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SECTION 4: CUSTOMER INFORMATION, CREDIT AND DEPOSITS
<br />4.1 Customer Information. By entering into this Agreement and appointing Gexa as Customer's agent for
<br />electricity service, Customer authorizes Gexa to obtain certain information that Gexa may need to provide
<br />Customer's electric service, including Customer's address, telephone number, account numbers, historical usage
<br />information, and historical payment information from Customer's TDSP, and Customer further authorizes its TDSP to
<br />release that information to Gexa.
<br />4.2 Deposits and Other Security. A Party (the "Requesting Party") may require the other Party (the "Providing
<br />Party") to provide a deposit (or additional deposit if an initial deposit was also required), letter of credit, or other form of
<br />credit assurance reasonably acceptable to the Requesting Party (collectively, "Performance Assurance") during the
<br />Term of this Agreement if: (i) the Requesting Party determines in its reasonable discretion that there has been a
<br />material adverse change in the Providing Party's or its guarantor's (if applicable) credit status or financial condition
<br />(which, if applicable, will mean that its credit or bond rating has dropped lower than BBB- by Standard & Poor's Rating
<br />Group or Baa3 by Moody's Investor Services or ceases to be rated by either of these agencies); or (ii) Customer has
<br />been delinquent in paying the electric bill by more than seven days more than twice during the past twelve months.
<br />Any Performance Assurance, less any outstanding balance owed by Providing Party to the Requesting Party, will be
<br />returned to the Providing Party once the Providing Party's or its guarantor's (if applicable) credit or financial condition
<br />becomes satisfactory or, if applicable, to a credit or bond rating of BBB- or Baa3 or higher, whichever occurs earlier;
<br />or, if the Performance Assurance relates to delinquent payments, the Providing Party has paid all outstanding
<br />balances and has made all payments within the dates set forth in this Agreement for a period of six consecutive
<br />months.
<br />SECTION 5: EARLY TERMINATION; DAMAGES
<br />5.1 Cancellation by Customer for Insufficient Appropriations. If, during Customer's annual appropriations
<br />determination, the applicable governmental authorities do not allocate sufficient funds to allow Customer to continue to
<br />perform its obligations under this Agreement (an "Appropriations Failure"), then Customer or Gexa shall have the
<br />right to terminate this Agreement in full or as to any affected ESI ID upon 30 days advance written notice effective at
<br />the end of the period for which appropriations are made; provided, that if appropriations are subsequently allocated for
<br />electricity for the ESI IDs covered by this Agreement, then the termination may be revoked at Gexa's option and those
<br />appropriations shall continue to apply to this Agreement and shall not be used for an electricity supply agreement with
<br />another REP. Upon a termination of this Agreement for Appropriations Failure, in full or as to any ESI ID(s), Customer
<br />shall pay all amounts due Gexa under this Agreement, including the Customer Early Termination Damages.
<br />5.2 Customer Early Termination Damages. Except in connection with the closure of a facility associated with an
<br />ESI ID pursuant to Section 1.4, in connection with a Force Majeure Event, or as otherwise provided or excused in this
<br />Agreement, if Customer cancels this Agreement before the end of the Term and refuses to accept electric supply
<br />delivery from Gexa for any ESI ID(s), Gexa may charge Customer early termination damages equal to the sum of (a)
<br />the Retail Termination Payment, (b) the QSE Services Termination Payment, (c) the Quarterly and Annual Adjustment
<br />Payment, and (d) the Wholesale Transaction Termination Payment, as each of these terms are defined below (the
<br />sum total of these, the "Customer Early Termination Damages"). The "Retail Termination Payment" shall equal the
<br />product of (a) the Expected Usage for each ESI ID subject to Customer's cancelation or refusal of electric supply
<br />delivery ("Customer Terminated Usage") multiplied by (b) the sum of (i) the Aggregator Fee and (ii) the REP Services
<br />Fee specified in the REP Services Agreement. The "QSE Services Termination Payment" shall equal the product of
<br />(a) the Customer Terminated Usage grossed up for losses multiplied by (b) the QSE Services Fee, as defined in the
<br />PSA. The "Quarterly and Annual Adjustment Payment" shall be calculated by the Energy Manager in accordance
<br />with the PSA, and shall include any Quarterly and Annual Adjustment amounts for electricity provided to the Customer
<br />under this Agreement prior to the termination of this Agreement, which have not yet been charged or credited to
<br />Customer, as appropriate. For avoidance of doubt, the Quarterly and Annual Adjustment Payment may be either a
<br />charge or a credit to Customer, as calculated in accordance with the PSA. If the Customer Early Termination
<br />Damages are charged due to an Event of Default by Customer, then the Customer Early Termination Damages will
<br />also include Gexa's reasonable costs relating to the determination and collection of Customer Early Termination
<br />Damages, including attorney and consultant fees incurred. The provisions in Section 3 related to Billing and Payment
<br />apply to the billing, due date, and collection of Customer Early Termination Damages. Customer agrees that
<br />Customer Early Termination Damages are a reasonable estimate of the damages due Gexa for failure to accept
<br />electric supply, and are not punitive in nature.
<br />5.3 Termination for Wholesale Supply Failure. If, during the Term, the Wholesale Transactions are terminated
<br />as a result of a default by the Energy Manager ("Wholesale Supply Failure"), then this Agreement will also terminate
<br />effective on the date the Wholesale Agreement terminates. In the event of a termination for Wholesale Supply Failure,
<br />Gexa shall pay Customer a Wholesale Termination Payment if required by Section 5.5.
<br />5.4 Gexa Early Termination Damages. Except for a Wholesale Supply Failure, a Force Majeure Event, or as
<br />otherwise provided or excused in this Agreement, if Gexa cancels this Agreement and refuses to provide electric
<br />supply delivery to Customer for any or all ESI ID(s), Customer shall have the right to charge Gexa an early termination
<br />penalty equal to the amount determined as follows: the product of (i) the Expected Usage for each ESI ID subject to
<br />Gexa's cancellation or refusal of electric supply delivery ("Gexa Terminated Usage") multiplied by (ii) the REP
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