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Neither Party shall be considered to be in default in the performance individual additionally warrants that he or she is authorized to sign
<br /> of its obligations under this Agreement if its ability to perform was this Agreement on behalf of the Party for which it was executed and
<br /> prevented by Force Majeure. For purposes of this Agreement, Force is authorized to act under any effective Confirmation.
<br /> Majeure means an event which prevents one Party from performing
<br /> its obligations hereunder,which event was not i)within the XI. MI C ELLANEO
<br /> reasonable control of,or ii)the result of the negligence of,the If the terms of any effective Confirmation modify,change or
<br /> claiming Party,and which, by the exercise of due diligence,the
<br /> claiming Party is unable to overcome or avoid. Force Majeure shall otherwise conflict with any provisions of this Agreement,the terms of
<br /> include,without limitation: a condition resulting in the curtailment of the Confirmation shall govern. This Agreement may be executed
<br /> power supply or interruption or curtailment of transmission on the and delivered in counterparts(including by facsimile transmission),
<br /> electric transmission and/or distribution system; restraint by court each of which will be deemed an original and all of which constitute
<br /> order;and action or non action by,or inability to obtain necessary one and the same instrument. Title to the electric power shall
<br /> authorizations or approvals from any government agency or transfer at the Delivery Point identified on any effective Confirmation.
<br /> authority. Force Majeure shall not include loss or failure of either As necessary, Buyer hereby appoints Seller its agent for the
<br /> Party's markets or supplies. Force Majeure shall not excuse Buyer's purposes of effectuating delivery. There are no third party
<br /> failure to make payments in a timely manner for electricity supplied beneficiaries to the Agreement and none are intended by the Parties.
<br /> by Seller before a Force Majeure event. The claiming Party must This Agreement shall not be assigned or transferred by either Party
<br /> provide the other Party with written notice of the Force Majeure as without the prior written consent of the non-assigning Party,which
<br /> soon as practicable,which notice shall contain reasonably full consent shall not be unreasonably withheld. Notwithstanding the
<br /> particulars of the Force Majeure, including the estimated duration. foregoing, however, Buyer and Seller each may assign this
<br /> Agreement to its parent,affiliate,subsidiary,or successor to all or a
<br /> material portion of its assets,without the other Party's consent as
<br /> long as notice is provided and the assigning Party retains liability for
<br /> IX. NOTICES the obligations hereunder. THIS AGREEMENT AND ALL
<br /> All notices required pursuant to this Agreement may be sent by DISPUTES ARISING OUT OF THIS AGREEMENT SHALL BE
<br /> facsimile, a nationally recognized overnight courier service,first GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
<br /> class mail, certified mail return receipt requested,or hand delivery, in LAWS OF THE STATE WHERE A FACILITY RECEIVING
<br /> accordance with the information provided in any effective ELECTRIC POWER UNDER THE AGREEMENT IS LOCATED
<br /> Confirmation. Notice shall be deemed effective when received, if WITHOUT REGARD TO THE LAWS OF SUCH STATE REQUIRING
<br /> received on a business day during recipient's normal business THE APPLICATION OF THE LAWS OF ANOTHER STATE,AND
<br /> hours. If not received on a business day, or if received after normal FEDERAL LAW,AS APPLICABLE. Any waiver of the requirements
<br /> business hours on a business day,then notice shall be deemed or provisions of this Agreement must be in writing in order to be
<br /> effective as of the next business day. Subject to the foregoing, in the effective. The failure of either Party to insist upon strict performance
<br />� absence of proof of the actual receipt date,the following of such requirements or provisions or to exercise any right hereunder
<br /> presumptions will apply. Notices sent by facsimile shall be deemed shall not be construed as a waiver of such requirement or provision
<br /> received upon the sending Party's receipt of its facsimile machine's or a relinquishment of such right. This Agreement, including any
<br /> confirmation of successful transmission. Notice by overnight maii or effective Confirmation(s),Amendment(s)and/or Rider(s), if
<br /> courier shall be deemed received on the next business day after it applicable,constitutes the complete agreement reached between the
<br /> was sent, or such earlier time as is confirmed by the receiving Party. Parties and shall not be changed unless mutually agreed to in a
<br /> First class mail is deemed received 5 business days after mailing. writing signed by both of the Parties,except as may otherwise be
<br /> provided herein. All prior agreements, understandings and
<br /> representations,whether consistent or inconsistent,oral or written,
<br />� X. REPRESENTATIONS AND WARRANTIES between the Parties are merged into and superseded by this
<br /> As of the date hereof each Part re resents and warrants to the
<br /> Agreement. The Parties acknowledge and agree that(i)this
<br /> . . . y . p . . . A reement constitutes a"forward contracY'within the meanin of title
<br /> 9 9
<br /> o t h e r a s f o l l o w s: (i)i t i s d u l y o r g a n i z e d a n d v a l i d l y e x i s t m g u n d e r t h e 11 of the United States Code(the"Bankruptcy Code"),(ii)each Party
<br /> laws of the State of its incorporation/organization, (ii)is qualified to is a"forward contract merchanY'within the meaning of the
<br /> do business and is in good standing in the State where the facility gankruptcy Code and(iii)the rights set forth under Section VI herein
<br /> receiving electric power under the Agreement is located,and has all �nstitute contractual rights"to liquidate,terminate,or accelerate"
<br /> requisite power and authority, corporate or otherwise,to enter into within the meaning of Section 556 of the Bankruptcy Code and"to
<br /> this Agreement and perform its obligations hereunder, (iii)the terminate, liquidate,accelerate or offset"within the meaning of
<br /> execution,delivery, and performance of this Agreement have been Section 561 of the Bankruptcy Code. Both Parties'telephones may
<br /> duly authorized in accordance with all of its organizational be monitored by,and each Party hereby
<br /> instruments, it has full power to execute,deliver,and perForm its
<br /> obligations under this Agreement, and this Agreement has been duly
<br /> executed and delivered,and(iv)it has reviewed and understands
<br /> this Agreement. By signing below,each
<br /> Integrys PSA 3R008 3 of 4
<br />
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