the Receiving Party fails to provide such Performance Assurance within three (3) days of receipt of such notice, then an Event of Default shail be
deemed to have occurred and the Requesting Party shall be entitled to exercise any remedies set forth in this Agreement. Performance Assurance
shall mean cash, letter(s) of credit, corporate guarantees, or other security each in form and amount reasonably acceptable to the Requesting
Party.
9. Financiais: Upon request, if not available on EDGAR or the Customer home page on the World Wide Web, the Customer shall provide: (i)
a copy of the most recently available annual report containing audited consolidated financial statements and/or (ii) a copy of the most recently
available quarterly unaudited consolidated financial statements.
10. Term: This Agreement shall commence on the Effective Date and shall continue in effect through the fast occurring Service End Date (the
“Term”) unless sooner terminated as otherwise provided in this Agreement.
11. Assignment and Binding Effect: Neither Party may assign this Agreement without the express written consent of the other Party, which
consent shall not be unreasonably withheld.
12. Regulatory Events: If there is a change in law, administrative regulation, rule, design or structure, order, judicial decision, statute, or a
change in an interpretation, operation, administration or application of any of the foregoing (collectively, a “Regulatory Event’) and such Regulatory
Event causes Seller to directly or indirectly incur any capital, operating, commodity or other costs (including, but not limited fo increased Taxes
and redefinition of charges) relating to the provision of services contemplated herein above, or in addition to those existing prior to the date of the
Regulatory Event, then Seller shall be permitted to pass through the economic effects of any such Regulatory Event to Buyer and Buyer shall
pay or reimburse Seller for the dollar amounts attributable to such economic effects resulting from the Regulatory Event. Neither Party shall be
obligated to perform under this Agreement if a Regulatory Event renders that Party's performance of its respective obligations iliegal or impossible
to perform, including, but not limited to the termination of retail sale of electricity.
13. Confidentiality: Neither Party shall disclose the terms of this Agreement to a third party (other than the Party's affiliates, employees, lenders,
counsel, consultants, accountants and other parties who have agreed to keep such terms confidential), except in order to comply with applicable
law. Each Party shall notify the other Party of any proceeding of which it is aware which may result in disclosure. The Parties shall be entitled to
all remedies available at law or in equity to enforce, or seek relief in connection with, this paragraph.
14. Event of Default: An “Event of Default” shall mean, with respect to a Party (a “Defaulting Party’), the occurrence of any of the following:
(a) the failure to make, when due, any payment required pursuant to this Agreement if such failure is not remedied within five (5) business days
after written notice; (b) a representation or warranty made by a Party to this Agreement proves to have been false or misleading in any material
respect when made or ceases to remain true during the Term; (c) the failure of a Party to perform any covenant set forth in this Agreement which
is not excused by Force Majeure or cured within five (5) business days after written notice thereof; (d) the failure of a Party to provide Performance
Assurance in accordance with Paragraph 8; (e) the failure of Buyer to utilize Seller as its sole supplier of electricity for its Accounts (specified in
the Sales Confirmation) at any time during the Term (including but not limited to a switch of Buyer's electric service to another provider); or (f) a
Party makes an assignment or any general arrangement for the benefit of creditors or otherwise becomes bankrupt or insolvent.
15. Remedies: (a) if an Event of Default with respect to a Defaulting Party shall have occurred and be continuing, the other Party (the “Non-
Defaulting Party”) shall have the right (i) to designate a day, no earlier than the day such notice is effective and no later than twenty (20) days
after such notice is effective, as an early termination date (“Early Termination Date”) to accelerate all amounts owing between the Parties and to
liquidate and terminate all of the transactions and sales of electricity existing under this Agreement between the Parties (including any fixed price,
or other fixed price components underlying the establishment of the Contract Price) (the “Terminated Transactions’), (ii) to withhold any paymenis
due to the Defaulting Party under this Agreement, and (iii) to suspend performance including, but not limited to, the suspension of any further
deliveries of electricity. The Non-Defaulting Party shall calculate, ina commercially reasonable manner, a “Settlement Amount’ for the Terminated
Transactions as of the Early Termination Date (or, if in the reasonable opinion of the Non-Defaulting Party certain of such Terminated Transactions
are commercially impracticable to liquidate and terminate or may not be liquidated and terminated on the Early Termination Date, as soon
thereafter as is reasonably practicable).
(b) For purposes of subparagraph (a) above, the “Settlement Amount” shall mean (i) the then current replacement value of this Agreement
together with, but without duplication, all losses and reasonable costs incurred by the Non-Defaulting Party for the anticipated usage for the
balance of the Term; and, in the event that an early termination involves the liquidation of any hedge or related physical or financial position
applicable to this Agreement, then (ii) the Losses, Gains, and Costs which such Party incurs as a result of the liquidation of the Terminated
Transactions. For purposes of the foregoing, “Losses” means with respect to any Party, an amount equal to the present value of the economic
loss to it, if any (exclusive of Costs), resulting from termination of the Terminated Transaction, determined in a commercially reasonable manner.
“Gains” means, with respect to any Party, an amount equal to the present value of the economic benefit to it, if any (exclusive of Costs), resulting
from the termination of a Terminated Transaction, determined in a commercially reasonable manner. “Costs” means with respect to the Non-
Defaulting Party, brokerage fees, commissions, and other similar third party transaction costs, and expenses reasonably incurred by such Party
either in terminating any arrangement pursuant to which it has hedged its obligations or entering into new arrangement which replace a Terminated
Transaction; and all reasonable attorneys’ fees and expenses incurred by the Non-Defaulting Party in connection with the termination of this
Agreement and any Transaction. For purposes hereof, the “present value” of any amount will be calculated using the six-month London Interbank
Offered Rate as posted in the “Money Rates” column of The Wail Street Journal as of the date of such determination.
(c) The Non-Defaulting Party shall aggregate all Settlement Amounts into a single amount by: netting out (i) at the option of the Non-Defaulting
Party, any cash or other form of security then available to the Non-Defaulting Party pursuant to Paragraph Q, plus any or all other amounts due
to the Defaulting Party under this Agreement, against (ii) all Settlement Amounts that are due to the Non-Defaulting Party, plus any or all other
amounts due to the Non-Defauiting Party under this Agreement, so that all such amounts shall be netted out to a single liquidated amount (the
“Termination Payment’) payable by the Defaulting Party to the Non-Defaulting Party.
EDFES CONFIDENTIAL Std MRESA_Rev. Jun-01-2018v1.0
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