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<br />eliminated from Exhibit "AR effective as of the effective date of the sale or .Iease, and neither Party will owe any cOmpensation to the
<br />other. In the event that the new owner or lessee (I) is unwilling to sign a contract with Seller uppn virtually Identical tenns and
<br />conditions, (II) is not reasonably deemed creditworthy by Seller, or (iii) the new owner or lessee and Seller cannot legally enter intO the
<br />contract, then the quantities attributable to the applicable ESI ID numbers shall be liquidated in accordanceWlt.h Secti!)n 6.2(0) above,
<br />and Exhibit "A" shall be modified to reflect such deletion' of such Premlse(s) and the Liquidated Quantities effectlvess of the Effective.
<br />date of the sale or lease. In either event, Seller thereafter will utilize Exhibit "A" as modified In determining vme~er any future requests
<br />to add or delete under such Agreement would result in Buyer being outsi~e the tolerance range set forth above.' ,
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<br />(e) In the event Buyer reduces, but does not eliminate, Its operations' at a particular Premise or Premises through the remain(ler of the
<br />Agreement Tenn, Buyer shall have the right to delete the quantities of electricity attributable to the reduction In operations at suc.h
<br />Premise(s) from the' effective date of the reduction through the end of the Agreement Tenn (the "Reduced Operations LIquidated
<br />Quantities") from the applicable Agreement without triggering a tennlnation of such Agreement If Buyer desires'to exe~lsesuch right
<br />with regard to a Premlse(s), Buyer shall notify Seller In writing at least thirty calendar days prior to the effective date. Upon the exercise
<br />. of such right, the Parties agree to settle with regard to such Reduced Operations liquidated Quantities' as follows:' (A) In.the event the
<br />current Market Value of the Reduced Operations liquidated Quantltlesls greater than the price Buyer would have , paid for the Reduced
<br />Operations liquidated Quantities as calculated on the applicable Price Sheet (the "Unpurchased Price"), thl1ln Seller shall give Buyer
<br />. credit against future purchases under this Agreement in the amount equal to: the Reduced Operations. Liquidated Quantities multiplied
<br />by ninety-five percent (95.0%) of (such current Market Value minus the Unpurchased Price); (B) In the event t1ie Unpurchased Price is
<br />more than the cUn'Elnt Market Value of the Reduced Operations Liquidated Quantities, then Buyer shall pay to Seller the amount equal
<br />to: the Reduced Operatl!)ns liqUidated Quantities multiplied by one hundred five percent (105.0%) of (Un purchased Price minus such
<br />current Market Value). Buyer shall pay such. amount, If any, to Seller within thirty (30) days of the date of liquidation. . Upon ,such
<br />liquidation, the applicable Exhibit "A" shall be modified to reflect the deletion of the Iiqui~ated quantities effectiveasofthe:effective date
<br />of the requested reduction, and Seller thereafter will utilize Exhibit "A" as modified in detennining whether any future requests.to ad.d or
<br />.delete under such Agreement would result in Buyer ~eing outside the' tolerance range set forth above. .
<br />
<br />VII. BUYER'S REMEDIES PRIOR TO TERMINATION .
<br />In the event that during the Agreement Tenn, Seller ever should fail to deliver sufficient quantities of electrlclt}i'to the TDSP for delivery
<br />to Buyer, or fail to schedule the delivery of electricity to Buyer by the TDSP, Buyer and Seller recognize that (i),the TDSP, per the
<br />TDSP's Tariff responsibilities, nevertheless is obligated to deliver sufficient electricity to satisfy Buyer's needs and' (ii) Seller shall Settle
<br />with ERCOT, at no cost or expense to Buyer, with respect to the purchase of electricity to cover any such.fallure. :'
<br />
<br />VIII. TERMINATION OF AGREEMENT. .
<br />8.1 Events of Default. A material breach of this Agreement In'cludes: (a) the failure of either Party to make any payment'due to the
<br />other Party pursuant to the tenns hereof; (b) the failure of a Party to comply with any other material tenn of this Agreement; (c) a Party
<br />becomes or declares that it is Insolvent or bankrupt, or becomes or declares that it is the subject of any p~edings, or takes any
<br />action whatsoever, relating to its bankruptcy, liquidation or Insolvency, or Is not generally paying Its debts as. they, become due; (d) a
<br />Party fails to comply with any federal, state or local law, regulation, rule or order that causes. a material. adverse effect. upon this
<br />Agreement, either Party or either Party's perfonnance of its obligations described In this Agreement; (e) if Buyer enterS into another
<br />electricity supply agreement for any Premise(s) with another retail energy provider that covers any period during the AgreemenfTerm;
<br />or (f) If Buyer sells, leases, closes or otherwise conveys or assigns any Premise(s) In which the electricity sold hereunder is utilized,.
<br />without the prior written consent of. Seller in accordance with Sections 6.1, 6.3, or 14.2 hereof. If either Party commit,s a material breach
<br />of this Agreement, the non-breaching Party shall give written notice to the breaching Party that describes' the breach in reasonable
<br />detail rOrlglnal Notice"). The non-breaching Party may, in its sole discretion, and without prejudice to any ollier rights under this
<br />Agreement, at law, or in equity, tenninate this Agreement (i) thirty calendar days after providing a notice of such breach in the event the
<br />breach pertains to item (a) in this paragraph above and the breaching Party fails to cure the breach before the end of such time' period,
<br />or (Ii) effective Immediately In the event the breach pertains to items (c), (e), or (f) in this paragraph above, or (ill) thirty 'Calendar days
<br />after providing a notice of such breach If the breaching Party fails to cure any breach other than one related to (a), (c), (e), (f), or (g)
<br />above (the "Early Termination Date.).
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<br />8.2 Remedies UDon Tenninatlon.
<br />(a) If Seller tennlnates this Agreement due to a material breach by Buyer as described in this Article VIII, .Seller shall .transfer'
<br />Buyer to the POLR. Upon tennination of this Agreement by Buyer due to a material breach of Seller, Buyer shall have the right to
<br />select any other REP as Its electricity provider. . ' .
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<br />(b) Pursuant to the revised PUCT rules that forbid a retail electric provided from switching a delinquent paying customer to the POLR
<br />and notwithstanding anything in the' Agreement to the contrary, Seller shall have the right to order the TDSP to disconnect electric
<br />service to Buyer's Premise(s) If the Agreement is tenninated pursuant to item (a) In Section 8.1 (with the requisite notice and
<br />opportunity to cure) due to a material breach of Buyer in failing to make payment due to Seller. However, Seller shall not have
<br />the right to order the TDSP to discOnnect electric service (i) for the non-payment of amounts that are subject to a bona fide'
<br />dispute under the Agreement, (Ii) prior to tennination of the Agreement or (Iii) for a tennination of the Agreement dl,le to a material
<br />breach reason other than non-payment.
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<br />8.3 Calculation of Seller's Damaaes. In the event that this Agreement is tenninated by Seller pursuant to Section 8.1, the Parties agree,
<br />that in addition to ail amounts Buyer may owe Seller prior to the tennlriatlon, Seller's damages shall be ttie positive amount, If any,
<br />calculated as follows: (all remaining unpurchased quantities of electricity reflected on Exhibit "AD for all ESllDs through.the end of the
<br />Agreement Tenn) multiplied by (the price that Buyer would have paid for the unpurchased quantities through the end of the Agreement .
<br />Tenn according to the applicable Price Sh.eet, minus the current Market Value for the unpurchased quantities at the timeoftennlnation);
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<br />City of LaPorte.nbc.dlj.c.1 02803.doc CONFIDENTIAL
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