Nature of Service. Seller’s obligations to make available and deliver to Buyer the Products shall be on a Unit Contingent basis; provided, however, that the foregoing shall not be construed to eliminate, limit, or otherwise restrict Buyer’s rights or remedies provided in this Agreement in the event of the occurrence of a Unit Contingency. Without limiting the foregoing and for the avoidance of doubt, in the event of a Unit Contingency, Seller shall be subject to any liquidated damages applicable in the event of a Unit Contingency pursuant to Section 4.3(b) and Section 6.1 and the other requirements of Section 4.3(b) and Section 6.1 in respect of the shortfalls described therein. The burden of establishing the existence and extent of any Unit Contingency shall be on Seller. Except to the extent required by a Unit Contingency or permitted or required by Section 7.4, Seller shall operate (or cause to be operated) the Facility, and shall not interrupt, curtail or otherwise reduce the availability or deliveries from the Facility or otherwise of the Products, such that, at all times during the Delivery Term and whether or not Seller is, for any period, at, above or below the Annual Guaranteed Energy Quantity, Minimum Two Consecutive Contract Year Energy Quantity or Minimum Three Contract Year Energy Quantity or any other production requirement set forth in this Agreement, (i) Contract Energy is actually generated by the Generating Facility, injected at the Injection Point and delivered to Buyer at the Energy Financial Delivery Point in the Applicable Market (up to the Maximum Delivered Contract Energy in each applicable MISO Settlement Interval) and (ii) the required amounts of other Products are provided to Buyer in accordance with this Agreement. Without limiting the foregoing, absent a Unit Contingency, Seller shall not interrupt, curtail or otherwise reduce the availability or deliveries of Contract Energy for which the LMP exceeds the Minimum Market Price in either MISO Market, regardless of prices or other economic conditions at the Electric Interconnection Point or Injection Point. For any Contract Energy interrupted, curtailed or otherwise reduced by Seller in violation of the immediately preceding sentence, Seller shall pay to Buyer the amount, if positive, equal to
Appears in 17 contracts
Samples: Power Purchase Agreement, Power Purchase Agreement, Power Purchase Agreement
Nature of Service. Seller’s obligations to make available and deliver to Buyer the Products shall be on a Unit Contingent basis; provided, however, that the foregoing shall not be construed to eliminate, limit, or otherwise restrict Buyer’s rights or remedies provided in this Agreement in the event of the occurrence of a Unit Contingency. Without limiting the foregoing and for the avoidance of doubt, in the event of a Unit Contingency, Seller shall be subject to any liquidated damages applicable in the event of a Unit Contingency pursuant to Section 4.3(b) and Section 6.1 and the other requirements of Section 4.3(b) and Section 6.1 in respect of the shortfalls described therein. The burden of establishing the existence and extent of any Unit Contingency shall be on Seller. Except to the extent required by a Unit Contingency or permitted or required by Section 7.4, Seller shall operate (or cause to be operated) the Facility, and shall not interrupt, curtail or otherwise reduce the availability or deliveries from the Facility or otherwise of the Products, such that, at all times during the Delivery Term and whether or not Seller is, for any period, at, above or below the Annual Guaranteed Energy Quantity, Minimum Two Consecutive Contract Year Energy Quantity or Minimum Three Contract Year Energy Quantity or any other production requirement set forth in this Agreement, (i) Contract Energy is actually generated by the Generating Facility, injected at the Injection Point and delivered to Buyer at the Energy Financial Delivery Point in the Applicable Market (up to the Maximum Delivered Contract Energy in each applicable MISO Settlement Interval) and (ii) the required amounts of other Products are provided to Buyer in accordance with this Agreement. Without limiting the foregoing, absent a Unit Contingency, Seller shall not interrupt, curtail or otherwise reduce the availability or deliveries of Contract Energy for which the LMP exceeds the Minimum Market Price in either MISO Market, regardless of prices or other economic conditions at the Electric Interconnection Point or Injection Point. For any Contract Energy interrupted, curtailed or otherwise reduced by Seller in violation of the immediately preceding sentence, Seller shall pay to Buyer the amount, if positive, equal toto (a) the LMP that would have been payable to Buyer pursuant to Section 7.8 (by MISO pursuant to a Financial Schedule or directly by Seller) if such Contract Energy had been generated, minus (b) the Energy Price applicable to such Contract Energy, plus (c) if (i) the LMP for such Contract Energy exceeded the Minimum Market Price for an applicable MISO Settlement Interval in the MISO Day-Ahead Energy Market and (ii) the price at which MISO settles the MISO Real-Time Energy Market at the Injection Point for any MISO Settlement Interval in the MISO Real-Time Energy Market corresponding to such MISO Settlement Interval in the MISO Day-Ahead Energy Market is less than zero, the absolute value of such price at which MISO settles the MISO Real- Time Energy Market at the Injection Point. In addition, Seller shall be required to comply with Section 4.3(b) with respect to any such Contract Energy interrupted, curtailed or otherwise reduced by Seller in violation of the second preceding sentence as if it had been generated by the Facility from photovoltaic solar energy conversion and delivered to Buyer according to this Agreement.
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