EXHIBIT B
BW Direct
Energy,
Business
This Commodity Master Agreement ("CMA") among Direct Energy Business, L1C, Direct Energy Business Marketing, LLC d/b/a Direct Energy Business (Collectively "Seller’}, each a
Delaware {imited liability company, and Nashua, City of ("Buyer” or "Customer’) (each a "Party* and collectively, the "Parties") is entered into and effective as of
03/08/2012 .
1. Transactions: The terms of this CMA apply to all end-use sales of electric power
(‘Electricity’) and/or natural gas ('Gas"} as applicable (each a “Commodity” and
collectively, the “Commodities’) by the applicable Seller party to Buyer {each sale a
“Transaction") which will be memorialized in a writing signed by both Parties {each a
"Transaction Confirmation’). Each Transaction Confirmation shall set forth the Seller
party providing service to Customer for such Transaction. If a conflict arises between
the terms of this CMA and a Transaction Confirmation, the Transaction
Confirmation will control with respect to that particular Transaction. This CMA, any
amendments to this CMA and related Transaction Confirmation(s) (together, a single
integrated, "Agreement") is the entire understanding between Parties with respect to
the Commodities and supersedes all other communication and prior waltings with
respect thereto; no oral statements are effective.
2. Performance: The Parties’ obligations under this Agreement are firm. Buyer is obligated
to purchase and receive, and Seller is obligated to sell and provide, the Contract Quantity of
Commodity specified in a Transaction Confirmation in accordance with the terms of this
Agreement. Buyer wilt only use the Commodity at the listed Service Locations in the
applicable Transaction Confirmation and will not resell the Commodity or use it at other
locations without Seller's prior written consent.
3. Purchase Price: Buyer will pay the Purchase Price stated in each Transaction
Confirmation. If tha Purchase Price incorporates an index and the index is not announced
or published on any day for any reason or if the Seller reasonably determines that a
material change in the formula for or the method of detennining the Purchase Price has
occurred, then the Parties will use a commercially reasonable replacement price that is
calculated by the Seller. if Seller concludes that a change in any Law(s) increases
Seller's costs, the Purchase Price may be adjusted by Seller to reflect such costs.
“Law(s)” mean all tariffs, laws, orders, rules, decisions, taxes, regulations, transmission
rates and Utility changes to Buyer's monthly capacity and/or transmission obligations.
4. Billing and Payment: Seller will invoice Buyer for the Actual Quantity of Commodity
and for any other amounts incurred by Buyer under this Agreement. Payment is due
within fifteen (15) days of the date of the invoice. If an invoice is issued and the Actual
Quantity cannot be verified at the time, the invoice will be based on Seller's good faith
estimate of the Actual Quantity. Seller will adjust Buyer's account following (i)
confirmation of the Actual Quantity, (ii) any Utility discrepancy or adjustment or (til) any
other corrections or adjustments, including adjustments to, or re-calculation of, Taxes.
Buyer will pay interest on late payments at 7.5% per month or, if lower, the
maximum rate permitted by law (“Interest Rate’). Buyer is also responsible for all costs
and fees, including reasonable attorney's fees, incurred in collacting payment. “Actual
Quantity’ means the actual quantity of Commodity that is either delivered or metered, as
applicable, to Buyers account. “Utility” means a state regulated entity engaged in the
distribution of Gas or Electricity.
§. Taxes: Buyer is responsible for paying any Taxes associated with the Actual Quantity of
Commodity sold under this Agreement that may become due at and after the Delivery Point.
The Purchase Price does not include Taxes that are or may be the responsibility of the
Buyer, unless such inclusion is required by Law. Buyer will reimburse Seller for any Taxes
that Seller is required to collect and pay on Buyer's behalf and will indemnify, defend and
hold Seller harmless from any liability against all Buyer's Taxes. Buyer will furnish Seller with
any necessary documentation showing its exemption from Taxes, if applicable, and Buyer
will be liable for any Taxes assessed against Seller because of Buyer's failure {o timely
provide or properly complete any such documentation. "Taxes" means all applicable
federal, state and local taxes, including any associated penalties and interest and any new
taxes imposed in the future during the term of this Agreement. Liabilities imposed in this
Section will survive the termination of this Agreement.
6. Disputes: if either Party in good faith disputes amounts owed under Sections 3, 4, 5
and 8, the disputing Party will contact the non-disputing Party promptly and pay the
undisputed amount by the payment due date. The Parties will negotiate in good faith
regarding such dispute for a period of not more than fifteen (15) Business Days. In the
event the Parties are unable to resolve such dispute, the disputing Party will pay the balance
of the original invoice and either Party may exercise any ramedy available to it in law or
equity pursuant to this Agreement. in the event of a dispute other than for an invoiced
amount, the Parties will use their best efforts to resolve the dispute promptly. Actions taken
by a Party exercising its contractual rights will not be construed as a dispute for purposes of
this Section. “Business Day” means any day on which banks are open for
commercial business in New York, New York; any reference to "day(s)" means calendar
days.
7. Title and Risk of Loss: Title to, possession of and risk of loss to the Commodity will
pass to Buyer at the Delivery Point spacified in the applicable Transaction Confirmation.
8. Buyer's Usage Obligations
A. Material Usage Deviation: If there is a Material Usage Deviation, Buyer will be
DEB Version 3.0_January2015
responsible for the losses and costs, including the costs of obtaining and/or liquidating the
applicable volume, based upon the difference between the applicable Contract Quantity and
Actual Quantity. Buyer will pay the amount of such losses and costs to Seller within
fifteen (15) Business Days of Seller's invoice, “Material Usage Deviation” means any
deviation in Actual Quantity at the Service Location(s) stated in the related Transaction
Confirmation from Contract Quantity (or, as applicable, estimated Contract Quantities)
stated in that Transaction Confirmation of +/- 25% or more, which is not caused by
weather.
6. Balancing Charges: For Transactions involving the purchase and sale of Gas
only, Buyer will be responsible for Balancing Charges unless Prior Notice of a material
variation in usage is provided to Sellar and actual usage is consistent with that Prior
Notice. “Balancing Charges” means Ulility fees, costs or charges and penalties
assessed for failure to satisfy the Utility's balancing and/or nomination requirements.
“Prior Notice” is defined as forty-eight (48) hours before the start of the Gas Day for which
the material varlation in usage will apply. “Gas Day” means a period of 24 consecutive
hours. as defined by the Utility. Buyer will make any payment due pursuant to this Section
within five (5) Business Days of the date of Sellers invoice.
C, Curtailments: For Transactions involving the purchase and Sale of Gas only, if Buyer
is directed by its Utility to curtail its usage, in whole or in part, Buyer will curtail as
directed. If Buyer fails to curtail as directed, Buyer will pay or reimburse Seller for all
Balancing Charges assessed by the Utility. Payment by Buyer of any Balancing Charges
will be due within five (5) Business Days of the date of Seller's invoice.
$. Force Majeure: A Party claiming Force Majeure will be excused from its obligations
under Section 2 as long as it provides prompt notice of the Force Majeure and uses due
diligence to remove its cause and resume performance as promptly as reasonably possible.
During a Force Majeure, Buyer will not be excused from its responsibility for Balancing
Charges nor from its rasponsibility to pay for Commodity received. “Force Majeure” means
a material, unavoidable occurrence beyond a Party’s contral, and does not include inability
to pay, an increase or decrease in Taxes or the cost of Commodity, the economic hardships.
of a Party, or the full or partial closure of Buyer's facilities, unless such closure itself is due to
Force Majeure.
10. Financial Responsibility: Seller's entry into this Agreement and each Transaction is
conditionad on Buyer, its parent, any guarantor or any successor maintaining its
creditworthiness during the Delivery Period and any Renewal Term. When Seller has
reasonable grounds for insecurity regarding Buyer's ability or willingness to perform all of its
outstanding obligations under any agreement between the Parties, Sellar may require Buyer
to provide adequate assurance, which may include, in the Sallers discretion, security in the
form of cash deposits, prepayments, letters of credit or other guaranty of payment or
performance (“Credit Assurance”).
41. Default: "Default" means: (i) failure of either Party to make payment by the applicable
due date and the payment is not made within thrae (3) Business Days of a written demand;
(ii) failure of Buyer to provide Credit Assurance within two (2) Business Days of Seller's
demand; (iii) either Party, its parent or guarantor, becomes Bankrupt or fails to pay its debts
generally as they become due; or (iv) failure of either Party to satisfy any representations
and warranties applicable to it contained in Section 13A or 13B and the failure is not cured
within fifteen (15) Business Days of a written demand, provided that no cure period or
demand for cure applies to a breach of Section 13A(c). "Bankrupt" means an entity (a) files
a petition or otherwise commences, authorizes or acquiesces in the commencement of a
proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar
law, or has any such petition filed or commenced against it, (b) makes an assignment or any
general arrangement for the benefit of creditors, (c) otherwise becomes bankrupt or
insolvent, however evidenced, (¢) has a liquidator, administrator, recsiver, trustee,
conservator or simitar official appointed with respect to it or any substantial portion of its
property or assets, (e) has a secured party take possession of all or any substantial portion
of its assets or (f) is dissolved or has a resolution passed for its winding-up, official
management or liquidation (other than pursuant to a consolidation, amalgamation or
merger.
412. Remedies: in the event of a Default, the non-defaulting Party may: (i) withhold any
payments or suspend performance; (ii) upon written notice, provided that no notice is
required with respect to Section 11(iii) or a breach of Section 13A(c), accelerate any or all
amounts owing between the Parties and terminate any or all Transactions and/or this
Agreement; (iii) calculate a settlement amount by calculating all amounts due to Seller for
Actual Quantity and the Close-out Value for each Transaction being terminated; and/or (iv)
net or aggregate, as appropriate, all settlement amounts and all other amounts owing
between the Parties and their affiliates under this Agreement and other energy-related
agreements between them and their affiliates, whether or not then due and whether or not
subject to any contingencies, plus costs incurred, into one single amount ("Net Settement
Amount’). Any Net Settlement Amount due from the defaulting Party to the non-defaulting
Party will be paid within three (3) Business Days of written: notice from the non-defaulting
Nashua, City of
