(d) As soon as practicable after a liquidation, notice shall be given by the Non-Defaulting Party to the Defaulting Party of the amount of the
Termination Payment. The notice shall include a written statement explaining in reasonable detail the calculation of such amount. The
Termination Payment shall be made by the Defauiting Party within five (5) business days after such notice is effective.
(e) Notwithstanding any other provision of this Agreement, if (i) an Event of Default, or (ii) a Potential Event of Default shall have occurred and
be continuing, the Non-Defaulting Party, upon written notice to the Defaulting Party, shall have the right (1) to suspend performance under this
Agreement; provided, however in no event shall any such suspension continue longer than ten (10) business days unless an Early Termination
Date shall have been declared and notice thereof has been given pursuant to this Paragraph 15, and (2) to the extent that an Event of Default
shail have occurred and be continuing, to exercise any remedy available at law or in equity. For purposes of the foregoing, a “Potential Event of
Default’ shall mean an event which, with notice or passage of time or both, would constitute or result in an Event of Default,
16. Entirety of Agreement: It is the intention of the Parties that this Agreement constitutes the entire agreement between the Parties, contains
all terms, conditions, and protections in any way related to, or arising out of, the sale and purchase of the electricity, and supersedes ail prior
agreements, written or oral, or representations of any brokers or sales representatives. Any amendment, change or modification of this Agreement
must be in writing and signed by both Parties.
17. Force Majeure: (a) Except for obligations for the payment of money, and in accordance with subparagraph (b) below, if either Party is
rendered unable, wholly or in part, to perform its physical obligations under this Agreement (including but not limited to the delivery or receipt of
electricity hereunder) due to Force Majeure, the physical obligations of each Party will be suspended for the duration of any inability to perform.
A Party claiming Force Majeure (the “Claiming Party’) will notify the other Party by written confirmation within three (3) business days following
such occurrence, describing the nature, and estimated duration of such inability to perform. The cause of such inability to perform will be remedied
with all reasonable dispatch. “Force Majeure” means any event or occurrence (including, but not limited to “Acts of God”) that is beyond the
control of a Party and that: (i) is not the result of the negligence of the Claiming Party; and (ii) which, by the exercise of due diligence, the Claiming
Party is unable to avoid or cause to be avoided. A claim of Force Majeure may not be based on: (i) Buyer's inability to economically use electricity
purchased under this Agreement; (ii) Buyer’s election to close, sell, abandon or materially curtail or discontinue operation of Buyer's facilities due
to any economic circumstance; (iii) a Party’s inability to acquire electricity at a particular price; or (iv) a Party’s ability to sell electricity at a price
above the Contract Price.
(b) Where Buyer is the Claiming Party, Buyer will provide notice to Seller of any event of Force Majeure immediately upon Buyer becoming
aware of the applicable event of Force Majeure. Such notice shall be initially provided to Seller by telephone to the following number: 281-653-
1651; provided that for any such claim of Force Majeure to be effective, Buyer shall also provide written notice of the event of Force Majeure in
accordance with subparagraph (a) above.
18. Forward Contract: The Parties acknowledge and agree that this Agreement and the transaction(s) contemplated under this Agreement
constitutes a “forward contract” within the meaning of the United States Bankruptcy Code, and the Parties further acknowledge and agree that
each Party is a “forward contract merchant” within the meaning of the United States Bankruptcy Code.
19. Governing Law/Counterparts: This Agreement will be interpreted in accordance with the substantive and procedural laws of the State in
which this Agreement is performed without giving effect to laws and rules governing conflicts of laws. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement
may be executed and be deemed binding through the use of facsimile or electronic signatures.
20. Indemnification: Each Party will indemnify, defend and hold harmless the other Party, its officers, agents, and employees from any claims,
damages and actions of any kind arising from personal injury (including without limitation, death), tangible property damage or any other damages
arising from or out of any event, circumstance, act or incident occurring or existing with respect to the electricity provided pursuant to this
Agreement, whether or not control and title to the electricity is vested in Buyer or Seller.
21. Limitation of Remedies, Liability, Damages & Disclaimer of Warranties: FOR BREACH OF ANY PROVISION FOR WHICH AN
EXPRESS REMEDY !S PROVIDED, SUCH EXPRESS REMEDY WILL BE THE SOLE AND EXCLUSIVE REMEDY. IF NO EXPRESS REMEDY
IS PROVIDED, A PARTY'S LIABILITY WILL BE LIMITED TO DIRECT ACTUAL DAMAGES ONLY. NEITHER PARTY WILL BE LIABLE FOR
CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS OR OTHER BUSINESS
INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE. THE
PARTIES INTEND THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT REGARD
TO THE CAUSES RELATED THERETO INCLUDING THE NEGLIGENCE OF ANY PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT
OR CONCURRENT, OR ACTIVE OR PASSIVE. TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE
CHARACTERIZED OR DEEMED TO BE LIQUIDATED DAMAGES, THE PARTIES ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT
OR IMPOSSIBLE TO DETERMINE, OBTAINING AN ADEQUATE REMEDY IS INCONVENIENT AND THE LIQUIDATED DAMAGES
CONSTITUTE A REASONABLE APPROXIMATION OF THE HARM OR LOSS. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES
SET FORTH IN PARAGRAPH 28, SELLER EXPRESSLY DISCLAIMS AND MAKES NO WARRANTIES, WHETHER WRITTEN OR ORAL, WITH
RESPECT TO THE ELECTRICITY SUPPLIED UNDER THIS AGREEMENT, INCLUDING EXPRESS, IMPLIED OR STATUTORY WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED IN THIS AGREEMENT, THE LIMITATIONS SET FORTH IN THIS PARAGRAPH SHALL SURVIVE THE EXPIRATION OR EARLY
TERMINATION OF THIS AGREEMENT.
22. Modification of Agreement: Any alteration, deletion or addition to the Agreement shall be effective only if made in a written amendment
executed by both Parties. No amendment or modification shall be made to this Agreement by course of performance, course of dealing or
consumption of trade, or by the failure of a Party to object to a deviation from the terms of this Agreement.
EDFES CONFIDENTIAL Std MRESA_Rev. Jun-01-2018v1.0
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