|
acquiesces to a bankruptcy proceeding or similar proceeding for the protection of creditors, or has such a petition filed against it and
<br />that petition is not withdrawn or dismissed within 20 business days after filing; or (iii) otherwise becomes insolvent; or (iv) is unable to
<br />pay its debts when due; or (v) fails to establish, maintain or extend Credit in form and in an amount acceptable to Gexa when required;
<br />or (e) the Wholesale Transaction is terminated due to a default by Gexa under CESAs with other TCAP members or due to a default by
<br />the Energy Manager under the Wholesale Transaction. If an Event of Default listed in subsection (d) of this Section occurs, it is
<br />deemed to have automatically occurred prior to such event.
<br />D.2 Remedies upon an Event of Default. If an Event of Default occurs and is continuing, upon written notice to the defaulting
<br />Party, the non -defaulting Party may (a) commence an action to require the defaulting Party to remedy such default and specifically
<br />perform its duties and obligations in accordance with the Agreement; (b) exercise any other rights and remedies it has at equity or at
<br />law, subject to the Agreement's Limitations of Liabilities; and/or (c) suspend performance; provided, however, that suspension shall not
<br />continue for longer than ten (10) Business Days unless the non -defaulting Party has declared an early termination with proper notice. If
<br />Customer is responsible for an Event of Default and fails to cure within ten (10) days of written notice (such additional cure period does
<br />not apply to default for non-payment), in addition to its other remedies, Gexa may (i) terminate this Agreement; and (ii) charge
<br />Customer the Customer Early Termination Penalty pursuant to Section 5 of this Agreement. Notwithstanding the above, Gexa shall not
<br />disconnect or order disconnection of service to Customer unless the following events have all occurred: (1) Customer has an Event of
<br />Default for nonpayment under Section D.1(a) above, (2) Gexa gives Customer a ten (10) day written disconnection notice; and (3)
<br />Customer does not pay all undisputed outstanding payments owed by the end of the ten (10) day notice period. .
<br />E. MISCELLANEOUS PROVISIONS
<br />E.1 Disclaimer. This Agreement does not constitute, create, or otherwise recognize the existence of a joint venture, association,
<br />partnership, or other formal business entity of any kind among the Parties and the rights and obligations of the Parties are limited to
<br />those set forth in this Agreement.
<br />E.2 Headings. The descriptive headings of the Articles and Sections of this Agreement are inserted for convenience only and are
<br />not intended to affect the meaning, interpretation or construction of this Agreement.
<br />E.3 Waiver. Except as otherwise provided, failure of a Party to comply with an obligation, covenant, agreement, or condition may
<br />be waived by the other Party only in a writing signed by the Party granting the waiver, but that waiver does not constitute a waiver of, or
<br />estoppel with respect to a subsequent failure of the first Party to comply with that obligation, covenant, agreement, or condition.
<br />EA Assignment. Except as provided in the REP Services Agreement, Customer shall not assign this Agreement, in whole or in
<br />part, or any of its rights or obligations purusant to the Agreement without Gexa's prior written consent, which shall not be unreasonably
<br />withheld. Gexa may withold consent if a proposed assignee fails to be at least as creditworthy as Customer as of the Effective Date.
<br />Gexa may: (a) transfer, sell, pledge, encumber or assign the revenues or proceeds of this Agreement in connection with any financing
<br />or other financial arrangement; (b) transfer or assign this Agreement to a Gexa affiliate with operating capability and financial condition
<br />substantially similar to Gexa; (c) transfer or assign this Agreement to any person or entity succeeding to all or substantially all of the
<br />assets of Gexa with an operating capability and financial condition substantially similar to Gexa as of the execution date of this
<br />Agreement; and/or (d) transfer or assign this Agreement to a certified REP with an operating capability and financial condition
<br />substantially similar to Gexa as of the execution date of this Agreement. In the case of (b), (c), or (d), any such assignee shall agree in
<br />writing to be bound by these Terms and Conditions of Service, and upon assignment, Gexa shall have no further obligations under this
<br />Agreement. Gexa shall not assign the Agreement to a non-affiliated entity (including its guarantor) that has a credit rating lower than
<br />BBB- without the prior written consent of TCAP, which shall not be unreasonably withheld.
<br />E.5 No Third -Party Beneficiaries. This Agreement does not confer any rights or remedies on any person or party other than the
<br />Parties, their successors and permitted assigns; except that the Parties recognize that TCAP is entitled to receive the Aggegator Fee .
<br />E.6 Severability. If a provision of this Agreement is held to be unenforceable or invalid by a court or regulatory authority of
<br />competent jurisdiction, the validity and enforceability of the remaining provisions are unaffected by that holding, and the Parties shall, to
<br />the extent possible, negotiate an equitable adjustment to the provisions of this Agreement in order to preserve the original intent and
<br />purpose of this Agreement.
<br />E.7 Entire Agreement; Amendments. This Agreement constitutes the entire understanding between the Parties, and
<br />supersedes any and all previous understandings, oral or written, with respect to the subjects it covers. This Agreement may be
<br />amended only upon the mutually signed, written agreement of the Parties.
<br />E.8 Further Assurances. The Parties shall promptly execute and deliver, at the expense of the Party requesting such action, any
<br />and all other and further instruments and documents which are reasonably requested in order to effectuate the transactions
<br />contemplated in this Agreement.
<br />E.9 Emergency, Outage and Wire Service. In the event of an emergency, outage or service need, Customer shall call the TDSP
<br />for the service area of the ESI ID experiencing the emergency, outage or service need.
<br />E.10 Customer Care. Customer may contact Gexa Customer Care if Customer has specific comments, questions, disputes, or
<br />complaints toll free at 1-866-961-9399, Monday to Friday 7:00 a.m. — 8:00 p.m. CST and Saturday from 8:00 a.m. — 2:00 p.m.. Gexa
<br />shall assist and cooperate with Customer regarding communications with a TDSP relating to service to any ESI ID served by Gexa
<br />under this Agreement.
<br />E.11 Governing Law.
<br />a. This Agreement is governed by and construed and enforced in accordance with the laws of the State of Texas applicable
<br />to contracts made and performed in the State of Texas, without regard to the State of Texas conflict of laws provisions.
<br />b. All disputes between the Parties under this Agreement which are not otherwise settled will be decided by a court of
<br />competent jurisdiction in Harris County, Texas, and the Parties submit to the jurisdiction of the courts of the State of Texas and the
<br />Federal District Courts in Houston, Harris County, Texas. All disputes are governed under the laws of the State of Texas.
<br />A-3 ELGCTXTCAPCESATERMA040920
<br />
|