Page 1

 
AGREEMENTSDEFINITIONS     Except where the context otherwise indicates another or different meaning or intent, thefollowing terms are intended and used herein and shall be construed to have the meaning as follows:A. **“Btu”**shall mean the British thermal unit as defined by international standards. B. **“Business Day”**shall mean any weekday, excluding federal banking holidays. C. **“Central Clock Time”**(C.T.) shall mean Central Standard Time adjusted for Daylight SavingsTime. D. **“Company”**means OTPC, its successors and assigns. E. **“Customer”**means any individual, governmental, or corporate entity taking transportationservice hereunder. F. **“Dekatherm”**or **“Dth”**means the Company’s billing unit measured by its thermal value. Adekatherm is 1,000,000 Btus. Dekatherm shall be the standard unit for purposes of nominations,scheduling, invoicing, and balancing. G. **“Delivery Point(s)”**shall mean the specific measurement location(s) listed on **Exhibit B**atwhich OTPC delivers Shipper-owned Gas to Shipper and Shipper receives such Gas from OTPC.Exhibit B is hereby incorporated into this Agreement. H. **“Delivery Volume”**shall mean the volume of Gas actually taken at the Delivery Point(s) by oron behalf of Shipper.
Page 2

 
I. **“Firm”**shall mean that each Dth Shipper tenders at the Receipt Point will be delivered toShipper’s Delivery Point(s) minus OTPC’s Shrinkage without interruption except under Force Majeureconditions or an energy emergency declared by the Commission. J. **“Gas”**shall mean natural gas of interstate pipeline quality. K. **“Gas Day”**or **“Day”**shall mean a period of 24 consecutive hours, beginning at 9:00 a.m.Central Clock Time, as adjusted for Daylight Savings Time, and the date of the Day shall bethat of its beginning. L. **“Heating Value”**shall mean the gross heating value .on a dry basis, which is the number ofBritish thermal units produced by the complete combustion at constant pressure of the amountof dry gas (gas containing no water vapor) that would occupy a volume of one Cubic Foot at14.73 psia and 60° F with combustion air at the same temperature and pressure as the gas, theproducts of combustion being cooled to the initial temperature of the gas and air, and thewater formed by combustion condensed to the liquid state. M. **“Imbalance”**shall mean the daily difference between the Dths tendered by or for Customer’saccount at the Receipt Point minus OTPC’s Shrinkage and the metered volumes allocated toShipper at the Delivery Point(s). N. **“Interruptible”**shall mean that each Dth Shipper tenders at the Receipt Point Will bedelivered to Shipper’s Delivery Point(s) less OTPC’s Shrinkage if OTPC, using reasonablejudgment, determines that capacity exists after all the Firm transport needs are accounted forto permit redelivery of tendered gas. O. **“Maximum Daily Quantity”**or **“(MDQ)”**shall mean the maximum daily firm natural gas quantitywhich Shipper shall be entitled to nominate during any 24-hour period. Shipper’s MDQ shall benegotiated between Shipper and OTPC and incorporated into Shipper’s Service Agreement withOTPC.
Page 3

 
P. **“Month”**shall mean a calendar month beginning at 9:00 a.m. Central clock time on the firstday of the calendar month and ending at 9:00 a.m. Central clock time the first day of thefollowing calendar month. Q. **“OTPC System”**shall mean the intrastate pipeline system owned by OTPC. R. **“Nomination”**shall mean the confirmed Quantity of Gas which Shipper shall arrange to havedelivered to the Receipt Point(s) for redelivery by OTPC to the Delivery Point(s). TheNomination shall include sufficient gas to account for OTPC’s Shrinkage. S. **“Operational Flow Order”**or **“OFO”**shall mean a declaration made by OTPC that conditions aresuch that OTPC can only safely transport an amount of Gas during a calendar day equal to theamount of Gas which Shipper will actually receive at the Receipt Point on that calendar day.OTPC shall only declare an Operational Flow Order if an upstream pipeline declares anoperational flow order or otherwise restricts the flow of Gas which normally would bedelivered to OTPC at the Receipt Point. T. **“Overrun”**shall mean any volume of Gas actually transported which, as measured on a dailybasis, exceeds the maximum daily quantity (MDQ) established by this Agreement. U. **“PUCO”**or **“Commission”**means the Public Utilities Commission of Ohio or any successorgovernmental authority. V. **“Quantity of Gas”**shall mean the number of units of gas expressed in Dth or MMBtu unlessotherwise specified. W. **“Receipt Point(s)”**shall mean those measurement locations where Shipper-owned gas entersOTPC’s system.
Page 4

 
X. **“Service Agreement”**Each Customer shall sign an individual Agreement with OTPC prior tocommencement of service that identifies the Receipt Point and Delivery Point(s),the MDQ,declares whether the transportation is-Firm or Interruptible and establishes the cost for thetransportation. The Service Agreements shall be filed with the Commission pursuant to Section4905.31, Revised Code for approval. Y. **“Shrinkage”**shall mean the quantity of Gas required by OTPC to replace the estimated quantityof Gas which is required for compressor fuel, and lost-or-unaccounted-for Gas whentransporting the tendered quantities~ This percentage is set forth in Exhibit B. Z. **“Written Notice”**shall mean a legible communication received by the intended recipient of thecommunication by United States mail, express courier, or confirmed facsimile. Written Noticemay also be provided by Email, but shall not be effective until such time as (a) the Email isacknowledged by the intended recipient; (b) or a copy of such Email is received by theintended recipient by US mail, express courier, or facsimile.I. DELIVERY AND TRANSPORTATION     1.1 Shipper shall arrange with suppliers of Shipper’s selection to have Gas in an amount notto exceed Shipper’s MDQ adjusted for OTPC’s Shrinkage as specified on Exhibit B, tendered to theReceipt Point(s) as specified on Exhibit B, for delivery into the OTPC Pipeline on Shipper’sbehalf. OTPC shall then redeliver, on an Interruptible basis, such quantities, less OTPC’sShrinkage, to Shipper, or on behalf of Shipper, at the Delivery Point(s) as specified on **Exhibit B**.All transportation by OTPC for Shipper shall be governed by OTPC’s then current transportationtariff on file with the PUCO, except as .expressly modified hereby.
Page 5

 
     1.2 ONG agrees that during the term of this Transportation Service Agreement it will use onlyOTPC’s pipelines to transport gas for any of its customers; provided, however, that this exclusiveuse of the OTPC pipelines shall remain in effect as long as OTPC has available capacity within itspipelines. Should available capacity not exist, then during that period only ONG may use otherpipelines to transport its gas requirements. This Transportation Service Agreement will only beutilized by BGC for back up purposes only and on an as needed basis.     1.3 For planning purposes, Shipper shall provide Written Notice, at least three (3) businessdays prior to the start of each calendar Month, to OTPC of the amount of Gas it intends totransport each day of the upcoming Month. Shipper shall submit its Nomination to OTPC by no laterthan 10:00 a.m. Central Clock Time for Gas flow the following day. This nomination shouldcorrespond to scheduled deliveries Shipper makes on the upstream interstate pipeline and downstreamlocal distribution company operating the applicable Delivery Point(s). Should the Shipper desire tomodify its Nomination either on the current Day or after the Nomination deadline for Gas flow thefollowing day, OTPC shall make every attempt to accommodate Shipper’s request provided OTPC canconfirm such quantities with the upstream pipeline at the Receipt Point(s) and downstream entity atthe Delivery Point(s).     1.4 Shipper shall be permitted to have delivered into and removed from OTPC’s Pipeline itsnominated Gas volume, adjusted for OTPC’s Shrinkage, up to the MDQ previously agreed to and foundon **Exhibit B**.     1.5 If any of the interstate pipelines interconnected with OTPC issues an operational floworder then OTPC may issue its own matching OFO on its Pipeline that will apply to Shippers. The OFOmay restrict Shippers to nominate into the OTPC Pipeline only that volume of Gas which Shipper willhave redelivered the same day adjusted for Shrinkage. OTPC will use its best efforts to limit suchOFO to just the time necessary to comply with applicable upstream interstate OFOs. OTPC will onlyassess OFO penalties on a pro-rata basis if OTPC is actually assessed penalties by an applicableupstream pipeline.
Page 6

 
     1.6 Imbalances caused by Shipper at the Delivery Point(s) shall be resolved by OTPC andShipper within thirty (30) days. Imbalances at the Receipt Point are governed by the terms andconditions of the upstream pipeline(s) delivering into OTPC. Any imbalance charges or penalties orcosts of any kind incurred by OTPC as a result of Shipper’s over or under delivery of natural gasinto OTPC’s system, either on a daily or monthly basis, will be reimbursed by Shipper within ten(10) days of receipt thereof. If Shipper fails to make any payments under this Agreement when due,OTPC has the right to terminate this Agreement upon two (2) days notice, unless such payment ismade by the date specified in the termination notice.     1.7 Shipper warrants that it has title to all Gas delivered to OTPC, free and clear of allclaims, liens, and other encumbrances, and further covenants and agrees to indemnify and holdharmless from all claims, demands, obligations, suits, actions, debts, accounts, damages, costs,losses, liens, judgments, orders, attorneys fees, expenses and liabilities of any kind or naturearising from or attributable to the adverse claims of any and al] other persons or parties relatingto such Gas tendered by Shipper at the Receipt Point.II. QUANTITY AND PRICE     2.1 Shipper shall pay OTPC a Commodity Rate plus Shrinkage, as stated on Exhibit B, for eachvolume of Gas delivered to the Delivery Point(s).III. TERM     3.1 The Agreement shall be effective as of 1st day of July, 2008 and shall continue in fullforce and effect, terminating 15 years thereafter and shall continue from year to year thereafter,unless cancelled by either party upon 30 days written notice.
Page 7

 
IV. MEASUREMENT AND QUALITY OF GAS **•**     4.1 Measurement of the Gas delivered and billed to Shipper shall be based upon an allocationconducted by the operator of the Delivery Point(s). Disputes regarding allocated throughput shallbe handled in accordance with the tariff of the Delivery Point(s) operator. Billings for allreceipts and deliveries hereunder shall be made on a thermal basis in Dth. OTPC shall provide toShipper at Shipper’s request, pertinent tariff information pertaining to method of allocatingdeliveries at Delivery Point(s).     4.2 All Gas delivered under this Agreement shall be commercially free from solid and liquidimpurities and shall satisfy all pipeline quality standards reasonably established from time totime by OTPC and upstream or downstream pipelines.V. BILLING AND PAYMENT     5.1 On or about the tenth (10th) day of each calendar month, OTPC will render to Shipper astatement setting forth the total volume of Gas delivered hereunder for Shipper during theimmediately preceding Month. In the event OTPC was not able to take actual meter readings at anymeter, or if OTPC has not received the necessary meter statements from the owner or operator of anyapplicable meter in time for preparation of the monthly statement, OTPC may use an estimated Gasdelivery volume based upon confirmed nominations. Any such estimated delivery volume shall becorrected in the first statement after the actual meter readings become available.     5.2 In the event of a meter failure a reconstructed bill using the best information availableshall be used.     5.3 Shipper agrees to pay OTPC the amount payable according to such statement on or before thetwenty-fifth (25th) day of the month or within ten (10) days of receipt of the invoice whichever islater.     5.4 Failure to tender payment within the above specified time limit shall result in a monthlyinterest charge of one and one half percent (1-1/2%) per month on the
Page 8

 
unpaid balance. In addition, should Shipper’s payment be delinquent by more than thirty (30)days, OTPC shall have the right, at its sole discretion, to terminatethis Agreement and to   .terminate Gas transportation in addition to its seeking other legal redress. OTPC will firstcontact Shipper about any payment issues and try to resolve those issues in a reasonable manner.     5.5 Any notice, request, demand, statement, or other correspondence shall be given by WrittenNotice to the Parties hereto, as set forth below:   **Shipper:** Orwell Natural Gas Companyor Brainard Gas Company, as applicable     8500 Station Street, Suite 100Mentor, Ohio 44060EMAIL: tsmith13@sprynet.comPHONE: (440) 974-3770FAX: (440) 974-0844ATTN: Thomas J. Smith   **OTPC:** **OTPC Gas Transmission Company, LLC**  8500 Station Street  Suite 100  Mentor, OH 44060EMAIL: srigo@orwellgas.comPHONE (440) 974-3770FAX: (440) 205-8680ATTN: Stephen G. RigoVI. FORCE MAJEURE     6.1 Except with regards to a party’s obligation to make payment due under Section 5 andImbalance Charges under Section 2, neither party shall be liable to the other for failure toperform a firm obligation; to the extent such failure was caused by Force Majeure, The term “ForceMajeure” as employed herein means any cause not reasonably within the control of the party claimingsuspension, as further defined in Section 6.2.
Page 9

 
     6.2 Force Majeure shall include but not be limited to the following (1) physical events suchas acts of God, landslides, lightning, earthquakes, fires, storms or storm warnings, such ashurricanes, which result in evacuation of the affected area, floods, washouts, explosions, breakageor accident to machinery or equipment or lines of pipe; (ii) weather related events affecting anentire geographic region, such as low temperatures which .cause freezing or failure of wells orlines of pipe; (iii); (iv) acts of others such as strikes, lockouts or other industrialdisturbances, riots, sabotage, terrorism, insurrections or wars; and (v) governmental actions suchas necessity for compliance with any court order, law statute, ordinance, or regulationspromulgated by a governmental authority having jurisdiction. The Parties shall make reasonableefforts to avoid the adverse impacts of a Force Majeure and to resolve the event of occurrence onceit has occurred in order to resume performance.     6.3 Neither party shall be entitled to the benefit of the provision of Force Majeure to theextent performance is affected by any or all of the following circumstances: (i) the curtailmentof interruptible or secondary firm transportation unless primary, in-path, firm transportation isalso curtailed; (ii) the party claiming Force Majeure failed to remedy the ‘condition and to resumethe performance of such covenants or obligations with reasonable dispatch; or (iii) economichardship. The claiming of Force Majeure shall not relieve either party from meeting all paymentobligations.     6.4 Notwithstanding anything to the contrary herein, the parties agree that the settlement ofstrikes, lockouts or other industrial disturbances shall be entirely within the sole discretion ofthe party experiencing such disturbances.     6.5 The party whose performance is prevented by Force Majeure must provide notice to the otherparty. Initial notice may be given orally; however, written notification with reasonably fullparticulars of the event or occurrence is required as soon as reasonably possible. Upon providingwritten notification of Force Majeure to the other party, the affected party will be relieved ofits obligation to make or accept delivery of Gas as applicable to the extent and for the durationof Force Majeure, and neither
Page 10

 
party shall be deemed to have failed in such obligation to the other during such occurrencesor event.VII. ADDITIONAL TERMS     7.1 Shipper shall join with OTPC in support of the application to the PUCO for approval ofthis Agreement pursuant to Section 4905.31, Revised Code.     7.2 In the event of an energy emergency declared by the Governor or any other lawful officialor body, it is understood that OTPC shall and will follow the dictates of any energy emergencyrule, or order. OTPC shall not be liable for any loss or damage suffered by Shipper as a resultthereof.     7.3 This Agreement shall be construed under the laws of the State of Ohio.     7.4 This Agreement, together with all schedules and exhibits hereto, constitutes the entireagreement between the Parties pertaining to the subject matter hereof and supersedes all prioragreements, understandings, negotiations and discussions, whether oral or written, of the Parties.No supplement, modification or waiver of this Agreement shall be binding unless executed in writingby the Party to be bound thereby. No waiver of any of the provisions of this Agreement shall bedeemed or shall constitute a waiver of any other provision hereof (regardless of whether similar),nor shall any such waiver constitute a continuing waiver unless otherwise expressly provided.     7.5 This Agreement shall be binding upon and. inure to the benefit of the Parties and theirrespective permitted successors and assigns. Neither this Agreement nor any of the rights, benefitsor obligations hereunder shall be assigned, by operation of law or otherwise, by any Party heretowithout the prior written consent of the other Party, which consent shall not be unreasonablywithheld. Except as expressly provided herein, nothing in this Agreement is intended to confer uponany person other than the
Page 11

 
Parties and their respective permitted successors and assigns, any rights, benefits orobligations hereunder.     7.6 The parties agree that any dispute arising hereunder or related to this Agreement shall beresolved by binding arbitration under the auspices of the American Arbitration Association.Preheating discovery shall be permitted in accordance with the procedures of the Ohio Rules ofCivil Procedure. The arbitrator or arbitrators shall have authority to impose any remedy at law orin equity, including injunctive relief. The parties agree that any heating will be conducted inLake County, Ohio.     7.7 Recovery by either Party of damages, if any, for breach of any provision hereof shall belimited to direct, actual damages. Both Parties waive the right, if any, to recover consequential,indirect, punitive and exemplary damages.     7.8 Both parties shall have the right to demand credit assurances from the other party. If thefinancial responsibility of any Party is at any time unsatisfactory to the other Party for anyreason, then the defaulting Party will provide the requesting Party with satisfactory security forthe defaulting Party’s performance hereunder upon requesting Party’s demand. Defaulting Party’sfailure to abide by the provisions of this Section shall be considered a breach hereof, and therequesting Party may terminate this Agreement, provided the defaulting Party is afforded anopportunity to cure any default within three (3) business days notice of any breach. Both Partieshave the right, in addition to all other rights and remedies, to set-off any such unpaid balancedue the other Party, or by the parent or any subsidiary of the other Party, under any separateagreement or transaction.     7.9 No presumption shall operate in favor of or against either party regarding theconstruction or interpretation of this Agreement as a result of either party’s responsibility fordrafting this Agreement.
Page 12

 
IN WITNESS WHEREOF, the Parties hereto have caused this instrument to be executed as of the dateset forth above.           Orwell-Trumbull Pipeline Co., LLC  Brainard Gas Corp.             By: /s/ Steven G. Rigo Stephen G. Rigo,   By: /s/ Thomas J. Smith Thomas J. Smith, President    Executive Vice President                   Date: July 1, 2008   Date: July 1, 2008                   Orwell Natural Gas Company                   By: /s/ Thomas J. Smith         Thomas J. Smith, President                   Date: July 1, 2008  
Page 13

 
**Exhibit A****OTPC Gas Transmission, LLC**     ALL PIPELINES OWNED BY OTPC LOCATED IN NORTHEASTERN OHIO.
Page 14

 
**Exhibit B****OTPC Gas Transmission, LLC**Primary Receipt PointInterconnection between QTPC and North Coast Gas Transmission, LLC’s Pipeline in Mantua,Ohio**Primary Delivery Point(s)**For BGC: Various interconnections between OTPC and BGC. as required for back-up servicesonly.For ONG: Various interconnections between OTPC and ONG.**Shrinkage**TBD2000 Dth/day***RATES**Commodity Charge (paid only on quantity transported)November-March $0.95 per Thousand Cubic Feet (Mcf)April-October $0.95 per Thousand Cubic Feet (Mcf) *   Rates will adjust every five (5) years commencing on July 1, 2013 and continuing on each fifth(5th) anniversary date for the remaining term of this Agreement to reflect the higher of$0.95 per Thousand Cubic Feet (Mcf) or a negotiated rate to reflect the then current marketconditions existing on each such rate adjustment date. If the parties cannot agree on a rateadjustment amount, OTPC shall have the option to increase the Rate by the increase in the consumerprice index all items (Cleveland, Ohio) (“CPI”) as calculated from July 1, 2008 to each applicablerate adjustment date.
Page 15