R2012-194 AUTHORIZING EXECUTION OF A SERVICE AGREEMENT WITH THE LOWEST RESPONSIBLE BIDDER FOR THE SUPPLY OF ELECTRICITY

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REMEDY IS INCONVENIENT AND THE DAMAGES CALCULATED HEREUNDER CONSTITUTE A REASONABLE APPROXIMATION OF THE HARM OR LOSS. 8.2 DISCLAIMER. FES DOES NOT WARRANT OR GUARANTEE THE UNINTERRUPTED DELIVERY OF RETAIL ELECTRIC SUPPLY TO AGGREGATION PROGRAM CUSTOMERS DURING FORCE MAJEURE EVENTS. FES WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR THE OPERATIONS OF THE ELECTRIC UTILITY, INCLUDING BUT NOT LIMITED TO, THE INTERRUPTION, TERMINATION, FAILURE TO DELIVER, OR DETERIORATION OF ELECTRIC UTILITY'S TRANSMISSION OR DISTRIBUTION SERVICE. EXCEPT AS MAY BE SPECIFICALLY PROVIDED HEREIN, NO IMPLIED WARRANTIES OF ANY KIND, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE SHALL BE APPLICABLE TO THIS AGREEMENT. ARTICLE 9 REPRESENTATIONS AND WARRANTIES 9.1 Representations and Warranties by FES. 9.1.1 FES hereby represents and warrants to Community as of the Effective Date as follows: (i) FES is a corporation, duly formed, validly existing and in good standing under the laws of the State of Ohio and certified as an Alternative Retail Electric Supply in the State of Illinois. (ii) FES has all authorizations from any governmental authority necessary for it to legally perform its obligations under this Agreement or will obtain such authorizations in a timely manner prior to when any performance by it requiring such authorization becomes due; (iii) The execution and delivery of, and performance under, this Agreement are within FES' powers, have been duly authorized by all necessary action and do not violate, conflict with or breach any of the terms or conditions in its governing documents or any contract to which it is a party or any governmental rule applicable to it; (iv) This Agreement has been duly executed and delivered by FES, and this Agreement (assuming due authorization, execution and delivery of all Parties) constitutes legal, valid and binding obligations of FES enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws affecting creditor's rights generally and general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law; and (v) No Bankruptcy is pending against it or to its knowledge threatened against it. (vi) None of the documents or other written information furnished by or on behalf of FES to Community and the Request for Proposal contains any untrue statement of a material fact or omits to state any material fact or is misleading. FES is not in default with any order,writ, injunction or decree of any court or federal, state, municipal or other governmental department, commission, board,bureau, agency or instrumentality, domestic or foreign, which would prevent FES from complying with the terns and conditions of this Agreement. I1