Equivalent Availability and Chronic Underperformance

Equivalent Availability and Chronic Underperformance.

1. For purposes of this Agreement: (a) “Ambient-Adjusted Generator Capacity” means the maximum amount of Energy in MWh the Off-Island ISO will permit to be Dispatched for the Off-Island Generator in any hour, based on temperature, humidity and any other applicable ambient conditions; (b) “Equivalent Availability-Generator” means the weighted percentage of time in a specific time period during which the Off-Island Generator is available for Dispatch, whether or not the Off-Island Generator is actually Dispatched, which shall be expressed as a percentage equal to one hundred percent (100%) multiplied by a fraction where: (x) the numerator is the sum of the Ambient-Adjusted Generator Capacity in every hour of a specific time period that is actually available for Dispatch; provided, for purposes of this calculation that Off-Island Generator Capacity unavailable due to a Force Majeure Event or an Excused Outage will be included in the Ambient-Adjusted Generator Capacity, and (y) the denominator is the sum of the Ambient-Adjusted Generator Capacity in every hour of such time period; (c) “Equivalent Availability-Cable” means the weighted percentage of time in a specific time period during which the Controllable Cable is available for scheduling, whether or not the Controllable Cable is actually scheduled, which shall be expressed as a percentage equal to one hundred percent (100%) multiplied by a fraction where: (x) the numerator is the sum of the Cable Capacity in every hour of a specific time period that is actually available for scheduling; provided, for purposes of this calculation that Cable Capacity unavailable due to a Force Majeure Event or an Excused Outage will be included in the numerator, and (y) the denominator is the sum of the Cable Capacity in every hour of such time period; (d) “Equivalent Availability” means Equivalent Availability-Generator multiplied by Equivalent Availability-Cable; (e) “Monthly Equivalent Capacity” means Dedicated Capacity for such Month multiplied by the Equivalent Availability for such Month; and (f) “Chronic Underperformance” means the failure of the Projects to achieve an average Monthly Equivalent Capacity in any consecutive twenty-four (24) Month period that is equal to at least seventy-five percent (75%) of the Dedicated Capacity.

2. Commencing on the third (3rd) anniversary of the Project Commercial Operation Date, Buyer shall have the option to terminate this Agreement as provided herein in the event of Chronic Underperformance. If Chronic Underperformance has occurred, Buyer may give Seller written notice of such Chronic Underperformance within thirty (30) Days of the end of the consecutive twenty-four (24) Month period in which such Chronic Underperformance occurred. Upon receipt of any notice of Chronic Underperformance, Seller shall have an additional six (6) Months to achieve Monthly Equivalent Capacity in excess of the minimum level required to avoid a finding of Chronic Underperformance. In the event that Seller fails to achieve the required Monthly Equivalent Capacity level within such six (6) Month period, Buyer shall have the right to terminate this Agreement immediately pursuant to Section 12.5.

6. BILLING AND COLLECTIONS

   1. Billing and Payment

1. Billing By Seller.

(b) Interconnection Costs. After the Project Commercial Operation Date, Seller shall prepare and submit to Buyer an invoice for the accumulated capital costs it has incurred associated with paying for Connecting Transmission Owner’s Attachment Facilities, System Upgrade Facilities, and System Deliverability Upgrades pursuant to the Long Island Interconnection Agreement. Such invoice shall show the nature, amount and payee, if any, of the capital costs paid and incurred by Seller.

(c) Monthly Invoice. Subject to the provisions of Section 6.3, on or about the tenth (10th) Day of each Month following the Month in which the Project Commercial Operation Date occurs, Seller shall send Buyer a Monthly invoice for:

(w) Monthly Capacity Payment. The Monthly Capacity Payment for the upcoming Month (and any previous Months in the case of the first (1st) invoice);

(x) Monthly Energy Payment. The Monthly Energy Payment for the preceding Month;

(y) Seller’s Excess Costs. Lump sum payment or Monthly Surcharge pursuant to Section 14.2(iii) and (iv), as applicable; and

2. Buyer shall be obligated to pay to Seller, within thirty (30) Days of the receipt of each Monthly invoice, any undisputed amounts owed to Seller.

3. Seller shall deliver each invoice to Buyer’s billing address as set forth in Section 18.5 herein. Such invoice shall include the basis of the calculation of the payment amounts, the applicable rates and any interest charges or other adjustments to the amounts owed.

4. Billing by Buyer.

22. 
    Minimum Required Consents Liquidated Damages Amounts. Buyer shall prepare and submit an invoice to Seller for any Liquidated Damages amounts due and payable to Buyer from Seller pursuant to Section 3.5(i) providing sufficient detail to show the amounts due.
    
23. 
    Execution of EPC Contracts. Buyer shall prepare and submit an invoice to Seller for any Liquidated Damages amounts due and payable to Buyer from Seller pursuant to Section 3.5(ii) providing sufficient detail to show the amounts due.
    
24. 
    Major Construction Milestone for Off-Island Generator Liquidated Damages Amount. Buyer shall prepare and submit an invoice to Seller for any Liquidated Damages amounts due and payable to Buyer from Seller pursuant to 3.5(iii) providing sufficient detail to show the amounts due.
    
25. 
    Major Construction Milestone for Controllable Cable Liquidated Damages Amount. Buyer shall prepare and submit an invoice to Seller for any Liquidated Damages amounts due and payable to Buyer from Seller pursuant to 3.5(iv) providing sufficient detail to show the amounts due.
    
26. 
    COD Liquidated Damages and Other Amounts. Buyer shall prepare and submit an invoice to Seller for any Liquidated Damages amounts due and payable to Buyer from Seller providing sufficient detail to show the amounts due for COD Liquidated Damages and/or a Termination Payment pursuant to Section 12.5(ii), if applicable.
    

(c) Buyer shall deliver each invoice to Seller’s billing address as set forth in Section 18.5 herein. Such invoice shall include the basis of the calculation of the payment amounts, the applicable rates and any interest charges or other adjustments to the amounts owed.

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