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<br />BE APPLICABLE. THE PARTIES RECOGNIZE THAT THIS AGREEMENT IS PERFORMABLE IN PART IN DALLAS COUNTY.
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<br />14.2 Asslenment. In the event that Buyer conveys legal title to all of the' Premises to the same entity, Buyer may. request from Seller
<br />the right to assign its rights and obligations under the Agreement to the new owner of the Premises, and in siJ~ event, Seller shall not
<br />unreasonably withhold its consent. Any purported assignment without Seller's prior written consent shall be null and void. Buyer shall.
<br />not have any right whatsoever to assign this Agreement to any party that is not the owner of all of the Premi.ses,. and any purported
<br />assignment shall be null and void. Seller may not assign this Agreement to another party, without th~ prior written consent of Buyer,
<br />which consent shall not be unreasonably withheld. Any purported assignment without Buyer's prior written consent shall b~ null and
<br />void. This Agreement shall Inure to and be binding upon the Parties hereto, and their respective successors ant! assiQns. '.' .
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<br />14.3 'Entiretv of Aereement. It is the intention of the Parties that the Agreement shall co~tain all terms, conditions, 'and.protections in
<br />any way related to, or arising out of, the sale and purchase of the electricity, and supersedes all prior agreements, whether. written or
<br />oral. This Agreement may not b~ modified or amended except In writing, duly executed by the Parties h~reto. .' . ..': .' .
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<br />14.4 Counteroarts. This Agreement may be executed in multiple original counterparts, all of which shall constitute one and the same
<br />Agreement.' . .
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<br />14.5 Dutv Of Good Faith. Both Parties shall have a duty of good faith and fair dealing with regard to this Agreement.
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<br />14.6 Waiver of Riehts. .A waiver by either Party of any breach of this Agreement, Qr the fai.lureof eith~r PartY to enforce any of the
<br />terms and provisions of this Agreement, will not in any way affect, limit or waive that Party's right to subsequently enforce and compel
<br />strict compliance with the same or other terms or provisions of this Agreement. Except to the extent ne~ssary to enforce .Seller's' rights
<br />under this Agreement, nothing In this Agreement shall constitute or be interpreted to constitute a waiVer of- Buyer's 'statutory .and
<br />common-law immunity defenses, including sovereign and/or governmental immunity and qualified and/or 'official immunity; it being
<br />intended that such immunities shall in all respe~ (except as provided above) be preserved. .
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<br />14.7 Third Partv Riehts. Nothing in this Agreement shall create, or be construed as creating, any express or implied rights .in any
<br />person or entity other than the Parties.
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<br />14.8 Survival. No termination or cancellation of this Agreement will relieve either Party of any obligations under this Agreement that by .
<br />their nature survive such termination or cancellation, including, but not limited to, all warranties, obligations to hold harmless, obligations
<br />to pay for electricity taken, and obligations for any breaches of contract. ..
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<br />14.9 Further Assurances. Buyer and Seller agree to provide such information, execute and deliVer. any instruments and do~ments and to
<br />take such other actions as may be necessary or reasonably requested by the other Party which are not inconslstent.with the provisions of
<br />this Agreement and which do not Involve the assumptions of obligations other than those provided for in this Agreement, in order to give full
<br />effect to this Agreement and to carry out the intent of this Agreement. '.
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<br />14.10 Confidentlalitv. Seller acknowledges that Buyer Is a governmental body that is subject to public Information I~Ws; i~cludlng
<br />Chapter 552 of the Texas Government Code, which requires Buyer to release any information that Is defined as or deemed to be public
<br />(the "Public. Information Statute~"). Subject to any Public Information Statute or related order, rule or regulation requiring disclosure,
<br />Buyer agrees to keep all terms and provisions of this Agreement, and any information and records In Seller's possession that are
<br />. provided under this Agreement, confidential and not to disclose the terms of the same to any third parties without the prior written
<br />consent of Seller. it is understood and agreed that the foregoing constitutes proprietary and confidential infonnatlon of Selle!:" the
<br />release of which could hinder or hann Seller's competitive position, and therefore Is not Intended to constitute public Information under'
<br />the Texas Public Information Act and shall not be released by Buyer, unless determined otherwise by the Texas Attorney General or a
<br />court of competent jurisdiction. However, nothing in this section shall require Buyer to bring a legal challenge in any court to seek to
<br />overturn a ruling by the Texas Attorney General's Office or a court requiring disclosure pursuant to' the provisions of the Public
<br />Information Statutes, but Buyer (I) shall cooperate and assist Seller in the event Seller should bring such a challenge and (Ii) make no
<br />disclosure until when and if Seller's challenge has been finally denied. .
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<br />14.11 Forward Contract. This Agreement and the transactions hereunder will constitute "forward contractsD as defined in Section
<br />101(25) of the U. S. Bankruptcy Cocte (DBankruptcy CodeD). The Parties agree that (J) Seller is a "forward contract merchanf as.
<br />defined in Section 101 (26) of the Bankruptcy Code, (II) the termination rights of the Partjes will constitute contractual rights to liquidate
<br />transactions, (iii) any payment related hereto will constitute a Dsettlement paymentD as defined in Section 101 (51A) of the Bankruptcy
<br />Code,' and (iv) Sections 362, 546, 553, 556, 'and 560 of the Bankruptcy Code shall apply to the Parties.
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<br />14.12Authorizatlon. At such time as a Transaction Confirmation pncluding applicable Price Sheet(s)] 'are executed pursuant to this
<br />Agreement, Buyer authorizes Seller to become Buyer's retail electric provider for the duration of the Agreement Term set forth in the
<br />Transaction Confirmation. Buyer authorizes Seller to act as Buyer's agent for the sole purpose to effect any change, if necessary, and
<br />Buyer shall direct its current retail electric provider to work with Seller to make this change happen. . Buyer represents to Seller that
<br />Buyer is legally authorized to change the retail electric provider for all of the Premises and that Buyer's aggregated electric loads
<br />covered by this contract have an aggregated peak demand greater than one megawatt.
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<br />14.13 Severabilltv. If any portion of this Agreement, or application thereof to any person or circumstance, shall be held legally invalid,
<br />the remainder shall not be affected and shall be valid and enforced to the fullest extent permitted by law or equity.
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<br />City of LaPorte.nbc.dlj.c.102803.doc
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<br />CONFIDENTIAL
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