Party, Interest on any unpaid portion of the Net Setilement Amount will accrue daily at the
Interest Rate. “Close-out Value" is the sum of (a) the amount due to the non-defaulting Party
regarding the Contract Quantities (or, as applicable, estimated Contract Quantities)
remaining to be delivered as stated in the applicable Transaction Confirmation(s) during the
Delivery Period or, if applicable, the current Renewal Term, calculated by determining the
difference between the Purchase Price and the Market Price for such quantities; and (b)
without duplication, any net losses or costs incurred by the non-defaulting Party for
terminating the Transaction(s), including costs of obtaining, maintaining and/or liquidating
commercially reasonable hedges, Balancing Charges and/or transaction costs. “Market
Price” means the price for similar quantities of Commodity at the Delivery Point during the
Delivery Period or Renewal Term, as applicable. For purposes of determining Close-out
Value, (1) Market Price will be determined by the non-defaulting Party in good faith as of a
date and time as close as reasonably practical to the date and time of termination or
liquidation of the applicable Transaction(s), and (li) Market Price may be ascertained
through reference to quotatians provided by recognized energy brokers or dealers, market
indices, bona-fide offers from third-parties, or by reference to commercially reasonable
forward pricing valuations, The Parties agree that the Close-out Value constituies a
reasonable approximation of damages, and is not a penalty or punitive in any respect.
Seller may, but need not, physically liquidate a Transaction or enter into a replacernent
transaction to determine Close-out Value or Net Settlement Amount. Tha defaulting Party is
responsible for all costs and fees incurred for collection of Net Settlement Amount, including,
reasonable attomey’s fees and expert witness fees.
13, Representations and Warranties: Each of the following are deemed to be repeated
each time a Transaction is entered into:
A. Each Party represents that: (a) itis duly organized, validly existing and in good standing
under the laws of the jurisdiction of its formation and is qualified to conduct its business m
those jurisdictions necessary to perform to this Agreement, (b) the execution of this
Agreement is within its powers, has been duly authorized and does not violate any of the
terms or conditions in its governing documents or any contract to which it is a party or any
law applicable to it; and (c) it is not Bankrupt.
B. Buyer represents and warrants that (a) it is mot a residential customer, (b) it will
immediately notify Seller of any change in its ownership; (¢) execution of this Agreement
initiates enroliment and service for the Delivery Period and any Renewal Term; (d) no
communication, writtan or oral, raceiyed from the Seller will be deemed to be an assurance
or guarantee as to any results expected from this Agreement; (e) if it is executing this
Agreement in its capacity as an agent, such Party represents and warrants that it has the
authority to bind the principal to ail the provisions contained herein and agrees to provide
documentation of such agency relationship, and (f} (i) it will provide, to Seller, information
reasonably required to substantiate its usage requirements, including information regarding
its business, locations, meter/account numbers, historicaliprojected usage, time of use,
hours of operation, utility rate classes, agreements, schedules, which In substantial part form
the basis for the calculation of charges for the transactions hereunder, (ii) acceptance of this
Agreement constitutes an authorization for release of such usage information, (iii) it will
assist Seller in taking al’ actions necessary to effectuate Transactions, including, if
requested, executing an authorization form permitting Seller to obtain its usage information
from third parties; and {iv) the usage information provided is true and accurate as ofthe date
furnished and as of the effective date of the Agreement.
CG. Each Party acknowledges that: {a) this Agreement is a forward contract and a master
netting agreement as defined in the United States Bankruptcy Code ("Code"); (b) this
Agreement shall not be construed as creating an association, trust, partnership, or joint
venture in any way between the Parties, nor as creating any relationship between the
Parties other than that of independent contractors for the sale and purchase of Commodity;
(c} Seller is not a “utility” as defined in the Code; (d) Commodity supply will be provided by
Saller under this Agreement, but delivery will be provided by the Buyer's Utility; and (e)
Buyer's Utility, and not Seller, is responsible for responding to leaks or emergencies should
they occur.
44. Other:
(a) This Agreement, and any dispute arising hereunder, is governed by the law of the
state in which the Service Locations are located, without regard to any conflict of rules
doctrine, (b) Each Party waives its right to a jury irial regarding any litigation arising from
this Agreement. (c) No delay or failure by a Party to exercise any right or remedy to which it
may become entitled under this Agreement will constitute a waiver of that right or remedy.
(d) Seller warrants that (i) it has good title to Commodity delivered, (ii) it has the tight to sell
the Commodity, and (iii) the Commodity will be free from all royalties, liens,
IN WITNESS WHEREOF, this CMA is entered into and effective as of the date written above.
BUYER:
By.
Nome. DO analy €
Matrp ¢-
Q
DEB Version 3.0_January2015
[eyo
LoFeare
Title:
encumbrances, and claims. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE, ARE DISCLAIMED. (e) Buyer will be responsibie for and
indemnify Seller against aff losses, costs and expenses, including court costs and
reasonable altorney's fees, arising out of claims for personal injury, including death, or
property damage from the Commodity or other charges which attach after title passes to
Buyer. Seller wil! be responsible for and indemnify Buyer against any josses, costs and
expenses, including court costs and reasonable attorneys’ fees, arising out of claims
of title, personal injury, including death, or property damage from the Commodity or other
charges which attach before title passes to Buyer. (f) NEITHER PARTY WILL BE LIABLE
TO THE OTHER UNDER THE AGREEMENT FOR CONSEQUENTIAL, INDIRECT
OR PUNITIVE DAMAGES, LOST PROFITS OR SPECIFIC
PERFORMANCE, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT. (gq) Ali
notices and waivers will be made in writing and may be delivered by hand delivery,
first class mail (postage prepaid), ovemight courier service or by facsimile and will be
effective upon receipt; provided, however, that any termination notice may only be sent by
hand or by overnight courier service, and, if sent to Seller, a copy delivered to: Direct
Energy Business, Attn: Customer Services Manager, 1001 Liberty Avanue, Pittsburgh, PA
15222; Phone: (888) 9259115; Fax: (866) 421-0257: = Email:
CustomerRelatlons@dlrectenergy.com. (h) If Buyer and Direct Energy Business Marketing,
LLC entered into Commodity transactions prior to the execution of this Agreement
("Existing Transactions"), the Parties agree that these Existing Transactions shall
be Transactions governed under the terms of this Agreement. This Agreement
supersedes and replaces any other agreement that may have applied to the Existing
Transactions. Note that this subsection (h) shall not apply to any Commodity transactions or
agreements entered into between Buyer and Direct Energy Business, LLC (i) No
amendment to this Agreement will be enforceable unless reduced to writing and
executed by both Parties. (j) Seller may assign this Agreement without Buyer's consent
Buyer may not assign this Agreement without Seller's consent; which consent will not
be unreasonably withheld. In addition, Seller may pledge, encumber, or assign this
Agreement or the accounts, revenues, or proceeds of this Agreement in connection with
any financing or other financial arrangements without Buyers consent, in which case
Seller shall not be discharged from its obligations to Buyer under this Agreement. (k)
This Agreement may be executed in separate counterparts by the Parties, including by
facsimile, each of which when executed and delivered shall be an original, but all of
which shall constitute one and the same instrument. (Ij Any capitalized terms not
defined in this CMA are defined in the Transaction Confirmation or shall have the
meaning set forth in the applicable Utility rules, tariffs or other governmental regulations,
or if such term is not defined therein then if shall have the well-known and generally
accepted technical or trade meanings customarily attributed to it in the natural gas or
electricity generation industries, as applicable. (m) The headings used in this Agreement
are for convenience of reference only and are not to affect the construction of or to be
taken into consideration in interpreting this Agreement. {n} Any executed copy of this
Agreement and other related documents may be digitally copied, photocopied, or
stored on computer tapes and disks ("Imaged Agreement"). The Imaged Agreement
will be admissible in any judicial, arbitration, mediation or administrative
Proceedings between the Parties in accordance with the applicable rules of
evidence, provided that neither Party will object to the admissibility of the Imaged
Agreement on the basis that such were not originated or maintained in documentary
form. (0) Where multiple parties are Party to this Agreament with Seller and are
represented by the same agent, it is agreed that this Agreement will constitute a separate
agreement with each such Party, as if each such Party had executed a separate
Agreement, and that no such Party shall have any liability under this document for the
obligations of any other Parties. (p) This CMA may be terminated by either Party upon at
least thirty (30) days' prior written notice; provided, however, that this CMA will remain in
effect with respect to Transactions entered into prior to the effective date of the
termination until both Parties have fulfilled all of their obligations with respect to the
outstanding Transactions. (q) Buyer will not disclose the terms of this Agreement, without
prior written consent of the Seller, to any third party, other than Buyer's employees,
affiliates, agents, auditors and counsel who are bound by substantially similar
confidentiality obligations, trading exchanges, govemmental authorities, courts,
adjudicatory proceedings, pricing indices, and credit ratings agencies; provided that if
Buyer receives a demand for disclosure pursuant to court order or other proceeding, it will
first notify Seller, to the extent practicable, before making the disclosure.
SELLER: Direct Energy Business, LLC
Direct Energy Business Marketing, LLC
By.
Name:
Title:
Nashua, City of
