Exhibit
10.5


 










* Certain confidential
information contained in this document, marked by brackets, has been omitted
and filed with the Securities and Exchange Commission pursuant to Rule 24b-2 of
the Securities Exchange Act of 1934, as amended.


 




	
  TRANSACTION
  CONFIRMATION

  	
  EXHIBIT A

  	
   

  
	
   

  	
  FOR IMMEDIATE
  DELIVERY

  	
   

  






 


	
  

  	
   

  	
   

  Date:  May 18, 2004

  

  Transaction Confirmation #: _______________

  



 


This Transaction Confirmation is subject to the Base Contract between
Seller and Buyer dated  ______________________.  The terms of this Transaction Confirmation
are binding unless disputed in writing within 2 Business Days of receipt unless
otherwise specified in the Base Contract.


 


	
  SELLER:

  Enserco Energy Inc.
  (Enserco)

  350 Indiana Street,
  Suite 400

  Golden, Colorado 80401

  Attn: Cathy Sapp

  Phone: 303-568-3244

  Fax: 303-568-3250

  Base Contract No.    10041

  Transporter:
  _____________________________________

  Transporter Contract
  Number: _______________________

  	
  BUYER:

  Cascade Natural Gas
  Corp (CNG)

  222 Fairview Ave

  North Seattle,
  Washington 98109

  Attn: Pattie Grable

  Phone: 206-381-6829

  Fax: 206-654-4039

  Base Contract No.
  ________________________________

  Transporter:
  _____________________________________

  Transporter Contract
  Number: _______________________

   

  
	
  Commodity
  Price:  [*]

   

  Transport
  Capacity Release: 
  Buyer shall for the term, release to Seller the full path of capacity
  on Nova, ANG and PGT to accommodate ultimate delivery of 17,500 MMBtu/d of
  supply gas from Aeco C, NIT to Buyer at Delivery Point(s).  [*]

   

  Transport
  Sales Price:  [*]

   

  
	
  Delivery
  Period:  Begin:  November 1,
  2004                                           End:  October 31, 2009

  
	
   

  Firm (Fixed Quantity):  Seller will cause 17,500 MMBtu/d of Aeco C, NIT supply to be delivered
  to Buyer, net of fuel losses, via firm interstate pipeline capacity on Nova,
  ANG and PGT pipelines.  Not
  withstanding any failure to deliver due to curtailment or interruption of
  said firm transport.

  
	
   

  Supply Point: 
  Seller shall supply 17,500 MMBTu/d to buyer at Aeco C NIT.

  Delivery Point(s):
  Mutually agreeable delivery points on Buyer’s system off of PGT and/or off of
  PGT onto Buyer’s transport on NWPL.

  
	
   

  Special Conditions: 
  Subject to parties working out mutually agreeable transport release
  arrangements.

   

   

  
	
  Seller:   Enserco Energy Inc.

  	
  Buyer:   Cascade Natural Gas Corporation

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Kurt Kittleson

  	
   

  	
  By:

  	
  /s/ Jon
  T. Stoltz

  	
   

  
	
   

  	
  Kurt Kittleson

  	
   

  	
   

  
	
  Title:

  	
  Senior Vice President

  	
   

  	
  Title:  Senior VP Regulatory
  & Gas Supply

  
	
   

  	
   

  
	
  Date:

  	
  6/2/2004

  	
   

  	
  Date:

  	
  June
  16, 2004

  	
   

  
										



 




	
  Copyright © 2002 North American Energy
  Standards Board, Inc.

  	
  NAESB Standard 6.3.1

  
	
  All Rights Reserved

  	
  April 19, 2002

  






 





















 


Base
Contract for Sale and Purchase of Natural Gas


 


This Base Contract is entered into as of the following
date: September 12, 2002.  The parties to
this Base Contract are the following:


 




	
  Cascade Natural Gas Corporation

  	
  and

  	
  Enserco Energy Inc

  
	
  222 Fairview Avenue
  North Seattle, WA 98109

  	
   

  	
  350 Indiana Street,
  Suite 400 Golden, CO. 80401

  
	
  Duns Number:

  	
   7942584

  	
   

  	
  Duns Number:

  	
    95-7194541

  
	
  Contract Number:

  	
   

  	
   

  	
  Contract Number:

  	
   

  
	
  U.S. Federal Tax ID
  Number:

  	
  91-0599090

  	
   

  	
  U.S. Federal Tax ID
  Number:

  	
  84-1354639

  
	
   

  	
   

  	
   

  
	
  Notices:

  	
   

  	
   

  
	
  222 Fairview Avenue
  North Seattle, WA 98109

  	
   

  	
  350 Indiana Street,
  Suite 400 Golden, CO. 80401

  
	
  Attn:

  	
   Pattie Grable

  	
   

  	
  Attn:

  	
   Contract
  Administration

  
	
  Phone:

  	
  206.381.6829

  	
   

  	
  Fax:

  	
  206.654.4039

  	
   

  	
  Phone:

  	
  303.568.3242

  	
   

  	
  Fax:

  	
  303.568.3250

  
	
   

  	
   

  	
   

  
	
  Confirmations:

  	
   

  	
   

  
	
  222 Fairview Avenue
  North Seattle, WA 98109

  	
   

  	
  350 Indiana Street,
  Suite 400 Golden, CO. 80401

  
	
  Attn:

  	
   Confirmations

  	
   

  	
  Attn:

  	
   Confirmations

  
	
  Phone:

  	
  206.381.6788

  	
   

  	
  Fax:

  	
  206.654.4039

  	
   

  	
  Phone:

  	
  303.568.3227

  	
   

  	
  Fax:

  	
  303.568.3250

  
	
   

  	
   

  	
   

  
	
  Invoices and Payments:

  	
   

  	
   

  
	
  222 Fairview Avenue
  North Seattle, WA 98109

  	
   

  	
  350 Indiana Street,
  Suite 400 Golden, CO. 80401

  
	
  Attn:

  	
  Gas Accounting

  	
   

  	
  Attn:

  	
   Gas Accounting

  
	
   

  	
   

  	
  350 Indiana Street,
  Suite 400 Golden, CO. 80401

  
	
  Phone:

  	
  206.381.6788

  	
   

  	
  Fax:

  	
  206.654.4039

  	
   

  	
  Phone:

  	
  303.568.3228

  	
   

  	
  Fax:

  	
  303.568.3250

  
	
   

  	
   

  	
   

  
	
  Wire Transfer or ACH Numbers
  (if applicable):

  	
   

  	
   

  
	
  BANK:

  	
   U S Bank

  	
   

  	
  BANK:

  	
  U S Bank, Denver, CO.

  
	
  ABA:

  	
     091000022

  	
   

  	
  ABA:

  	
  102000021

  
	
  ACCT:

  	
   153503208586

  	
   

  	
  ACCT:

  	
   103-657-535-433

  
	
  Other Details:

  	
   

  	
   

  	
  Other Details:

  	
   

  
																												






 


This Base Contract
incorporates by reference for all purposes the General Terms and Conditions for
Sale and Purchase of Natural Gas published by the North American Energy
Standards Board.  The parties hereby
agree to the following provisions offered in said General Terms and
Conditions.  In the event the parties
fail to check a box, the specified default provision shall apply.  Select only one box from each section:


 


	
  Section 1.2

  Transaction Procedure

  	
   

  	
  ý    Oral (default)

  o     Written

  	
   

  	
  Section 7.2

  Payment Date

  	
   

  	
  ý     25th Day of
  Month following Month of delivery (default)

  o     _____ Day of Month following Month of
  delivery

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 2.5

  Confirm Deadline

  	
   

  	
  ý    2 Business Days after receipt
  (default)

  o     _____ Business Days after receipt

  	
   

  	
  Section 7.2

  Method of Payment

  	
   

  	
  ý     Wire transfer (default)

  o     Automated Clearinghouse Credit (ACH)

  o     Check

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 2.6

  Confirming Party

  	
   

  	
  ý    Seller (default)

  ý    Buyer

  o     ____________________________

  	
   

  	
  Section 7.7

  Netting

  	
   

  	
  ý     Netting applies (default)

  o     Netting does not apply

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 3.2

  Performance Obligation

  	
   

  	
  ý    Cover Standard (default)

  o     Spot Price Standard

  	
   

  	
  Section 10.3.1

  Early Termination Damages

  	
   

  	
  ý     Early Termination Damages Apply (default)

  o     Early Termination Damages Do Not Apply

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Note:
  The following Spot Price Publication applies to both

  of the immediately preceding.

  	
  Section
  10.3.2

  Other Agreement Setoffs

  	
   

  	
  ý     Other Agreement Setoffs Apply (default)

  o     Other Agreement Setoffs Do Not Apply

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.26

  Spot Price

  Publication

  	
   

  	
  ý     Gas Daily Midpoint (default)

  o     ___________________________

  	
   

  	
  Section 14.5

  Choice Of Law

  	
   

  	
  
         Colorado

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 6

  Taxes

  	
   

  	
  ý     Buyer Pays At and After Delivery Point (default)

  o     Seller Pays Before and At Delivery Point

  	
   

  	
  Section 14.10

  Confidentiality

  	
   

  	
  ý     Confidentiality applies (default)

  o     Confidentiality does not apply

  
	
   

  
	
  oSpecial Provisions Number of sheets
  attached:    
  None

  oAddendum(s):     None                                                                                                                                                     

  



 


IN WITNESS WHEREOF, the parties hereto have
executed this Base Contract in duplicate.


 


	
  Cascade Natural Gas Corporation

  	
   

  	
  Enserco Energy Inc

  
	
  Party Name

  	
   

  	
  Party Name

  
	
   

  	
   

  	
   

  
	
  By

  	
   /s/
  Pattie Grable

  	
   

  	
  By

  	
  /s/
  Kurt Kittleson

  	
   

  
	
  Name:

  	
  Pattie Grable

  	
   

  	
  Name:

  	
  Kurt Kittleson

  	
   

  
	
  Title:

  	
   

  	
  Senior Director of Gas Supply

  	
   

  	
  Title:

  	
  Senior Vice President

  	
   

  
										



 





















 


General
Terms and Conditions


Base
Contract for Sale and Purchase of Natural Gas


 


SECTION 1.           PURPOSE
AND PROCEDURES


 


1.1.          These General Terms and Conditions are
intended to facilitate purchase and sale transactions of Gas on a Firm or
Interruptible basis.  “Buyer” refers to
the party receiving Gas and “Seller” refers to the party delivering Gas.  The entire agreement between the parties
shall be the Contract as defined in Section 2.7.


 


The parties have selected either the “Oral
Transaction Procedure” or the “Written Transaction Procedure” as indicated on
the Base Contract.


 


Oral Transaction Procedure:


 


1.2.          The
parties will use the following Transaction Confirmation procedure.  Any Gas purchase and sale transaction may be
effectuated in an EDI transmission or telephone conversation with the offer and
acceptance constituting the agreement of the parties.  The parties shall be legally bound from the
time they so agree to transaction terms and may each rely thereon.  Any such transaction shall be considered a
“writing” and to have been “signed”. 
Notwithstanding the foregoing sentence, the parties agree that
Confirming Party shall, and the other party may, confirm a telephonic
transaction by sending the other party a Transaction Confirmation by facsimile,
EDI or mutually agreeable electronic means within three Business Days of a
transaction covered by this Section 1.2 (Oral Transaction Procedure) provided
that the failure to send a Transaction Confirmation shall not invalidate the
oral agreement of the parties. 
Confirming Party adopts its confirming letterhead, or the like, as its
signature on any Transaction Confirmation as the identification and
authentication of Confirming Party.  If
the Transaction Confirmation contains any provisions other than those relating
to the commercial terms of the transaction (i.e., price, quantity, performance
obligation, delivery point, period of delivery and/or transportation
conditions), which modify or supplement the Base Contract or General Terms and
Conditions of this Contract (e.g., arbitration or additional representations
and warranties), such provisions shall not be deemed to be accepted pursuant to
Section 1.3 but must be expressly agreed to by both parties; provided that the
foregoing shall not invalidate any transaction agreed to by the parties.


 


Written Transaction Procedure:


 


1.2.          The
parties will use the following Transaction Confirmation procedure.  Should the parties come to an agreement
regarding a Gas purchase and sale transaction for a particular Delivery Period,
the Confirming Party shall, and the other party may, record that agreement on a
Transaction Confirmation and communicate such Transaction Confirmation by
facsimile, EDI or mutually agreeable electronic means, to the other party by
the close of the Business Day following the date of agreement.  The parties acknowledge that their agreement
will not be binding until the exchange of nonconflicting Transaction
Confirmations or the passage of the Confirm Deadline without objection from the
receiving party, as provided in Section 1.3.


 


1.3.          If a sending party’s Transaction Confirmation
is materially different from the receiving party’s understanding of the
agreement referred to in Section 1.2, such receiving party shall notify the
sending party via facsimile, EDI or mutually agreeable electronic means by the
Confirm Deadline, unless such receiving party has previously sent a Transaction
Confirmation to the sending party.  The
failure of the receiving party to so notify the sending party in writing by the
Confirm Deadline constitutes the receiving party’s agreement to the terms of the
transaction described in the sending party’s Transaction Confirmation.  If there are any material differences between
timely sent Transaction Confirmations governing the same transaction, then
neither Transaction Confirmation shall be binding until or unless such
differences are resolved including the use of any evidence that clearly
resolves the differences in the Transaction Confirmations.  In the event of a conflict among the terms of
(i) a binding Transaction
Confirmation pursuant to Section 1.2, (ii)
the oral agreement of the parties which may be evidenced by a recorded
conversation, where the parties have selected the Oral Transaction Procedure of
the Base Contract, (iii) the Base Contract, and (iv) these General Terms and Conditions, the terms of the
documents shall govern in the priority listed in this sentence.


 


1.4.          The parties agree that each party may
electronically record all telephone conversations with respect to this Contract
between their respective employees, without any special or further notice to
the other party.  Each party shall obtain
any necessary consent of its agents and employees to such recording.  Where the parties have selected the Oral
Transaction Procedure in Section 1.2 of the Base Contract, the parties agree
not to contest the validity or enforceability of telephonic recordings entered
into in accordance with the requirements of this Base Contract.  However, nothing herein shall be construed as
a waiver of any objection to the admissibility of such evidence.


 


SECTION 2.           DEFINITIONS


 


The
terms set forth below shall have the meaning ascribed to them below.  Other terms are also defined elsewhere in the
Contract and shall have the meanings ascribed to them herein.


 


2.1.          “Alternative Damages” shall mean such
damages, expressed in dollars or dollars per MMBtu, as the parties shall agree
upon in the Transaction Confirmation, in the event either Seller or Buyer fails
to perform a Firm obligation to deliver Gas in the case of Seller or to receive
Gas in the case of Buyer.


 


2.2.          “Base Contract” shall mean a contract
executed by the parties that incorporates these General Terms and Conditions by
reference; that specifies the agreed selections of provisions contained herein;
and that sets forth other information required herein and any Special
Provisions and addendum(s) as identified on page one.


 


2.3.          “British thermal unit” or “Btu” shall
mean the International BTU, which is also called the Btu (IT).


 


3





















 


2.4.          “Business Day” shall mean any day
except Saturday, Sunday or Federal Reserve Bank holidays.


 


2.5.          “Confirm Deadline” shall mean 5:00
p.m. in the receiving party’s time zone on the second Business Day following
the Day a Transaction Confirmation is received or, if applicable, on the Business
Day agreed to by the parties in the Base Contract; provided, if the Transaction
Confirmation is time stamped after 5:00 p.m. in the receiving party’s time
zone, it shall be deemed received at the opening of the next Business Day.


 


2.6.          “Confirming Party” shall mean the
party designated in the Base Contract to prepare and forward Transaction
Confirmations to the other party.


 


2.7.          “Contract” shall mean the
legally-binding relationship established by (i) the Base Contract, (ii)
any and all binding Transaction Confirmations and (iii) where the parties have
selected the Oral Transaction Procedure in Section 1.2 of the Base Contract,
any and all transactions that the parties have entered into through an EDI
transmission or by telephone, but that have not been confirmed in a binding
Transaction Confirmation.


 


2.8.          “Contract Price” shall mean the amount
expressed in U.S. Dollars per MMBtu to be paid by Buyer to Seller for the
purchase of Gas as agreed to by the parties in a transaction.


 


2.9.          “Contract Quantity” shall mean the
quantity of Gas to be delivered and taken as agreed to by the parties in a
transaction.


 


2.10.        “Cover Standard”, as referred to in
Section 3.2, shall mean that if there is an unexcused failure to take or
deliver any quantity of Gas pursuant to this Contract, then the performing
party shall use commercially reasonable efforts to (i) if Buyer is the
performing party, obtain Gas, (or an alternate fuel if elected by Buyer and
replacement Gas is not available), or (ii) if Seller is the performing party,
sell Gas, in either case, at a price reasonable for the delivery or production
area, as applicable, consistent with: 
the amount of notice provided by the nonperforming party; the immediacy
of the Buyer’s Gas consumption needs or Seller’s Gas sales requirements, as
applicable; the quantities involved; and the anticipated length of failure by
the nonperforming party.


 


2.11.        “Credit Support Obligation(s)” shall
mean any obligation(s) to provide or establish credit support for, or on behalf
of, a party to this Contract such as an irrevocable standby letter of credit, a
margin agreement, a prepayment, a security interest in an asset, a performance
bond, guaranty, or other good and sufficient security of a continuing nature.


 


2.12.        “Day” shall mean a period of 24
consecutive hours, coextensive with a “day” as defined by the Receiving
Transporter in a particular transaction.


 


2.13.        “Delivery Period” shall be the period
during which deliveries are to be made as agreed to by the parties in a
transaction.


 


2.14.        “Delivery Point(s)” shall mean such
point(s) as are agreed to by the parties in a transaction.


 


2.15.        “EDI” shall mean an electronic data
interchange pursuant to an agreement entered into by the parties, specifically
relating to the communication of Transaction Confirmations under this Contract.


 


2.16.        “EFP” shall mean the purchase, sale or
exchange of natural Gas as the “physical” side of an exchange for physical
transaction involving gas futures contracts. 
EFP shall incorporate the meaning and remedies of “Firm”, provided that
a party’s excuse for nonperformance of its obligations to deliver or receive
Gas will be governed by the rules of the relevant futures exchange regulated
under the Commodity Exchange Act.


 


2.17.        “Firm” shall mean that either party may
interrupt its performance without liability only to the extent that such
performance is prevented for reasons of Force Majeure; provided, however, that
during Force Majeure interruptions, the party invoking Force Majeure may be
responsible for any Imbalance Charges as set forth in Section 4.3 related to
its interruption after the nomination is made to the Transporter and until the
change in deliveries and/or receipts is confirmed by the Transporter.


 


2.18.        “Gas” shall mean any mixture of hydrocarbons
and noncombustible gases in a gaseous state consisting primarily of methane.


 


2.19.        “Imbalance Charges” shall mean any fees,
penalties, costs or charges (in cash or in kind) assessed by a Transporter for
failure to satisfy the Transporter’s balance and/or nomination requirements.


 


2.20.        “Interruptible” shall mean that either
party may interrupt its performance at any time for any reason, whether or not
caused by an event of Force Majeure, with no liability, except such
interrupting party may be responsible for any Imbalance Charges as set forth in
Section 4.3 related to its interruption after the nomination is made to the
Transporter and until the change in deliveries and/or receipts is confirmed by
Transporter.


 


2.21.        “MMBtu” shall mean one million British
thermal units, which is equivalent to one dekatherm.


 


2.22.        “Month” shall mean the period beginning
on the first Day of the calendar month and ending immediately prior to the
commencement of the first Day of the next calendar month.


 


2.23.        “Payment Date” shall mean a date, as
indicated on the Base Contract, on or before which payment is due Seller for
Gas received by Buyer in the previous Month.


 


2.24.        “Receiving Transporter” shall mean the
Transporter receiving Gas at a Delivery Point, or absent such receiving
Transporter, the Transporter delivering Gas at a Delivery Point.


 


2.25.        “Scheduled Gas” shall mean the quantity
of Gas confirmed by Transporter(s) for movement, transportation or management.


 


2.26.        “Spot Price “ as referred to in Section
3.2 shall mean the price listed in the publication indicated on the Base
Contract, under the listing applicable to the geographic location closest in
proximity to the Delivery Point(s) for the relevant Day; provided, if there is
no single price published for such location for such Day, but there is
published a range of prices, then the Spot Price shall be the average


 


4





















 


of such high and low
prices.  If no price or range of prices
is published for such Day, then the Spot Price shall be the average of the
following: (i) the price (determined as stated above) for the first Day
for which a price or range of prices is published that next precedes the
relevant Day; and (ii) the price (determined as stated above) for the first
Day for which a price or range of prices is published that next follows the
relevant Day.


 


2.27.        “Transaction Confirmation” shall mean a
document, similar to the form of Exhibit A, setting forth the terms of a
transaction formed pursuant to Section 1 for a particular Delivery Period.


 


2.28.        “Termination Option” shall mean the
option of either party to terminate a transaction in the event that the other
party fails to perform a Firm obligation to deliver Gas in the case of Seller
or to receive Gas in the case of Buyer for a designated number of days during a
period as specified on the applicable Transaction Confirmation.


 


2.29.        “Transporter(s)” shall mean all Gas
gathering or pipeline companies, or local distribution companies, acting in the
capacity of a transporter, transporting Gas for Seller or Buyer upstream or
downstream, respectively, of the Delivery Point pursuant to a particular
transaction.


 


SECTION 3.           PERFORMANCE
OBLIGATION


 


3.1.          Seller agrees to sell and deliver, and
Buyer agrees to receive and purchase, the Contract Quantity for a particular
transaction in accordance with the terms of the Contract.  Sales and purchases will be on a Firm or
Interruptible basis, as agreed to by the parties in a transaction.


 


The parties have selected either the “Cover
Standard” or the “Spot Price Standard” as indicated on the Base Contract.


 


Cover Standard:


 


3.2.          The sole and exclusive remedy of the
parties in the event of a breach of a Firm obligation to deliver or receive Gas
shall be recovery of the following: (i) in the event of a breach by Seller on
any Day(s), payment by Seller to Buyer in an amount equal to the positive
difference, if any, between the purchase price paid by Buyer utilizing the
Cover Standard and the Contract Price, adjusted for commercially reasonable
differences in transportation costs to or from the Delivery Point(s),
multiplied by the difference between the Contract Quantity and the quantity
actually delivered by Seller for such Day(s); or (ii) in the event of a breach
by Buyer on any Day(s), payment by Buyer to Seller in the amount equal to the
positive difference, if any, between the Contract Price and the price received
by Seller utilizing the Cover Standard for the resale of such Gas, adjusted for
commercially reasonable differences in transportation costs to or from the
Delivery Point(s), multiplied by the difference between the Contract Quantity
and the quantity actually taken by Buyer for such Day(s); or (iii) in the event
that Buyer has used commercially reasonable efforts to replace the Gas or
Seller has used commercially reasonable efforts to sell the Gas to a third
party, and no such replacement or sale is available, then the sole and
exclusive remedy of the performing party shall be any unfavorable difference
between the Contract Price and the Spot Price, adjusted for such transportation
to the applicable Delivery Point, multiplied by the difference between the
Contract Quantity and the quantity actually delivered by Seller and received by
Buyer for such Day(s).  Imbalance Charges
shall not be recovered under this Section 3.2, but Seller and/or Buyer shall be
responsible for Imbalance Charges, if any, as provided in Section 4.3.  The amount of such unfavorable difference
shall be payable five Business Days after presentation of the performing
party’s invoice, which shall set forth the basis upon which such amount was
calculated.


 


Spot Price Standard:


 


3.2.          The
sole and exclusive remedy of the parties in the event of a breach of a Firm
obligation to deliver or receive Gas shall be recovery of the following: (i) in
the event of a breach by Seller on any Day(s), payment by Seller to Buyer in an
amount equal to the difference between the Contract Quantity and the actual
quantity delivered by Seller and received by Buyer for such Day(s), multiplied
by the positive difference, if any, obtained by subtracting the Contract Price
from the Spot Price; or (ii) in the event of a breach by Buyer on any Day(s),
payment by Buyer to Seller in an amount equal to the difference between the
Contract Quantity and the actual quantity delivered by Seller and received by
Buyer for such Day(s), multiplied by the positive difference, if any, obtained
by subtracting the applicable Spot Price from the Contract Price.  Imbalance Charges shall not be recovered
under this Section 3.2, but Seller and/or Buyer shall be responsible for
Imbalance Charges, if any, as provided in Section 4.3.  The amount of such unfavorable difference
shall be payable five Business Days after presentation of the performing
party’s invoice, which shall set forth the basis upon which such amount was
calculated.


 


3.3.          Notwithstanding Section 3.2, the
parties may agree to Alternative Damages in a Transaction Confirmation executed
in writing by both parties.


 


3.4.          In addition to Sections 3.2 and 3.3,
the parties may provide for a Termination Option in a Transaction Confirmation
executed in writing by both parties.  The
Transaction Confirmation containing the Termination Option will designate the
length of nonperformance triggering the Termination Option and the procedures
for exercise thereof, how damages for nonperformance will be compensated, and
how liquidation costs will be calculated.


 


SECTION 4.           TRANSPORTATION,
NOMINATIONS, AND IMBALANCES


 


4.1.          Seller shall have the sole
responsibility for transporting the Gas to the Delivery Point(s).  Buyer shall have the sole responsibility for
transporting the Gas from the Delivery Point(s).


 


4.2.          The parties shall coordinate their
nomination activities, giving sufficient time to meet the deadlines of the affected
Transporter(s).  Each party shall give
the other party timely prior Notice, sufficient to meet the requirements of all
Transporter(s) involved in the transaction, of the quantities of Gas to be
delivered and purchased each Day.  Should
either party become aware that actual deliveries at the Delivery Point(s) are
greater or lesser than the Scheduled Gas, such party shall promptly notify the
other party.


 


5





















 


4.3.          The parties shall use commercially
reasonable efforts to avoid imposition of any Imbalance Charges.  If Buyer or Seller receives an invoice from a
Transporter that includes Imbalance Charges, the parties shall determine the
validity as well as the cause of such Imbalance Charges.  If the Imbalance Charges were incurred as a
result of Buyer’s receipt of quantities of Gas greater than or less than the
Scheduled Gas, then Buyer shall pay for such Imbalance Charges or reimburse
Seller for such Imbalance Charges paid by Seller.  If the Imbalance Charges were incurred as a
result of Seller’s delivery of quantities of Gas greater than or less than the
Scheduled Gas, then Seller shall pay for such Imbalance Charges or reimburse
Buyer for such Imbalance Charges paid by Buyer.


 


SECTION 5.           QUALITY
AND MEASUREMENT


 


All Gas delivered by Seller shall meet the pressure,
quality and heat content requirements of the Receiving Transporter.  The unit of quantity measurement for purposes
of this Contract shall be one MMBtu dry. 
Measurement of Gas quantities hereunder shall be in accordance with the
established procedures of the Receiving Transporter.


 


SECTION 6.           TAXES


 


The parties have selected either
“Buyer Pays At and After Delivery Point” or “Seller Pays Before and At Delivery
Point” as indicated on the Base Contract.


 


Buyer Pays At and After Delivery
Point:


 


Seller shall pay or cause to be paid all taxes, fees,
levies, penalties, licenses or charges imposed by any government authority
(“Taxes”) on or with respect to the Gas prior to the Delivery Point(s).  Buyer shall pay or cause to be paid all Taxes
on or with respect to the Gas at the Delivery Point(s) and all Taxes after the
Delivery Point(s).  If a party is
required to remit or pay Taxes that are the other party’s responsibility
hereunder, the party responsible for such Taxes shall promptly reimburse the
other party for such Taxes.  Any party
entitled to an exemption from any such Taxes or charges shall furnish the other
party any necessary documentation thereof.


 


Seller Pays Before and At
Delivery Point:


 


Seller shall pay or cause to be paid all taxes, fees,
levies, penalties, licenses or charges imposed by any government authority
(“Taxes”) on or with respect to the Gas prior to the Delivery Point(s) and all
Taxes at the Delivery Point(s).  Buyer
shall pay or cause to be paid all Taxes on or with respect to the Gas after the
Delivery Point(s).  If a party is
required to remit or pay Taxes that are the other party’s responsibility
hereunder, the party responsible for such Taxes shall promptly reimburse the
other party for such Taxes.  Any party
entitled to an exemption from any such Taxes or charges shall furnish the other
party any necessary documentation thereof.


 


SECTION 7.           BILLING,
PAYMENT, AND AUDIT


 


7.1.          Seller shall invoice Buyer for Gas
delivered and received in the preceding Month and for any other applicable
charges, providing supporting documentation acceptable in industry practice to
support the amount charged.  If the
actual quantity delivered is not known by the billing date, billing will be
prepared based on the quantity of Scheduled Gas.  The invoiced quantity will then be adjusted
to the actual quantity on the following Month’s billing or as soon thereafter
as actual delivery information is available.


 


7.2.          Buyer shall remit the amount due under
Section 7.1 in the manner specified in the Base Contract, in immediately
available funds, on or before the later of the Payment Date or 10 Days after
receipt of the invoice by Buyer; provided that if the Payment Date is not a
Business Day, payment is due on the next Business Day following that date.  In the event any payments are due Buyer
hereunder, payment to Buyer shall be made in accordance with this Section 7.2.


 


7.3.          In the event payments become due
pursuant to Sections 3.2 or 3.3, the performing party may submit an invoice to
the nonperforming party for an accelerated payment setting forth the basis upon
which the invoiced amount was calculated. 
Payment from the nonperforming party will be due five Business Days after
receipt of invoice.


 


7.4.          If the invoiced party, in good faith,
disputes the amount of any such invoice or any part thereof, such invoiced
party will pay such amount as it concedes to be correct; provided, however, if
the invoiced party disputes the amount due, it must provide supporting documentation
acceptable in industry practice to support the amount paid or disputed.  In the event the parties are unable to
resolve such dispute, either party may pursue any remedy available at law or in
equity to enforce its rights pursuant to this Section.


 


7.5.          If the invoiced party fails to remit
the full amount payable when due, interest on the unpaid portion shall accrue
from the date due until the date of payment at a rate equal to the lower of (i) the then-effective prime rate of
interest published under “Money Rates” by The Wall Street Journal, plus two
percent per annum; or (ii) the maximum
applicable lawful interest rate.


 


7.6.          A party shall have the right, at its
own expense, upon reasonable Notice and at reasonable times, to examine and
audit and to obtain copies of the relevant portion of the books, records, and
telephone recordings of the other party only to the extent reasonably necessary
to verify the accuracy of any statement, charge, payment, or computation made
under the Contract.  This right to
examine, audit, and to obtain copies shall not be available with respect to
proprietary information not directly relevant to transactions under this
Contract.  All invoices and billings
shall be conclusively presumed final and accurate and all associated claims for
under- or overpayments shall be deemed waived unless such invoices or billings
are objected to in writing, with adequate explanation and/or documentation,
within two years after the Month of Gas delivery.  All retroactive adjustments under Section 7
shall be paid in full by the party owing payment within 30 Days of Notice and
substantiation of such inaccuracy.


 


7.7.          Unless the parties have elected on the
Base Contract not to make this Section 7.7 applicable to this Contract, the
parties shall net all undisputed amounts due and owing, and/or past due,
arising under the Contract such that the party owing the greater amount shall
make a single payment of the net amount to the other party in accordance with
Section 7; provided that no payment required to be made pursuant to the terms
of any Credit Support Obligation or pursuant to Section 7.3 shall be subject to
netting under this Section.  If the
parties have executed a separate netting agreement, the terms and conditions
therein shall prevail to the extent inconsistent herewith.


 


6





















 


SECTION 8.           TITLE,
WARRANTY, AND INDEMNITY


 


8.1.          Unless otherwise specifically agreed,
title to the Gas shall pass from Seller to Buyer at the Delivery Point(s).  Seller shall have responsibility for and
assume any liability with respect to the Gas prior to its delivery to Buyer at
the specified Delivery Point(s).  Buyer
shall have responsibility for and any liability with respect to said Gas after
its delivery to Buyer at the Delivery Point(s).


 


8.2.          Seller warrants that it will have the
right to convey and will transfer good and merchantable title to all Gas sold
hereunder and delivered by it to Buyer, free and clear of all liens,
encumbrances, and claims.  EXCEPT AS PROVIDED
IN THIS SECTION 8.2 AND IN SECTION 14.8, ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR ANY
PARTICULAR PURPOSE, ARE DISCLAIMED.


 


8.3.          Seller agrees to indemnify Buyer and
save it harmless from all losses, liabilities or claims including reasonable
attorneys’ fees and costs of court (“Claims”), from any and all persons,
arising from or out of claims of title, personal injury or property damage from
said Gas or other charges thereon which attach before title passes to
Buyer.  Buyer agrees to indemnify Seller
and save it harmless from all Claims, from any and all persons, arising from or
out of claims regarding payment, personal injury or property damage from said
Gas or other charges thereon which attach after title passes to Buyer.


 


8.4.          Notwithstanding the other provisions
of this Section 8, as between Seller and Buyer, Seller will be liable for all
Claims to the extent that such arise from the failure of Gas delivered by
Seller to meet the quality requirements of Section 5.


 


SECTION 9.           NOTICES


 


9.1.          All Transaction Confirmations,
invoices, payments and other communications made pursuant to the Base Contract
(“Notices”) shall be made to the addresses specified in writing by the
respective parties from time to time.


 


9.2.          All Notices required hereunder may be
sent by facsimile or mutually acceptable electronic means, a nationally
recognized overnight courier service, first class mail or hand delivered.


 


9.3.          Notice shall be given when received on
a Business Day by the addressee.  In the
absence of proof of the actual receipt date, the following presumptions will
apply.  Notices sent by facsimile shall
be deemed to have been received upon the sending party’s receipt of its
facsimile machine’s confirmation of successful transmission.  If the day on which such facsimile is
received is not a Business Day or is after five p.m. on a Business Day, then
such facsimile shall be deemed to have been received on the next following
Business Day.  Notice by overnight mail
or courier shall be deemed to have been received on the next Business Day after
it was sent or such earlier time as is confirmed by the receiving party.  Notice via first class mail shall be
considered delivered five Business Days after mailing.


 


SECTION 10.         FINANCIAL
RESPONSIBILITY


 


10.1.        If either party (“X”) has reasonable
grounds for insecurity regarding the performance of any obligation under this
Contract (whether or not then due) by the other party (“Y”) (including, without
limitation, the occurrence of a material change in the creditworthiness of Y),
X may demand Adequate Assurance of Performance. 
“Adequate Assurance of Performance” shall mean sufficient security in
the form, amount and for the term reasonably acceptable to X, including, but not
limited to, a standby irrevocable letter of credit, a prepayment, a security
interest in an asset or a performance bond or guaranty (including the issuer of
any such security).


 


10.2.        In the event (each an “Event of
Default”) either party (the “Defaulting Party”) or its guarantor shall: (i) make an assignment or any general
arrangement for the benefit of creditors; (ii)
file a petition or otherwise commence, authorize, or acquiesce in the
commencement of a proceeding or case under any bankruptcy or similar law for
the protection of creditors or have such petition filed or proceeding commenced
against it; (iii) otherwise become
bankrupt or insolvent (however evidenced); (iv)
be unable to pay its debts as they fall due; (v)
have a receiver, provisional liquidator, conservator, custodian, trustee or
other similar official appointed with respect to it or substantially all of its
assets; (vi) fail to perform any
obligation to the other party with respect to any Credit Support Obligations
relating to the Contract; (vii) fail to
give Adequate Assurance of Performance under Section 10.1 within 48 hours but
at least one Business Day of a written request by the other party; or (viii) not have paid any amount due the other
party hereunder on or before the second Business Day following written Notice
that such payment is due; then the other party (the “Non-Defaulting Party”)
shall have the right, at its sole election, to immediately withhold and/or
suspend deliveries or payments upon Notice and/or to terminate and liquidate
the transactions under the Contract, in the manner provided in Section 10.3, in
addition to any and all other remedies available hereunder.


 


10.3.        If an Event of Default has occurred and
is continuing, the Non-Defaulting Party shall have the right, by Notice to the
Defaulting Party, to designate a Day, no earlier than the Day such Notice is
given and no later than 20 Days after such Notice is given, as an early
termination date (the “Early Termination Date”) for the liquidation and
termination pursuant to Section 10.3.1 of all transactions under the Contract,
each a “Terminated Transaction”.  On the
Early Termination Date, all transactions will terminate, other than those
transactions, if any, that may not be liquidated and terminated under
applicable law or that are, in the reasonable opinion of the Non-Defaulting
Party, commercially impracticable to liquidate and terminate (“Excluded
Transactions”), which Excluded Transactions must be liquidated and terminated
as soon thereafter as is reasonably practicable, and upon termination shall be
a Terminated Transaction and be valued consistent with Section 10.3.1
below.  With respect to each Excluded
Transaction, its actual termination date shall be the Early Termination Date
for purposes of Section 10.3.1.


 


7





















 


The parties have selected either “Early
Termination Damages Apply” or “Early Termination Damages Do Not Apply” as
indicated on the Base Contract.


 


Early Termination Damages Apply:


 


10.3.1.        As of the Early Termination Date, the
Non-Defaulting Party shall determine, in good faith and in a commercially
reasonable manner, (i) the amount owed (whether or not then due) by each party
with respect to all Gas delivered and received between the parties under
Terminated Transactions and Excluded Transactions on and before the Early
Termination Date and all other applicable charges relating to such deliveries
and receipts (including without limitation any amounts owed under Section 3.2),
for which payment has not yet been made by the party that owes such payment
under this Contract and (ii) the Market Value, as defined below, of each
Terminated Transaction.  The
Non-Defaulting Party shall (x) liquidate and accelerate each Terminated Transaction
at its Market Value, so that each amount equal to the difference between such
Market Value and the Contract Value, as defined below, of such Terminated
Transaction(s) shall be due to the Buyer under the Terminated Transaction(s) if
such Market Value exceeds the Contract Value and to the Seller if the opposite
is the case; and (y) where appropriate, discount each amount then due under
clause (x) above to present value in a commercially reasonable manner as of the
Early Termination Date (to take account of the period between the date of
liquidation and the date on which such amount would have otherwise been due
pursuant to the relevant Terminated Transactions).


 


For purposes of this
Section 10.3.1, “Contract Value” means the amount of Gas remaining to be
delivered or purchased under a transaction multiplied by the Contract Price,
and “Market Value” means the amount of Gas remaining to be delivered or
purchased under a transaction multiplied by the market price for a similar
transaction at the Delivery Point determined by the Non-Defaulting Party in a
commercially reasonable manner.  To
ascertain the Market Value, the Non-Defaulting Party may consider, among other
valuations, any or all of the settlement prices of NYMEX Gas futures contracts,
quotations from leading dealers in energy swap contracts or physical gas
trading markets, similar sales or purchases and any other bona fide third-party
offers, all adjusted for the length of the term and differences in
transportation costs.  A party shall not
be required to enter into a replacement transaction(s) in order to determine
the Market Value.  Any extension(s) of
the term of a transaction to which parties are not bound as of the Early
Termination Date (including but not limited to “evergreen provisions”) shall
not be considered in determining Contract Values and Market Values.  For the avoidance of doubt, any option
pursuant to which one party has the right to extend the term of a transaction
shall be considered in determining Contract Values and Market Values.  The rate of interest used in calculating net
present value shall be determined by the Non-Defaulting Party in a commercially
reasonable manner.


 


Early Termination Damages Do Not Apply:


 


10.3.1.        As of the Early Termination Date, the
Non-Defaulting Party shall determine, in good faith and in a commercially
reasonable manner, the amount owed (whether or not then due) by each party with
respect to all Gas delivered and received between the parties under Terminated
Transactions and Excluded Transactions on and before the Early Termination Date
and all other applicable charges relating to such deliveries and receipts
(including without limitation any amounts owed under Section 3.2), for which
payment has not yet been made by the party that owes such payment under this
Contract.


 


The parties have selected either “Other Agreement
Setoffs Apply” or “Other Agreement Setoffs Do Not Apply” as indicated on the
Base Contract.


 


Other Agreement Setoffs Apply:


 


10.3.2.        The Non-Defaulting Party shall net or
aggregate, as appropriate, any and all amounts owing between the parties under
Section 10.3.1, so that all such amounts are netted or aggregated to a single
liquidated amount payable by one party to the other (the “Net Settlement
Amount”).  At its sole option and without
prior Notice to the Defaulting Party, the Non-Defaulting Party may setoff (i)
any Net Settlement Amount owed to the Non-Defaulting Party against any margin
or other collateral held by it in connection with any Credit Support Obligation
relating to the Contract; or (ii) any Net Settlement Amount payable to the
Defaulting Party against any amount(s) payable by the Defaulting Party to the
Non-Defaulting Party under any other agreement or arrangement between the
parties.


 


Other Agreement Setoffs Do Not Apply:


 


10.3.2.        The Non-Defaulting Party shall net or
aggregate, as appropriate, any and all amounts owing between the parties under
Section 10.3.1, so that all such amounts are netted or aggregated to a single
liquidated amount payable by one party to the other (the “Net Settlement
Amount”).  At its sole option and without
prior Notice to the Defaulting Party, the Non-Defaulting Party may setoff any
Net Settlement Amount owed to the Non-Defaulting Party against any margin or
other collateral held by it in connection with any Credit Support Obligation
relating to the Contract.


 


10.3.3.        If any obligation that is to be included
in any netting, aggregation or setoff pursuant to Section 10.3.2 is
unascertained, the Non-Defaulting Party may in good faith estimate that
obligation and net, aggregate or setoff, as applicable, in respect of the
estimate, subject to the Non-Defaulting Party accounting to the Defaulting
Party when the obligation is ascertained. 
Any amount not then due which is included in any netting, aggregation or
setoff pursuant to Section 10.3.2 shall be discounted to net present value in a
commercially reasonable manner determined by the Non-Defaulting Party.


 


10.4.        As soon as practicable after a
liquidation, Notice shall be given by the Non-Defaulting Party to the
Defaulting Party of the Net Settlement Amount, and whether the Net Settlement
Amount is due to or due from the Non-Defaulting Party.  The Notice shall include a written statement
explaining in reasonable detail the calculation of such amount, provided that
failure to give such Notice shall not affect the validity or enforceability of
the liquidation or give rise to any claim by the Defaulting Party against the
Non-Defaulting Party.  The Net Settlement
Amount shall be paid by the close of business on the second Business Day
following such Notice, which date shall not be earlier than the Early
Termination Date.  Interest on any unpaid
portion of the Net Settlement Amount shall accrue from the date due until the


 


8





















 


date of payment at a rate
equal to the lower of (i) the
then-effective prime rate of interest published under “Money Rates” by The Wall
Street Journal, plus two percent per annum; or (ii)
the maximum applicable lawful interest rate.


 


10.5.        The parties agree that the transactions
hereunder constitute a “forward contract” within the meaning of the United
States Bankruptcy Code and that Buyer and Seller are each “forward contract
merchants” within the meaning of the United States Bankruptcy Code.


 


10.6.        The Non-Defaulting Party’s remedies
under this Section 10 are the sole and exclusive remedies of the Non-Defaulting
Party with respect to the occurrence of any Early Termination Date.  Each party reserves to itself all other
rights, setoffs, counterclaims and other defenses that it is or may be entitled
to arising from the Contract.


 


10.7.        With respect to this Section 10, if the
parties have executed a separate netting agreement with close-out netting
provisions, the terms and conditions therein shall prevail to the extent
inconsistent herewith.


 


SECTION 11.         FORCE
MAJEURE


 


11.1.        Except with regard to a party’s
obligation to make payment(s) due under Section 7, Section 10.4, and Imbalance
Charges under Section 4, neither party shall be liable to the other for failure
to perform a Firm obligation, to the extent such failure was caused by Force
Majeure.  The term “Force Majeure” as
employed herein means any cause not reasonably within the control of the party
claiming suspension, as further defined in Section 11.2.


 


11.2.        Force Majeure shall include, but not be
limited to, the following: (i) physical events such as acts of God,
landslides, lightning, earthquakes, fires, storms or storm warnings, such as
hurricanes, which result in evacuation of the affected area, floods, washouts,
explosions, breakage or accident or necessity of repairs to machinery or
equipment or lines of pipe; (ii) weather related events affecting an
entire geographic region, such as low temperatures which cause freezing or
failure of wells or lines of pipe; (iii) interruption and/or curtailment
of Firm transportation and/or storage by Transporters; (iv) acts of others
such as strikes, lockouts or other industrial disturbances, riots, sabotage,
insurrections or wars; and (v) governmental actions such as necessity for
compliance with any court order, law, statute, ordinance, regulation, or policy
having the effect of law promulgated by a governmental authority having
jurisdiction.  Seller and Buyer shall
make reasonable efforts to avoid the adverse impacts of a Force Majeure and to
resolve the event or occurrence once it has occurred in order to resume
performance.


 


11.3.        Neither party shall be entitled to the
benefit of the provisions of Force Majeure to the extent performance is
affected by any or all of the following circumstances: (i) the curtailment
of interruptible or secondary Firm transportation unless primary, in-path, Firm
transportation is also curtailed; (ii) the party claiming excuse failed to
remedy the condition and to resume the performance of such covenants or
obligations with reasonable dispatch; or (iii) economic hardship, to
include, without limitation, Seller’s ability to sell Gas at a higher or more
advantageous price than the Contract Price, Buyer’s ability to purchase Gas at
a lower or more advantageous price than the Contract Price, or a regulatory
agency disallowing, in whole or in part, the pass through of costs resulting
from this Agreement; (iv) the loss of Buyer’s market(s) or Buyer’s inability to
use or resell Gas purchased hereunder, except, in either case, as provided in
Section 11.2; or (v) the loss or failure of Seller’s gas supply or depletion of
reserves, except, in either case, as provided in Section 11.2.  The party claiming Force Majeure shall not be
excused from its responsibility for Imbalance Charges.


 


11.4.        Notwithstanding anything to the contrary
herein, the parties agree that the settlement of strikes, lockouts or other
industrial disturbances shall be within the sole discretion of the party
experiencing such disturbance.


 


11.5.        The party whose performance is prevented
by Force Majeure must provide Notice to the other party.  Initial Notice may be given orally; however,
written Notice with reasonably full particulars of the event or occurrence is required
as soon as reasonably possible.  Upon
providing written Notice of Force Majeure to the other party, the affected
party will be relieved of its obligation, from the onset of the Force Majeure
event, to make or accept delivery of Gas, as applicable, to the extent and for
the duration of Force Majeure, and neither party shall be deemed to have failed
in such obligations to the other during such occurrence or event.


 


11.6.        Notwithstanding Sections 11.2 and 11.3,
the parties may agree to alternative Force Majeure provisions in a Transaction
Confirmation executed in writing by both parties.


 


SECTION 12.         TERM


 


This Contract may be terminated on 30 Day’s written Notice,
but shall remain in effect until the expiration of the latest Delivery Period
of any transaction(s).  The rights of
either party pursuant to Section 7.6 and Section 10, the obligations to make
payment hereunder, and the obligation of either party to indemnify the other,
pursuant hereto shall survive the termination of the Base Contract or any
transaction.


 


SECTION 13.         LIMITATIONS


 


FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS REMEDY OR
MEASURE OF DAMAGES IS PROVIDED, SUCH EXPRESS REMEDY OR MEASURE OF DAMAGES SHALL
BE THE SOLE AND EXCLUSIVE REMEDY.  A
PARTY’S LIABILITY HEREUNDER SHALL BE LIMITED AS SET FORTH IN SUCH PROVISION,
AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED.  IF NO REMEDY OR MEASURE OF DAMAGES IS
EXPRESSLY PROVIDED HEREIN OR IN A TRANSACTION, A PARTY’S LIABILITY SHALL BE
LIMITED TO DIRECT ACTUAL DAMAGES ONLY. 
SUCH DIRECT ACTUAL DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY, AND
ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED.  UNLESS EXPRESSLY HEREIN PROVIDED, NEITHER
PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT
DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, BY STATUTE, IN
TORT OR CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE.  IT IS THE INTENT OF THE PARTIES THAT THE
LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT
REGARD TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY
PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR
PASSIVE.


 


9





















 


TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE
LIQUIDATED, THE PARTIES ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT OR
IMPOSSIBLE TO DETERMINE, OR OTHERWISE OBTAINING AN ADEQUATE REMEDY IS
INCONVENIENT AND THE DAMAGES CALCULATED HEREUNDER CONSTITUTE A REASONABLE
APPROXIMATION OF THE HARM OR LOSS.


 


SECTION 14.         MISCELLANEOUS


 


14.1.        This Contract shall be binding upon and
inure to the benefit of the successors, assigns, personal representatives, and
heirs of the respective parties hereto, and the covenants, conditions, rights
and obligations of this Contract shall run for the full term of this
Contract.  No assignment of this
Contract, in whole or in part, will be made without the prior written consent
of the non-assigning party (and shall not relieve the assigning party from
liability hereunder), which consent will not be unreasonably withheld or
delayed; provided, either party may (i) transfer, sell, pledge, encumber, or
assign this Contract or the accounts, revenues, or proceeds hereof in
connection with any financing or other financial arrangements, or (ii) transfer
its interest to any parent or affiliate by assignment, merger or otherwise
without the prior approval of the other party. 
Upon any such assignment, transfer and assumption, the transferor shall
remain principally liable for and shall not be relieved of or discharged from
any obligations hereunder.


 


14.2.        If any provision in this Contract is
determined to be invalid, void or unenforceable by any court having
jurisdiction, such determination shall not invalidate, void, or make
unenforceable any other provision, agreement or covenant of this Contract.


 


14.3.        No waiver of any breach of this Contract
shall be held to be a waiver of any other or subsequent breach.


 


14.4.        This Contract sets forth all
understandings between the parties respecting each transaction subject hereto,
and any prior contracts, understandings and representations, whether oral or
written, relating to such transactions are merged into and superseded by this
Contract and any effective transaction(s). 
This Contract may be amended only by a writing executed by both parties.


 


14.5.        The interpretation and performance of
this Contract shall be governed by the laws of the jurisdiction as indicated on
the Base Contract, excluding, however, any conflict of laws rule which would
apply the law of another jurisdiction.


 


14.6.        This Contract and all provisions herein
will be subject to all applicable and valid statutes, rules, orders and
regulations of any governmental authority having jurisdiction over the parties,
their facilities, or Gas supply, this Contract or transaction or any provisions
thereof.


 


14.7.        There is no third party beneficiary to
this Contract.


 


14.8.        Each party to this Contract represents
and warrants that it has full and complete authority to enter into and perform
this Contract.  Each person who executes
this Contract on behalf of either party represents and warrants that it has
full and complete authority to do so and that such party will be bound thereby.


 


14.9.        The headings and subheadings contained
in this Contract are used solely for convenience and do not constitute a part
of this Contract between the parties and shall not be used to construe or
interpret the provisions of this Contract.


 


14.10.      Unless the parties have elected on the
Base Contract not to make this Section 14.10 applicable to this Contract,
neither party shall disclose directly or indirectly without the prior written
consent of the other party the terms of any transaction to a third party (other
than the employees, lenders, royalty owners, counsel, accountants and other
agents of the party, or prospective purchasers of all or substantially all of a
party’s assets or of any rights under this Contract, provided such persons
shall have agreed to keep such terms confidential) except (i) in order to
comply with any applicable law, order, regulation, or exchange rule, (ii) to
the extent necessary for the enforcement of this Contract , (iii) to the extent
necessary to implement any transaction, or (iv) to the extent such information
is delivered to such third party for the sole purpose of calculating a
published index.  Each party shall notify
the other party of any proceeding of which it is aware which may result in
disclosure of the terms of any transaction (other than as permitted hereunder)
and use reasonable efforts to prevent or limit the disclosure.  The existence of this Contract is not subject
to this confidentiality obligation. 
Subject to Section 13, the parties shall be entitled to all remedies
available at law or in equity to enforce, or seek relief in connection with
this confidentiality obligation.  The
terms of any transaction hereunder shall be kept confidential by the parties
hereto for one year from the expiration of the transaction.


 


In the event that disclosure is required by a governmental
body or applicable law, the party subject to such requirement may disclose the
material terms of this Contract to the extent so required, but shall promptly
notify the other party, prior to disclosure, and shall cooperate (consistent
with the disclosing party’s legal obligations) with the other party’s efforts
to obtain protective orders or similar restraints with respect to such
disclosure at the expense of the other party.


 


14.11       The parties may agree to dispute
resolution procedures in Special Provisions attached to the Base Contract or in
a Transaction Confirmation executed in writing by both parties.


 


 


DISCLAIMER:  The
purposes of this Contract are to facilitate trade, avoid misunderstandings and
make more definite the terms of contracts of purchase and sale of natural gas.  Further, NAESB does not mandate the use of
this Contract by any party.  NAESB DISCLAIMS AND EXCLUDES, AND ANY USER OF THIS CONTRACT
ACKNOWLEDGES AND AGREES TO NAESB’S DISCLAIMER OF, ANY AND ALL WARRANTIES,
CONDITIONS OR REPRESENTATIONS, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH
RESPECT TO THIS CONTRACT OR ANY PART THEREOF, INCLUDING ANY AND ALL IMPLIED
WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR
FITNESS OR SUITABILITY FOR ANY PARTICULAR PURPOSE (WHETHER OR NOT NAESB KNOWS, HAS
REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH
PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE
TRADE, OR BY COURSE OF DEALING.  EACH
USER OF THIS CONTRACT ALSO AGREES THAT UNDER NO CIRCUMSTANCES WILL NAESB BE
LIABLE FOR ANY DIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES ARISING OUT OF ANY USE OF THIS CONTRACT.


 


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