1998 AGN FEB 03 I02 - Laserfiche WebLink

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DRAFT: 11/07/97" proposed Early Termination Date, Buyer and Seller shall attempt to reach a :,_itual agreement as to the sharing of the New Tax, (b) if a mutual sharin:, agreement'is not rea,; :J, the Non -Affected Party shall have the right, but not the obligation, upon written notice to the Affected Party within the Agreement Period, to pay the New Tax for any continuous period it so elects on a month to month basis, and in such case the Affected Party shall not have the right during such continuous period to declare the Early Termination Date on the basis of the New Tax, (c) should the Non= Affected Party at its election agree to pay the New Tax on a month to month basis, then upon 30 days prior written notice to the Affected Party of its election to cease payment of such New Tax, the Affected Party shall then be liable for the payment of the New Tax and the Parties shall again be subject to this Section 7.2 as if the New Tax had an effective date as of the date the Non - Affected Party ceases payment of such New Tax, (d) if'a mutual sharing agreement is not reached and the Non -Affected Party does not elect to pay the New Tax for any period of time within the Agreement Period, the Early Termination Date shall take effect and all Affected Transactions must be terminated and be subject to the same Early Termination Date, (e) the Early. Termination Date shall be effected as if an Event of Default had occurred; provided, both Seller and Buyer shall calculate in a commercially reasonable manner their net Gain (amount of Gain after netting Losses and Costs) or net Loss (amount of Losses and Costs after netting Gains) resulting from the termination of all Affected Transactions as if they each were a Notifying Party; and provided further, that each Party's Gains and Losses shall be determined without taking into effect the impact of the New Taxes, (f) (i) if both Parties have a net Gain, the party with the greater net Gain shall pay to the other party fifty percent (50%) of the difference between the two (2) net Gains; (ii) if both Parties have a net Loss, the party with the lesser net Loss shall pay to the other party fifty percent (50%) of the absolute value of the difference between the two (2) net Losses; and (iii) if one party shall have a net Gain and the other party shall have a net Loss, the party with the net Gain shall pay to the other party fifty percent (50%) of the sum of the absolute value of the net Gain and the absolute value of the net Loss and (g) such payment shall be payable as provided in Section 4.2 and its calculation shall be subject to arbitration in accordance with the procedures set forth in Exhibit"C". Prior to and including the initial Agreement Period invoked under this Section 72, New Taxes shall be allocated as if they were Taxes as provided in Section 7.1. The intent of this Section 7.2 is to leave neither party with an unfair burden as a result of New Taxes. SECTION 8. MISCELLANEOUS 8.1. Assignment. Neither Party shall assign this Agreement or its rights hereunder without the prior written consent of the other Party; provided, however, either Party may, without the consent of the other Party (and without relieving itself from liability hereunder), (i) transfer, sell, pledge, encumber or assign. this Agreement or the accounts, revenues or proceeds hereof in connection with any financing or other financial arrangements, (ii) transfer or assign this Agreement to an Affiliate of such Party, or (iii) transfer or assign this Agreement to any person or entity succeeding to all or substantially all of the assets of such Party; provided, however, that in each such case, any such assignee shall agree to in writing be bound by the terms and conditions hereof. 8.2. Financial Information. If requested by Counterparty, EPMI shall deliver (i) within 120 days following the end of each fiscal year, a copy of the annual report of Enron Corp. containing audited consolidated financial statements for such fiscal year certified by independent certified public accountants and (ii) within 60 days after the end of each of its first three fiscal quarters of each fiscal year, a copy of DLYONMAGRMTCOLTOM 9