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<br /> If Usage data is unavailable electronically, Buyer shall obtain usage 4. Event of Default. "Event of Default" means(i) Buyer fails
<br /> data manually and deliver that information weekly via facsimile or to provide adequate assurance of performance to Seller pursuant to
<br /> electronic mail, or as requested by Seller. Seller shall use Article 3; (ii) Buyer fails to pay undisputed amounts by the invoice
<br /> commercially reasonable effort to keep Buyer within the balancing due date; (iii)either Party makes an assignment or any general
<br /> parameters established by Utility. Seller shall pass through to Buyer arrangement for the benefit of creditors;(iv)either Party defaults in
<br /> and Buyer shall pay for any Imbalance Charges and/or Cashout any payment obligation to the other Party; (v)either Party defaults
<br /> resulting from Buyer's failure to(i)fulfill its obligations set forth in in any material payment obligation to any of its creditors;(vi)either
<br /> 1.5, (ii) maintain telemetry if applicable, and/or (iii) meet Daily Party files a petition or otherwise commences, authorizes, or
<br /> Limitations with respect to Use. If applicable,Buyer's prorata share acquiesces in the commencement of a proceeding or causes under
<br /> of Utility pooling fees assessed Seller by Utility will be passed any bankruptcy or similar law for the protection of creditors or has
<br /> through to and paid by Buyer. Telemetry Obligations.If telemetry is such petition filed or proceeding commenced against it; (vii)either
<br /> required by the Utility with respect to the rate class for one or more Party otherwise becomes bankrupt or insolvent (however
<br /> of the Accounts, Buyer acknowledges and agrees that it shall be evidenced); (viii)either Party is unable to pay its debts as they fall
<br /> responsible for installing and maintaining a meter telephone line. due;(ix)either Party terminates this Agreement and/or any effective
<br /> Buyer shall also be responsible for any charges imposed by a Transaction Confirmation (or service to one or more Accounts)for
<br /> contractor for repairing the meter telephone line. As a convenience any reason except for a termination resulting from an Event of
<br /> to Buyer,Seller may arrange for telemetry service or repairs to be Default committed by the other Party; (x) Seller fails to sell and
<br /> provided and Buyer agrees it shall be responsible for any costs schedule for delivery,or Buyer fails to purchase and receive natural
<br /> associated with such service and repairs. Gas Inventory. When gas in accordance this Agreement; (xi)either Party fails to perform
<br /> Buyer's Accounts are enrolled,if Seller acquires any inventory of gas any material covenant or obligation set forth in this Agreement or
<br /> allocated to Buyer's Accounts by Utility,Seller will credit Buyer for any effective Transaction Confirmation (except to the extent such
<br /> that inventory at prevailing market prices. Upon termination of the failure constitutes a separate Event of Default); or(xii)either Party
<br /> Agreement,Seller shall have the right to credit Buyer's Account with makes a representation or warranty that is false or misleading in any
<br /> gas and charge Buyer prevailing market prices as adjusted for Fuel material respect at any time during the term of this Agreement.
<br /> for such gas. "Constraint Dav"shall mean any period of time during Upon the occurrence of an Event of Default, the Party not
<br /> which the Utility restricts deliveries by Seller or use by Buyer, committing the Event of Default("Non-Defaulting Party")shall have
<br /> requires a specific delivery by Seller or use by Buyer, or otherwise the right to suspend service and/or terminate this Agreement in
<br /> requires an affirmative action by either Party due to adverse addition to any and all other remedies available hereunder.
<br /> operational conditions experienced by the Utility. "Daily Limitation" 5. Remedy. During any Delivery Period, if either Party
<br /> shall mean Utility enforced restrictions or mandates concerning commits an Event of Default(the"Defaulting Party"), and the Non-
<br /> quantities of gas delivered and/or used, including those imposed Defaulting Party terminates this Agreement, then the Defaulting
<br /> due to Constraint Day conditions and/or under ordinary operating Party shall pay and the Non-Defaulting Party shall be entitled to,as
<br /> conditions. its exclusive remedy, early termination damages arising out of the
<br /> 2. Billing and Payment. Seller shall submit to Buyer an Event of Default as reasonably calculated by Seller ("Early
<br /> invoice setting forth the amount of natural gas scheduled for Termination Damages"). The Parties expressly acknowledge that
<br /> delivery during the identified month and the total amount due. should an Event of Default occur, damages would be difficult to
<br /> Billing will be based on actual Use,as determined by the Utility,plus ascertain and quantify,and agree that this provision for calculating
<br /> applicable Fuel.Buyer will pay the total amount due by the due date damages(i)is reasonable in light of the anticipated or actual harm,
<br /> on the invoice. Payments that exceed $50,000 shall be made by (ii)shall be followed in lieu of any other methods of calculating or
<br /> wire transfer,EFT or ACH. In the event Buyer fails to pay the total estimating direct actual damages, and (iii) is not a penalty. If
<br /> amount due by the due date, the unpaid amount shall accrue Buyer commits an Event and the price at which Seller re-sells or
<br /> interest at a rate equal to one and one half percent(1-1/21Y.) per could re-sell natural gas, less any associated costs reasonably
<br /> month, provided that in no event shall such rate exceed the incurred by Seller,is less than the Price set forth herein(as it may be
<br /> maximum rate allowed by law, compounded daily from the date amended by Transaction Confirmations),then Buyer shall pay Seller
<br /> such payment is due until the same is paid. Seller shall include the Early Termination Damages in the amount of such positive
<br /> Utility distribution fees on the monthly invoice. Past due and other difference multiplied by the affected Quantity. If Seller commits an
<br /> charges due Utility that apply to service prior to the Delivery Period Event of Default and the price for replacement natural gas,including
<br /> will not be included in Seller's invoice to Buyer. Seller may any associated costs reasonably incurred by Buyer in obtaining
<br /> discontinue this service at any time with notice to Buyer. replacement natural gas,is higher than the Price set forth herein(as
<br /> 3. Financial Responsibility. Buyer agrees to provide Seller it may be amended by Transaction Confirmations),then Seller shall
<br /> with pertinent financial information it requests to assess Buyer's pay Buyer Early Termination Damages in the amount of such positive
<br /> financial position, and authorizes the Utility, credit reporting difference multiplied by the affected Quantity. Payment for Early
<br /> agencies, trade references, and other relevant parties to release Termination Damages shall be due within two (2) Business Days of
<br /> data to Seller relating to Buyer's billing,usage,and credit data with the invoice date for said Early Termination Damages, failing which
<br /> such authorization enduring for the term of this Agreement. When the Defaulting Party shall be responsible for(i)interest equal to one
<br /> reasonable grounds for insecurity of payment arise, including and one half percent (1 1/2%) per month, provided that such rate
<br /> without limitation when Buyer seeks to establish a fixed Price,Seller does not exceed the maximum rate allowed by law, compounded
<br /> may demand adequate assurance of performance. Adequate daily from the date such payment is due until the same is paid and
<br /> assurance of performance must be delivered to Seller no later than (ii)all reasonable costs of collection,including attorneys'fees. Seller
<br /> three (3)business days after the date of request,and must be in a may reduce any amount owed it under Article 5 by way of set-off
<br /> form,from an issuer,and in an amount,acceptable to Seller. against any amount(whether under this Agreement, or otherwise)
<br /> 11.10
<br /> Ver.4.0
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