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authorization enduring for the term of this Agreement. If Sel�er
<br /> concludes in its sole discretion that reasonable grounds for insecurity the applicable Confirmation. The Parties expressly acknowledge
<br /> of Buyer's payment exist, Buyer will provide,within 3 days of Seller's that upon an Event of Default,damages would be difficult to
<br /> request, (i)a security deposit, in a form,an amount and for a term ascertain and quantify and agree that this provision for calculating
<br /> acceptable to Seller,or(ii)any other form of security acceptable to damages is reasonable in light of the anticipated or actual harm and
<br /> Seller. is not a penalty. Notwithstanding election of Utility Single Bill Billing
<br /> on any effective Confirmation,Seller may invoice Buyer directly for
<br /> VI. DEFAULT REMEDIES ETOFF Seller Ear�y Termination Damages. Payment for Early Termination
<br /> Damages shall be due within 10 days of the invoice date for said
<br /> A. Events of Defauit Damages.
<br /> "Event of Default"means(i)Buyer fails to provide security to Seller C Setoff
<br /> pursuant to Section V;(ii)Buyer fails to pay undisputed amounts by
<br /> Due Date; (iii)either Party makes an assignment or any general Without limiting its rights under this Agreement, a Non-Defaulting
<br /> arrangement for the benefit of creditors; (iv)either Party defaults in Party may setoff any and all amounts that the Defaulting Party owes
<br /> any payment obligation to the other Party;(v)either Party defaults in to it against(i)any or all amounts it owes the Defaulting Party
<br /> any material payment obligation to any of its creditors; (vi)either (whether under this Agreement or otherwise and whether or not then
<br /> Party files a petition or otherwise commences,authorizes,or due)or(ii)any security or other collateral posted by the Defaulting
<br /> acquiesces in the commencement of a proceeding or causes under Party and held by the Non-Defaulting Party. This section shall be
<br /> any bankruptcy or similar law for the protection of creditors or has without prejudice and in addition to any right of setoff,combination of
<br /> such petition filed or proceeding commenced against it; (vii)either accounts, ►ien or other right to which any Party is at any time
<br /> Party otherwise becomes bankrupt or insolvent(however otherwise entitled(whether by operation of law,contract,or
<br /> evidenced);(viii)either Party is unable to pay its debts as they fall otherwise).
<br /> due; (ix)either Party terminates this Agreement for any reason
<br /> except for a termination resulting from an Event of Default committed
<br /> by the other Party; (x)Seller fails to sell and schedule for delivery,or V I. ITATION OF LIABILITY
<br /> Buyer fails to purchase and receive electric power in accordance
<br /> with any effective Confirmation;or(xi)either Party fails to perform NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO
<br /> any material covenant or obligation set forth in this Agreement or any THE CONTRARY, NEITHER BUYER NOR SELLER NOR THEIR
<br /> effective Confirmation(except to the extent such failure constitutes a RESPECTIVE PARTNERS,OWNERS,OFFICERS, DIRECTORS,
<br /> separate Event of Defauit). Upon the occurrence of an Event of AGENTS, EMPLOYEES, PARENTS,SUBSIDIARIES OR
<br /> Default, the Party not committing the Event of Default("Non- AFFILIATES(OR THEIR RESPECTIVE PARTNERS,OWNERS,
<br /> Defaulting Party")shall have the right to suspend service and/or OFFICERS, DIRECTORS,AGENTS, OR EMPLOYEES),SHALL BE
<br /> terminate this Agreement, as applicable, in addition to any and all LIABLE OR RESPONSIBLE TO THE OTHER PARTY OR TO ITS
<br /> other remedies available hereunder. PARENTS, PARTNERS,OWNERS,SUBSIDIARIES,AFFILIATES,
<br /> OFFICERS, DIRECTORS,AGENTS, EMPLOYEES,SUCCESSORS
<br /> OR ASSIGNS, OR TO ANY OF THEIR RESPECTIVE INSURERS,
<br /> B. Remedv FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR
<br /> During any Delivery Period set forth on an effective Confirmation, if CONSEQUENTIAL DAMAGES WHATSOEVER,CONNECTED
<br /> either Party commits an Event of Default(the"Defaulting Party"), WITH OR RESULTING FROM PERFORMANCE OR NON
<br /> then the Non-Defaulting Party shall have the right to terminate this PERFORMANCE OF THIS AGREEMENT,OR ANYTHING DONE
<br /> Agreement and the Defaulting Party shall pay and the Non- IN CONNECTION HEREWITH, IRRESPECTIVE OF WHETHER
<br /> Defaulting Party shall receive, as its exclusive remedy, Early SUCH CLAIMS OR DAMAGES ARE BASED UPON BREACH OF
<br /> Termination Damages arising out of the Event of Default. If Seller WARRANTY,TORT(INCLUDING WITHOUT LIMITATION
<br /> commits an Event of Default and the price for replacement electric NEGLIGENCE,WHETHER OF SELLER, BUYER OR OTHERS),
<br /> power, including any associated costs reasonably incurred by Buyer STRICT LIABILITY, CONTRACT,OPERATION OF LAW OR
<br /> in obtaining replacement power, is higher than the amount the Buyer OTHERWISE,AND REGARDLESS WHETHER SUCH PARTY HAS
<br /> would have paid under this Agreement(including energy,capacity, BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
<br /> and other components),then Seller shall pay Buyer Early WITH THE EXCEPTION OF ANY WARRANTY EXPRESSLY SET
<br /> Termination Damages in the amount of such positive difference FORTH HEREIN,SELLER MAKES NO WARRANTY OF ANY
<br /> multiplied by the quantity for which a fixed price,or fixed price KIND,EITHER EXPRESS OR IMPLIED,INCLUDING BUT NOT
<br /> component,was established,as set forth on the applicable LIMITED TO THE IMP�IED WARRANTIES OF
<br /> Confirmation. If Buyer commits an Event of Defaults and the price MERCHANTABILITY AND FITNESS FOR A PARTICULAR
<br /> for the re-sale of energy, capacity and other components at which PURPOSE.
<br /> Seller re-sells or could re-sell, less any associated costs reasonably Seller has no control or liability for matters within the control of the
<br /> incurred by Seller, is less than the amount that would have been utility or the ISO/RTO controlled grid,which include maintenance or
<br /> paid under this Agreement,then Buyer shall pay Seller Early operation of electric lines and systems,service interruptions, loss or
<br /> Termination Damages in the amount of such positive difference termination of service,deterioration of electric services, or meter
<br /> multiplied by the quantity for which a fixed price,or fixed price readings.
<br /> component,was established,as set forth on VIII. F RCE MA E
<br /> Integrys PSA 3/2008 2 of 4
<br />
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