GENERATOR DECLARATION OF COMMERCIAL OPERATION DATE

In order to declare Commercial Operation, the Generator must submit a Generator Declaration of Commercial Operation Date letter to both the OPA and their Local Distribution Company (LDC). The OPA has prepared a template of the Generator Declaration of Commercial Operation Date letter for use by Generators who hold Executed Contracts under the Renewable Energy Standard Offer Program (RESOP). This template is available for download at the bottom of this page in a writable PDF format.

This letter provides confirmation:

1. that the Renewable Generation Facility “as-built” is the same as described in the details contained in the original application (or as amended and accepted by the OPA)

2. of the Generator’s GST # or exemption status in terms of charging and remitting GST

3. that the Project has met all the requirements of Commercial Operation as specified in the Contract

4. that the Generator has coordinated with the LDC to determine the appropriate metering configuration and requirements

5. that any required metering configuration changes identified have been made to the satisfaction of the LDC

6. of the actual Commercial Operation Date (COD)

Once the OPA receives its copy of the letter, the OPA will inform the LDC of the Generator’s COD in order for the Generator to receive Contract Payments.

AMENDING AGREEMENT

After a Contract has been Executed, the only way to change any details would be through the formal Amendment process. Depending on the situation, varying degrees of due diligence are necessary. The following instructions are provided for the purpose of assisting interested Generators only, and the OPA does not guarantee that by following these instructions, that the Generator will obtain the requested Amendment. These instructions are non-binding on the OPA, and the OPA may change the process generally or with respect to a particular Generator without prior notice.

1. The Generator completes in full and executes three originals of the RESOP Contract Amending Agreement. Where there is a Secured Lender, the Generator shall also obtain the Secured Lenders’ signatures as required.

2. The Generator delivers three fully executed originals to the OPA.

3. The OPA will review the completed RESOP Contract Amending Agreement, and where acceptable to the OPA, the OPA shall consent to the requested Amendment and return one executed original to the Generator.

SECURED LENDER AMENDING AGREEMENT

The Contract contemplates one or more Secured Lenders and Secured Lender’s Security Agreements over the life of the Contract, and provides for a New Agreement for the benefit of a Secured Lender in the event of default by the Generator under a Secured Lender’s Security Agreement, substantially in the form of a Contract and for the balance of the term of the original Contract.

Generators who wish to delete or add a Secured Lender, or delete an existing Secured Lender and replace it with a new Secured Lender (in each case, a “Requested Amendment”), may follow these instructions. The OPA makes these instructions available only for the purpose of assisting interested Generators, and the OPA does not guarantee that by following these instructions, the Generator will obtain the Requested Amendment. These instructions are non-binding on the OPA, and the OPA may change the process generally or with respect to a particular Generator without prior notice.

1. The Generator completes in full and executes four originals of the RESOP Contract Secured Lender Amending Agreement (obtaining the existing Secured Lender’s signatures as required).

2. The Generator delivers four fully executed originals to the OPA.

3. The OPA will review the completed RESOP Contract Secured Lender Amending Agreement, and where acceptable to the OPA, the OPA shall consent to the requested Amendment and return two executed originals to the Generator.

ASSIGNMENT AND NOVATION AGREEMENT

Generators who intend to sell, assign and/or transfer the Contract Facility to another party are referred to Section 13.4 (1) and (5) of the RESOP Contract. For the purpose of assisting interested Generators, the OPA makes this set of instructions available describing the process for obtaining an Assignment of the RESOP Contract from the Generator listed in the RESOP Contract (“Original Generator”) to the assignee Generator (“New Generator”). The OPA makes no guarantee that the Generator will obtain the requested Assignment by following these instructions. These instructions are non-binding on the OPA, and the OPA may change the process generally or with respect to a particular Generator without prior notice.

1. The Original Generator delivers a letter (on the Original Generator’s letterhead) to the OPA containing the following:

a. a statement that the Original Generator intends to sell, assign and/or transfer the Contract Facility to the New Generator,
b. the identity and the contact information of the New Generator, and
c. a statement from the New Generator that the New Generator is eligible to participate in the Program under the Program Rules.

2. The sale of the Contract Facility takes place.

3. After such transfer, the Original Generator completes, in full, one original of the Statutory Declaration of Original Generator and the New Generator completes, in full, one original of the Statutory Declaration of New Generator.

4. Together, the Original Generator and New Generator completes, in full, four originals of the RESOP Assignment and Novation Agreement. If there is a Secured Lender, they must also agree and acknowledge.

5. Together, the Original Generator and the New Generator (and Secured Lender(s) as applicable) submit one original of each of the completed Statutory Declarations and four executed originals of the RESOP Assignment and Novation Agreement to the OPA.

6. After the OPA has received the required documentation, the OPA will review and process the Assignment and return one executed original to each of the Original Generator and the New Generator, which document will constitute written acknowledgment of the Assignment required pursuant to Section 13.4 (5). Please note that the Assignment and Novation Agreement will be dated and effective as of the date it is executed by the OPA, which date may occur after the sale of the Contract Facility.

CHANGE OF CONTROL

Section 13.4 (2) of the RESOP Contract states:

“A change of Control of the Generator shall be permitted without consent provided such change of Control does not result in the Generator becoming, or becoming an Affiliate of, a Person who would not be eligible to participate in the Program, and provided that prior written notice of such change of Control and the identity and contact information of the Person acquiring Control of the Generator have been provided to the OPA.”

The OPA requires a letter from the Original Generator (on the Original Generator’s letterhead) that:

1. provides the identity and contact information of the Person acquiring Control; and

2. confirms that this Person is not a Person/Affiliate who is not eligible to participate in the Program.

CONSENT AND ACKNOWLEDGMENT AGREEMENT

Pursuant to Section 9.3 of the RESOP Contract, the OPA shall, upon request of the Generator, enter into the Secured Lender Acknowledgment and Agreement, in the form posted on the Website, with the Generator and any Secured Lender for the purpose of implementing the Secured Lender’s Security Agreement protection provisions contained in this Agreement.

The Generator delivers four fully executed originals to the OPA. The OPA will review the completed Consent and Acknowledgment Agreement, and where acceptable to the OPA, the OPA shall consent to the requested Amendment and return two executed originals to the Generator.

EXTENSIONS TO IN-SERVICE DEADLINE

Under the RESOP, each Project (other than Waterpower Projects, as the term is defined in the RESOP Contract) that fails to come into service within three (3) years of the date of its Contract will result in a default by the Generator under such Contract, unless the delay in achieving Commercial Operation is due to a valid Force Majeure event.

Valid Force Majeure claims will result in relief from the Project’s in-service deadline as per the terms of the RESOP Contract. However, the OPA has received requests from Generators for extensions to the deadline to achieve Commercial Operation, where such extensions are not eligible for Force Majeure relief.

In response to these extension requests in relation to non-Waterpower Projects, the OPA is offering an optional form of contract amendment which will provide an extension to the in-service deadline, conditional on delivery of Completion and Performance Security that is refundable if the Project comes into service within the extra year.

This option is being made available from August 24, 2009 through to October 30, 2009 inclusive.

For more information, please see: Standard Form of Contract Extension.

FORCE MAJEURE

In general, Force Majeure is any act, event, cause or condition that prevents a Party from performing its obligations, and is beyond their reasonable control (see Section 8 of the Contract).

Some events which are not Force Majeure include:

•   the Party has caused or contributed to the cause by its fault or negligence or has failed to
    use Commercially Reasonable Efforts to prevent or remedy the situation
•   if the delay is the fault of the LDC regarding system upgrades
•   if it is a breach of a Governmental Approval or of any applicable Laws and Regulations
•   lack of funds or other financial cause

The Generator must make a claim for Force Majeure for each RESOP Contract that is experiencing delays. The nature of the Force Majeure, details of the situation, its expected duration and particular obligations affected by the Force Majeure must be included, as well as the date Force Majeure is determined to have begun. This date will be the later of the actual commencement of the event or the thirtieth (30th) date prior to the date of such notice. The submission is then reviewed for validity.

If the Force Majeure claim is accepted, the Generator has to provide regular updates to the OPA (e.g. quarterly or as requested) demonstrating the commercially reasonable efforts being made to resolve the issue. The Generator must also provide notice of termination of the event of Force Majeure within thirty days following termination. At this time, the date of the third anniversary requirements will be updated.

If at any point in this process, the claims submitted are deemed to be unacceptable, the applicant will be informed and the Force Majeure claim ended.

OPTION AGREEMENT

Generators whose project capacity is not subject to a RESOP Contract may have the option of selling their electricity to a Licensed Electricity Retailer (LER) rather than through the RESOP. The RESOP Option Agreement will allow the Generator to enter the RESOP when their contract with the LER ends, though typically with a reduced payment term.

The following information is required:

1. Name of LER and a copy of the executed power purchase agreement or other agreement

2. LER's address, phone number, fax number, etc.

3. LER's OEB license number

4. Commencement Date of contract with LER

5. Expiry Date of contract with LER

6. Number and duration of LER contract renewal terms

The same review process is undergone, but instead of a RESOP Contract being executed, an Option Agreement Contract is prepared by the OPA. The Generator signs and sends four copies for the OPA to counter-sign and two copies are returned to the Generator.