1998 AGN FEB 03 I02 - Laserfiche WebLink

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DRAFT: 11;07/97 3.5. Failure to Deliver/Receive in Firm Transactions. (a) Unless excused by Force Majeure or Buyers failure to perform, if Seller fails to deliver all or part of the Contract Quantity pursuant to a Firm Transaction, Seller shall pay Buyer, on the date payment would otherwise be due to Seller, an amount for each MWh of such deficiency equal to the positive difference, if any, obtained by subtracting the Contract Price from the Replacement Price. "Replacement Price" means the price at which Buyer, acting in a commercially reasonable manner, purchases substitute Energy not delivered by Seller (plus any additional transmission charges, if any, incurred by Buyer to the Delivery Point) or, absent a purchase, the market price for such quantity at such Delivery Point as determined by Buyer in a commercially reasonable manner; provided, however, in no event shall the Replacement Price include any penalties, ratcheted demand or similar charges or any Stranded Costs. (b) Unless excused by Force Majeure or Seller's failure to perform, if Buyer fails to receive (i) the minimum requirement of the Contract Quantity, if any, as required to: be received pursuant to a Firm Transaction or (ii) amounts of Energy that the Parties agreed to Schedule pursuant to a Firm Transaction, Buyer shall pay Seller, on the date payment would otherwise be due, an amount for each MWh of such deficiency equal to the positive difference, if any, obtained by subtracting the Sales Price from the Contract Price. "Sales Price" means the price at which Seller, acting in a commercially reasonable manner, resells (if at all) the Energy not received by Buyer. In addition, Buyer shall pay all additional transmission charges, if any, incurred by Seller to arrange transmission to the substitute buyer. (c) Disagreements pursuant to this Section 3.5 shall be submitted to arbitration in accordance with the arbitration procedures set forth in Exhibit "C". 3.6. Failure to Deliver/Receive is Non -Firm Transactions. A Party may be excused from delivering or receiving the Contract Quantity, in whole or in part, in a Non -Firm Transaction for any reason without liability unless otherwise provided in a Transaction. SECTION 4. DEFAULTS AND REMEDIES 4.1. Events of Default. An "Event of Default" shall mean with respect to a Party ("Defaulting Party"): (i) the failure by the Defaulting Party to make, when due, any payment required pursuant to this Agreement if such failure is not remedied within three (3) Business Days after written notice of such failure is given to the Defaulting' Party by the other Party ("Non -Defaulting Party") and provided the payment is not the subject of a good faith dispute as described in Section 6 or (ii) any representation or warranty made by the Defaulting Party herein shall at any time prove to be false or misleading in any material respect or (iii) the failure by the Defaulting Party to perform any covenant set forth in this Agreement (other than the events that are otherwise specifically covered in this Section 4.1 as a separate Event of Default or its obligations to deliver or receive Energy a remedy for which is provided in Section 3), and such failure is not excused by Force Majeure or cured within five Business Days after written notice thereof to the Defaulting Party or (iv) the Defaulting Party shall be subject to a Bankruptcy Proceeding or [FURTHER EVENTS OF DEFAULT TO BE DISCUSSED] 4.2. Remedies upon an Event of Default. (a) If an Event of Default occurs with respect to a Defaulting Party at any time during the term of this Agreement, the Non -Defaulting Party may., for so long, as the Event of Default is continuing, (i) establish a date (which date shall be between 5 and 10 Business Days after the Non- DLY0NS%AGRhMC0LT0N2 - :I I , I ,-.- i -:- 4.-