replacement EA) that Seller does not provide to Buyer (provided that Seller shall first be required to use best efforts to provide such Environmental Attribute or Replacement EA) according to the two (2) immediately preceding sentences by the EA Transfer Deadline, Seller shall pay to Buyer an amount equal to the greater of (i) the Reference EA Compliance Payment applicable to such Environmental Attribute (or Replacement EA) or (ii) the average of at least two (2) price quotes obtained by Buyer from nationally recognized brokers during the first month following the month in which the corresponding MW was recognized or MWh was generated), for the sale and delivery of Replacement EAs that are eligible for the Required Qualified Programs corresponding to such Environmental Attribute (or Replacement EA). Any amounts payable pursuant to the immediately preceding sentence shall be included on the Monthly Invoice covering the month in which the EA Transfer Deadline occurs.
(c) The Parties acknowledge and agree that it is difficult or impossible to determine with precision the amount of damages that would or might be incurred by Buyer as a result of Seller’s failure to provide to Buyer the Environmental Attributes THE PARTIES ACKNOWLEDGE AND AGREE THAT IT IS DIFFICULT OR IMPOSSIBLE TO DETERMINE WITH PRECISION THE AMOUNT OF DAMAGES THAT WOULD OR MIGHT BE INCURRED BY BUYER AS A RESULT OF SELLER’S FAILURE TO PROVIDE TO BUYER THE ENVIRONMENTAL ATTRIBUTES (and/or Replacement EAsAND/OR REPLACEMENT EAS) (iI) required according to equal to at least the Annual Guaranteed Energy QuantityREQUIRED ACCORDING TO SECTION 4.3(b) FOR EACH MW OF CONTRACT CAPACITY OR EACH MWH OF CONTRACT ENERGY OR (II) THAT WOULD HAVE BEEN REQUIRED ACCORDING TO SECTION 4.3(b) IF SELLER HAD PROVIDED DELIVERED ENERGY TO BUYER AT THE ENERGY FINANCIAL DELIVERY POINT IN EACH CONTRACT YEAR EQUAL TO AT LEAST THE ANNUAL GUARANTEED ENERGY QUANTITY. IT IS UNDERSTOOD AND AGREED BY THE PARTIES THAT (A) BUYER SHALL BE DAMAGED BY THE FAILURE OF SELLER TO MEET SUCH OBLIGATIONS, in either case(B) IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX THE ACTUAL DAMAGES RESULTING THEREFROM, shall not constitute(C) ANY SUMS THAT WOULD BE CREDITABLE OR PAYABLE UNDER SECTION 4.3(b) OR SECTION 6.1 ARE IN THE NATURE OF LIQUIDATED DAMAGES, in and of itselfAND NOT A PENALTY, such a breachAND ARE FAIR AND REASONABLE, default or Event of Default.AND SHALL BE PAID REGARDLESS OF THE AMOUNT OF DAMAGES THAT BUYER ACTUALLY SUSTAINS,
Appears in 1 contract
Sources: Power Purchase Agreement
Environmental Attributes. (a) Without limiting Section 4.2, Seller shall, at its own expense:
(i) by the Delivery Term Commencement Date, (A) cause the Generating Facility, Storage Facility, Contract Capacity, Storage Capacity, Contract Energy, Storage Energy, and/or Environmental Attributes (as applicable) to be certified and otherwise qualified for and registered with all programs or systems that are Applicable Environmental Attribute Programs as of the Delivery Term Commencement Date (subject to the last sentence of Section 4.2(e)) and (B) otherwise qualify for, and enter into all agreements and make all other arrangements (and, without limiting the foregoing, obtain all necessary accounts) to obtain and transfer to Buyer, (1) the Environmental Attributes under each Applicable Environmental Attribute Programs referenced in clause (A) above and (2) the Guaranteed Environmental Attributes;
(ii) at all times comply with all reporting and other requirements of the Applicable Environmental Attribute Programs and Applicable Guaranteed Programs, including required reporting of the amount and type of Energy generated by the Facility and source of any Replacement EAs; and
(iii) upon the request of Buyer from time to time, (A) deliver or cause to be delivered to Buyer such attestations/certifications of Environmental Attributes and Replacement EAs and other documentation as may be required or advisable in Buyer’s reasonable discretion to comply with or otherwise participate in any Applicable Environmental Attribute Program or Applicable Guaranteed Program or to obtain and transfer to Buyer custody of, and give effect to and evidence the title of Buyer (as contemplated by Section 7.7(a)) in, all the Environmental Attributes and Replacement EAs and (B) otherwise provide full cooperation in connection with ▇▇▇▇▇’s retirement or other use of the Environmental Attributes and Replacement EAs.
(b) The transfer of Environmental Attributes (and any Replacement EAs) to Buyer shall be accomplished by the means specified by Buyer, which may include the documentation described in Section 4.3(a)(iii) and/or by electronic delivery pursuant to any renewable energy or environmental attribute program or monitoring, tracking, certification or trading system designated by Buyer that is an Applicable Environmental Attribute Program (or, in the case of Replacement EAs, that applies to such Replacement EAs), and shall be completed by Seller by the EA Transfer Deadline. For each MW of Contract Capacity and Storage Capacity or each MWh of Contract Energy and Storage Energy injected at the Injection Point for financial delivery to Buyer, as applicable, throughout the Delivery Term (even if some of such Contract Capacity, Storage Capacity, Storage Energy or Contract Energy is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion for any reason), Seller shall be required to obtain and transfer to Buyer the Guaranteed Environmental Attributes and any environmental attributes for which, if such MW or MWh were generated by the Facility from photovoltaic solar energy conversion and delivered to Buyer according to this Agreement, such MW or MWh would be eligible (subject to the last sentence of Section 4.2(e)), all by the EA Transfer Deadline. To the extent Seller does not provide Environmental Attributes to satisfy its obligations pursuant to the preceding sentence for any MW of Contract Capacity and Storage Capacity or MWh of Contract Energy and Storage Energy (e.g., because such MW or MWh is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion for any reason or, in the case of the Guaranteed Environmental Attributes, because the Applicable Guaranteed Program is no longer an Applicable Environmental Attribute Program due to the breach, negligence (including gross negligence), fraud, willful misconduct or other act or omission of Seller, its Affiliates or Subcontractors, or any of their respective directors, officers, partners, members, trustees, employees, agents or representatives), then Seller shall satisfy such obligations by providing Replacement EAs for such MW or MWh. For any such Environmental Attribute (or Replacement EA) that Seller does not provide to Buyer (provided that Seller shall first be required to use best efforts to provide such Environmental Attribute or Replacement EA) according to the two (2) immediately preceding sentences by the EA Transfer Deadline, Seller shall pay to Buyer an amount equal to the greater of (i) the Reference EA Compliance Payment applicable to such Environmental Attribute (or Replacement EA) or (ii) the average of at least two (2) price quotes obtained by Buyer from nationally recognized brokers during the first month following the month in which the corresponding MW was recognized or MWh was generated), for the sale and delivery of Replacement EAs that are eligible for the Required Qualified Programs corresponding to such Environmental Attribute (or Replacement EA). Any amounts payable pursuant to the immediately preceding sentence shall be included on the Monthly Invoice covering the month in which the EA Transfer Deadline occurs.
(c) The Parties acknowledge and agree that it is difficult or impossible to determine with precision the amount of damages that would or might be incurred by Buyer as a result of Seller’s failure to provide to Buyer the Environmental Attributes (and/or Replacement EAs) (i) required according to each MW of Contract Capacity and Storage Capacity or each MWH of Contract Energy and Storage Energy or (ii) that would have been required according to equal to at least the Annual Guaranteed Energy Quantity, in either case, shall not constitute, in and of itself, such a breach, default or Event of Default.
Appears in 1 contract
Sources: Power Purchase Agreement
Environmental Attributes. (a) Without limiting Section 4.2, Seller shall, at its own expense:
(i) by the Delivery Term Commencement Date, (A) cause the Generating Facility, Storage Facility, Contract Capacity, Storage Capacity, Contract Energy, Storage Energy, Energy and/or Environmental Attributes (as applicable) to be certified and otherwise qualified for and registered with all programs or systems that are Applicable Environmental Attribute Programs as of the Delivery Term Commencement Date (subject to the last sentence of Section 4.2(e)) and (B) otherwise qualify for, and enter into all agreements and make all other arrangements (and, without limiting the foregoing, obtain all necessary accounts) to obtain and transfer to Buyer, (1) the Environmental Attributes under each Applicable Environmental Attribute Programs referenced in clause (A) above and (2) the Guaranteed Environmental Attributes;
(ii) at all times comply with all reporting and other requirements of the Applicable Environmental Attribute Programs and Applicable Guaranteed Programs, including required reporting of the amount and type of Energy generated by the Facility and source of any Replacement EAs; and
(iii) upon the request of Buyer from time to time, (A) deliver or cause to be delivered to Buyer such attestations/certifications of Environmental Attributes and Replacement EAs and other documentation as may be required or advisable in Buyer’s reasonable discretion to comply with or otherwise participate in any Applicable Environmental Attribute Program or Applicable Guaranteed Program or to obtain and transfer to Buyer custody of, and give effect to and evidence the title of Buyer (as contemplated by Section 7.7(a)) in, all the Environmental Attributes and Replacement EAs and (B) otherwise provide full cooperation in connection with ▇▇▇▇▇’s retirement or other use of the Environmental Attributes and Replacement EAs.
(b) The transfer of Environmental Attributes (and any Replacement EAs) to Buyer shall be accomplished by the means specified by Buyer, which may include the documentation described in Section 4.3(a)(iii) and/or by electronic delivery pursuant to any renewable energy or environmental attribute program or monitoring, tracking, certification or trading system designated by Buyer that is an Applicable Environmental Attribute Program (or, in the case of Replacement EAs, that applies to such Replacement EAs), and shall be completed by Seller by the EA Transfer Deadline. For each MW of Contract Capacity and Storage Capacity or each MWh of Contract Energy and Storage Energy injected at the Injection Point for financial delivery to Buyer, as applicable, throughout the Delivery Term (even if some of such Contract Capacity, Storage Capacity, Storage Energy Capacity or Contract Energy is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion for any reason), Seller shall be required to obtain and transfer to Buyer the Guaranteed Environmental Attributes and any environmental attributes for which, if such MW or MWh were generated by the Facility from photovoltaic solar energy conversion and delivered to Buyer according to this Agreement, such MW or MWh would be eligible (subject to the last sentence of Section 4.2(e)), all by the EA Transfer Deadline. To the extent Seller does not provide Environmental Attributes to satisfy its obligations pursuant to the preceding sentence for any MW of Contract Capacity and Storage Capacity or MWh of Contract Energy and Storage Energy (e.g., because such MW or MWh is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion for any reason or, in the case of the Guaranteed Environmental Attributes, because the Applicable Guaranteed Program is no longer an Applicable Environmental Attribute Program due to the breach, negligence (including gross negligence), fraud, willful misconduct or other act or omission of Seller, its Affiliates or Subcontractors, or any of their respective directors, officers, partners, members, trustees, employees, agents or representatives), then Seller shall satisfy such obligations by providing Replacement EAs for such MW or MWh. For any such Environmental Attribute (or Replacement EA) that Seller does not provide to Buyer (provided that Seller shall first be required to use best efforts to provide such Environmental Attribute or Replacement EA) according to the two (2) immediately preceding sentences by the EA Transfer Deadline, Seller shall pay to Buyer an amount equal to the greater of (i) the Reference EA Compliance Payment applicable to such Environmental Attribute (or Replacement EA) or (ii) the average of at least two (2) price quotes obtained by Buyer from nationally recognized brokers during the first month following the month in which the corresponding MW was recognized or MWh was generated), for the sale and delivery of Replacement EAs that are eligible for the Required Qualified Programs corresponding to such Environmental Attribute (or Replacement EA). Any amounts payable pursuant to the immediately preceding sentence shall be included on the Monthly Invoice covering the month in which the EA Transfer Deadline occurs.
(c) The Parties acknowledge and agree that it is difficult or impossible to determine with precision the amount of damages that would or might be incurred by Buyer as a result of Seller’s failure to provide to Buyer the Environmental Attributes (and/or Replacement EAs) (i) required according to equal to at least the Annual Guaranteed Energy Quantity, in either case, shall not constitute, in and of itself, such a breach, default or Event of Default.to
Appears in 1 contract
Sources: Power Purchase Agreement
Environmental Attributes. (a) Without limiting Section 4.2, Seller shall, at its own expense:
(i) by the Delivery Term Commencement Date, (A) cause the Generating Facility, Storage Facility, Contract Capacity, Storage Capacity, Contract Energy, Storage Energy, and/or Environmental Attributes (as applicable) to be certified and otherwise qualified for and registered with all programs or systems that are Applicable Environmental Attribute Programs as of the Delivery Term Commencement Date (subject to the last sentence of Section 4.2(e)) and (B) otherwise qualify for, and enter into all agreements and make all other arrangements (and, without limiting the foregoing, obtain all necessary accounts) to obtain and transfer to Buyer, (1) the Environmental Attributes under each Applicable Environmental Attribute Programs referenced in clause (A) above and (2) the Guaranteed Environmental Attributes;
(ii) at all times comply with all reporting and other requirements of the Applicable Environmental Attribute Programs and Applicable Guaranteed Programs, including required reporting of the amount and type of Energy generated by the Facility and source of any Replacement EAs; and
(iii) upon the request of Buyer from time to time, (A) deliver or cause to be delivered to Buyer such attestations/certifications of Environmental Attributes and Replacement EAs and other documentation as may be required or advisable in Buyer’s reasonable discretion to comply with or otherwise participate in any Applicable Environmental Attribute Program or Applicable Guaranteed Program or to obtain and transfer to Buyer custody of, and give effect to and evidence the title of Buyer (as contemplated by Section 7.7(a)) in, all the Environmental Attributes and Replacement EAs and (B) otherwise provide full cooperation in connection with ▇▇▇▇▇’s retirement or other use of the Environmental Attributes and Replacement EAs.
(b) The transfer of Environmental Attributes (and any Replacement EAs) to Buyer shall be accomplished by the means specified by Buyer, which may include the documentation described in Section 4.3(a)(iii) and/or by electronic delivery pursuant to any renewable energy or environmental attribute program or monitoring, tracking, certification or trading system designated by Buyer that is an Applicable Environmental Attribute Program (or, in the case of Replacement EAs, that applies to such Replacement EAs), and shall be completed by Seller by the EA Transfer Deadline. For each MW of Contract Capacity and Storage Capacity or each MWh of Contract Energy and Storage Energy injected at the Injection Point for financial delivery to Buyer, as applicable, throughout the Delivery Term (even if some of such Contract Capacity, Storage Capacity, Storage Energy or Contract Energy is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion wind power for any reason), Seller shall be required to obtain and transfer to Buyer the Guaranteed Environmental Attributes and any environmental attributes for which, if such MW or MWh were generated by the Facility from photovoltaic solar energy conversion wind power and delivered to Buyer according to this Agreement, such MW or MWh would be eligible (subject to the last sentence of Section 4.2(e)), all by the EA Transfer Deadline. To the extent Seller does not provide Environmental Attributes to satisfy its obligations pursuant to the preceding sentence for any MW of Contract Capacity and Storage Capacity or MWh of Contract Energy and Storage Energy (e.g., because such MW or MWh is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion wind power for any reason or, in the case of the Guaranteed Environmental Attributes, because the Applicable Guaranteed Program is no longer an Applicable Environmental Attribute Program due to the breach, negligence (including gross negligence), fraud, willful misconduct or other act or omission of Seller, its Affiliates or Subcontractors, or any of their respective directors, officers, partners, members, trustees, employees, agents or representatives), then Seller shall satisfy such obligations by providing Replacement EAs for such MW or MWh. For any such Environmental Attribute (or Replacement EA) that Seller does not provide to Buyer (provided that Seller shall first be required to use best efforts to provide such Environmental Attribute or Replacement EA) according to the two (2) immediately preceding sentences by the EA Transfer Deadline, Seller shall pay to Buyer an amount equal to the greater of (i) the Reference EA Compliance Payment applicable to such Environmental Attribute (or Replacement EA) or (ii) the average of at least two (2) price quotes obtained by Buyer from nationally recognized brokers during the first month following the month in which the corresponding MW was recognized or MWh was generated), for the sale and delivery of Replacement EAs that are eligible for the Required Qualified Programs corresponding to such Environmental Attribute (or Replacement EA). Any amounts payable pursuant to the immediately preceding sentence shall be included on the Monthly Invoice covering the month in which the EA Transfer Deadline occurs.
(c) The Parties acknowledge and agree that it is difficult or impossible to determine with precision the amount of damages that would or might be incurred by Buyer ▇▇▇▇▇ as a result of Seller’s failure to provide to Buyer the Environmental Attributes (and/or Replacement EAs) (i) required according to equal damages arising out of Seller’s failure to at least provide to Buyer the Annual Guaranteed Energy Quantity, in either case, shall not constitute, in and of itself, such a breach, default or Event of Default.Environmental
Appears in 1 contract
Sources: Power Purchase Agreement
Environmental Attributes. (a) Without limiting Section 4.2, Seller shall, at its own expense:
(i) by the Delivery Term Commencement Date, (A) cause the Generating Facility, Storage Facility, Contract Capacity, Storage Capacity, Contract Energy, Storage Energy, and/or Environmental Attributes (as applicable) to be certified and otherwise qualified for and registered with all programs or systems that are Applicable Environmental Attribute Programs as of the Delivery Term Commencement Date (subject to the last sentence of Section 4.2(e)) and (B) otherwise qualify for, and enter into all agreements and make all other arrangements (and, without limiting the foregoing, obtain all necessary accounts) to obtain and transfer to Buyer, (1) the Environmental Attributes under each Applicable Environmental Attribute Programs referenced in clause (A) above and (2) the Guaranteed Environmental Attributes;
(ii) at all times comply with all reporting and other requirements of the Applicable Environmental Attribute Programs and Applicable Guaranteed Programs, including required reporting of the amount and type of Energy generated by the Facility and source of any Replacement EAs; and
(iii) upon the request of Buyer from time to time, (A) deliver or cause to be delivered to Buyer such attestations/certifications of Environmental Attributes and Replacement EAs and other documentation as may be required or advisable in Buyer’s reasonable discretion to comply with or otherwise participate in any Applicable Environmental Attribute Program or Applicable Guaranteed Program or to obtain and transfer to Buyer custody of, and give effect to and evidence the title of Buyer (as contemplated by Section 7.7(a)) in, all the Environmental Attributes and Replacement EAs and (B) otherwise provide full cooperation in connection with ▇▇▇▇▇’s retirement or other use of the Environmental Attributes and Replacement EAs.
(b) The transfer of Environmental Attributes (and any Replacement EAs) to Buyer shall be accomplished by the means specified by Buyer, which may include the documentation described in Section 4.3(a)(iii) and/or by electronic delivery pursuant to any renewable energy or environmental attribute program or monitoring, tracking, certification or trading system designated by Buyer that is an Applicable Environmental Attribute Program (or, in the case of Replacement EAs, that applies to such Replacement EAs), and shall be completed by Seller by the EA Transfer Deadline. For each MW of Contract Capacity and Storage Capacity or each MWh of Contract Energy and Storage Energy injected at the Injection Point for financial delivery to Buyer, as applicable, throughout the Delivery Term (even if some of such Contract Capacity, Storage Capacity, Storage Energy or Contract Energy is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion for any reason), Seller shall be required to obtain and transfer to Buyer the Guaranteed Environmental Attributes and any environmental attributes for which, if such MW or MWh were generated by the Facility from photovoltaic solar energy conversion and delivered to Buyer according to this Agreement, such MW or MWh would be eligible (subject to the last sentence of Section 4.2(e)), all by the EA Transfer Deadline. To the extent Seller does not provide Environmental Attributes to satisfy its obligations pursuant to the preceding sentence for any MW of Contract Capacity and Storage Capacity or MWh of Contract Energy and Storage Energy (e.g., because such MW or MWh is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion for any reason or, in the case of the Guaranteed Environmental Attributes, because the Applicable Guaranteed Program is no longer an Applicable Environmental Attribute Program due to the breach, negligence (including gross negligence), fraud, willful misconduct or other act or omission of Seller, its Affiliates or Subcontractors, or any of their respective directors, officers, partners, members, trustees, employees, agents or representatives), then Seller shall satisfy such obligations by providing Replacement EAs for such MW or MWh. For any such Environmental Attribute (or Replacement EA) that Seller does not provide to Buyer (provided that Seller shall first be required to use best efforts to provide such Environmental Attribute or Replacement EA) according to the two (2) immediately preceding sentences by the EA Transfer Deadline, Seller shall pay to Buyer an amount equal to the greater of (i) the Reference EA Compliance Payment applicable to such Environmental Attribute (or Replacement EA) or (ii) the average of at least two (2) price quotes obtained by Buyer from nationally recognized brokers during the first month following the month in which the corresponding MW was recognized or MWh was generated), for the sale and delivery of Replacement EAs that are eligible for the Required Qualified Programs corresponding to such Environmental Attribute (or Replacement EA). Any amounts payable pursuant to the immediately preceding sentence shall be included on the Monthly Invoice covering the month in which the EA Transfer Deadline occurs.
(c) The Parties acknowledge and agree that it is difficult or impossible to determine with precision the amount of damages that would or might be incurred by Buyer ▇▇▇▇▇ as a result of Seller’s failure to provide to Buyer the Environmental Attributes (and/or Replacement EAs) (i) required according to equal to at least the Annual Guaranteed Energy Quantity, in either case, shall not constitute, in and of itself, such a breach, default or Event of Default.to
Appears in 1 contract
Sources: Power Purchase Agreement
Environmental Attributes. (a) Without limiting Section 4.2, Seller shall, at its own expense:
(i) by the Delivery Term Commencement Date, (A) cause the Generating Facility, Storage Facility, Contract Capacity, Storage Capacity, Contract Energy, Storage Energy, and/or Environmental Attributes (as applicable) to be certified and otherwise qualified for and registered with all programs or systems that are Applicable Environmental Attribute Programs as of the Delivery Term Commencement Date (subject to the last sentence of Section 4.2(e)) and (B) otherwise qualify for, and enter into all agreements and make all other arrangements (and, without limiting the foregoing, obtain 22 NTD: Seller to list all eligible Capacity-Related Benefits, Storage Capacity-Related Benefits, and Other Electric Products for which the Facility, including the Generating Facility and Storage Facility is eligible (e.g., ZRCs, reactive supply and voltage control, etc.). all necessary accounts) to obtain and transfer to Buyer, (1) the Environmental Attributes under each Applicable Environmental Attribute Programs referenced in clause (A) above and (2) the Guaranteed Environmental Attributes;
(ii) at all times comply with all reporting and other requirements of the Applicable Environmental Attribute Programs and Applicable Guaranteed Programs, including required reporting of the amount and type of Energy generated by the Facility and source of any Replacement EAs; and
(iii) upon the request of Buyer from time to time, (A) deliver or cause to be delivered to Buyer such attestations/certifications of Environmental Attributes and Replacement EAs and other documentation as may be required or advisable in Buyer’s reasonable discretion to comply with or otherwise participate in any Applicable Environmental Attribute Program or Applicable Guaranteed Program or to obtain and transfer to Buyer custody of, and give effect to and evidence the title of Buyer (as contemplated by Section 7.7(a)) in, all the Environmental Attributes and Replacement EAs and (B) otherwise provide full cooperation in connection with ▇▇▇▇▇’s retirement or other use of the Environmental Attributes and Replacement EAs.
(b) The transfer of Environmental Attributes (and any Replacement EAs) to Buyer shall be accomplished by the means specified by Buyer, which may include the documentation described in Section 4.3(a)(iii) and/or by electronic delivery pursuant to any renewable energy or environmental attribute program or monitoring, tracking, certification or trading system designated by Buyer that is an Applicable Environmental Attribute Program (or, in the case of Replacement EAs, that applies to such Replacement EAs), and shall be completed by Seller by the EA Transfer Deadline. For each MW of Contract Capacity and Storage Capacity or each MWh of Contract Energy and Storage Energy injected at the Injection Point for financial delivery to Buyer, as applicable, throughout the Delivery Term (even if some of such Contract Capacity, Storage Capacity, Storage Energy or Contract Energy is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion for any reason), Seller shall be required to obtain and transfer to Buyer the Guaranteed Environmental Attributes and any environmental attributes for which, if such MW or MWh were generated by the Facility from photovoltaic solar energy conversion and delivered to Buyer according to this Agreement, such MW or MWh would be eligible (subject to the last sentence of Section 4.2(e)), all by the EA Transfer Deadline. To the extent Seller does not provide Environmental Attributes to satisfy its obligations pursuant to the preceding sentence for any MW of Contract Capacity and Storage Capacity or MWh of Contract Energy and Storage Energy (e.g., because such MW or MWh is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion for any reason or, in the case of the Guaranteed Environmental Attributes, because the Applicable Guaranteed Program is no longer an Applicable Environmental Attribute Program due to the breach, negligence (including gross negligence), fraud, willful misconduct or other act or omission of Seller, its Affiliates or Subcontractors, or any of their respective directors, officers, partners, members, trustees, employees, agents or representatives), then Seller shall satisfy such obligations by providing Replacement EAs for such MW or MWh. For any such Environmental Attribute (or Replacement EA) that Seller does not provide to Buyer (provided that Seller shall first be required to use best efforts to provide such Environmental Attribute or Replacement EA) according to the two (2) immediately preceding sentences by the EA Transfer Deadline, Seller shall pay to Buyer an amount equal to the greater of (i) the Reference EA Compliance Payment applicable to such Environmental Attribute (or Replacement EA) or (ii) the average of at least two (2) price quotes obtained by Buyer from nationally recognized brokers during the first month following the month in which the corresponding MW was recognized or MWh was generated), for the sale and delivery of Replacement EAs that are eligible for the Required Qualified Programs corresponding to such Environmental Attribute (or Replacement EA). Any amounts payable pursuant to the immediately preceding sentence shall be included on the Monthly Invoice covering the month in which the EA Transfer Deadline occurs.
(c) The Parties acknowledge and agree that it is difficult or impossible to determine with precision the amount of damages that would or might be incurred by Buyer as a result of Seller’s failure to provide to Buyer the Environmental Attributes (and/or Replacement EAs) (i) required according to equal to at least the Annual Guaranteed Energy Quantity, in either case, shall not constitute, in and of itself, such a breach, default or Event of Default.
Appears in 1 contract
Sources: Power Purchase Agreement
Environmental Attributes. (a) Without limiting The Supplier shall from time to time during the Term of this Agreement obtain, qualify, and register with the relevant authorities or agencies all Environmental Attributes that are created by, or allocated or credited to, the Facility pursuant to Laws and Regulations (including the Ontario Emissions Trading Program, if applicable to the Facility) (collectively, the “Regulatory Environmental Attributes”).
(b) The Supplier shall be entitled to any and all right, title and interest in any Regulatory Environmental Attributes attributable to the Facility that were available under the Ontario Emissions Trading Program as of March 13, 2009 (“OETP Attributes”). However, the amount of the Supplier’s entitlement to any such OETP Attributes shall be determined with reference to the levels in effect under the Ontario Emissions Trading Program as of the date of the Supplier’s claim from time to time to any such entitlement. For certainty, revenue arising from such OETP Attributes will not be included in Imputed Net Revenue for purposes of Exhibit J.
(c) With respect to Regulatory Environmental Attributes, other than OETP Attributes:
(i) The Buyer shall be entitled to any and all right, title and interest in any Regulatory Environmental Attributes created, credited or allocated to the Facility in an amount related to Contracted Facility Operation; and
(ii) The Supplier shall be entitled to any and all right, title and interest in any remaining Regulatory Environmental Attributes net of the Buyer’s entitlement in Section 4.22.12(c)(i). Further to Section 16.13, Seller shalleach of the Supplier and the Buyer shall do all such further acts and execute and deliver or cause to be done, executed or delivered all such further acts, deeds, documents, assurances and things as may be required, acting reasonably, in order to give effect to the provisions of this Section 2.12(c), including assigning, transferring or, if necessary, holding in trust for the other Party, such Regulatory Environmental Attributes.
(d) The Supplier shall not participate in any voluntary programs with respect to any Environmental Attributes associated with the Facility without the prior written consent of the Buyer, which consent may be unreasonably withheld.
(e) The Parties acknowledge that the Government of Canada and the Government of Ontario may, from time to time during the Term of this Agreement, implement Laws and Regulations covering Greenhouse Gas emissions that may be applicable to the Facility and that may contain provisions requiring the Facility to have, obtain and/or retire permits, credits, allowances, offsets, or similar instruments or other compliance mechanisms (“GHG Emissions Credits”) in connection with the emission of Greenhouse Gases due to the operation of the Facility or prescribe other compliance mechanisms (the “GHG Laws and Regulations”). If the GHG Laws and Regulations are promulgated, and once the applicable details of the GHG Laws and Regulations and the details of their application to the Facility are known, then notwithstanding Section 2.12(c), the Buyer agrees to propose such amendments to this Agreement (the “Replacement Provision(s)”) to the Supplier and, at the Buyer’s discretion, to all of the Other Suppliers who are required by the Buyer to participate, based on the principles set out in Section 2.12(f) (the “GHG Amendment Principles”). If the Parties are unable to agree on the Buyer’s proposal or that of the Supplier or any of those Other Suppliers, as the case may be, within sixty (60) days after the applicable details of the GHG Laws and Regulations have been published in final form, then the Replacement Provision(s) shall be determined by mandatory and binding arbitration, from which there shall be no appeal, with such arbitration(s) to be conducted in accordance with the procedures set out in Exhibit K. However, if the Supplier fails to participate in such arbitration, the Supplier acknowledges that it waives its own expenseright to participate in such arbitration, which shall nevertheless proceed, and the Supplier shall be bound by the award of the Arbitration Panel and the subsequent amendments to this Agreement made by the Buyer to implement such award of the Arbitration Panel pursuant to Section 2.12(g).
(f) For the purposes of Section 2.12(e), the GHG Amendment Principles upon which the Replacement Provision(s) will be based are as follows:
(i) The objective of the amendments, together with the GHG Laws and Regulations, will be to substantially reflect the economics of the Supplier under this Agreement with respect to Contracted Facility Operation prior to the implementation of the GHG Laws and Regulations.
(ii) If GHG Emissions Credits are created by, or allocated or credited to, the Facility, such GHG Emissions Credits will be allocated to the operation of the Facility based on:
(A) the requirements of Contracted Facility Operation; and
(B) the requirements of operation of the Facility that is not Contracted Facility Operation, if and to the extent that the requirements of Contracted Facility Operation have been satisfied.
(iii) If GHG Emissions Credits are required by GHG Laws and Regulations for Contracted Facility Operation and the amount of GHG Emission Credits, if any, allocated to Contracted Facility Operation is less than the amount required by GHG Laws and Regulations for Contracted Facility Operation, the amendments may include, at the option of the Buyer:
(A) amendments to Exhibit J; or
(B) the addition of provisions which allow or require the Buyer to pay to the Supplier the reasonable cost of any required GHG Emissions Credits beyond the amount that are available to the Supplier (acting prudently and excluding transaction costs); or
(C) the addition of provisions which allow or require the Buyer to obtain the GHG Emissions Credits and transfer them to the Supplier at no cost to the Supplier; or
(D) the addition of provisions which allow or require the Buyer to pay any compliance penalties associated with any deficit in required GHG Emissions Credits; or
(E) the addition of provisions which enable the Buyer to require the Supplier to stop delivering Electricity beyond a specified amount below the maximum amount of Contracted Facility Operation otherwise permitted under this Agreement together with the necessary amendments to Exhibit J.
(iv) If GHG Emissions Credits are required by GHG Laws and Regulations for Contracted Facility Operation and the amount of GHG Emission Credits, if any, allocated to Contracted Facility Operation is greater than the amount required by GHG Laws and Regulations for Contracted Facility Operation, the Buyer shall be entitled to any and all right, title and interest in any such excess GHG Emissions Credits.
(v) If GHG Emissions Credits are required by GHG Laws and Regulations for the operation of the Facility that is not Contracted Facility Operation, the Supplier is solely responsible for ensuring that it has a sufficient amount of GHG Emissions Credits for such operation.
(g) The terms of this Agreement shall be amended either:
(i) by the Delivery Term Commencement Date, (A) cause the Generating Facility, Storage Facility, Contract Capacity, Storage Capacity, Contract Energy, Storage Energy, and/or Environmental Attributes (as applicable) to be certified and otherwise qualified for and registered with all programs or systems that are Applicable Environmental Attribute Programs as agreement of the Delivery Term Commencement Date (subject Parties, where no award of an Arbitration Panel has been made pursuant to the last sentence of Section 4.2(e2.12(f)) and (B) otherwise qualify for, and enter into all agreements and make all other arrangements (and, without limiting the foregoing, obtain all necessary accounts) to obtain and transfer to Buyer, (1) the Environmental Attributes under each Applicable Environmental Attribute Programs referenced in clause (A) above and (2) the Guaranteed Environmental Attributes;
(ii) at all times comply with all reporting and other requirements by the agreement of the Applicable Environmental Attribute Programs Parties made pursuant to and Applicable Guaranteed Programs, including required reporting to implement an award of the amount and type of Energy generated by the Facility and source of any Replacement EAsArbitration Panel, made pursuant to Section 2.12(f); andor
(iii) upon by an amendment prepared by the request Buyer made pursuant to and to implement an award of Buyer from time the Arbitration Panel made pursuant to timeSection 2.12(f), (A) deliver or cause where the Supplier failed to be delivered to Buyer such attestations/certifications of Environmental Attributes and Replacement EAs and other documentation as may be required or advisable in Buyer’s reasonable discretion to comply with or otherwise participate in any Applicable Environmental Attribute Program such arbitration, with such agreement or Applicable Guaranteed Program or to obtain amendment, as the case may be, having effect from and transfer to Buyer custody ofafter the date that the applicable details of such GHG Laws and Regulations, and give their effect to and evidence the title of Buyer (as contemplated by Section 7.7(a)) inon Contracted Facility Operation, all the Environmental Attributes and Replacement EAs and (B) otherwise provide full cooperation in connection with ▇▇▇▇▇’s retirement or other use of the Environmental Attributes and Replacement EAswere known.
(b) The transfer of Environmental Attributes (and any Replacement EAs) to Buyer shall be accomplished by the means specified by Buyer, which may include the documentation described in Section 4.3(a)(iii) and/or by electronic delivery pursuant to any renewable energy or environmental attribute program or monitoring, tracking, certification or trading system designated by Buyer that is an Applicable Environmental Attribute Program (or, in the case of Replacement EAs, that applies to such Replacement EAs), and shall be completed by Seller by the EA Transfer Deadline. For each MW of Contract Capacity and Storage Capacity or each MWh of Contract Energy and Storage Energy injected at the Injection Point for financial delivery to Buyer, as applicable, throughout the Delivery Term (even if some of such Contract Capacity, Storage Capacity, Storage Energy or Contract Energy is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion for any reason), Seller shall be required to obtain and transfer to Buyer the Guaranteed Environmental Attributes and any environmental attributes for which, if such MW or MWh were generated by the Facility from photovoltaic solar energy conversion and delivered to Buyer according to this Agreement, such MW or MWh would be eligible (subject to the last sentence of Section 4.2(e)), all by the EA Transfer Deadline. To the extent Seller does not provide Environmental Attributes to satisfy its obligations pursuant to the preceding sentence for any MW of Contract Capacity and Storage Capacity or MWh of Contract Energy and Storage Energy (e.g., because such MW or MWh is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion for any reason or, in the case of the Guaranteed Environmental Attributes, because the Applicable Guaranteed Program is no longer an Applicable Environmental Attribute Program due to the breach, negligence (including gross negligence), fraud, willful misconduct or other act or omission of Seller, its Affiliates or Subcontractors, or any of their respective directors, officers, partners, members, trustees, employees, agents or representatives), then Seller shall satisfy such obligations by providing Replacement EAs for such MW or MWh. For any such Environmental Attribute (or Replacement EA) that Seller does not provide to Buyer (provided that Seller shall first be required to use best efforts to provide such Environmental Attribute or Replacement EA) according to the two (2) immediately preceding sentences by the EA Transfer Deadline, Seller shall pay to Buyer an amount equal to the greater of (i) the Reference EA Compliance Payment applicable to such Environmental Attribute (or Replacement EA) or (ii) the average of at least two (2) price quotes obtained by Buyer from nationally recognized brokers during the first month following the month in which the corresponding MW was recognized or MWh was generated), for the sale and delivery of Replacement EAs that are eligible for the Required Qualified Programs corresponding to such Environmental Attribute (or Replacement EA). Any amounts payable pursuant to the immediately preceding sentence shall be included on the Monthly Invoice covering the month in which the EA Transfer Deadline occurs.
(c) The Parties acknowledge and agree that it is difficult or impossible to determine with precision the amount of damages that would or might be incurred by Buyer as a result of Seller’s failure to provide to Buyer the Environmental Attributes (and/or Replacement EAs) (i) required according to equal to at least the Annual Guaranteed Energy Quantity, in either case, shall not constitute, in and of itself, such a breach, default or Event of Default.
Appears in 1 contract
Sources: Clean Energy Supply Contract
Environmental Attributes. (a) Without limiting Section 4.2, Seller shall, at its own expense:
(i) by the Delivery Term Commencement Date, (A) cause the Generating Facility, Storage Facility, Contract Capacity, Storage Capacity, Contract Energy, Storage Energy, and/or Environmental Attributes (as applicable) to be certified and otherwise qualified for and registered with all programs or systems that are Applicable Environmental Attribute Programs as of the Delivery Term Commencement Date (subject to the last sentence of Section 4.2(e)) and (B) otherwise qualify for, and enter into all agreements and make all other arrangements (and, without limiting the foregoing, obtain all necessary accounts) to obtain and transfer to Buyer, (1) Buyer the Environmental Attributes under each Applicable Environmental Attribute Programs referenced in clause (A) above and (2) the Guaranteed Environmental AttributesProgram;
(ii) at all times comply with all reporting and other requirements of the Applicable Environmental Attribute Programs and Applicable Guaranteed Programs, including required reporting of the amount and type of Energy generated by the Facility and source of any Replacement EAs; and
(iii) upon the request of Buyer from time to time, (A) deliver or cause to be delivered to Buyer such attestations/certifications of Environmental Attributes and Replacement EAs and other documentation as may be required or advisable in Buyer’s reasonable discretion to comply with or otherwise participate in any Applicable Environmental Attribute Program or Applicable Guaranteed Program or to obtain and transfer to Buyer custody of, and give effect to and evidence the title of Buyer (as contemplated by Section 7.7(a)) in, all the Environmental Attributes and Replacement EAs and (B) otherwise provide full cooperation in connection with ▇▇▇▇▇’s retirement or other use of the Environmental Attributes and Replacement EAs.
(b) The transfer of Environmental Attributes (and any Replacement EAs) to Buyer shall be accomplished by the means specified by Buyer, which may include the documentation described in Section 4.3(a)(iii) and/or by electronic delivery pursuant to any renewable energy or environmental attribute program or monitoring, tracking, certification or trading system designated by Buyer that is an Applicable Environmental Attribute Program (or, in the case of Replacement EAs, that applies to such Replacement EAs), and shall be completed by Seller by the EA Transfer Deadline. For each MW of Contract Capacity and Storage Capacity or each MWh of Contract Energy and Storage Energy injected at the Injection Point for financial delivery to Buyer, as applicable, throughout the Delivery Term (even if some of such Contract Capacity, Storage Capacity, Storage Energy or Contract Energy is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion for any reason)Term, Seller shall be required to obtain and transfer to Buyer the Guaranteed Environmental Attributes and any environmental attributes for which, if such MW or MWh were generated by under the Facility from photovoltaic solar energy conversion and delivered to Buyer according to this Agreement, such MW or MWh would be eligible (subject to the last sentence of Section 4.2(e)), all Applicable Environmental Attribute Programs by the EA Transfer Deadline. To the extent Seller does not provide Environmental Attributes to satisfy its obligations pursuant to the preceding sentence for any MW of Contract Capacity and Storage Capacity or MWh of Contract Energy and Storage Energy (e.g.sentence, because such MW or MWh is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion for any reason or, in the case of the Guaranteed Environmental Attributes, because the Applicable Guaranteed Program is no longer an Applicable Environmental Attribute Program due to the breach, negligence (including gross negligence), fraud, willful misconduct or other act or omission of Seller, its Affiliates or Subcontractors, or any of their respective directors, officers, partners, members, trustees, employees, agents or representatives), then Seller shall satisfy such obligations by providing Replacement EAs for such MW or MWh. For any such Environmental Attribute (or Replacement EA) that Seller Seller, despite the use of best efforts, does not provide to Buyer (provided that Seller shall first be required to use best efforts to provide such Environmental Attribute or Replacement EA) according to the two (2) immediately preceding sentences by the EA Transfer Deadline, Seller shall pay to Buyer an amount equal to the greater of (i) the Reference EA Compliance Payment applicable to such Environmental Attribute (or Replacement EA) or (ii) the average of at least two (2) price quotes obtained by Buyer from nationally recognized brokers during the first month following the month in which the corresponding MW was recognized or MWh was generated), for the sale and delivery of Replacement EAs that are eligible for the Required Qualified Programs corresponding to such Environmental Attribute (or Replacement EA). Any amounts payable pursuant to the immediately preceding sentence shall be included on the Monthly Invoice covering the month in which the EA Transfer Deadline occurs.
(c) The Parties acknowledge and agree that it is difficult or impossible to determine with precision the amount of damages that would or might be incurred by Buyer as a result of Seller’s failure to provide to Buyer the Environmental Attributes (and/or Replacement EAs) (i) required according to equal to at least the Annual Guaranteed Energy Quantity, in either case, shall not constitute, in and of itself, such a breach, default or Event of Default.
Appears in 1 contract
Sources: Power Purchase Agreement
Environmental Attributes. (a) Without limiting Section 4.2, Seller shall, at its own expense:
(i) by the Delivery Term Commencement Date, (A) cause the Generating Facility, Storage Facility, Contract Capacity, Storage Capacity, Contract Energy, Storage Energy, and/or Environmental Attributes (as applicable) to be certified and otherwise qualified for and registered with all programs or systems that are Applicable Environmental Attribute Programs as of the Delivery Term Commencement Date (subject to the last sentence of Section 4.2(e)) and (B) otherwise qualify for, and enter into all agreements and make all other arrangements (and, without limiting the foregoing, obtain all necessary accounts) to obtain and transfer to Buyer, (1) the Environmental Attributes 22 NTD: Seller to list all eligible Capacity-Related Benefits, Storage Capacity-Related Benefits, and Other Electric Products for which the Facility, including the Generating Facility and Storage Facility is eligible (e.g., ZRCs, reactive supply and voltage control, etc.). under each Applicable Environmental Attribute Programs referenced in clause (A) above and (2) the Guaranteed Environmental Attributes;
(ii) at all times comply with all reporting and other requirements of the Applicable Environmental Attribute Programs and Applicable Guaranteed Programs, including required reporting of the amount and type of Energy generated by the Facility and source of any Replacement EAs; and
(iii) upon the request of Buyer from time to time, (A) deliver or cause to be delivered to Buyer such attestations/certifications of Environmental Attributes and Replacement EAs and other documentation as may be required or advisable in Buyer’s reasonable discretion to comply with or otherwise participate in any Applicable Environmental Attribute Program or Applicable Guaranteed Program or to obtain and transfer to Buyer custody of, and give effect to and evidence the title of Buyer (as contemplated by Section 7.7(a)) in, all the Environmental Attributes and Replacement EAs and (B) otherwise provide full cooperation in connection with ▇▇▇▇▇’s retirement or other use of the Environmental Attributes and Replacement EAs.
(b) The transfer of Environmental Attributes (and any Replacement EAs) to Buyer shall be accomplished by the means specified by Buyer, which may include the documentation described in Section 4.3(a)(iii) and/or by electronic delivery pursuant to any renewable energy or environmental attribute program or monitoring, tracking, certification or trading system designated by Buyer that is an Applicable Environmental Attribute Program (or, in the case of Replacement EAs, that applies to such Replacement EAs), and shall be completed by Seller by the EA Transfer Deadline. For each MW of Contract Capacity and Storage Capacity or each MWh of Contract Energy and Storage Energy injected at the Injection Point for financial delivery to Buyer, as applicable, throughout the Delivery Term (even if some of such Contract Capacity, Storage Capacity, Storage Energy or Contract Energy is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion wind power for any reason), Seller shall be required to obtain and transfer to Buyer the Guaranteed Environmental Attributes and any environmental attributes for which, if such MW or MWh were generated by the Facility from photovoltaic solar energy conversion wind power and delivered to Buyer according to this Agreement, such MW or MWh would be eligible (subject to the last sentence of Section 4.2(e)), all by the EA Transfer Deadline. To the extent Seller does not provide Environmental Attributes to satisfy its obligations pursuant to the preceding sentence for any MW of Contract Capacity and Storage Capacity or MWh of Contract Energy and Storage Energy (e.g., because such MW or MWh is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion wind power for any reason or, in the case of the Guaranteed Environmental Attributes, because the Applicable Guaranteed Program is no longer an Applicable Environmental Attribute Program due to the breach, negligence (including gross negligence), fraud, willful misconduct or other act or omission of Seller, its Affiliates or Subcontractors, or any of their respective directors, officers, partners, members, trustees, employees, agents or representatives), then Seller shall satisfy such obligations by providing Replacement EAs for such MW or MWh. For any such Environmental Attribute (or Replacement EA) that Seller does not provide to Buyer (provided that Seller shall first be required to use best efforts to provide such Environmental Attribute or Replacement EA) according to the two (2) immediately preceding sentences by the EA Transfer Deadline, Seller shall pay to Buyer an amount equal to the greater of (i) the Reference EA Compliance Payment applicable to such Environmental Attribute (or Replacement EA) or (ii) the average of at least two (2) price quotes obtained by Buyer from nationally recognized brokers during the first month following the month in which the corresponding MW was recognized or MWh was generated), for the sale and delivery of Replacement EAs that are eligible for the Required Qualified Programs corresponding to such Environmental Attribute (or Replacement EA). Any amounts payable pursuant to the immediately preceding sentence shall be included on the Monthly Invoice covering the month in which the EA Transfer Deadline occurs.
(c) The Parties acknowledge and agree that it is difficult or impossible to determine with precision the amount of damages that would or might be incurred by Buyer as a result of Seller’s failure to provide to Buyer the Environmental Attributes THE PARTIES ACKNOWLEDGE AND AGREE THAT IT IS DIFFICULT OR IMPOSSIBLE TO DETERMINE WITH PRECISION THE AMOUNT OF DAMAGES THAT WOULD OR MIGHT BE INCURRED BY BUYER AS A RESULT OF SELLER’S FAILURE TO PROVIDE TO BUYER THE ENVIRONMENTAL ATTRIBUTES (and/or Replacement EAsAND/OR REPLACEMENT EAS) (iI) required according to equal to at least the Annual Guaranteed Energy QuantityREQUIRED ACCORDING TO SECTION 4.3(b) FOR EACH MW OF CONTRACT CAPACITY AND STORAGE CAPACITY OR EACH MWH OF CONTRACT ENERGY AND STORAGE ENERGY OR (II) THAT WOULD HAVE BEEN REQUIRED ACCORDING TO SECTION 4.3(b) IF SELLER HAD PROVIDED DELIVERED ENERGY TO BUYER AT THE ENERGY FINANCIAL DELIVERY POINT IN EACH CONTRACT YEAR EQUAL TO AT LEAST THE ANNUAL GUARANTEED ENERGY QUANTITY. IT IS UNDERSTOOD AND AGREED BY THE PARTIES THAT (A) BUYER SHALL BE DAMAGED BY THE FAILURE OF SELLER TO MEET SUCH OBLIGATIONS, in either case(B) IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX THE ACTUAL DAMAGES RESULTING THEREFROM, shall not constitute(C) ANY SUMS THAT WOULD BE CREDITABLE OR PAYABLE UNDER SECTION 4.3(b) OR SECTION 6.1 ARE IN THE NATURE OF LIQUIDATED DAMAGES, in and of itselfAND NOT A PENALTY, such a breachAND ARE FAIR AND REASONABLE, default or Event of Default.AND SHALL BE PAID REGARDLESS OF THE AMOUNT OF DAMAGES THAT BUYER ACTUALLY SUSTAINS, (D) EACH PAYMENT REPRESENTS A REASONABLE ESTIMATE OF FAIR COMPENSATION FOR THE LOSSES THAT MAY REASONABLY BE ANTICIPATED FROM EACH SUCH FAILURE, (E) THE PARTIES IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO CLAIM TO ANY COURT OR ARBITRAL TRIBUNAL THE ADJUSTMENT OF ANY SUCH SUMS, AND (F) WITHOUT LIMITING SECTION 15.2, ANY SUMS THAT WOULD BE CREDITABLE OR PAYABLE UNDER SECTION 4.3(b) OR SECTION 6.1 ARE BUYER’S EXCLUSIVE DAMAGES ARISING OUT OF SELLER’S FAILURE TO PROVIDE TO BUYER THE ENVIRONMENTAL ATTRIBUTES (AND/OR REPLACEMENT EAS) (I) REQUIRED ACCORDING TO SECTION 4.3(b) FOR EACH MW OF CONTRACT CAPACITY AND STORAGE CAPACITY OR EACH MWH OF CONTRACT ENERGY AND STORAGE ENERGY OR (II) THAT WOULD HAVE BEEN REQUIRED ACCORDING TO SECTION 4.3(b) IF SELLER HAD PROVIDED DELIVERED ENERGY TO BUYER AT THE ENERGY FINANCIAL DELIVERY POINT IN EACH CONTRACT YEAR EQUAL TO AT LEAST THE ANNUAL GUARANTEED ENERGY QUANTITY OR TO DELIVER DELIVERED ENERGY TO BUYER AT THE ENERGY FINANCIAL DELIVERY POINT IN AN AMOUNT EQUAL TO OR ABOVE THE ANNUAL GUARANTEED ENERGY QUANTITY, PROVIDED, THAT (1) SELLER ACTUALLY CREDITS OR PAYS BUYER ANY SUCH AMOUNT AND (2) ANY SUCH CREDIT OR PAYMENT SHALL NOT LIMIT BUYER’S RIGHTS OR REMEDIES FOR ANY BREACH, DEFAULT OR EVENT OF DEFAULT OF SELLER UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT SELLER AND BUYER AGREE THAT, IF THE CONDITION PART (I) OF THE FOREGOING PROVISO IS SATISFIED, SELLER’S FAILURE TO PROVIDE TO BUYER THE ENVIRONMENTAL ATTRIBUTES (AND/OR REPLACEMENT EAS) (X) REQUIRED ACCORDING TO SECTION 4.3(b) FOR EACH MW OF CONTRACT CAPACITY AND STORAGE CAPACITY OR EACH MWH OF CONTRACT ENERGY AND STORAGE ENERGY OR (Y) THAT WOULD HAVE BEEN REQUIRED ACCORDING TO SECTION 4.3(b) IF SELLER HAD PROVIDED DELIVERED ENERGY TO BUYER AT THE ENERGY FINANCIAL DELIVERY POINT IN EACH CONTRACT YEAR
Appears in 1 contract
Sources: Power Purchase Agreement
Environmental Attributes. (a) Without limiting Section 4.2, Seller shall, at its own expense:
(i) by the Delivery Term Commencement Date, (A) cause the Generating Facility, Storage Facility, Contract Capacity, Storage Capacity, Contract Energy, Storage Energy, and/or Environmental Attributes (as applicable) to be certified and otherwise qualified for and registered with all programs or systems that are Applicable Environmental Attribute Programs as of the Delivery Term Commencement Date (subject to the last sentence of Section 4.2(e)) and (B) otherwise qualify for, and enter into all agreements and make all other arrangements (and, without limiting the foregoing, obtain all necessary accounts) to obtain and transfer to Buyer, (1) the Environmental Attributes under each Applicable Environmental Attribute Programs referenced in clause (A) above and (2) the Guaranteed Environmental Attributes;
(ii) at all times comply with all reporting and other requirements of the Applicable Environmental Attribute Programs and Applicable Guaranteed Programs, including required reporting of the amount and type of Energy generated by the Facility and source of any Replacement EAs; and
(iii) upon the request of Buyer from time to time, (A) deliver or cause to be delivered to Buyer such attestations/certifications of Environmental Attributes and Replacement EAs and other documentation as may be required or advisable in Buyer’s reasonable discretion to comply with or otherwise participate in any Applicable Environmental Attribute Program or Applicable Guaranteed Program or to obtain and transfer to Buyer custody of, and give effect to and evidence the title of Buyer (as contemplated by Section 7.7(a)) in, all the Environmental Attributes and Replacement EAs and (B) otherwise provide full cooperation in connection with ▇▇▇▇▇Buyer’s retirement or other use of the Environmental Attributes and Replacement EAs.
(b) The transfer of Environmental Attributes (and any Replacement EAs) to Buyer shall be accomplished by the means specified by Buyer, which may include the documentation described in Section 4.3(a)(iii) and/or by electronic delivery pursuant to any renewable energy or environmental attribute program or monitoring, tracking, certification or trading system designated by Buyer that is an Applicable Environmental Attribute Program (or, in the case of Replacement EAs, that applies to such Replacement EAs), and shall be completed by Seller by the EA Transfer Deadline. For each MW of Contract Capacity and Storage Capacity or each MWh of Contract Energy and Storage Energy injected at the Injection Point for financial delivery to Buyer, as applicable, throughout the Delivery Term (even if some of such Contract Capacity, Storage Capacity, Storage Energy or Contract Energy is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion for any reason), Seller shall be required to obtain and transfer to Buyer the Guaranteed Environmental Attributes and any environmental attributes for which, if such MW or MWh were generated by the Facility from photovoltaic solar energy conversion and delivered to Buyer according to this Agreement, such MW or MWh would be eligible (subject to the last sentence of Section 4.2(e)), all by the EA Transfer Deadline. To the extent Seller does not provide Environmental Attributes to satisfy its obligations pursuant to the preceding sentence for any MW of Contract Capacity and Storage Capacity or MWh of Contract Energy and Storage Energy (e.g., because such MW or MWh is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion for any reason or, in the case of the Guaranteed Environmental Attributes, because the Applicable Guaranteed Program is no longer an Applicable Environmental Attribute Program due to the breach, negligence (including gross negligence), fraud, willful misconduct or other act or omission of Seller, its Affiliates or Subcontractors, or any of their respective directors, officers, partners, members, trustees, employees, agents or representatives), then Seller shall satisfy such obligations by providing Replacement EAs for such MW or MWh. For any such Environmental Attribute (or Replacement EA) that Seller does not provide to Buyer (provided that Seller shall first be required to use best efforts to provide such Environmental Attribute or Replacement EA) according to the two (2) immediately preceding sentences by the EA Transfer Deadline, Seller shall pay to Buyer an amount equal to the greater of (i) the Reference EA Compliance Payment applicable to such Environmental Attribute (or Replacement EA) or (ii) the average of at least two (2) price quotes obtained by Buyer from nationally recognized brokers during the first month following the month in which the corresponding MW was recognized or MWh was generated), for the sale and delivery of Replacement EAs that are eligible for the Required Qualified Programs corresponding to such Environmental Attribute (or Replacement EA). Any amounts payable pursuant to the immediately preceding sentence shall be included on the Monthly Invoice covering the month in which the EA Transfer Deadline occurs.
(c) The Parties acknowledge and agree that it is difficult or impossible to determine with precision the amount of damages that would or might be incurred by Buyer as a result of Seller’s failure to provide to Buyer the Environmental Attributes THE PARTIES ACKNOWLEDGE AND AGREE THAT IT IS DIFFICULT OR IMPOSSIBLE TO DETERMINE WITH PRECISION THE AMOUNT OF DAMAGES THAT WOULD OR MIGHT BE INCURRED BY BUYER AS A RESULT OF SELLER’S FAILURE TO PROVIDE TO BUYER THE ENVIRONMENTAL ATTRIBUTES (and/or Replacement EAsAND/OR REPLACEMENT EAS) (iI) required according to equal to at least the Annual Guaranteed Energy QuantityREQUIRED ACCORDING TO SECTION 4.3(b) FOR EACH MW OF CONTRACT CAPACITY AND STORAGE CAPACITY OR EACH MWH OF CONTRACT ENERGY AND STORAGE ENERGY OR (II) THAT WOULD HAVE BEEN REQUIRED ACCORDING TO SECTION 4.3(b) IF SELLER HAD PROVIDED DELIVERED ENERGY TO BUYER AT THE ENERGY FINANCIAL DELIVERY POINT IN EACH CONTRACT YEAR EQUAL TO AT LEAST THE ANNUAL GUARANTEED ENERGY QUANTITY. IT IS UNDERSTOOD AND AGREED BY THE PARTIES THAT (A) BUYER SHALL BE DAMAGED BY THE FAILURE OF SELLER TO MEET SUCH OBLIGATIONS, in either case(B) IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX THE ACTUAL DAMAGES RESULTING THEREFROM, shall not constitute(C) ANY SUMS THAT WOULD BE CREDITABLE OR PAYABLE UNDER SECTION 4.3(b) OR SECTION 6.1 ARE IN THE NATURE OF LIQUIDATED DAMAGES, in and of itselfAND NOT A PENALTY, such a breachAND ARE FAIR AND REASONABLE, default or Event of DefaultAND SHALL BE PAID REGARDLESS OF THE AMOUNT OF DAMAGES THAT BUYER ACTUALLY SUSTAINS, (D) EACH PAYMENT REPRESENTS A REASONABLE ESTIMATE OF FAIR COMPENSATION FOR THE LOSSES THAT MAY REASONABLY BE ANTICIPATED FROM EACH SUCH FAILURE, (E) THE PARTIES IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO CLAIM TO ANY COURT OR ARBITRAL TRIBUNAL THE ADJUSTMENT OF ANY SUCH SUMS, AND (F) WITHOUT LIMITING SECTION 15.2, ANY SUMS THAT WOULD BE CREDITABLE OR PAYABLE UNDER SECTION 4.3(b) OR SECTION 6.1 ARE BUYER’S EXCLUSIVE DAMAGES ARISING OUT OF SELLER’S FAILURE TO PROVIDE TO BUYER THE ENVIRONMENTAL ATTRIBUTES (AND/OR REPLACEMENT EAS) (I) REQUIRED ACCORDING TO SECTION 4.3(b) FOR EACH MW OF CONTRACT CAPACITY AND STORAGE CAPACITY OR EACH MWH OF CONTRACT ENERGY AND STORAGE ENERGY OR (II) THAT WOULD HAVE BEEN REQUIRED ACCORDING TO SECTION 4.3(b) IF SELLER HAD PROVIDED DELIVERED ENERGY TO BUYER AT THE ENERGY FINANCIAL DELIVERY POINT IN EACH CONTRACT YEAR EQUAL TO AT LEAST THE ANNUAL GUARANTEED ENERGY QUANTITY OR TO DELIVER DELIVERED ENERGY TO BUYER AT THE ENERGY FINANCIAL DELIVERY POINT IN AN AMOUNT EQUAL TO OR ABOVE THE ANNUAL GUARANTEED ENERGY QUANTITY, PROVIDED, THAT (1) SELLER ACTUALLY CREDITS OR PAYS BUYER ANY SUCH AMOUNT AND (2) ANY SUCH CREDIT OR PAYMENT SHALL NOT LIMIT BUYER’S RIGHTS OR REMEDIES FOR ANY BREACH, DEFAULT OR EVENT OF DEFAULT OF SELLER UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT SELLER AND BUYER AGREE THAT, IF THE CONDITION PART (I) OF THE FOREGOING PROVISO IS SATISFIED, SELLER’S FAILURE TO PROVIDE TO BUYER THE ENVIRONMENTAL ATTRIBUTES (AND/OR REPLACEMENT EAS) (X) REQUIRED ACCORDING TO SECTION 4.3(b) FOR EACH MW OF CONTRACT CAPACITY AND STORAGE CAPACITY OR EACH MWH OF CONTRACT ENERGY AND STORAGE ENERGY OR (Y) THAT WOULD HAVE BEEN REQUIRED ACCORDING TO SECTION 4.3(b) IF SELLER HAD PROVIDED DELIVERED ENERGY TO BUYER AT THE ENERGY FINANCIAL DELIVERY POINT IN EACH CONTRACT YEAR EQUAL TO AT LEAST THE ANNUAL GUARANTEED ENERGY QUANTITY, IN EITHER CASE, SHALL NOT CONSTITUTE, IN AND OF ITSELF, SUCH A BREACH, DEFAULT OR EVENT OF DEFAULT.
Appears in 1 contract
Sources: Power Purchase Agreement
Environmental Attributes. (a) Without limiting Section 4.2, Seller shall, at its own expense:
(i) by the Delivery Term Commencement Date, (A) cause the Generating Facility, Storage Facility, Contract Capacity, Storage Capacity, Contract Energy, Storage Energy, and/or Environmental Attributes (as applicable) to be certified and otherwise qualified for and registered with all programs or systems that are Applicable Environmental Attribute Programs as of the Delivery Term Commencement Date (subject to the last sentence of Section 4.2(e)) and (B) otherwise qualify for, and enter into all agreements and make all other arrangements (and, without limiting the foregoing, obtain all necessary accounts) to obtain and transfer to Buyer, (1) the Environmental Attributes under each Applicable Environmental Attribute Programs referenced in clause (A) above and (2) the Guaranteed Environmental Attributes;
(ii) at all times comply with all reporting and other requirements of the Applicable Environmental Attribute Programs and Applicable Guaranteed Programs, including required reporting of the amount and type of Energy generated by the Facility and source of any Replacement EAs; and
(iii) upon the request of Buyer from time to time, (A) deliver or cause to be delivered to Buyer such attestations/certifications of Environmental Attributes and Replacement EAs and other documentation as may be required or advisable in Buyer’s reasonable discretion to comply with or otherwise participate in any Applicable Environmental Attribute Program or Applicable Guaranteed Program or to obtain and transfer to Buyer custody of, and give effect to and evidence the title of Buyer (as contemplated by Section 7.7(a)) in, all the Environmental Attributes and Replacement EAs and (B) otherwise provide full cooperation in connection with ▇▇▇▇▇’s retirement or other use of the Environmental Attributes and Replacement EAs.
(b) The transfer of Environmental Attributes (and any Replacement EAs) to Buyer shall be accomplished by the means specified by Buyer, which may include the documentation described in Section 4.3(a)(iii) and/or by electronic delivery pursuant to any renewable energy or environmental attribute program or monitoring, tracking, certification or trading system designated by Buyer that is an Applicable Environmental Attribute Program (or, in the case of Replacement EAs, that applies to such Replacement EAs), and shall be completed by Seller by the EA Transfer Deadline. For each MW of Contract Capacity and Storage Capacity or each MWh of Contract Energy and Storage Energy injected at the Injection Point for financial delivery to Buyer, as applicable, throughout the Delivery Term (even if some of such Contract Capacity, Storage Capacity, Storage Energy or Contract Energy is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion wind power for any reason), Seller shall be required to obtain and transfer to Buyer the Guaranteed Environmental Attributes and any environmental attributes for which, if such MW or MWh were generated by the Facility from photovoltaic solar energy conversion wind power and delivered to Buyer according to this Agreement, such MW or MWh would be eligible (subject to the last sentence of Section 4.2(e)), all by the EA Transfer Deadline. To the extent Seller does not provide Environmental Attributes to satisfy its obligations pursuant to the preceding sentence for any MW of Contract Capacity and Storage Capacity or MWh of Contract Energy and Storage Energy (e.g., because such MW or MWh is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion wind power for any reason or, in the case of the Guaranteed Environmental Attributes, because the Applicable Guaranteed Program is no longer an Applicable Environmental Attribute Program due to the breach, negligence (including gross negligence), fraud, willful misconduct or other act or omission of Seller, its Affiliates or Subcontractors, or any of their respective directors, officers, partners, members, trustees, employees, agents or representatives), then Seller shall satisfy such obligations by providing Replacement EAs for such MW or MWh. For any such Environmental Attribute (or Replacement EA) that Seller does not provide to Buyer (provided that Seller shall first be required to use best efforts to provide such Environmental Attribute or Replacement EA) according to the two (2) immediately preceding sentences by the EA Transfer Deadline, Seller shall pay to Buyer an amount equal to the greater of (i) the Reference EA Compliance Payment applicable to such Environmental Attribute (or Replacement EA) or (ii) the average of at least two (2) price quotes obtained by Buyer from nationally recognized brokers during the first month following the month in which the corresponding MW was recognized or MWh was generated), for the sale and delivery of Replacement EAs that are eligible for the Required Qualified Programs corresponding to such Environmental Attribute (or Replacement EA). Any amounts payable pursuant to the immediately preceding sentence shall be included on the Monthly Invoice covering the month in which the EA Transfer Deadline occurs.
(c) The Parties acknowledge and agree that it is difficult or impossible to determine with precision the amount of damages that would or might be incurred by Buyer as a result of Seller’s failure to provide to Buyer the Environmental Attributes THE PARTIES ACKNOWLEDGE AND AGREE THAT IT IS DIFFICULT OR IMPOSSIBLE TO DETERMINE WITH PRECISION THE AMOUNT OF DAMAGES THAT WOULD OR MIGHT BE INCURRED BY BUYER AS A RESULT OF SELLER’S FAILURE TO PROVIDE TO BUYER THE ENVIRONMENTAL ATTRIBUTES (and/or Replacement EAsAND/OR REPLACEMENT EAS) (iI) required according to equal to at least the Annual Guaranteed Energy QuantityREQUIRED ACCORDING TO SECTION 4.3(b) FOR EACH MW OF CONTRACT CAPACITY AND STORAGE CAPACITY OR EACH MWH OF CONTRACT ENERGY AND STORAGE ENERGY OR (II) THAT WOULD HAVE BEEN REQUIRED ACCORDING TO SECTION 4.3(b) IF SELLER HAD PROVIDED DELIVERED ENERGY TO BUYER AT THE ENERGY FINANCIAL DELIVERY POINT IN EACH CONTRACT YEAR EQUAL TO AT LEAST THE ANNUAL GUARANTEED ENERGY QUANTITY. IT IS UNDERSTOOD AND AGREED BY THE PARTIES THAT (A) BUYER SHALL BE DAMAGED BY THE FAILURE OF SELLER TO MEET SUCH OBLIGATIONS, in either case(B) IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX THE ACTUAL DAMAGES RESULTING THEREFROM, shall not constitute(C) ANY SUMS THAT WOULD BE CREDITABLE OR PAYABLE UNDER SECTION 4.3(b) OR SECTION 6.1 ARE IN THE NATURE OF LIQUIDATED DAMAGES, in and of itselfAND NOT A PENALTY, such a breachAND ARE FAIR AND REASONABLE, default or Event of Default.AND SHALL BE PAID REGARDLESS OF THE AMOUNT OF DAMAGES THAT BUYER ACTUALLY SUSTAINS, (D) EACH PAYMENT REPRESENTS A REASONABLE ESTIMATE OF FAIR COMPENSATION FOR THE LOSSES THAT MAY REASONABLY BE ANTICIPATED FROM EACH SUCH FAILURE, (E) THE PARTIES IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO CLAIM TO ANY COURT OR ARBITRAL TRIBUNAL THE ADJUSTMENT OF ANY SUCH SUMS, AND (F) WITHOUT LIMITING SECTION 15.2, ANY SUMS THAT WOULD BE CREDITABLE OR PAYABLE UNDER SECTION 4.3(b) OR SECTION 6.1 ARE BUYER’S EXCLUSIVE DAMAGES ARISING OUT OF SELLER’S FAILURE TO PROVIDE TO BUYER THE ENVIRONMENTAL ATTRIBUTES (AND/OR REPLACEMENT EAS) (I) REQUIRED ACCORDING TO SECTION 4.3(b) FOR EACH MW OF CONTRACT CAPACITY AND STORAGE CAPACITY OR EACH MWH OF CONTRACT ENERGY AND STORAGE ENERGY OR (II) THAT WOULD HAVE BEEN REQUIRED ACCORDING TO SECTION 4.3(b) IF SELLER HAD PROVIDED DELIVERED ENERGY TO BUYER AT THE ENERGY FINANCIAL DELIVERY POINT IN EACH CONTRACT YEAR EQUAL TO AT LEAST THE ANNUAL GUARANTEED ENERGY QUANTITY OR TO DELIVER DELIVERED ENERGY TO BUYER AT THE ENERGY FINANCIAL DELIVERY POINT IN AN AMOUNT EQUAL TO OR ABOVE THE ANNUAL GUARANTEED ENERGY QUANTITY, PROVIDED, THAT (1) SELLER ACTUALLY CREDITS OR PAYS BUYER ANY SUCH AMOUNT AND (2) ANY SUCH CREDIT OR PAYMENT SHALL NOT LIMIT BUYER’S RIGHTS OR REMEDIES FOR ANY BREACH, DEFAULT OR EVENT OF DEFAULT OF SELLER UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT SELLER AND BUYER AGREE THAT, IF THE CONDITION PART (I) OF THE FOREGOING PROVISO IS SATISFIED, SELLER’S FAILURE TO PROVIDE TO BUYER THE ENVIRONMENTAL ATTRIBUTES (AND/OR REPLACEMENT EAS) (X) REQUIRED ACCORDING TO SECTION 4.3(b) FOR EACH MW OF CONTRACT CAPACITY AND STORAGE CAPACITY OR EACH MWH OF CONTRACT ENERGY AND STORAGE ENERGY OR (Y) THAT WOULD HAVE BEEN REQUIRED ACCORDING TO SECTION 4.3(b) IF SELLER HAD PROVIDED DELIVERED ENERGY TO BUYER AT THE ENERGY FINANCIAL DELIVERY POINT IN EACH CONTRACT YEAR
Appears in 1 contract
Sources: Power Purchase Agreement
Environmental Attributes. (a) Without limiting Section 4.2, Seller shall, at its own expense:
(i) by the Delivery Term Commencement Date, (A) cause the Generating Facility, Storage Facility, Contract Capacity, Storage Capacity, Contract Energy, Storage Energy, and/or Environmental Attributes (as applicable) to be certified and otherwise qualified for and registered with all programs or systems that are Applicable Environmental Attribute Programs as of the Delivery Term Commencement Date (subject to the last sentence of Section 4.2(e)) and (B) otherwise qualify for, and enter into all agreements and make all other arrangements (and, without limiting the foregoing, obtain all necessary accounts) to obtain and transfer to Buyer, (1) the Environmental Attributes under each Applicable Environmental Attribute Programs referenced in clause (A) above and (2) the Guaranteed Environmental Attributes;
(ii) at all times comply with all reporting and other requirements of the Applicable Environmental Attribute Programs and Applicable Guaranteed Programs, including required reporting of the amount and type of Energy generated by the Facility and source of any Replacement EAs; and
(iii) upon the request of Buyer from time to time, (A) deliver or cause to be delivered to Buyer such attestations/certifications of Environmental Attributes and Replacement EAs and other documentation as may be required or advisable in Buyer’s reasonable discretion to comply with or otherwise participate in any Applicable Environmental Attribute Program or Applicable Guaranteed Program or to obtain and transfer to Buyer custody of, and give effect to and evidence the title of Buyer (as contemplated by Section 7.7(a)) in, all the Environmental Attributes and Replacement EAs and (B) otherwise provide full cooperation in connection with ▇▇▇▇▇Buyer’s retirement or other use of the Environmental Attributes and Replacement EAs.
(b) The transfer of Environmental Attributes (and any Replacement EAs) to Buyer shall be accomplished by the means specified by Buyer, which may include the documentation described in Section 4.3(a)(iii) and/or by electronic delivery pursuant to any renewable energy or environmental attribute program or monitoring, tracking, certification or trading system designated by Buyer that is an Applicable Environmental Attribute Program (or, in the case of Replacement EAs, that applies to such Replacement EAs), and shall be completed by Seller by the EA Transfer Deadline. For each MW of Contract Capacity and Storage Capacity or each MWh of Contract Energy and Storage Energy injected at the Injection Point for financial delivery to Buyer, as applicable, throughout the Delivery Term (even if some of such Contract Capacity, Storage Capacity, Storage Energy or Contract Energy is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion for any reason), Seller shall be required to obtain and transfer to Buyer the Guaranteed Environmental Attributes and any environmental attributes for which, if such MW or MWh were generated by the Facility from photovoltaic solar energy conversion and delivered to Buyer according to this Agreement, such MW or MWh would be eligible (subject to the last sentence of Section 4.2(e)), all by the EA Transfer Deadline. To the extent Seller does not provide Environmental Attributes to satisfy its obligations pursuant to the preceding sentence for any MW of Contract Capacity and Storage Capacity or MWh of Contract Energy and Storage Energy (e.g., because such MW or MWh is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion for any reason or, in the case of the Guaranteed Environmental Attributes, because the Applicable Guaranteed Program is no longer an Applicable Environmental Attribute Program due to the breach, negligence (including gross negligence), fraud, willful misconduct or other act or omission of Seller, its Affiliates or Subcontractors, or any of their respective directors, officers, partners, members, trustees, employees, agents or representatives), then Seller shall satisfy such obligations by providing Replacement EAs for such MW or MWh. For any such Environmental Attribute (or Replacement EA) that Seller does not provide to Buyer (provided that Seller shall first be required to use best efforts to provide such Environmental Attribute or Replacement EA) according to the two (2) immediately preceding sentences by the EA Transfer Deadline, Seller shall pay to Buyer an amount equal to the greater of (i) the Reference EA Compliance Payment applicable to such Environmental Attribute (or Replacement EA) or (ii) the average of at least two (2) price quotes obtained by Buyer from nationally recognized brokers during the first month following the month in which the corresponding MW was recognized or MWh was generated), for the sale and delivery of Replacement EAs that are eligible for the Required Qualified Programs corresponding to such Environmental Attribute (or Replacement EA). Any amounts payable pursuant to the immediately preceding sentence shall be included on the Monthly Invoice covering the month in which the EA Transfer Deadline occurs.
(c) The Parties acknowledge and agree that it is difficult or impossible to determine with precision the amount of damages that would or might be incurred by Buyer as a result of Seller’s failure to provide to Buyer the Environmental Attributes (and/or Replacement EAs) (i) required according to equal of damages that Buyer actually sustains, (D) each payment represents a reasonable estimate of fair compensation for the losses that may reasonably be anticipated from each such failure, (E) the Parties irrevocably waive their respective rights to at least claim to any court or arbitral tribunal the Annual Guaranteed Energy Quantity, in either case, shall not constitute, in and of itself, such a breach, default or Event of Default.adjustment of
Appears in 1 contract
Sources: Power Purchase Agreement
Environmental Attributes. (a) Without limiting Section 4.2, Seller shall, at its own expense:
(i) by the Delivery Term Commencement Date, (A) cause the Generating Facility, Storage Facility, Contract Capacity, Storage Capacity, Contract Energy, Storage Energy, and/or Environmental Attributes (as applicable) to be certified and otherwise qualified for and registered with all programs or systems that are Applicable Environmental Attribute Programs as of the Delivery Term Commencement Date (subject to the last sentence of Section 4.2(e)) and (B) otherwise qualify for, and enter into all agreements and make all other arrangements (and, without limiting the foregoing, obtain all necessary accounts) to obtain and transfer to Buyer, (1) the Environmental Attributes under each Applicable Environmental Attribute Programs referenced in clause (A) above and (2) the Guaranteed Environmental Attributes;
(ii) at all times comply with all reporting and other requirements of the Applicable Environmental Attribute Programs and Applicable Guaranteed Programs, including required reporting of the amount and type of Energy generated by the Facility and source of any Replacement EAs; and
(iii) upon the request of Buyer from time to time, (A) deliver or cause to be delivered to Buyer such attestations/certifications of Environmental Attributes and Replacement EAs and other documentation as may be required or advisable in Buyer’s reasonable discretion to comply with or otherwise participate in any Applicable Environmental Attribute Program or Applicable Guaranteed Program or to obtain and transfer to Buyer custody of, and give effect to and evidence the title of Buyer (as contemplated by Section 7.7(a)) in, all the Environmental Attributes and Replacement EAs and (B) otherwise provide full cooperation in connection with ▇▇▇▇▇Buyer’s retirement or other use of the Environmental Attributes and Replacement EAs.
(b) The transfer of Environmental Attributes (and any Replacement EAs) to Buyer shall be accomplished by the means specified by Buyer, which may include the documentation described in Section 4.3(a)(iii) and/or by electronic delivery pursuant to any renewable energy or environmental attribute program or monitoring, tracking, certification or trading system designated by Buyer that is an Applicable Environmental Attribute Program (or, in the case of Replacement EAs, that applies to such Replacement EAs), and shall be completed by Seller by the EA Transfer Deadline. For each MW of Contract Capacity and Storage Capacity or each MWh of Contract Energy and Storage Energy injected at the Injection Point for financial delivery to Buyer, as applicable, throughout the Delivery Term (even if some of such Contract Capacity, Storage Capacity, Storage Energy or Contract Energy is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion wind power for any reason), Seller shall be required to obtain and transfer to Buyer the Guaranteed Environmental Attributes and any environmental attributes for which, if such MW or MWh were generated by the Facility from photovoltaic solar energy conversion wind power and delivered to Buyer according to this Agreement, such MW or MWh would be eligible (subject to the last sentence of Section 4.2(e)), all by the EA Transfer Deadline. To the extent Seller does not provide Environmental Attributes to satisfy its obligations pursuant to the preceding sentence for any MW of Contract Capacity and Storage Capacity or MWh of Contract Energy and Storage Energy (e.g., because such MW or MWh is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion wind power for any reason or, in the case of the Guaranteed Environmental Attributes, because the Applicable Guaranteed Program is no longer an Applicable Environmental Attribute Program due to the breach, negligence (including gross negligence), fraud, willful misconduct or other act or omission of Seller, its Affiliates or Subcontractors, or any of their respective directors, officers, partners, members, trustees, employees, agents or representatives), then Seller shall satisfy such obligations by providing Replacement EAs for such MW or MWh. For any such Environmental Attribute (or Replacement EA) that Seller does not provide to Buyer (provided that Seller shall first be required to use best efforts to provide such Environmental Attribute or Replacement EA) according to the two (2) immediately preceding sentences by the EA Transfer Deadline, Seller shall pay to Buyer an amount equal to the greater of (i) the Reference EA Compliance Payment applicable to such Environmental Attribute (or Replacement EA) or (ii) the average of at least two (2) price quotes obtained by Buyer from nationally recognized brokers during the first month following the month in which the corresponding MW was recognized or MWh was generated), for the sale and delivery of Replacement EAs that are eligible for the Required Qualified Programs corresponding to such Environmental Attribute (or Replacement EA). Any amounts payable pursuant to the immediately preceding sentence shall be included on the Monthly Invoice covering the month in which the EA Transfer Deadline occurs.
(c) The Parties acknowledge and agree that it is difficult or impossible to determine with precision the amount of damages that would or might be incurred by Buyer as a result of Seller’s failure to provide to Buyer the Environmental Attributes (and/or Replacement EAs) (i) required according to equal to at least the Annual Guaranteed Energy Quantity, in either case, shall not constitute, in and of itself, such a breach, default or Event of Default.to
Appears in 1 contract
Sources: Power Purchase Agreement
Environmental Attributes. (a) Without limiting Section 4.2, Seller shall, at its own expense:
(i) by the Delivery Term Commencement Date, (A) cause the Generating Facility, Storage Facility, Contract Capacity, Storage Capacity, Contract Energy, Storage Energy, and/or Environmental Attributes (as applicable) to be certified and otherwise qualified for and registered with all programs or systems that are Applicable Environmental Attribute Programs as of the Delivery Term Commencement Date (subject to the last sentence of Section 4.2(e)) and (B) otherwise qualify for, and enter into all agreements and make all other arrangements (and, without limiting the foregoing, obtain all necessary accounts) to obtain and transfer to Buyer, (1) the Environmental Attributes under each Applicable Environmental Attribute Programs referenced in clause (A) above and (2) the Guaranteed Environmental Attributes;
(ii) at all times comply with all reporting and other requirements of the Applicable Environmental Attribute Programs and Applicable Guaranteed Programs, including required reporting of the amount and type of Energy generated by the Facility and source of any Replacement EAs; and
(iii) upon the request of Buyer from time to time, (A) deliver or cause to be delivered to Buyer such attestations/certifications of Environmental Attributes and Replacement EAs and other documentation as may be required or advisable in Buyer’s reasonable discretion to comply with or otherwise participate in any Applicable Environmental Attribute Program or Applicable Guaranteed Program or to obtain and transfer to Buyer custody of, and give effect to and evidence the title of Buyer (as contemplated by Section 7.7(a)) in, all the Environmental Attributes and Replacement EAs and (B) otherwise provide full cooperation in connection with ▇▇▇▇▇’s retirement or other use of the Environmental Attributes and Replacement EAs.
(b) The transfer of Environmental Attributes (and any Replacement EAs) to Buyer shall be accomplished by the means specified by Buyer, which may include the documentation described in Section 4.3(a)(iii) and/or by electronic delivery pursuant to any renewable energy or environmental attribute program or monitoring, tracking, certification or trading system designated by Buyer that is an Applicable Environmental Attribute Program (or, in the case of Replacement EAs, that applies to such Replacement EAs), and shall be completed by Seller by the EA Transfer Deadline. For each MW of Contract Capacity and Storage Capacity or each MWh of Contract Energy and Storage Energy injected at the Injection Point for financial delivery to Buyer, as applicable, throughout the Delivery Term (even if some of such Contract Capacity, Storage Capacity, Storage Energy or Contract Energy is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion wind power for any reason), Seller shall be required to obtain and transfer to Buyer the Guaranteed Environmental Attributes and any environmental attributes for which, if such MW or MWh were generated by the Facility from photovoltaic solar energy conversion wind power and delivered to Buyer according to this Agreement, such MW or MWh would be eligible (subject to the last sentence of Section 4.2(e)), all by the EA Transfer Deadline. To the extent Seller does not provide Environmental Attributes to satisfy its obligations pursuant to the preceding sentence for any MW of Contract Capacity and Storage Capacity or MWh of Contract Energy and Storage Energy (e.g., because such MW or MWh is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion wind power for any reason or, in the case of the Guaranteed Environmental Attributes, because the Applicable Guaranteed Program is no longer an Applicable Environmental Attribute Program due to the breach, negligence (including gross negligence), fraud, willful misconduct or other act or omission of Seller, its Affiliates or Subcontractors, or any of their respective directors, officers, partners, members, trustees, employees, agents or representatives), then Seller shall satisfy such obligations by providing Replacement EAs for such MW or MWh. For any such Environmental Attribute (or Replacement EA) that Seller does not provide to Buyer (provided that Seller shall first be required to use best efforts to provide such Environmental Attribute or Replacement EA) according to the two (2) immediately preceding sentences by the EA Transfer Deadline, Seller shall pay to Buyer an amount equal to the greater of (i) the Reference EA Compliance Payment applicable to such Environmental Attribute (or Replacement EA) or (ii) the average of at least two (2) price quotes obtained by Buyer from nationally recognized brokers during the first month following the month in which the corresponding MW was recognized or MWh was generated), for the sale and delivery of Replacement EAs that are eligible for the Required Qualified Programs corresponding to such Environmental Attribute (or Replacement EA). Any amounts payable pursuant to the immediately preceding sentence shall be included on the Monthly Invoice covering the month in which the EA Transfer Deadline occurs.
(c) The Parties acknowledge and agree that it is difficult or impossible to determine with precision the amount of damages that would or might be incurred by Buyer as a result of Seller’s failure to provide to Buyer the Environmental Attributes (and/or Replacement EAs) (i) required according to MWH of Contract Energy and Storage Energy or (ii) that would have been equal to at least the Annual Guaranteed Energy Quantity, in either case, shall not constitute, in and of itself, such a breach, default or Event of Default.
Appears in 1 contract
Sources: Power Purchase Agreement
Environmental Attributes. (a) Without limiting Section 4.2, Seller shall, at its own expense:
(i) by the Delivery Term Commencement Date, (A) cause the Generating Facility, Storage Facility, Contract Capacity, Storage Capacity, Contract Energy, Storage Energy, and/or Environmental Attributes (as applicable) to be certified and otherwise qualified for and registered with all programs or systems that are Applicable Environmental Attribute Programs as of the Delivery Term Commencement Date (subject to the last sentence of Section 4.2(e)) and (B) otherwise qualify for, and enter into all agreements and make all other arrangements (and, without limiting the foregoing, obtain all necessary accounts) to obtain and transfer to Buyer, (1) the Environmental Attributes under each Applicable Environmental Attribute Programs referenced in clause (A) above and (2) the Guaranteed Environmental Attributes;
(ii) at all times comply with all reporting and other requirements of the Applicable Environmental Attribute Programs and Applicable Guaranteed Programs, including required reporting of the amount and type of Energy generated by the Facility and source of any Replacement EAs; and
(iii) upon the request of Buyer from time to time, (A) deliver or cause to be delivered to Buyer such attestations/certifications of Environmental Attributes and Replacement EAs and other documentation as may be required or advisable in Buyer’s reasonable discretion to comply with or otherwise participate in any Applicable Environmental Attribute Program or Applicable Guaranteed Program or to obtain and transfer to Buyer custody of, and give effect to and evidence the title of Buyer (as contemplated by Section 7.7(a)) in, all the Environmental Attributes and Replacement EAs and (B) otherwise provide full cooperation in connection with ▇▇▇▇▇’s retirement or other use of the Environmental Attributes and Replacement EAs.
(b) The transfer of Environmental Attributes (and any Replacement EAs) to Buyer shall be accomplished by the means specified by Buyer, which may include the documentation described in Section 4.3(a)(iii) and/or by electronic delivery pursuant to any renewable energy or environmental attribute program or monitoring, tracking, certification or trading system designated by Buyer that is an Applicable Environmental Attribute Program (or, in the case of Replacement EAs, that applies to such Replacement EAs), and shall be completed by Seller by the EA Transfer Deadline. For each MW of Contract Capacity and Storage Capacity or each MWh of Contract Energy and Storage Energy injected at the Injection Point for financial delivery to Buyer, as applicable, throughout the Delivery Term (even if some of such Contract Capacity, Storage Capacity, Storage Energy or Contract Energy is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion for any reason), Seller shall be required to obtain and transfer to Buyer the Guaranteed Environmental Attributes and any environmental attributes for which, if such MW or MWh were generated by the Facility from photovoltaic solar energy conversion and delivered to Buyer according to this Agreement, such MW or MWh would be eligible (subject to the last sentence of Section 4.2(e)), all by the EA Transfer Deadline. To the extent Seller does not provide Environmental Attributes to satisfy its obligations pursuant to the preceding sentence for any MW of Contract Capacity and Storage Capacity or MWh of Contract Energy and Storage Energy (e.g., because such MW or MWh is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion for any reason or, in the case of the Guaranteed Environmental Attributes, because the Applicable Guaranteed Program is no longer an Applicable Environmental Attribute Program due to the breach, negligence (including gross negligence), fraud, willful misconduct or other act or omission of Seller, its Affiliates or Subcontractors, or any of their respective directors, officers, partners, members, trustees, employees, agents or representatives), then Seller shall satisfy such obligations by providing Replacement EAs for such MW or MWh. For any such Environmental Attribute (or Replacement EA) that Seller does not provide to Buyer (provided that Seller shall first be required to use best efforts to provide such Environmental Attribute or Replacement EA) according to the two (2) immediately preceding sentences by the EA Transfer Deadline, Seller shall pay to Buyer an amount equal to the greater of (i) the Reference EA Compliance Payment applicable to such Environmental Attribute (or Replacement EA) or (ii) the average of at least two (2) price quotes obtained by Buyer from nationally recognized brokers during the first month following the month in which the corresponding MW was recognized or MWh was generated), for the sale and delivery of Replacement EAs that are eligible for the Required Qualified Programs corresponding to such Environmental Attribute (or Replacement EA). Any amounts payable pursuant to the immediately preceding sentence shall be included on the Monthly Invoice covering the month in which the EA Transfer Deadline occurs.
(c) The Parties acknowledge and agree that it is difficult or impossible to determine with precision the amount of damages that would or might be incurred by Buyer as a result of Seller’s failure to provide to Buyer the Environmental Attributes THE PARTIES ACKNOWLEDGE AND AGREE THAT IT IS DIFFICULT OR IMPOSSIBLE TO DETERMINE WITH PRECISION THE AMOUNT OF DAMAGES THAT WOULD OR MIGHT BE INCURRED BY BUYER AS A RESULT OF SELLER’S FAILURE TO PROVIDE TO BUYER THE ENVIRONMENTAL ATTRIBUTES (and/or Replacement EAsAND/OR REPLACEMENT EAS) (iI) required according to equal to at least the Annual Guaranteed Energy QuantityREQUIRED ACCORDING TO SECTION 4.3(b) FOR EACH MW OF CONTRACT CAPACITY AND STORAGE CAPACITY OR EACH MWH OF CONTRACT ENERGY AND STORAGE ENERGY OR (II) THAT WOULD HAVE BEEN REQUIRED ACCORDING TO SECTION 4.3(b) IF SELLER HAD PROVIDED DELIVERED ENERGY TO BUYER AT THE ENERGY FINANCIAL DELIVERY POINT IN EACH CONTRACT YEAR EQUAL TO AT LEAST THE ANNUAL GUARANTEED ENERGY QUANTITY. IT IS UNDERSTOOD AND AGREED BY THE PARTIES THAT (A) BUYER SHALL BE DAMAGED BY THE FAILURE OF SELLER TO MEET SUCH OBLIGATIONS, in either case(B) IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX THE ACTUAL DAMAGES RESULTING THEREFROM, shall not constitute(C) ANY SUMS THAT WOULD BE CREDITABLE OR PAYABLE UNDER SECTION 4.3(b) OR SECTION 6.1 ARE IN THE NATURE OF LIQUIDATED DAMAGES, in and of itselfAND NOT A PENALTY, such a breachAND ARE FAIR AND REASONABLE, default or Event of DefaultAND SHALL BE PAID REGARDLESS OF THE AMOUNT OF DAMAGES THAT BUYER ACTUALLY SUSTAINS, (D) EACH PAYMENT REPRESENTS A REASONABLE ESTIMATE OF FAIR COMPENSATION FOR THE LOSSES THAT MAY REASONABLY BE ANTICIPATED FROM EACH SUCH FAILURE, (E) THE PARTIES IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO CLAIM TO ANY COURT OR ARBITRAL TRIBUNAL THE ADJUSTMENT OF ANY SUCH SUMS, AND (F) WITHOUT LIMITING SECTION 15.2, ANY SUMS THAT WOULD BE CREDITABLE OR PAYABLE UNDER SECTION 4.3(b) OR SECTION 6.1 ARE BUYER’S EXCLUSIVE DAMAGES ARISING OUT OF SELLER’S FAILURE TO PROVIDE TO BUYER THE ENVIRONMENTAL ATTRIBUTES (AND/OR REPLACEMENT EAS) (I) REQUIRED ACCORDING TO SECTION 4.3(b) FOR EACH MW OF CONTRACT CAPACITY AND STORAGE CAPACITY OR EACH MWH OF CONTRACT ENERGY AND STORAGE ENERGY OR (II) THAT WOULD HAVE BEEN REQUIRED ACCORDING TO SECTION 4.3(b) IF SELLER HAD PROVIDED DELIVERED ENERGY TO BUYER AT THE ENERGY FINANCIAL DELIVERY POINT IN EACH CONTRACT YEAR EQUAL TO AT LEAST THE ANNUAL GUARANTEED ENERGY QUANTITY OR TO DELIVER DELIVERED ENERGY TO BUYER AT THE ENERGY FINANCIAL DELIVERY POINT IN AN AMOUNT EQUAL TO OR ABOVE THE ANNUAL GUARANTEED ENERGY QUANTITY, PROVIDED, THAT (1) SELLER ACTUALLY CREDITS OR PAYS BUYER ANY SUCH AMOUNT AND (2) ANY SUCH CREDIT OR PAYMENT SHALL NOT LIMIT BUYER’S RIGHTS OR REMEDIES FOR ANY BREACH, DEFAULT OR EVENT OF DEFAULT OF SELLER UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT SELLER AND BUYER AGREE THAT, IF THE CONDITION PART (I) OF THE FOREGOING PROVISO IS SATISFIED, SELLER’S FAILURE TO PROVIDE TO BUYER THE ENVIRONMENTAL ATTRIBUTES (AND/OR REPLACEMENT EAS) (X) REQUIRED ACCORDING TO SECTION 4.3(b) FOR EACH MW OF CONTRACT CAPACITY AND STORAGE CAPACITY OR EACH MWH OF CONTRACT ENERGY AND STORAGE ENERGY OR (Y) THAT WOULD HAVE BEEN REQUIRED ACCORDING TO SECTION 4.3(b) IF SELLER HAD PROVIDED DELIVERED ENERGY TO BUYER AT THE ENERGY FINANCIAL DELIVERY POINT IN EACH CONTRACT YEAR EQUAL TO AT LEAST THE ANNUAL GUARANTEED ENERGY QUANTITY, IN EITHER CASE, SHALL NOT CONSTITUTE, IN AND OF ITSELF, SUCH A BREACH, DEFAULT OR EVENT OF DEFAULT.
Appears in 1 contract
Sources: Power Purchase Agreement
Environmental Attributes. (a) Without limiting Section 4.2, Seller shall, at its own expense:
(i) by the Delivery Term Commencement Date, (A) cause the Generating Facility, Storage Facility, Contract Capacity, Storage Capacity, Contract Energy, Storage Energy, and/or Environmental Attributes (as applicable) to be certified and otherwise qualified for and registered with all programs or systems that are Applicable Environmental Attribute Programs as of the Delivery Term Commencement Date (subject to the last sentence of Section 4.2(e)) and (B) otherwise qualify for, and enter into all agreements and make all other arrangements (and, without limiting the foregoing, obtain all necessary accounts) to obtain and transfer to Buyer, (1) the Environmental Attributes under each Applicable Environmental Attribute Programs referenced in clause (A) above and (2) the Guaranteed Environmental Attributes;
(ii) at all times comply with all reporting and other requirements of the Applicable Environmental Attribute Programs and Applicable Guaranteed Programs, including required reporting of the amount and type of Energy generated by the Facility and source of any Replacement EAs; and
(iii) upon the request of Buyer from time to time, (A) deliver or cause to be delivered to Buyer such attestations/certifications of Environmental Attributes and Replacement EAs and other documentation as may be required or advisable in Buyer’s reasonable discretion to comply with or otherwise participate in any Applicable Environmental Attribute Program or Applicable Guaranteed Program or to obtain and transfer to Buyer custody of, and give effect to and evidence the title of Buyer (as contemplated by Section 7.7(a)) in, all the Environmental Attributes and Replacement EAs and (B) otherwise provide full cooperation in connection with ▇▇▇▇▇’s retirement or other use of the Environmental Attributes and Replacement EAs.
(b) The transfer of Environmental Attributes (and any Replacement EAs) to Buyer shall be accomplished by the means specified by Buyer, which may include the documentation described in Section 4.3(a)(iii) and/or by electronic delivery pursuant to any renewable energy or environmental attribute program or monitoring, tracking, certification or trading system designated by Buyer that is an Applicable Environmental Attribute Program (or, in the case of Replacement EAs, that applies to such Replacement EAs), and shall be completed by Seller by the EA Transfer Deadline. For each MW of Contract Capacity and Storage Capacity or each MWh of Contract Energy and Storage Energy injected at the Injection Point for financial delivery to Buyer, as applicable, throughout the Delivery Term (even if some of such Contract Capacity, Storage Capacity, Storage Energy or Contract Energy is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion wind power for any reason), Seller shall be required to obtain and transfer to Buyer the Guaranteed Environmental Attributes and any environmental attributes for which, if such MW or MWh were generated by the Facility from photovoltaic solar energy conversion wind power and delivered to Buyer according to this Agreement, such MW or MWh would be eligible (subject to the last sentence of Section 4.2(e)), all by the EA Transfer Deadline. To the extent Seller does not provide Environmental Attributes to satisfy its obligations pursuant to the preceding sentence for any MW of Contract Capacity and Storage Capacity or MWh of Contract Energy and Storage Energy (e.g., because such MW or MWh is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion wind power for any reason or, in the case of the Guaranteed Environmental Attributes, because the Applicable Guaranteed Program is no longer an Applicable Environmental Attribute Program due to the breach, negligence (including gross negligence), fraud, willful misconduct or other act or omission of Seller, its Affiliates or Subcontractors, or any of their respective directors, officers, partners, members, trustees, employees, agents or representatives), then Seller shall satisfy such obligations by providing Replacement EAs for such MW or MWh. For any such Environmental Attribute (or Replacement EA) that Seller does not provide to Buyer (provided that Seller shall first be required to use best efforts to provide such Environmental Attribute or Replacement EA) according to the two (2) immediately preceding sentences by the EA Transfer Deadline, Seller shall pay to Buyer an amount equal to the greater of (i) the Reference EA Compliance Payment applicable to such Environmental Attribute (or Replacement EA) or (ii) the average of at least two (2) price quotes obtained by Buyer from nationally recognized brokers during the first month following the month in which the corresponding MW was recognized or MWh was generated), for the sale and delivery of Replacement EAs that are eligible for the Required Qualified Programs corresponding to such Environmental Attribute (or Replacement EA). Any amounts payable pursuant to the immediately preceding sentence shall be included on the Monthly Invoice covering the month in which the EA Transfer Deadline occurs.
(c) The Parties acknowledge and agree that it is difficult or impossible to determine with precision the amount of damages that would or might be incurred by Buyer ▇▇▇▇▇ as a result of Seller’s failure to provide to Buyer the Environmental Attributes (and/or Replacement EAs) (i) required according to equal MWH of Contract Energy and Storage Energy or (ii) that would have been damages arising out of Seller’s failure to at least provide to Buyer the Annual Guaranteed Energy Quantity, in either case, shall not constitute, in and of itself, such a breach, default or Event of Default.Environmental
Appears in 1 contract
Sources: Power Purchase Agreement
Environmental Attributes. (a) Without limiting Section 4.2, Seller shall, at its own expense:
(i) by the Delivery Term Commencement Date, (A) cause the Generating Facility, Storage Facility, Contract Capacity, Storage Capacity, Contract Energy, Storage Energy, Energy and/or Environmental Attributes (as applicable) to be certified and otherwise qualified for and registered with all programs or systems that are Applicable Environmental Attribute Programs as of the Delivery Term Commencement Date (subject to the last sentence of Section 4.2(e)) and (B) otherwise qualify for, and enter into all agreements and make all other arrangements (and, without limiting the foregoing, obtain all necessary accounts) to obtain and transfer to Buyer, (1) the Environmental Attributes under each Applicable Environmental Attribute Programs referenced in clause (A) above and (2) the Guaranteed Environmental Attributes;
(ii) at all times comply with all reporting and other requirements of the Applicable Environmental Attribute Programs and Applicable Guaranteed Programs, including required reporting of the amount and type of Energy generated by the Facility and source of any Replacement EAs; and
(iii) upon the request of Buyer from time to time, (A) deliver or cause to be delivered to Buyer such attestations/certifications of Environmental Attributes and Replacement EAs and other documentation as may be required or advisable in Buyer’s reasonable discretion to comply with or otherwise participate in any Applicable Environmental Attribute Program or Applicable Guaranteed Program or to obtain and transfer to Buyer custody of, and give effect to and evidence the title of Buyer (as contemplated by Section 7.7(a)) in, all the Environmental Attributes and Replacement EAs and (B) otherwise provide full cooperation in connection with ▇▇▇▇▇’s retirement or other use of the Environmental Attributes and Replacement EAs.
(b) The transfer of Environmental Attributes (and any Replacement EAs) to Buyer shall be accomplished by the means specified by Buyer, which may include the documentation described in Section 4.3(a)(iii) and/or by electronic delivery pursuant to any renewable energy or environmental attribute program or monitoring, tracking, certification or trading system designated by Buyer that is an Applicable Environmental Attribute Program (or, in the case of Replacement EAs, that applies to such Replacement EAs), and shall be completed by Seller by the EA Transfer Deadline. For each MW of Contract Capacity and Storage Capacity or each MWh of Contract Energy and Storage Energy injected at the Injection Point for financial delivery to Buyer, as applicable, throughout the Delivery Term (even if some of such Contract Capacity, Storage Capacity, Storage Energy Capacity or Contract Energy is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion for any reason), Seller shall be required to obtain and transfer to Buyer the Guaranteed Environmental Attributes and any environmental attributes for which, if such MW or MWh were generated by the Facility from photovoltaic solar energy conversion and delivered to Buyer according to this Agreement, such MW or MWh would be eligible (subject to the last sentence of Section 4.2(e)), all by the EA Transfer Deadline. To the extent Seller does not provide Environmental Attributes to satisfy its obligations pursuant to the preceding sentence for any MW of Contract Capacity and Storage Capacity or MWh of Contract Energy and Storage Energy (e.g., because such MW or MWh is produced by fossil fuel or otherwise not generated from photovoltaic solar energy conversion for any reason or, in the case of the Guaranteed Environmental Attributes, because the Applicable Guaranteed Program is no longer an Applicable Environmental Attribute Program due to the breach, negligence (including gross negligence), fraud, willful misconduct or other act or omission of Seller, its Affiliates or Subcontractors, or any of their respective directors, officers, partners, members, trustees, employees, agents or representatives), then Seller shall satisfy such obligations by providing Replacement EAs for such MW or MWh. For any such Environmental Attribute (or Replacement EA) that Seller does not provide to Buyer (provided that Seller shall first be required to use best efforts to provide such Environmental Attribute or Replacement EA) according to the two (2) immediately preceding sentences by the EA Transfer Deadline, Seller shall pay to Buyer an amount equal to the greater of (i) the Reference EA Compliance Payment applicable to such Environmental Attribute (or Replacement EA) or (ii) the average of at least two (2) price quotes obtained by Buyer from nationally recognized brokers during the first month following the month in which the corresponding MW was recognized or MWh was generated), for the sale and delivery of Replacement EAs that are eligible for the Required Qualified Programs corresponding to such Environmental Attribute (or Replacement EA). Any amounts payable pursuant to the immediately preceding sentence shall be included on the Monthly Invoice covering the month in which the EA Transfer Deadline occurs.
(c) The Parties acknowledge and agree that it is difficult or impossible to determine with precision the amount of damages that would or might be incurred by Buyer as a result of Seller’s failure to provide to Buyer the Environmental Attributes THE PARTIES ACKNOWLEDGE AND AGREE THAT IT IS DIFFICULT OR IMPOSSIBLE TO DETERMINE WITH PRECISION THE AMOUNT OF DAMAGES THAT WOULD OR MIGHT BE INCURRED BY BUYER AS A RESULT OF SELLER’S FAILURE TO PROVIDE TO BUYER THE ENVIRONMENTAL ATTRIBUTES (and/or Replacement EAsAND/OR REPLACEMENT EAS) (iI) required according to equal to at least the Annual Guaranteed Energy QuantityREQUIRED ACCORDING TO SECTION 4.3(b) FOR EACH MW OF CONTRACT CAPACITY OR EACH MWH OF CONTRACT ENERGY OR (II) THAT WOULD HAVE BEEN REQUIRED ACCORDING TO SECTION 4.3(b) IF SELLER HAD PROVIDED DELIVERED ENERGY TO BUYER AT THE ENERGY FINANCIAL DELIVERY POINT IN EACH CONTRACT YEAR EQUAL TO AT LEAST THE ANNUAL GUARANTEED ENERGY QUANTITY. IT IS UNDERSTOOD AND AGREED BY THE PARTIES THAT (A) BUYER SHALL BE DAMAGED BY THE FAILURE OF SELLER TO MEET SUCH OBLIGATIONS, in either case(B) IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX THE ACTUAL DAMAGES RESULTING THEREFROM, shall not constitute(C) ANY SUMS THAT WOULD BE CREDITABLE OR PAYABLE UNDER SECTION 4.3(b) OR SECTION 6.1 ARE IN THE NATURE OF LIQUIDATED DAMAGES, in and of itselfAND NOT A PENALTY, such a breachAND ARE FAIR AND REASONABLE, default or Event of Default.AND SHALL BE PAID REGARDLESS OF THE AMOUNT OF DAMAGES THAT BUYER ACTUALLY SUSTAINS, (D) EACH PAYMENT REPRESENTS A REASONABLE ESTIMATE OF FAIR COMPENSATION FOR THE LOSSES THAT MAY REASONABLY BE ANTICIPATED FROM EACH SUCH FAILURE, (E) THE PARTIES IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO CLAIM TO ANY COURT OR ARBITRAL TRIBUNAL THE ADJUSTMENT OF ANY SUCH SUMS, AND (F) WITHOUT LIMITING SECTION 15.2, ANY SUMS THAT WOULD BE CREDITABLE OR PAYABLE UNDER SECTION 4.3(b) OR SECTION 6.1 ARE BUYER’S EXCLUSIVE DAMAGES ARISING OUT OF SELLER’S FAILURE TO PROVIDE TO BUYER THE ENVIRONMENTAL ATTRIBUTES (AND/OR REPLACEMENT EAS) (I) REQUIRED ACCORDING TO SECTION 4.3(b) FOR EACH MW OF CONTRACT CAPACITY OR EACH MWH OF CONTRACT ENERGY OR (II) THAT WOULD HAVE BEEN REQUIRED ACCORDING TO SECTION 4.3(b) IF SELLER HAD PROVIDED DELIVERED ENERGY TO BUYER AT THE ENERGY FINANCIAL DELIVERY POINT IN EACH CONTRACT YEAR EQUAL TO AT LEAST THE ANNUAL GUARANTEED ENERGY QUANTITY OR TO DELIVER DELIVERED ENERGY TO BUYER AT THE ENERGY FINANCIAL DELIVERY POINT IN AN AMOUNT EQUAL TO OR ABOVE THE ANNUAL GUARANTEED ENERGY QUANTITY, PROVIDED, THAT (1) SELLER ACTUALLY CREDITS OR PAYS BUYER ANY SUCH AMOUNT AND (2) ANY SUCH CREDIT OR PAYMENT SHALL NOT LIMIT BUYER’S RIGHTS OR REMEDIES FOR ANY BREACH, DEFAULT OR EVENT OF DEFAULT OF SELLER UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT SELLER AND BUYER AGREE THAT, IF THE CONDITION PART (I) OF THE FOREGOING PROVISO IS SATISFIED, SELLER’S FAILURE TO PROVIDE TO BUYER THE ENVIRONMENTAL ATTRIBUTES (AND/OR REPLACEMENT EAS) (X) REQUIRED ACCORDING TO SECTION 4.3(b) FOR EACH MW OF CONTRACT CAPACITY OR EACH MWH OF CONTRACT ENERGY OR (Y) THAT WOULD HAVE BEEN REQUIRED ACCORDING TO SECTION 4.3(b) IF SELLER HAD PROVIDED DELIVERED ENERGY TO BUYER AT THE ENERGY FINANCIAL DELIVERY POINT IN EACH CONTRACT YEAR
Appears in 1 contract
Sources: Power Purchase Agreement