Res 2018-042/approving and authorizing the City Manager to execute a wholesale electric power purchase agreement with AEP Energy Partners, Inc. to supply wind energy to the San Marcos Electric Utility

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determined by commercially reasonable judgment under then current market conditions than that of such Party or such Party's Guarantor, if any, immediately prior to the time of such consolidation, amalgamation, merger or transfer,rop vided, however, that the foregoing shall not constitute an Event of Default so long as in connection with or after such consolidation, amalgamation, merger or transfer such Party or its successor or transferee provides (or causes to be provided) to the other Party, within two (2) Business Days after written notice, Performance Assurance in an amount satisfactory to the other party in its sole discretion.". 11. Section 5.2, Declaration of Early Termination Date and Calculation of Settlement Amounts, shall be amended by reversing the placement of "(i)" and "to". 12. Section 5.3, Net Out of Settlement Amounts, shall be construed to encompass all physical power Transactions between the parties under this or any other agreement and all such amounts shall be netted out to a single liquidated amount. 13. Section 6.4, Netting of Payments, shall be construed to encompass all physical power Transactions between the parties under this or any other agreement where the debts and payment obligations are due and owing to each other on the same date. 14. Section 7.1, Limitation of Remedies, Liabilities and Damages, shall be amended by deleting from the fifth sentence the phrase "UNLESS EXPRESSLY HEREIN PROVIDED". 15. Sections 8.1(b) and 8.2(b), Credit Assurances, shall be amended by deleting the phrase "three (3) Business Days" wherever it appears therein and replacing it with the phrase "48 hours but at least one (1) Business Day". 16, Section 8.1(c), Collateral Threshold, is amended by deleting the second and fourth sentence thereof in their entirety and substituting the following. "If Party B receives written notice from Party A by 1:00 pm New York time on a Business Day, Party B shall post acceptable Performance Assurance the next following Business Day and on the second Business Day following the date of notice if received by Party B after 1:00 pm New York Time on a Business Day. In the event that Party B fails to provide acceptable Performance Assurance when due, then an Event of Default under Article Five will be deemed to have occurred and Party A will be entitled to the remedies set forth in Article Five of this Agreement." 17. Section 8.2(c), Collateral Threshold, is amended by deleting the second and fourth sentence thereof in their entirety and substituting the following. "If Party A receives written notice from Party B by 1:00 pm New York time on a Business Day, Party A shall post acceptable Performance Assurance the next following Business Day and on the second Business Day following the date of notice if received by Party A after 1:00 pm New York Time on a Business Day. In the event that Party A fails to provide acceptable Performance Assurance when due, then an Event of Default under Article Five will be deemed to have occurred and Party B will be entitled to the remedies set forth in Article Five of this Agreement." 18. The following new Sections 8.4 and 8.5 are added to Article Eight. "8.4 Interest Rate on Cash Amounts Held as Collateral. For Performance Assurance in the form of cash that is held by a party pursuant to this Article Eight the interest rate will be the Federal Funds Rate minus 0.25% as from time to time in effect. "Federal Funds Rate" means, for the relevant determination date opposite the caption 5