2019-01 - Purchase Agreement with Enerlogics Solar LLC

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Seller's rights under this Section 11(b)(i) are in addition to any other remedies available to it under this Agreement, at law or in equity. ii. Termination. Upon the occurrence and during the continuation of a Default Event, the Non -Defaulting Party may terminate this Agreement, by providing five (5) days prior written notice to the Defaulting Parry; provided, that, in the case of a Default Event under Section I I(a)(iv), the Non -Defaulting Party may terminate this Agreement immediately. iii. Damages Upon Termination by Default. Upon a termination of this Agreement pursuant to Section I I(b)(ii), the Defaulting Parry shall pay a termination payment to the Non -Defaulting Party determined as follows (the "Termination Payment"): (1) Termination by Seller. If Seller terminates this Agreement for a Default Event by Purchaser, the Termination Payment payable to Seller shall be equal to the sum of (i) the applicable amount set forth in the Termination Payment Schedule set forth as Item 5 of Exhibits 2-A, 2-B, 2-C, and 2 D, and (ii) any other amounts previously accrued under this Agreement and then owned by Purchaser to Seller. (2) Termination by Purchaser. If Seller is the Defaulting Party and Purchaser terminates this Agreement, the Termination Payment to Purchaser will be equal to the sum of (i) the present value of the excess, if any, of the reasonably expected cost of electricity from the utility over the Contract Price for the reasonably expected production of the System for the remainder of the Initial Term or the then current Additional Term, as applicable; (ii) all direct costs reasonably incurred by Purchaser by reason of the termination; and (iii) any and all other amounts previously accrued under this Agreement and then owed by Seller to Purchaser. The Termination Payment determined under this Section I I(b)(iii)(2) cannot be less than zero. iv. Liquidated Damages. The Parties agree that, if Seller terminates this Agreement prior to the expiration of the Term pursuant to Section I I(b)(ii), actual damages would be difficult to ascertain, and the Termination Payment determined in accordance with Section I I(b)(iii)(1) is a reasonable approximation of the damages suffered by Seller as a result of early termination of this Agreement and is not a penalty. C. Obligations Following Termination. If a Party terminates this Agreement pursuant to Section 11(b)(ii), then following such termination, Seller shall remove the equipment constituting the System in compliance with Section 9 above at the sole cost and expense of the Defaulting Party, provided, however that Seller shall not be required to remove the System following the occurrence of a Default Event by Purchaser pursuant to Section I I(a)(i), unless Purchaser pre -pays the cost of restoration reasonably estimated by Seller. Reservation of Rights. Except in the case of a termination under Section I I(b)(ii) and payment of a Termination Payment, if any, determined pursuant to Section I I(b)(ii), nothing in this Section 11 limits either Party's right to pursue any remedy under this Agreement, at law or in equity, including with respect to the pursuit of an action for damages by reason of a breach or Default Event under this Agreement. ii. Mitigation Obligation. Regardless of whether this Agreement is terminated for a Default Event, the Non - Defaulting Party must make commercially reasonable efforts to mitigate its damages as the result of such Default Event; provided that such obligation shall not reduce Purchaser's obligation to pay the full Termination Payment set forth in Section 6 of Exhibit 1 following a Default Event by Purchaser. iii. No Limitation on Payments. Nothing in this Section 11 excuses a Party's obligation to make any payment when due under this Agreement, including with respect to payments for electricity that would have been delivered to Purchaser but for a Purchaser breach or Default Event. 12. Representations and Warranties. a. General Representations and Warranties. Each Party represents and warrants to the other the following: Such Party is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation; the execution, delivery and performance by such Party of this Agreement have been duly authorized by all necessary corporate, partnership or limited liability company action, as applicable, and do not and will not 17794548:) SEIA C&I PPA, version 2.0 Exh. 3, p. 7