R-2001-14 - Laserfiche WebLink

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e e becomes or declares that it is insolvent or bankrupt, or becomes or declares that it is the subject of any proceedings, or is taking any action whatsoever, relating to its bankruptcy, liquidation or insolvency, or is not generally paying its debts as they become due, (d) a Party fails to comply with any federal, state or local law, regulation, rule or order that causes a material adverse affect upon this Agreement, either Party or either Party's performance of its obligations described in this Agreement; (e) if Buyer enters into another electricity supply agreement for any Premise(s) with another retail energy provider that covers any period during the Agreement Term; or (t) if Buyer, except as provided in paragraphs 7.2 and 14.3 below, sells, leases, closes or otherwise conveys or assigns any Premise(s) in which the electricity sold hereunder is utilized. If either Party commits a material breach of this Agreement, the non-breaching Party shall give written notice to the breaching Party that describes the breach in reasonable detail ("Original Notice"). The non-breaching Party may, in its sole discretion, and without prejudice to any other right under this Agreement, at hiw, or in equity, terminate this Agreement (i) by providing an additional notice if the breaching Party does not pay all amounts due and owing set forth in the Original Notice within ten calendar days of the date of the Original Notice, or (ii) effective immediately in the Original Notice in the event the breach pertains to (c), (e), or (t) in this paragraph above, or (iii) by providing an additional notice if the breaching Party fails to cure any breach other than one related to (a), (c), (e), or (t) in this paragraph above within thirty calendar days of the date of the Original Notice. 7.2 (a) In the event Buyer sells, closes, or leases a particular Premise, without selling, closing, or leasing all of the Premises. Buyer shall have the right to delete that particular Premise and the quantities of electricity attributable to that Premise through the end of the Agreement Term (the "Liquidated Quantities") from this Agreement without terminating the Agreement (a "Premise Buyout Option"), If Buyer desires to exercise a Premise Buyout Option with regard to a Premise, Buyer shall notify Seller in writing at least thirty calendar days prior to the effective date. Upon the exercise of a Premise Buyout Option, in the event a new owner of the applicable Premise (i) is willing to sign a new contract with Seller upon'the same terms and conditions as Buyer's contract, (ii) is deemed creditworthy by Seller, and (iii) the new owner and Seller can legally enter into such a contract in accordance with the rules and regulations of the PUCT, then the Premise will be deleted from this Agreement and neither Party will owe any compensation to the other. In the event that the new owner (i) is unwilling to sign a contract with Seller upon the same terms and conditions, (ii) is not reasonably deemed creditworthy by Seller, or (iii) the new owner and Seller cannot legally enter into the contract, then Buyer agrees to pay Seller the positive amount, if any, calculated as follows: the Liquidated Quantities multiplied by (the price that Buyer would have paid for the Liquidated Quantities through the end of the Agreement Term according to the applicable Price Sheet, minus 95.0% of the then current retail market price). Buyer shall pay such amount, if any, to Seller within twenty days of the date of liquidation. Exhibit "A" shall be modi tied to reflect the deletion of such Premise and its Liquidated Quantities, and all other terms and conditions of this Agreement shall remain in full force and elfect with respect to the remaining Premises. (b) In the event Buyer reduces its operations at a Premise, Buyer shilll have the right to delete the quantities of electricity attributable to the reduction in operations at such Premise from the effective pate of the reduction through the end of the Agreement Term (the "Reduced Operations Liquidated Quantities") from this Agreement without terminating the Agreement. If Buyer desires to exercise such right with regard to a Premise,. Buyer shall notify Seller in writing at least thirty calendar days prior to the effective date. Upon the exercise of such right, Buyer agrees to pay Seller the positive amount, ifany, calculated as follo\:ys:.the Reduced Operations Liquidated Quantities multiplied by (the price that Buyer would have paid for the Reduced Operations Liquidated Quantities through the end of the Agreement Term according to the applicable Price Sheet, minus 95.0% of the then current retail market price for the liquidated quantities), Buyer shall pay such amount, if, any, to Seller within twenty days of the date of liquidation. Exhibit "A" shall be moditied to reflect the deletion of the liquidated quantities, and all other terms and conditions of this Agreement shall remain in full force and effect. (c) Both Parties will work in good faith during the Agreement Term to reasonably accommodate and assist Buyer with the management of its electricity needs at the Premises. Since it is not possible to foresee the evolution of the deregulated power industry'in Texas, various reasonable options for Buyer to achieve this are evolving and under development by Seller. For example, if Buyer desires to contract for additional electricity, both Parties will work in good faith to mutually agree upon the terms and conditions that are economically ~iable to both Parties. However, notwithstanding the previous language, nothing contained herein shall be construed as to deny or diminish the economic benefit of this Agreement to either Party, and neither Party shall be under any obligation whatsoever to agree to a moditication that would have such result. 7.3 (a) In the event that this Agreement is terminated by Seller pursuant to Section 7.I...the Parties agree, that in addition to all amounts Buyer may owe Seller prior to the termination, Seller's damages shall be the positive amount, if any, calculated as follows: (all remaining un purchased quantities of electricity reflected on Exhibit "A" through the end of the Agreement Term) multiplied by (the price that Buyer would have paid for the unpurchased quantities through t~e end of the Agreement Term according to the applicable Price Sheet, minus the current retail market price for the unpurchased quantities at"the time of termination) plus (all reasonable cosis and expenses incurred by Seller). Such amount shall be immediately due and payable within thirty calendar days following such termination, The current retail market price in this instance shall mean the price that Seller would reasonably be able to obtain from a bona-tide third party if entering into a contract with another customer for the unpurchased quantities, and for the remaining term. after the Early Termination Date through the end of the Agreement Term, Seller shall have a duty to use commercially reasonable e,fforts to mitigate its damages. (b) In the event that this Agreement is terminated by Buyer pursuant to Section 7. I...the Parties agree, that in addition to all amounts Seller may owe Buyer prior to the termination, Buyer's damages shall be the positive amount, if any, calculated as follows: (all remaining unpurchased quantities of electricity reflected on Exhibit "A" through the end of the Agreement Term) multiplied by (the current retail market price for the unpurchased quantities at Ihe time of termination, minus the price that Buyer would have paid for the unpurchased quantities through the end of the Agreement Term according to the applicable Price Sheet) plus (all reasonable costs and expenses incl!rred by Buyer). H-GAC Energy Purchasing Corporation Page 3 of 11