|
or agreement hereunder which by its nature surtivK shall survive the termination or 'Remaining Performwx e* means the amount of Retail Energy expected to be
<br /> expiration of this Agreement, including the Parties' respective agreements and supplied by AEP Energy during the remainder of the relevant Term had it not been
<br /> obligations under the 'Confidentiality' and "Title, Responsibility, Warranty, and terminated early.
<br /> Limitation of Liability"sections,and shall apply whether in contract, equity,tort,or 'Wholesale Market Value"means the value that AEP Energy accrues in reallocating,
<br /> otherwise. Such termination shall be effective on the next available drop date as terminating,or liquidating any potion of arty energy supply contract,hedge,or related
<br /> established by each EDC. In the event that the EDC's retail electric supply choice trading position or arrangement held by or for AEP Energy,or in avoiding any cost,in
<br /> program is terminated or materially charged in any manner prior to the and of the the case of any cost component (e g., capacity or transmission), related to the
<br /> Term,AEP Energy may ternf mate this Agreement,without penalty to either Party. Remaining Performance.
<br /> V. CREDIT The Non-Defaulting Party shall calculate the Settlement Amount in its commercially
<br /> Each Party represents that there is no bankruptcy, insolvency, reorganization, reasonable discretion,including,where applicable,its estimates of market prices and
<br /> receivership,or other similar proceeding pending or being contemplated by it or,to its forward market prices.Such Settlement Amount calculation shall be made available to
<br /> knowledge, threatened against it Customer agrees to provide commercially the Defaulting Party upon written request:The Settlement Amount shall be paid by the
<br /> reasonable credit information upon request.Should the creditworthiness or financial Defaulting Party to the Non-Defaulting Party within five(5)business days after notice
<br /> responsibility of Customer become unsatisfactory to AEP Energy at any time during of the Settlement Amount due and owing to the Non-Defauhing Party. The Parties
<br /> the Term, as determined by AEP Energy in its commercially reasonable discretion, acknowledge and agree that the Settlement Amount constitutes a reasonable
<br /> AEP Energy may request additional credit information,inducting financial statements approximation of harm or loss, is a fair and reasonable method of estimating
<br /> in accordance with the previous sentence,and in addition thereto,require satisfactory damages that a Parry will suffer or incur in such a case in the tight of the anticipated
<br /> security,including a parental guaranty,escrow account,deposit,prepayment,or letter or actual harm caused by the termination or suspension,the difficulties of proof of
<br /> of credit,be provided by Customer.Upon receipt of such request from AEP Energy, foss, and the inconvenience or non teasibihty of otherwise obtaining an adequate
<br /> Customer shall have five (5) business days to provide the requested information remedy, and is not a penalty or punitive in any respect but is reasonable
<br /> and/or security to AEP Energy. compensation for a Party's damages.
<br /> VI. EVENTS OF DEFAULT Vit. SERVICE LOCATION CLOSURE
<br /> A. Definition:An"Event of Default"shall mean,with respect to the Parry to which the Customer shall provide AEP Energy at least thirty(30)calendar days'prior written
<br /> following applies(the"Defaulting Party),the occurrence of any of the following.(1) notice prior to terminating supply at any Service Location, including as a result of
<br /> the failure of such Party to make,when due,any payment required pursuant to this ceasing operations at such Service Location,dosing any Service Location,or the sale
<br /> Agreement if such failure is not remedied within three(3)business days after written of any Service Location to an unrelated third party.Customer shall be responsible for
<br /> notice and demand of payment; (2)any representation or warranty matte by such payment of damages incurred by AEP Energy,if any,relating to or arising from any
<br /> Party herein being false or misleading in any material respect when made or ceases such removal. Such damages shall be calculated in the same manner as the
<br /> to remain true(and which(if capable of being excused or remedied)is not remedied Settlement Amount as K Customer is the Defaulting Party.The Parties acknowledge
<br /> within fifteen(15)calendar days after written notice)during any Term;(3)the failure of and agree that the pricing included in the relevant Attachment reflects,among other
<br /> such Party to perform any material covenant or obligation set forth in this Agreement, factors,Customer's expected usage and EDC-specific pricing under such Attachment
<br /> including any unexcused failure to deliver or take any quantity of Retail Energy under in the event that Customer does not pay AEP Energy for related damages owed in
<br /> this Agreement, and such failure is not excused pursuant to Force Majeure (as accordance with this section, AEP Energy reserves the right to adjust, in its
<br /> hereinafter defined)or remedied within fifteen(15)calendar days after written notice; commercially reasonable discretion,the pricing for any remaining Service Location(s)
<br /> (4)AEP Energy's receipt of notice from the EDC of Customer's termination of supply based on the remaining estimated usage. The Parties' obligations under this
<br /> with AEP Energy; (5) Customer (A) files a petition or otherwise commences, Agreement will continue in full force and effect for any remaining Service Locations on
<br /> authorizes,or acquiesces in the commencement of a proceeding or cause of action the relevant Attachment.
<br /> under any bankruptcy, insolvency, reorganization, or similar law, or has any such VIII. RELATIONSHIP OF PARTIES
<br /> petition filed or proceeding commenced against it,(B)makes an assignment or any The relationship between the Parties is that of independent contractors for the sale
<br /> general arrangement for the benefit of creditors,(C)otherwise becomes bankrupt or and purchase of Retail Energy, and nothing in this Agreement establishes a joint
<br /> insolvent(however evidenced),or(D)has a liquidator,administrator,receiver,trustee, venture, fiduciary relationship, partnership, other joint undertaking, or any other
<br /> conservator,or similar official appointed with respect to it or any portion of its property relationship or imposes a trust or partnership duty, obligation, or liability on either
<br /> or assets, regardless of whether such appointment is made in connection with a Party.If a property management company or agent("Agent)is acting and executing
<br /> bankruptcy proceeding or reorganization for the benefit of creditors;or(S)the failure on behalf of the owner of any Service Location(the'Owner"),Agent represents and
<br /> of Customer to provide requesters information and/or security or otherwise satisfy the warrants that it has the full and complete authority to execute and bind the Owner to
<br /> creditworthiness requirements under the"Credit section. this Agreement and that the term of such granted authority from the Owner does not
<br /> EL Suspension and Early Termination:if an Event of Default occurs,the Party that expire or terminate prior to the end of the Term.
<br /> is not the Defaulting Party(the"Non-Defaulting Panty°}may,at its option and in its Ix. ASSIGNMENT
<br /> sole discretion, take any one or more of the following actions: (1) suspend its This Agreement shall be binding an and inure #o the benefit of each Party's
<br /> performance under this Agreement;or(2)terminate this Agreement(including any or c essors and pemhittted assigns. Neither Party shall assign this Agreement or its
<br /> all Attachments hereunder)by sanding written notice to the Defaulting Party. in the rights hereunder without the
<br /> event of such suspension or an early termination,Customer shall pay to AEP Energy � prior written consent of the other Party,which consent
<br /> all amounts owed under this Agreement including amounts owed for delivered shall not be unreasonably withheld,conditioned,or delayed;provided,however,that
<br /> performance,whether or not then invoiced.In the event of such an early termination, without such consent, either Party may assign its rights and obligations under this
<br /> the Defaulting Party shall also pay to the Non-Defaulting Party as liquidated damages Agreement to an affiliate or transfer this Agreement to any successor acquiring all or
<br /> a termination payment amount(the'Settlement Amount)calculated as follows: substantially all of the assets of such Party,so long as with respect to Customer,such
<br /> If Customer is/tie Defaulting Pavy,the Settlement Amount shaft equal the greater of affiliate or successor,as applicable,(A)is reasonably determined by AEP Energy to
<br /> be of similar or greater credit quality as compared to Customer and able to perform
<br /> (a)Contract Value, minus Wholesale Market Value,plus Enforcement Costs or(b) Customer's obligations hereunder and(B)delivers such enforceability assurances as
<br /> zero.If AEP Energy is the Defaulting Party,the Settlement Amount shall equal the AEP Energy reasonably requests.
<br /> greater of(x)Retail Market Value,minus Contract Value,plus Enforcement Costs or X. FORCE fdAJEURE
<br /> (y)zero.
<br /> As used herein,the following terms shall have the foltowing meanings: Neither Party shall be required to perform or fulfill its obligations (other than such
<br /> "Contract Value"means the amount that would have been owed by Customer related Party's obligation to make payment(s) then due or becoming due with respect to
<br /> delivered performance trio the Force Majeure event}underso
<br /> to the Remaining Performance (as hereinafter defined) pursuant to the applicable agreement r
<br /> AttaAttachment(s). thug as and to the extent a Party
<br /> by(the"Claiming Partys is prevented by Ford Majeure
<br /> from carrying out, in whole or part, its obligations under this Agreement and such
<br /> 'Enforcement Costs'means any attomeys'fees,expenses,and costs incurred by the Claiming Party gives notice to the other Party as soon as practicable."Force Majeure'
<br /> Non-Defaulting Party in connection with enforcing its rights under this Agreement. shall mean an event or circumstance that (A) prevents the Claiming Party from
<br /> `Retail Market Value"means what Customer is actually paying,so long as no more performing its obligations; (B)cannot be reasonably overcome or avoided; (C) is
<br /> than is commercially reasonable,related to the Remaining Performance. beyond the Cfaiminng Party's reasonable control; and (D)does not result from the
<br /> Confider.Jal—Soivaons,Key Ac=.n s GTC v.111 a.17 Page 2
<br />
|