Off-island ppa



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Construction.


Unless otherwise indicated, (i) defined terms include the plural as well as the singular; (ii) any agreement defined or referred to herein includes each amendment, modification and supplement thereto and waiver, approval and consent in respect thereof as may become effective from time to time and includes references to all Appendices, Exhibits, Schedules and other attachments thereto and instruments, agreements or other documents incorporated therein; (iii) any term defined by reference to any instrument, agreement or other document has such meaning set forth in such document as of the date hereof and unless expressly amended, such meaning shall remain in effect whether or not such document is subsequently amended, modified or terminated; (iv) a reference to any law or Legal Requirement includes any amendment, modification or successor thereto; (v) a reference to any Person includes its permitted successors and assigns; (vi) all references to Appendices, Sections, Schedules and Exhibits shall mean and refer to the respective Appendices, Sections, Schedules and Exhibits in or attached to this Agreement or any document in which such reference appears; (vii) the words “include,” “includes” and “including” are not limiting and shall be deemed to be followed by the words “without limitation” whether or not in fact followed by such words or words of like import; and (viii) the terms “hereof,” “herein,” “hereunder” and comparable terms refer to this entire Agreement with respect to which such terms are used and not to any particular article, Section or subdivision hereof.

  1. TERM OF AGREEMENT

    1. Term.

      1. This Agreement shall become effective on the date by which all of the following conditions shall have occurred (the “Effective Date”): (a) Seller shall have received authorization and approval by its Board of Directors, or equivalent executive body, of the execution, delivery and performance of this Agreement; (b) Buyer shall have received authorization and approval by its Board of Trustees of the execution, delivery, and performance of this Agreement; (c) this Agreement has been executed by both Seller and Buyer; and (d) the executed Agreement has been approved in writing by both (x) the New York State Attorney General (as to form), and (y) the State Comptroller and filed in the office of the State Comptroller (as provided for in Supplement 1). Buyer shall give Seller written notice within five (5) Business Days after the occurrence of the Effective Date.

      2. The term of this Agreement shall begin on the Effective Date and shall remain in effect until the twentieth (20th) anniversary of the Project Commercial Operation Date unless terminated earlier in accordance with the terms hereof (“Base Term”), with the option to extend as set forth in Section 2.1(iii) below; provided, however, that such termination shall not affect or excuse the performance of either Party under any provision of this Agreement that by its terms survives any such termination and, provided further, that this Agreement and any other documents executed and delivered hereunder shall remain in effect until both Parties have fulfilled all of their obligations with respect to purchase and sale of the Products. The Term shall be subject to the termination provisions of Sections 2.3, 3.6, 5.10, 11.8, 14.2, Article 12 and Supplement 1 of this Agreement.

      3. Buyer shall have an option to extend this Agreement for [five (5) or ten (10) years] (the “Extended Term”) by providing Seller written notice of Buyer’s election by [[date] or [[x] Months prior to the end of the Base Term]]. [pROPOSER TO INSERT the date or number of months prior to the end of the base term for buyer’s notice]

      4. Buyer shall have the option to extend the Base Term or the Extended Term, if applicable, to the end of the then current NYISO Capability Period in the event the Base Term or the Extended Term, if applicable, ends during a NYISO Capability Period by providing Seller written notice of Buyer’s election twelve (12) Months prior to the end of the applicable Term.

    2. Opinion of Counsel.


Each Party shall deliver to the other Party an opinion of counsel (which may be an opinion of its in-house counsel) within thirty (30) Days after the Seller receives written notice from Buyer stating that the Effective Date has been achieved, in a form and substance reasonably satisfactory to the receiving Party, containing the opinions that this Agreement has been duly and validly executed and delivered by the delivering Party, and that this Agreement constitutes a legal, valid and binding obligation of the delivering Party enforceable against it in accordance with its terms, subject to customary assumptions, qualifications and exceptions.

    1. Early Termination by Buyer.


In addition to the right to terminate upon a Seller Event of Default as provided in Article 12, Buyer shall have the right to terminate this Agreement without payment of any kind to Seller if any of the following events occur:

      1. Seller fails to obtain all Consents which are necessary to commence construction of the Projects as set forth in Appendix 1 (the “Minimum Required Consents”) on or before two hundred seventy (270) Days after the Minimum Required Consents Receipt Target Date, unless such period is extended in writing by both Parties;

      2. Seller fails to provide Buyer with Seller Security as required by Article 7;

      3. Seller fails to complete and file its applications for the Minimum Required Consents on or before [__] Days after the Minimum Required Consents Application Target Date; [pROPOSER TO INSERT the number of days]

      4. Seller fails to execute the EPC Contracts on or before two hundred seventy (270) Days after the EPC Contracts Execution Target Date;

      5. The Major Construction Milestone for Off-Island Generator fails to occur on or before two hundred seventy (270) Days after the Major Construction Milestone for Off-Island Generator Target Date;

      6. The Major Construction Milestone for Controllable Cable fails to occur on or before two hundred seventy (270) Days after the Major Construction Milestone for Controllable Cable Target Date; and

      7. Seller fails to achieve Project COD on or before two hundred seventy (270) Days after the Project COD Target Date.


Each of the foregoing dates shall be extended by one (1) Day for each Day Seller has been prevented or delayed from accomplishing the required action or event as a result of a Force Majeure Event or by Buyer’s willful or grossly negligent actions or inaction, provided that the Force Majeure Event or such actions or inactions are a direct cause in preventing or delaying Seller and Seller could have accomplished such action or event by the required date but for such Force Majeure Event or Buyer’s actions or inactions. In the event Buyer elects to terminate this Agreement as a consequence of the conditions described in Sections 2.3(ii) through 2.3(vii), Seller shall pay to Buyer a Liquidated Damage payment of [________________] Dollars ($_________) [PROPOSER TO INSERT $150,000 MULTIPLIED BY THE NUMBER OF MW OF DESIGN CABLE CAPACITY] in lieu of a Termination Payment. No Liquidated Damages or Termination Payment shall be due from Seller in the event of Buyer’s termination is pursuant to Section 2.3(i) above.


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