Energy Sale and NEL Club Membership

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Renewable Energy Buy Contract for NEL Energy Club Members

Dated Enter date   

NELPV Club Member

- and -

NEL Ngaitahu Energy Limited 

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Renewable Energy Buy Contract for NEL PV Club Members

Relating to the [] Generating Station

________________________________________

Terms and Conditions

Table of Contents

1. DEFINITIONS AND INTERPRETATION 4

2. TERM OF AGREEMENT 6

3. FACILITY DESCRIPTION 6

4. COMMERCIAL OPERATION 7

5. DELIVERY, AVAILABILITY REPORTING, METERING & FUEL SUPPLY 16

6. SALE AND PURCHASE OF CONTRACTED CAPACITY, CONTRACT ENERGY 20

7. OPERATION BY NELPVClub Member 22

8. NELPVClub Member’S STEP-IN RIGHTS 23

9. FAILURE IN RESPECT OF ANCILLARY SERVICES AND OPERATING CHARACTERISTICS 25

10. FLEXIBILITY PROVISIONS 26

11. CHARGES, PAYMENT AND BILLING 37

12. ESTABLISHMENT AND FUNCTIONIONING OF CO-ORDINATING COMMITTEE 42

13. REPRESENTATIONS AND WARRANTIES 43

14. INSURANCE 44

15. TAXES 46

16. FORCE MAJEURE EVENT 46

17. TERMINATION 51

18. LIABILITY AND INDEMNIFICATION 58

19. DISPUTE RESOLUTION 60

20. MISCELLANEOUS PROVISIONS 60

Schedule 1 Definitions and Interpretation 68

Schedule 2 Facility 86

Part 1 Operating Characteristics 86

Part 2 Description of Facility 87

Part 3 Site 87

Part 4 Point of Delivery 87

[Part 5] [Import Energy Delivery Point] 87

Schedule 3 Special Provisions 88

Schedule 4 Tariff, Tariff Adjustments and Default Prices 89

Schedule 5 Operating Procedures 93

Part 1 Reported Availability and Dispatch 93

Part 2 Maintenance 95

Part 3 Testing 97

Part 4 Monitoring and Access 97

Part 5 Protective Devices 98

Part 6 Communications Equipment 98

Schedule 6 Construction Milestones 99

Schedule 7 Insurance 100

Part 1 Details of Insurances 100

Part 2 Policy Endorsements 100

Schedule 8 Change in Law 101

Schedule 9 Dispute Resolution 104

Part 1 Notice of Dispute 104

Part 2 Resolution by Parties 104

Part 3 Technical Disputes 104

Part 4 Arbitration 106

Schedule 10 Representations and Warranties 108

Part 1 NEL Representations and Warranties 108

Part 2 NELPVClub Member Representations and Warranties 109

Schedule 11 Fair Market Value and Discounted Amount 111

Part 1 Fair Market Value 111

Part 2 Discounted Amount 112

This Agreement is made as of this [∙] day of [∙], by:

• NELPV Club Member  is Prvate individuale NELPVClub Member”) and 
• Ngaitahu Energy Limited is a Limited liability company established under the Law, with its principal office located in 19 Frser Road Rununga Westland New Zealand [] (“NEL”)
• And its Australian Registerd Entity Ngaitahuenergy Projects Pty Limited ACN 640 607 156 ABN: 58 640 607 156

WHEREAS

• NEL Has PV solar generation facilities around the country  interconnected to the National Transmission System.
• NEL desires and intends to make available and sell to NELPVClub Member, and NELPVClub Member hereby contracts to  purchase from NEL,  KWH [Kilowat Hours  and the associated Net Electrical Output of, and Ancillary Services with respect to, the Facility, pursuant to the terms and conditions of this Agreement.
• NEL has responded to NELPVClub Member’s solicitation by way of their signes contract supported by their paymen of their initial membership fee for the provision of electricity and NELPVClub Member has accepted NEL’s offer in accordance with the terms and conditions set forth in this Agreement.

NOW THEREFORE, in consideration of the mutual covenants contained in this Agreement the sufficiency and adequacy of which are hereby acknowledged, the Parties agree to the following:

NOW IT IS HEREBY AGREED as follows:

• DEFINITIONS AND INTERPRETATION
• Interpretation in this Agreement, unless the context otherwise requires:
• words importing persons or Parties shall include corporations, partnerships, joint ventures, trusts, unincorporated organizations, a Relevant Authority or any other legal entity and all references to persons shall include their permitted successors and assigns;
• words importing the singular only shall also include the plural and vice versa where the context requires;
• words importing the masculine shall include the feminine and neuter and vice versa;
• headings, captions and marginal notes in this Agreement shall not be deemed part of or be taken into consideration in the interpretation or construction of this Agreement and are included for ease of reference only;
• all references to Clauses, Schedules (and Parts and Paragraphs), shall be construed as references to clauses of and schedules to (and parts of and paragraphs to Schedules of) this Agreement;
• the Schedules attached hereto are incorporated in and are intended to be a part of this Agreement; provided that, in the event of a conflict between the terms of any Schedule and the terms of the remainder of this Agreement, the terms of the remainder of this Agreement shall take precedence;
• the words “include” and “including” are to be construed without limitation; 
• references to proceedings includes litigation, arbitration, and investigation;
• references to a judgment includes an order, injunction, decree, determination or award of any court or tribunal;
• for the purposes of this Agreement and its Schedules, the term “day”: shall mean a 24-Hour period starting and ending at midnight [    ]n time; the term “week”: shall mean a seven-day period beginning on Sunday at midnight [    ]n time; the term “month”: shall mean a calendar month; and the term “year”: shall mean an agreement year commencing on the first day of the month following the month in which the Final Commercial Operation Date occurs, and ending on the day preceding each anniversary thereof; and
• where provision is made for the giving of any notice, certificate, determination, consent or approval by any person that notice, certificate, determination, consent or approval shall be in writing, and the words “notifies”, “certifies”, “determined”, “consent” or “approved” shall be construed accordingly.
• This Agreement was negotiated and prepared by both Parties with advice of counsel to the extent deemed necessary by each Party.  The Parties have agreed to the wording of this Agreement and none of the provisions of this Agreement shall be construed against one Party on the ground that such Party is the author of this Agreement or any part of it.
• Language

The language of negotiation of this Agreement has been English, this Agreement isexecuted in English, and this English text shall prevail for the purposes of determining the intention of the Parties and in any construction of this Agreement.

• Definitions 
• The terms defined in Schedule 1 shall have the meanings set forth therein.
• Technical Meanings

Words not otherwise defined herein shall have meanings as commonly used in the English language.  Words that have well-known and generally accepted technical or trade meanings in Prudent Utility Practice are used in this Agreement in accordance with such recognised meanings.

Subscriber Membership: All People businesses and companies who wish to access the flat rate energy supplied by NEL must be a paid up subscriber of the NEL Subscriber club. the membership fee is at the time of writing $5.00 AUD per month. On joining the $5.00 Per month plus GST totaling $60.00 plus GST will be charged to the card. And  the same amount will be clipped from the card every 12 months, subject to receiving a notice of cancellation from the subscriber as per the cancellation clause in these terms and conditiond.

• TERM OF Energy  buy AGREEMENT 
• This Agreement:
• shall commence on the date on which NEL supplies their smart phone app meter.
• unless extended or terminated earlier, shall continue in full force and effect for 12 months and if not cancled in writing 6 months prior to the date the service is no longer required. The Final Commercial Operation Date.
• [Applicable provisions of this Agreement shall continue in effect after termination, including early termination, to the extent necessary to enforce or complete the duties, obligations, or responsibilities of the Parties arising prior to termination and, as applicable, without limitation, to provide for final billings and adjustments related to the period prior to termination, repayment of any money due and owing to either Party pursuant to this Agreement, and the indemnifications specified in this Agreement.
• FACILITY DESCRIPTION
• Summary Description

NEL shall provide KWH [KiloWhatt Hours into the national network the NELPVClub Member contracts andpersonally  guarantes  to buy that energy from their point of connection into the national grid  for the period of time each day the energy is generated and dispatched into the east coast national network on a take or pay scenario.

• Location

The energy can be accessed from any point on the east coast nation network of Australia including Tasmania. The  energy can be accessed through any connection point on the above mentioned Eact Coast National Energy Network, equipped to access energy from the above mentioned network  shall be located on a site on the east coast of Australia and connected to the national transmission network  Site and shall be identified as  PV Generating Station  

• Interconnection 

NEL and NELPVClub Member shall comply with the requirements of Schedule 2 and the Interconnection Agreement in relation to interconnection of the Facility with the Transmission System.

• COMMERCIAL OPERATION
• Commercial Operation
• The Commercial Operation Date shall occur upon the satisfaction or occurrence, or, pursuant to Clause 4.1.4, deemed satisfaction, of all of the following conditions:
• NEL has successfully completed the Performance Tests in accordance with Schedule 5 or, in respect of the Performance Tests, has paid the relevant Performance Liquidated Damages (if any) to NELPV Club Member pursuant to Clause 3.4.2;
• the Facility has met the requirements for initial synchronisation with and interconnection of the Facility to the Transmission System, and has demonstrated the reliability of its communications systems and communications with NEL in accordance with the requirements of Schedule 5 and the Interconnection Agreement; and
• certificates of insurance evidencing the coverages required by Clause 14 have been obtained and provided to NEL. 
• Each condition specified in Clauses 4.1.3(a) and 4.1.3(b) shall be satisfied by the receipt by each Party of a declaration from the Independent Engineer that such condition has been satisfied.  If the Facility is unable to satisfy any condition referred to in Clause 4.1.3 due to a Deemed Commissioning Event the Facility shall be deemed to have satisfied that condition and, provided that all the other conditions referred to in Clause 4.1.3 have been satisfied or deemed to have been satisfied, to be providing Available Capacity at [92]% of the Rated Capacity (or, if the Net Dependable Capacity has been determined, the Contracted Capacity) for the purposes of payments to be made by NELPVClub Member pursuant to Clause 11.1 until such time as that condition shall have been satisfied or the Facility is no longer unable to satisfy that condition due to the Deemed Commissioning Event.
• NEL agrees to notify NELPVClub Members promptly of any failure to meet a  delivery.
• NELPVClub Members indemnify NEL for the failure of deliverery  caused by any third party. 
• Test Energy
• NEL shall coordinate the production and delivery of Test Energy with NELPVClub Member in accordance with Schedule 5 and the Testing Procedures and NELPVClub Member shall cooperate with NEL to schedule and facilitate NEL’s testing of the Facility.
• with its obligations under this Agreement or will require NEL to install an aditional meter.:
• the appropriate elements of the charges referred to in Clause 11 shall be adjusted so that NEL will be in no better or worse financial position than it would have been in had the changes not been implemented; and
• if such changes require the installation of new or the modification of existing plant or equipment, such changes shall not become operative until such installation or modification shall have been completed.
• NELPVClub Member may not withhold its consent to a change to the Operating Procedures proposed by NEL if such change is necessary for NEL to comply with the Laws or a Governmental Approval.
• Electric Metering Devices
• All Electric Metering Devices used to measure the net capacity and energy made available to NELPVClub Member by NEL under this Agreement at the Point of Delivery and to monitor and coordinate operation of the Facility shall be owned, installed, and maintained by [NELPVClub Member].  All Electric Metering Devices used to provide data for the computation of payments shall be sealed and only NELPVClub Members shall break the seal when such Electric Metering Devices are to be inspected and tested or adjusted in accordance with this Clause 5.3.  NELPVClub Members shall specify the number, type and location of such Electric Metering Devices.
• Upon request by NEL on reasonable notice and not more frequently than once a month, NELPVClub Member shall perform additional inspections or tests of any Electric Metering Device and shall permit a qualified representative of NEL to inspect or witness the testing of any Electric Metering Device, provided, however, that NEL shall not unreasonably interfere with or disrupt the activities of NELPVClub Member and shall comply with all of NELPVClub Member’s safety standards.  The actual expense of any such requested additional inspection or testing shall be borne by NEL, unless upon such inspection or testing an Electric Metering Device is found to register inaccurately by more than the allowable limits established in Clause 5.4.1, in which event the expense of the requested additional inspection or testing shall be borne by NELPVClub Member.  
• If requested by NEL in writing, NELPVClub Member shall provide copies of any inspection or testing reports to NEL.
• NEL may elect to install and maintain, at its own expense, backup metering devices (“NEL’s Back-Up Metering”) in addition to those installed and maintained by NELPVClub Member, which installation and maintenance shall be performed in a manner reasonably acceptable to NELPVClub Member.  NEL, at its own expense, shall inspect and test NEL’s Back-Up Metering upon installation and at least once every [6 months] thereafter.  NEL shall provide NELPVClub Member with reasonable advance notice of, and permit a representative of NELPVClub Member to witness and verify, such inspections and tests, provided, however, that NELPVClub Member shall not unreasonably interfere with or disrupt the activities of NEL and shall comply with all of NEL’s safety standards.  
• Upon request by NELPVClub Member on reasonable notice and not more frequently than once a month, NEL shall perform additional inspections or tests of NEL’s Back-Up Metering and shall permit a qualified representative of NELPVClub Member to inspect or witness the testing of NEL’s Back-Up Metering, provided, however, that NELPVClub Member shall not unreasonably interfere with or disrupt the activities of NEL and shall comply with all of NEL’s safety standards.  The actual expense of any such requested additional inspection or testing shall be borne by NELPVClub Member, unless, upon such inspection or testing, NEL’s Back-Up Metering is found to register inaccurately by more than the allowable limits established in Clause 5.4.1, in which event the expense of the requested additional inspection or testing shall be borne by NEL.  
• If requested by a NELPV Club Member in writing, NEL shall provide copies of any inspection or testing reports to the NELPV Club Member.
• If any Electric Metering Devices, or NEL’s Back-Up Metering, are found to be defective or inaccurate, they shall be adjusted, repaired, replaced, and/or recalibrated as near as practicable to a condition of zero error by the Party owning such defective or inaccurate device and at that Party’s expense.
• Adjustment for Inaccurate Meters
• If an Electric Metering Device, or NEL’s Back-Up Metering, fails to register, or if the measurement made by an Electric Metering Device or NEL’s Back-Up Metering is found upon testing to be inaccurate by more than [1]%, an adjustment shall be made correcting all measurements by the inaccurate or defective Electric Metering Device or NEL’s Back-Up Metering for both the amount of the inaccuracy and the period of the inaccuracy, in the following manner:
• in the event that the Electric Metering Device is found to be defective or inaccurate, the Parties shall use NEL’s Back-up Metering, if installed, to determine the amount of such inaccuracy, provided, however, that NEL’s Back-Up Metering has been tested and maintained in accordance with the provisions of Clause 5.3.  If NEL’s Back-Up Metering is installed on the low side of NEL’s step-up transformer, NEL’s Back-up Metering data shall be adjusted for Electrical Energy Losses.  In the event that NEL did not install back-up metering, or NEL’s Back-Up Metering is also found to be inaccurate by more than [1]%, the Parties shall estimate the amount of the necessary adjustment on the basis of deliveries of net capacity and energy from the Facility or the Units comprised in it during periods of similar operating conditions when the Electric Metering Device was registering accurately.  The adjustment shall be made for the period during which inaccurate measurements were made;
• in the event that the Parties cannot agree on the actual period during which the inaccurate measurements were made, the period during which the measurements are to be adjusted shall be the shorter of:
• the last [one half] of the period from the last previous test of the Electric Metering Device to the test that found the Electric Metering Device to be defective or inaccurate; and
• the [180 day] period immediately preceding the test that found the Electric Metering Device to be defective or inaccurate; and
• to the extent that the adjustment period covers a period of deliveries for which payment has already been made by NELPVClub Member, NELPVClub Member shall use the corrected measurements as determined in accordance with this Clause 5.4 to recompute the amount due for the period of the inaccuracy and shall subtract the previous payments by NELPVClub Member for this period from such recomputed amount.  If the difference between the recomputed payment and the amount paid is a positive number, the difference shall be paid by NELPVClub Member to NEL; if the difference is a negative number, the difference shall be paid by NEL to NELPVClub Member, or, at the discretion of NELPVClub Member, may take the form of an offset to payments due to NEL by NELPVClub Member.  Payment of such difference by the owning Party shall be made not later than 10 Business Days after the owning Party receives notice of the amount due, unless NELPVClub Member elects payment via an offset.
• Fuel Delivery

If the sun dont shine the  club member indemnifies NEL from any recompence 

• Contracted Capacity

The Contracted Capacity provided and sold by NEL and purchased by NELPVClub Member under this Agreement shall be all of the capacity available at any day subject to meteorological and atmospheric conditions including solar eclpis and all other restriction to the availability of sunligt time from the Facility at the Point of Delivery, including any and all uncommitted and undispatched capacity available from any of NEL’s pV Generation Facilities  

• Contract Energy

Subject to Clause 4.7, the contract energy provided by NEL and received by NELPVClub Member under this Agreement (the “Contract Energy”) shall be the metered Net Electrical Output generated by the Contracted Capacity, less any such energy [(other than energy falling within the Dispatch Tolerance)] that has not been Dispatched by NELPVClub Member. 

• Exclusive Right

NELPVClub Member has a fully exclusive right to:

• all Contracted Capacity available at any time from the Facility at the Point of Delivery;
• the Contract Energy; and
• any associated rights arising from the availability of the Contracted Capacity or the Contract Energy (including rights to credits or benefits pursuant to Clause 6.8).
• Dispatch
• Subject to the provisions of Paragraph 3 of Schedule 5, Part 1, NELPVClub Member shall have the right to determine the Dispatch control from all of the operational Facilities operating in the catchment. 
• NELPVClub Member shall not issue any Dispatch Instruction that exceeds NEL’s Reported Availability in respect of any Hour.
• NEL shall comply with Dispatch Instructions given by NELPVClub Member in accordance with Paragraph 3 of Schedule 5, Part 1 and the Operating Characteristics.
• Restriction of Contract Energy
• Each Party shall not, and shall procure that its Affiliates shall not (including any person acting, in each case, on their behalf), take or omit to take any action that would result in or materially contribute to a restriction, under the Facility’s Governmental Approvals, in the amount of Contract Energy available for dispatch and receipt by NELPVClub Member following the Commercial Operation Date for the first Unit in time that is Commissioned.
• Nothing in this Agreement shall be construed to create an obligation of NEL to operate the Facility or any of the Units comprised in it, or permission for NELPVClub Member to Dispatch Contract Energy, in violation of the Facility’s Governmental Approvals or applicable Law (including Environmental Laws).
• To the extent electric energy is required by the Facility or any of the Units composed in it for operation of the Facility or any of the Units that have been Commissioned, NEL may use electric energy produced by the Facility or any of the Units composed in it.
• Title and Risk of Loss
• As between the Parties, NEL shall be deemed to be in control of the Contracted Capacity, Contract Energy and Test Energy output from the Facility and any of the Units comprised in it up to and until delivery and receipt at the Point of Delivery and NELPVClub Member shall be deemed to be in control of such capacity and energy from and after delivery and receipt at the Point of Delivery.
• Title and risk of loss related to the Contracted Capacity, Contract Energy and Test Energy shall transfer from NEL to NELPVClub Member at the Point of Delivery.
• As between the Parties, NEL shall be deemed to be in control of fuel procured for the Facility and the Units composed in it and supplied to the Site to produce Contract Energy and Test Energy.
• Rights to Environmental Credits
• The Parties acknowledge that some generation technologies and fuels have the potential to produce substantial carbon dioxide and other environmental air quality credits and related emissions reduction credits or benefits (economic and otherwise) in relation to the generation of energy after the Commercial Operation Date for the first Unit in time that is Commissioned.  The Parties agree that NELPVClub Members shall not own or be entitled to claim any and all such credits or benefits to the extent that such credits or benefits may be available in relation to the Facility or the Units composed in it during the term of this Agreement.
• In furtherance of Clause 6.8.1, NEL transfers to NELPVClub Member alright, title and interest NEL has or will have in, to, and under such credits or benefits. 
• OPERATION BY NELPV Club Member 
• Pre-Operation of Transmission System

NELPVClub Member shall:

• make the arrangements required to be made by it for any necessary upgrade to the Transmission System, so that it is capable of evacuating power from the Facility, after the first synchronisation in accordance with the Interconnection Agreement;
• provide such assistance and support as NEL may reasonably require in identifying and preparing applications for Governmental Approvals and in interfacing with any Relevant Authority in connection with obtaining Governmental Approvals; and
• provide all reasonable cooperation and assistance to NEL in connection with NEL's negotiation and execution of the Financing Agreements and the Security Package and any replacement funding.
• Operation of Transmission System

From the time NEL commences operation and maintenance of the Facility or any Unit comprised in it and until the expiry or termination of this Agreement, NELPVClub Member shall operate and maintain the Transmission System:

• in such a manner so as not to cause damage to the Facility or any Unit comprised in it, but NELPVClub Member shall not be liable for any adverse effect on the Facility or any Unit comprised in it resulting from normal operation and maintenance of the Transmission System; and
• in all material respects in accordance with the Law, the NELPVClub Member Licence, Prudent Utility Practice and this Agreement.
• NELPVClub Member, gives NEL or its employees, contractors, or designated third parties shall have the unrestricted right to enter the Site and the Facility for the purpose of constructing and/or operating the Facility as from the date of exercise of NELPVClub Member’s rights under this Clause 8 set out in the Step-In Notice.  NEL hereby irrevocably appoints NELPVClub Member as NEL’s attorney-in-fact for the exclusive purpose of executing such documents, directing its staff and taking such other actions as NELPVClub Member may reasonably deem necessary or appropriate to exercise NELPVClub Member’s step-in-rights under this Clause 8.
• During any period that NELPVClub Member is in possession of and constructing and/or operating the Facility pursuant to this Clause 8, NELPVClub Member shall:
• perform and comply with all of the obligations of NEL under this Agreement; and 
• use the proceeds from the sale of Contracted Capacity and Contract Energy under this Agreement to, first, reimburse NELPVClub Member for any and all expenses reasonably incurred by NELPVClub Member to which NELPVClub Member is entitled under this Agreement in taking possession of and operating the Facility, and to, second, remit any remaining proceeds to NEL.  

The provisions of Clauses 5 and 9 shall not apply during any period of operation of the Facility by NELPVClub Members under this Clause 8. 

• During any period that NELPVClub Member is in possession of and operating the Facility, NEL shall retain legal title to and ownership of the Facility and NELPVClub Member shall assume possession, operation, and control solely as agent for NEL until and unless surrender and transfer of the Site and the Facility are completed in accordance with Clause 10.  In the event that NELPVClub Member is in possession and control of the Facility and this Agreement has not been terminated:
• NEL may resume operation and NELPVClub Member shall relinquish its right to operate when NEL demonstrates to NELPVClub Member’s reasonable satisfaction that it has cured any circumstances which allowed NELPVClub Member to exercise its rights under this Clause 8; and 
• the Lenders, or any nominee or transferee thereof, may take possession of and operate the Facility and NELPVClub Member shall relinquish its right to operate the Facility when the Lenders or any nominee or contractor thereof, requests such relinquishment and NELPVClub Member is reasonably satisfied that such third party is mobilized to and intends to operate the Facility in accordance with the obligations of NEL under this Agreement.
• NELPVClub Member’s exercise of its rights under this Clause 8 to possess and operate the Facility shall not be deemed an assumption by NELPVClub Member of any liability attributable to NEL.  If, at any time after exercising its rights to take possession of and operate the Facility as a result of its rights under this Clause 8, NELPVClub Member elects to return such possession and operation to NEL, NELPVClub Member shall provide NEL and the Lenders with at least 15 days’ advance notice of the date NELPVClub Member intends to return such possession and operation, and upon receipt of such notice, NEL shall take all measures necessary to resume possession and operation of the Facility on such date.  
• If NEL has not provided satisfactory assurances to NELPVClub Member of its willingness and ability to operate the Facility in accordance with this Agreement within [2] months following a refusal to operate the Facility, NELPVClub Member may terminate this Agreement and exercise its remedies (including purchase of the Facility) pursuant to Clause 10.
• NELPVClub Member shall be entitled at its cost to have an independent engineer inspect and record the condition of the Facility prior to NELPVClub Member's entry into and operation of the Facility, which inspection shall be considered evidence of the condition of the Facility at the time of NELPVClub Member's entry.
• Notwithstanding any other provision in this Agreement to the contrary, during such period NELPVClub Member operates the Facility pursuant to Clause 8.1, NELPVClub Member shall: 
• operate the Facility in accordance with the Operating Characteristics, Prudent Utility Practice, the Law and this Agreement; and 
• indemnify and hold NEL harmless from any loss or damage to the Facility incurred, suffered or sustained by NEL by reason of NELPVClub Member's gross negligence or wilful misconduct in the operation of the Facility.
• During any period that NELPVClub Member shall operate the Facility pursuant to Clause 8.1 NEL shall licence (and shall procure that sub-contractors shall licence to NEL on terms permitting NEL to sub-licence to NELPVClub Member), all Intellectual Property Rights of NEL (and the sub-contractors) necessary for NELPVClub Member to operate the plant.
• FAILURE IN RESPECT OF ANCILLARY SERVICES AND OPERATING CHARACTERISTICS
• If a Unit fails (for reasons other than any Planned Outage, Forced Outage, Force Majeure Event or any event of NELPVClub Member Risk:
• to provide Ancillary Services in accordance with a Dispatch Instruction; or
• to respond to a Dispatch Instruction with respect to active energy within the Operating Characteristics then applicable to it,

(to within 5% of the values or capability which NEL is required to maintain under this Agreement), NEL shall be required to carry out all necessary repairs and maintenance and to provide evidence to NELPVClub Member within 30 days of such failure (or such longer period as NELPVClub Member may reasonably allow, provided that NEL is diligently and expeditiously carrying out all such repairs and maintenance) that, in the case of Clause 9.1.1, such Unit is capable of providing Ancillary Services in accordance with and to the extent of its Operating Characteristics and, in the case of Clause 9.1.2, that such Unit is capable of responding to a Dispatch Instruction with respect to active energy within the Unit’s Operating Characteristics.

• NELPVClub Member shall allow the necessary repairs and maintenance referred to in Clause 9.1 to be deferred to the next Planned Outage where to do so would be in accordance with Prudent Utility Practice and the failure of the Unit to provide Ancillary Services or to respond to a Dispatch Instruction with respect to active energy within its Operating Characteristics has no material effect on the operation of the Transmission System.
• A failure on the part of NEL to provide evidence to NELPVClub Member within the 30 day period referred to in Clause 9.1 (or such longer period as is referred to in Clause 9.1) that the Unit is capable of providing Ancillary Services in accordance with and to the extent of its Operating Characteristics or that the Unit is capable of responding to a Dispatch Instruction with respect to active energy within the Unit’s Operating Characteristics (to within 5% of the values or capability which NEL is required to maintain under this Agreement) will result in a reduction in the Capacity Payment in accordance with Clause 9.4 for the period from such failure to provide evidence until the time that such capability is restored.
• The reduction in the Capacity Payment in respect of the relevant Unit referred to in Clause 9.3 shall be 10% in the first month after the failure to provide such evidence, 20% in the second consecutive month and shall increase by 10% in each month during which such failure continues up to 100% in the 10th and each subsequent month during which such failure continues.
• If, in any period of 12 consecutive months, a Unit fails on more than 3 occasions to provide Ancillary Services in accordance with and to the extent of its Operating Characteristics or to respond to a Dispatch Instruction with respect to active energy within its Operating Characteristics (to within 5% of the values or capability which NEL is required to maintain under this Agreement) by reason of wilful default on the part of NEL then on the 4th such failure the Capacity Payment in respect of the relevant Unit shall be reduced to zero for a period of 15 days, without prejudice to any other right, relief or remedy of NELPVClub Member under this Agreement.
• FLEXIBILITY PROVISIONS
• Withdrawal from Service
• NELPVClub Member may at any time after the [9th] anniversary of the Final Commercial Operation Date and following the occurrence of any of the events referred to in Clause 10.1.2 give not less than [3] years’ prior notice requiring NEL to withdraw the Facility from service (this notice to state the date of withdrawal and the expected date of the Facility’s return to service) whereupon:
• NEL shall:
• take the Facility out of service with effect from the date specified by NELPVClub Member until the date specified in the notice; and
• take the steps agreed between the Parties with respect to the operation and maintenance of the Facility and the saving of costs of operation and maintenance as shall be appropriate having regard to the duration of the period during which the Facility is expected to be withdrawn from service;
• the operation and maintenance obligations under this Agreement shall be deemed to have been modified accordingly and the provisions of Clauses 5 and 9 shall not apply whilst the Facility is withdrawn from service and during its recommissioning; 
• NELPVClub Member shall continue to make the Capacity Payment in respect of the Facility (adjusted in accordance with Clause 10.1.1(d) until the expiry of the term of this Agreement or the date on which the Facility is returned to service (whichever is the earlier), on the basis that the Facility is assumed constantly to be available at the Net Dependable Capacity;
• the Capacity Payment, to the extent that it is calculated by reference to the availability of the Contracted Capacity, shall be adjusted to reflect:
• NEL’s expected savings in fixed costs of operation and maintenance as shall be agreed by the Parties having regard to the steps agreed pursuant to Clause 10.1.1(a)(ii);
• any costs (such as severance and redundancy pay) incurred for the purpose of achieving these savings;
• all costs incurred by NEL in taking the Facility out of service in accordance with this Clause 10.1.1.  NEL may elect to receive these costs as and when incurred by way of a lump sum payment or by way of an adjustment to the Capacity Payment; and
• any out-of-pocket or other costs reasonably incurred by NEL and any liabilities incurred by NEL (provided that NEL has taken reasonable steps to mitigate these liabilities) in the performance of its obligations under this Clause 10.1 or under any Project Agreement as a result of the withdrawal of the Facility from service to the intent that NEL shall be placed in the same financial position as it would have been in had the Facility not been withdrawn from service, which NEL may elect to receive as and when incurred by way of a lump sum payment or by way of an adjustment to the Capacity Payment, and

in making this adjustment, any costs of recommissioning the Facility and any other costs which (but for the withdrawal from service) would have been incurred after the expiry of the term of this Agreement or any earlier date of termination of this Agreement (as the case may be) shall be disregarded;

• the Facility must be returned to service on the earlier of not less than [3] months’ notice to NEL from NELPVClub Member and the expected date of the Facility’s return to service as initially notified to NEL by NELPVClub Member, in which case:
• the Parties shall also agree upon procedures for recommissioning the Facility; and
• upon the return to service of the Facility the Parties will agree upon any consequential amendments to this Agreement and/or any lump sum payment by NELPVClub Member to NEL (as NEL may elect) to take account of the costs incurred by NEL (before the expiry of the term of this Agreement) in bringing the Facility back into service, entering into any replacement Project Agreement and any degradation in the Facility, it being the intention of the Parties to place NEL in the same financial position in which it would have been had the Facility not been withdrawn from service; and
• the completion of any recommissioning will be completed not later than [∙] years after the return of the Facility to service and pending the adjustments being made pursuant to Clause 10.1.1(e)(ii), NELPVClub Member shall continue to pay the Capacity Payment during the recommissioning.
• The events referred to in Clause 10.1.1 are:
• a decision of the system planning department of NELPVClub Member or the Government (acting in its capacity as system planner for [    ]) that the Facility should be withdrawn from service for a period, taken solely on environmental and/or economic grounds, notified to NEL in writing;
• A Relevant Change in Law.
• Permanent Retirement
• NELPVClub Member may, at any time on or after the [9th] anniversary of the Final Commercial Operation Date following the occurrence of any of the events referred to in Clause 10.2.3, give not less than [3] years’ prior notice to NEL to:
• terminate this Agreement and on the date of expiry of the notice this Agreement will terminate; or 
• require the Facility to be withdrawn permanently from service and on the date of expiry of the notice the provisions of Clause 10.1.1 (other than Clause 10.1.1(e)) shall apply.
• During the [12] months prior to the expiry of a notice given pursuant to Clause 10.2.1, the Parties will agree a progressive run-down of the maintenance of the Facility and the Site, and the maintenance obligations under this Agreement shall be deemed to have been modified accordingly provided that the effects of the run-down shall not:
• be included in the calculation of the Discounted Amount or, until the date on which this Agreement is terminated, the calculation of the Capacity Payment and the Energy Payment; or
• affect NELPVClub Member’s obligations to pay the Capacity Payment and the Energy Payment until the date on which this Agreement is terminated.

Upon termination of this Agreement, Clauses 10.4 to 10.11 inclusive shall apply.

• The events referred to in Clause 10.2.1 are:
• a decision of the system planning department of NELPVClub Member or the Government (acting in its capacity as system planner for [    ]) that the Facility should be retired, taken solely on economic and/or environmental grounds, notified to NEL in writing;
• A Relevant Change in Law.
• Put Option
• Notwithstanding the provisions of Clauses 10.1.1 and 10.2.1, NEL may, by not less than 6 months’ notice to NELPVClub Member (a “Put Option Notice”), following the issue of a notice under Clause 10.2.1 or at any time after the [2nd] anniversary of the withdrawal of the Facility from service following the issue of a notice under Clause 10.1.1 require NELPVClub Member to:
• terminate this Agreement on the expiry of the Put Option Notice; or
• return the Facility to service on the expiry of the Put Option Notice.
• NELPVClub Member shall notify NEL of its decision on or before the expiry of the Put Option Notice.
• If, upon receipt of a Put Option Notice, NELPVClub Member elects:
• to return the Facility to service, the provisions of Clause 10.1.1(e) shall apply; or
• to terminate this Agreement or does not issue a notice electing to return the Facility to service, this Agreement shall automatically terminate upon the earlier of receipt of notice from NELPVClub Member that it elects to terminate this Agreement or the expiry of the notice period specified in the Put Option Notice.  Upon termination of this Agreement pursuant to this Clause 10.3.3(b), the provisions of Clauses 10.4 to 10.11 inclusive shall apply.
• Transfer of Facility on Termination
• If this Agreement is terminated:
• by NELPVClub Member under Clauses 8.9, 14.6, or 17.3.1, or by either Party under Clause 17.3.2, NELPVClub Member may elect by 60 days’ notice to NEL; or
• by NEL under Clause 17.3.1, by either Party under Clause 17.3.2, by NELPVClub Member issuing a notice under Clause 10.2.1(a) or as a result of a Put Option Notice issued under Clause 10.3, NEL may elect by 60 days’ notice to NELPVClub Member,

within 60 days of the date of termination, to require the Facility and the Site to be transferred to NELPVClub Member.  If a notice is issued by either Party under this Clause 10.4.1, Clauses 10.4.2 to 10.11 inclusive shall apply.

Where the Facility and the Site are to be transferred to NELPVClub Member, NELPVClub Member shall pay to NEL an amount equal to the amount set forth in the following table (each a “Termination Amount”):

Termination Event

Termination Amount Payable To NEL by NELPVClub Member

NELPVClub Member terminates this Agreement under Clause 10.2.1(a) or the Agreement terminates as a result of a Put Option Notice issued under Clause 10.3

DA+T

NEL terminates this Agreement under Clause 17.3.1 before the Final Commercial Operation Date

D+E+R+T

NEL terminates this Agreement under Clause 17.3.1 on or after the Final Commercial Operation Date

DA+T 

NELPVClub Member terminates this Agreement under Clause 14.6

FMV

Either Party terminates this Agreement under Clause 17.3.2 before the Final Commercial Operation Date for an Other Force Majeure Event declared by, or affecting, NELPVClub Member

(1) 100% of D+E+R+T where NELPVClub Member terminates this Agreement; or

(2) the greater of (i) 95% of D+E+R+T and (ii) D, where NEL terminates this Agreement

Either Party terminates this Agreement under Clause 17.3.2 on or after the Final Commercial Operation Date for an Other Force Majeure Event declared by, or affecting, NELPVClub Member

(1) 100% of DA+T where NELPVClub Member terminates this Agreement; or

(2) the greater of (i) 95% of  DA+T and (ii) D, where NEL terminates this Agreement

Either Party terminates this Agreement under Clause 17.3.2 before the Final Commercial Operation Date for an Other Force Majeure Event declared by, or affecting, NEL

(1) 100% of (D+E+R+T) – IP where NELPVClub Member terminates this Agreement; or

(2) the greater of (i) 95% of (D+E+R+T) – IP and (ii) D, where NEL terminates this Agreement

Either Party terminates this Agreement under Clause 17.3.2 on or after the Final Commercial Operation Date for an Other Force Majeure Event declared by, or affecting, NEL

(1) 100% of (DA + T) – IP where NELPVClub Member terminates this Agreement; or

(2) the greater of (i) 95% of (DA + T) – IP and (ii) D, where NEL terminates this Agreement

Either Party terminates this Agreement under Clause 17.3.2 before the Final Commercial Operation Date due to a Political Force Majeure Event

D+E+R+T

Either Party terminates this Agreement under Clause 17.3.2 on or after the Final Commercial Operation Date due to a Political Force Majeure Event

DA+T

NELPVClub Member terminates this Agreement under Clauses 8.9 or 17.3.1 before the Final Commercial Operation Date

90% of D

NELPVClub Member terminates this Agreement under Clauses 8.9 or 17.3.1 on or after the Final Commercial Operation Date

90% of D

where:

D is the total amount outstanding at the Termination Date to the Lenders under the Financing Agreements (including principal and interest, breakage costs and costs and expenses) less the aggregate amount of any cash balances held in the name of the NEL and secured to the Lenders as at the Termination Date;

E is the aggregate amount of any equity investment or contribution (whether by way of capital contribution, shareholder loans) made by the Investors (or their Affiliates) at or by the Termination Date to, or in, NEL;

DA  is the net present value of [Financial Charges] that would have been earned under this Agreement from the Termination Date until the [∙th] anniversary of the Final Commercial Operation Date calculated in accordance with Schedule 11, Part 2;

R is an amount equal to the total value of interest at a rate of [∙]% compounded annually which the Investors would have received had an amount equal to E been deposited in a bank account between the date on which this Agreement enters into full force and effect pursuant to Clause 2.1 and the Termination Date;

T is the reasonable termination costs incurred by NEL (including employee severance costs and contract breakage costs) incurred by NEL as a direct consequence of the termination of this Agreement;

FMV is the fair market value of the Facility as determined in accordance with Schedule 11, Part 1; and

IP  is the sum of the proceeds of insurance received by NEL pursuant to the policies of insurance set forth in Schedule 7 in respect of the relevant Force Majeure Event and any amount recovered from any Contractor as a result of the termination of this Agreement.

• To the extent such expenses are not recovered prior to the termination of