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Trade Secret
<br />interest rate not to exceed the lesser of one and one-half
<br />f. The Customer's failure or refusal to repair and
<br />percent (1 1/2%) per month orthe highest rate permitted by
<br />recommission an Energy System following a casualty
<br />law for commercial transactions, may be charged as a late
<br />loss.
<br />charge on a monthly basis on the amount of any Power
<br />Payment remaining unpaid more than ten (10) days after it
<br />g Remedies.
<br />is due from the due date until paid in full. In addition,
<br />a. If an Event of Default shall occur, Tenant may, at its
<br />Customer agrees to pay Tenant's attorney's fees and costs
<br />option, exercise any one or more of the following
<br />of collection, including expert witness fees, whether a
<br />remedies:
<br />lawsuit is commenced or not commenced, and Customer's
<br />liability for attorneys' fees and costs of collection, including
<br />i. Declare all amounts due or to become due under
<br />expert witness fees, extends to any appeals.
<br />this Agreement immediately due and payable,
<br />6. Grant of Security Interest. In order to secure the payment
<br />ii. Recover any additional damages and expenses
<br />and performance of all of Customer's liabilities, obligations
<br />sustained by Tenant by reason the Event of
<br />and covenants under this Agreement or the Facility Lease,
<br />Default,
<br />Customer hereby grants to Tenant a continuing security
<br />iii. Enforce the security interest granted hereunder, in
<br />interest in all Rebates, in the Energy System, together with
<br />which event Customer agrees to make the Energy
<br />all attachments, accessories or replacement parts placed
<br />System available to Tenant at a place or places
<br />upon the Energy System, and in all proceeds of each of the
<br />acceptable to Tenant and Tenant shall have the
<br />foregoing. Upon the request of Tenant, Customer shall
<br />right to take possession of the Energy System
<br />promptly obtain a subordination agreement in favor of
<br />without legal process for which purpose Tenant
<br />Tenant from any third -party Iienholder who may have a lien
<br />may enter any premises where the Energy System
<br />or security interest in any of the foregoing. Customer
<br />may be found without legal process and without
<br />irrevocably assigns the right to receive Rebates to Tenant
<br />breaching the peace, provided that in such case
<br />and Tenant may exercise this right upon default of
<br />the fair market value of the Energy System shall
<br />Customer. Tenant's security interest and other rights under
<br />offset any amounts due under this Agreement,
<br />this Section shall be extinguished upon the later of
<br />termination of this Agreement and the Facility Lease and
<br />iv. Retain all payments made by Customer as
<br />performance of all of Customer's obligations hereunder and
<br />liquidated damages for the non-performance of
<br />thereunder, and Tenant shall execute and file any evidence
<br />this Agreement, for use of the Energy System and
<br />of such extinguishment reasonably requested by Customer.
<br />for depreciation thereof, and
<br />7. Insurance. Customer shall keep the Energy System
<br />V. Exercise any other remedies available under law,
<br />insured against loss by fire, theft, hail and wind and such
<br />including those under Article 9 of the UCC.
<br />other hazards as required by the Facility Lease. The loss,
<br />b. In the event the Energy System is sold, foreclosed on,
<br />injury or destruction of the Energy System shall not release
<br />or repossessed in the manner provided herein or by
<br />Customer from making all Power Payments described in
<br />law and the fair market value of the Energy System is
<br />Schedule A.
<br />not sufficient to pay the amount due under this
<br />8. Events of Default. Each of the following shall constitute
<br />Agreement, Customer agrees to pay immediately to
<br />an event of default ("Event of Default"):
<br />Tenant such deficiency. In the event the Energy
<br />System is sold, foreclosed on, or repossessed in the
<br />a. Customer shall fail to make any payment to Tenant
<br />manner provided herein or by law and the fair market
<br />when due hereunder, Tenant has notified the
<br />value of the Energy System exceeds the amount that
<br />Customer of such failure, and the failure has continued
<br />Customer is required to pay Tenant under this
<br />without cure by Customer or written waiver by Tenant
<br />Agreement, Tenant agrees to pay immediately to
<br />for a period of thirty (30) days after the notice of failure,
<br />Customer such excess.
<br />b. Customer shall breach any representation, warranty or
<br />c. The remedies provided herein shall be cumulative and
<br />covenant contained in this Agreement in any material
<br />may be exercised singularly, concurrently or
<br />respect, Tenant has notified Customer of the breach,
<br />successively with and in addition to all other remedies
<br />and the breach has continued without cure by
<br />in law or equity. If either Party fails to perform any of
<br />Customer or written waiver by Tenant for a period of
<br />its obligations under this Agreement, the other Party
<br />thirty (30) days after the notice of breach,
<br />may (but need not) at any time thereafter perform such
<br />c. Customer shall cease to do business, become
<br />obligation, and the expenses incurred in connection
<br />insolvent, make an assignment for the benefit of
<br />therewith shall be payable in full by the nonperforming
<br />creditors or file any petition under bankruptcy,
<br />Party upon demand. In addition, the nonperforming
<br />reorganization, insolvency or moratorium law, or any
<br />Party agrees to pay the other Party's reasonable
<br />other Iawfor the relief of debtors,
<br />attorney's fees and costs of collection in pursuing any
<br />remedies.
<br />d. Any involuntary petition shall be filed under any
<br />bankruptcy statute against Customer or any receiver,
<br />10. Annual Energy Production Not Guaranteed. THE
<br />trustee, or similar official shall be appointed to take
<br />PARTIES UNDERSTAND AND AGREE THE
<br />possession of the properties of Customer unless such
<br />ANNUAL ENERGY PRODUCTION FROM THE
<br />petition or appointment ceases to be in effect within
<br />ENERGY SYSTEM MAY VARY FROM ANNUAL
<br />thirty (30) days of such filing or appointment, or
<br />PROJECTIONS FOR REASONS BEYOND THE
<br />e. The Customer fails to comply with any of its obligations
<br />PARTIES CONTROL INCLUDING WITHOUT
<br />under any of Customer's agreements with the Utility.
<br />LIMITATION SEASON WEATHER VARIATIONS,
<br />ROUTINE AND NON -ROUTINE MAINTENANCE
<br />CAUSING DOWNTIME, EQUIPMENT
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