Common use of Capacity In Which Company Is Entering Into This Agreement Clause in Contracts

Capacity In Which Company Is Entering Into This Agreement. The DS Supplier agrees and acknowledges that the Company is contracting for the provision of DS Supply from such DS Supplier for Customers receiving Default Service on the Company’s electric system pursuant to the authorizations provided to the Company. The DS Supplier further agrees and acknowledges that the Company will administer and monitor the DS Supplier’s performance in providing DS Supply under this Agreement and that the Company shall be entitled to enforce the DS Supplier’s obligations related to the provision of DS Supply. The DS Supplier hereby agrees that the Company is entitled to seek enforcement of this Agreement on behalf of the Customers. It is the specific intention of the Parties hereto that Customers and Customer groups are not third party beneficiaries of this Agreement and that no Customer or Customer group shall seek enforcement of this Agreement against the DS Supplier on their own behalf, either independently or by joining in any legal proceeding brought by the Company. The Parties acknowledge that the Agreement is a “forward contract” within the meaning of the United States Bankruptcy Code (“USBC”), that each Party hereto is a “forward contract merchant” within the meaning of the USBC, that all setoffs, netting and liquidations contemplated hereunder constitute “settlement payments” within the meaning of the USBC, that each payment or transfer of performance assurance is a “margin payment”, “settlement payment” or transfer within the meaning of the USBC, and, accordingly, the Parties hereto are entitled to the protections of Section 556 of the Bankruptcy Code. The Parties therefore agree that the Agreement may be terminated by either Party upon the commencement of a proceeding by the other Party under any chapter of the Bankruptcy Code in accordance with Section 5.2 of this Agreement.

Capacity In Which Company Is Entering Into This Agreement. The DS TOU Supplier agrees and acknowledges that the Company is contracting for the provision of DS TOU Supply from such DS TOU Supplier for Customers receiving Default TOU Service on the Company’s electric system pursuant to the authorizations provided to the Company. The DS TOU Supplier further agrees and acknowledges that the Company will administer and monitor the DS TOU Supplier’s performance in providing DS TOU Supply under this Agreement and that the Company shall be entitled to enforce the DS TOU Supplier’s obligations related to the provision of DS TOU Supply. The DS TOU Supplier hereby agrees that the Company is entitled to seek enforcement of this Agreement on behalf of the Customers. It is the specific intention of the Parties hereto that Customers and Customer groups are not third party beneficiaries of this Agreement and that no Customer or Customer group shall seek enforcement of this Agreement against the DS TOU Supplier on their own behalf, either independently or by joining in any legal proceeding brought by the Company. The Parties acknowledge that the Agreement is a “forward contract” within the meaning of the United States Bankruptcy Code (“USBC”), that each Party hereto is a “forward contract merchant” within the meaning of the USBC, that all setoffs, netting and liquidations contemplated hereunder constitute “settlement payments” within the meaning of the USBC, that each payment or transfer of performance assurance is a “margin payment”, “settlement payment” or transfer within the meaning of the USBC, and, accordingly, the Parties hereto are entitled to the protections of Section 556 of the Bankruptcy Code. The Parties therefore agree that the Agreement may be terminated by either Party upon the commencement of a proceeding by the other Party under any chapter of the Bankruptcy Code in accordance with Section 5.2 of this Agreement.