EXHIBIT 10.8.1


 


ASSIGNMENT AND NOVATION AGREEMENT


 


This Assignment and Novation Agreement dated the 24th day of June,
2004.


 


AMONG:


 


ENGAGE ENERGY CANADA L.P., a partnership formed under the 1aws of Alberta, Canada, by its general
partner, Engage Energy Canada

(the “Assignor”)


 


- and -


 


NEXEN MARKETING,
a partnership organized under the laws of Alberta,


Canada


(the
“Assignee”)


 


- and -


 


CASCADE NATURAL GAS CORPORATION


(the
“Third Party”)


 


WHEREAS the
Assignor and the Third Party are parties to one or more master agreements
and/or general terms and conditions, each as described in Schedule “A”
(collectively, the “Duke Master Agreement”)
and to those gas sales transactions entered into pursuant to the Duke Master
Agreement, copies of the confirmations evidencing such transactions being
attached hereto in Schedule “A” (such transactions being hereinafter called the
“Assigned Transactions”).


 


AND WHEREAS
the Assignor has agreed to assign and convey unto the Assignee its entire
right, title, estate and interest in and to the Assigned Transactions but, for
certainty, will not otherwise assign to the Assignee the Duke Master Agreement
itself, any other transaction(s) that may be outstanding pursuant to the terms
of the Duke Master Agreement or any of
its rights, title, estate or interest therein.


 


AND WHEREAS
the completion of the transaction pursuant to which the Assignor will assign
and convey its entire, right, title estate and interest in the Assigned
Transactions to the Assignee (the “Closing”) is
conditional upon the satisfaction of certain conditions precedent, which
conditions precedent include obtaining the prior consent of a significant
number of third parties (including the Third Party) to the assignment of
certain transactions (including the Assigned Transactions).


 


AND WHEREAS
the Third Party is willing to consent to the assignment and conveyance of the
Assigned Transactions by the Assignor to the Assignee, and to recognize and
accept the Assignee as a party to the Assigned Transactions in the place and
stead of the Assignor provided that the Closing occurs not later that 90 days
following the date hereof.


 





















 


 


This
Assignment and Novation Agreement dated the 24th day of June, 2004.


 


AMONG:


 


ENGAGE ENERGY CANADA L.P., a partnership formed under the laws of Alberta, Canada, by its general
partner, Engage Energy Canada

(the “Assignor”)


 


- and -


 


NEXEN MARKETING,
a partnership organized under the laws of Alberta,


Canada


(the
“Assignee”)


 


- and -


 


CASCADE NATURAL GAS CORPORATION


(the
“Third Party”)


 


WHEREAS the Assignor
and the Third Party are parties to one or more master agreements and/or general
terms and conditions, each as described in Schedule “A” (collectively, the “Duke Master Agreement”) and to those gas sales transactions
entered into pursuant to the Duke Master Agreement, copies of the confirmations
evidencing such transactions being attached hereto in Schedule “A” (such
transactions being hereinafter called the “Assigned Transactions”).


 


AND WHEREAS
the Assignor has agreed to assign and convey unto the Assignee its entire
right, title, estate and interest in and to the Assigned Transactions but, for
certainty, will not otherwise assign to the Assignee the Duke Master Agreement
itself, any other transaction(s) that may be outstanding pursuant to the terms
of the Duke Master Agreement or any of its rights, title, estate or interest
therein.


 


AND WHEREAS
the completion of the transaction pursuant to which the Assignor will assign and
convey its entire, right, title estate and interest in the Assigned Transactions
to the Assignee (the “Closing”) is
conditional upon the satisfaction of certain conditions precedent, which
conditions precedent include obtaining the prior consent of a significant
number of third parties (including the Third Party) to the assignment of
certain transactions (including the Assigned Transactions).


 


AND WHEREAS
the Third Party is willing to consent to the assignment and conveyance of the
Assigned Transactions by the Assignor to the Assignee, and to recognize and
accept the Assignee as a party to the Assigned Transactions in the place and
stead of the Assignor provided that the Closing occurs not later that 90 days
following the date hereof.


 





















 


AND WHEREAS
the Assignee and the Third Party have agreed that the Assigned Transactions
shall be and be deemed to be severed from the Duke Master Agreement and made
subject to and form part of Master Sales and Purchase Agreement dated June 24, 2004 between the Assignee and the
Third Party (the “Nexen Master Agreement”).


 


NOW THEREFORE, for good and valuable consideration (receipt and sufficiency of which
are hereby acknowledged), and provided that the Closing occurs not later than
90 days following the date hereof, the parties hereto mutually covenant and
agree as follows:


 


1.                                       Assignment.  The
Assignor hereby assigns, transfers, and conveys into the Assignee: (i)
effective as and from the commencement of the first day of the calendar month
following the calendar month in which the Assignor has given to the Third Party written notice
of the occurrence of the Closing, provided that such notice is received by the
Third Party on a day not later than 6 days prior to the end of a calendar
month; or (ii) if notice of the Closing is received by the Third Party on a day
which is less than 6 days prior to the end of a calendar month, effective as and
from the commencement of the first Day of the second calendar month after the
Third Party receives notice of the occurrence of the Closing (in either case,
the “Effective Time”), its entire right, title, estate and interest in and to
the Assigned Transactions, for the Assignee’s sole use and benefit absolutely,
subject nevertheless to the terms and conditions of the Assigned Transactions.


 


2.                                       Acceptance by Assignee.  The
Assignee hereby accepts the aforesaid assignment to it effective as of and from
the Effective Time, and covenants and agrees with the Assignor and the Third Party
that from and after the Effective Time it will be bound by, observe and
perform, carry out and fulfill all covenants and agreements required to be
observed and performed by the Assignor under the terms of the Assigned
Transactions arising from and after the Effective Time.


 


3.                                       Acceptance by Third Party.   Effective as of and from the Effective Time,
the Third Party hereby accepts the Assignee as the party to perform the
Assigned Transactions under the terms and conditions of the Assigned
Transactions and the terms and conditions of the Nexen Master Agreement, and
the Third Party agrees that it shall not make any claim against the Assignee (including
by way of set-off or termination of the Assigned Transactions) as a consequence of or relating to (i) any
default, breach or non-performance attributable to the Assignor under the Assigned
Transactions, the Duke Master Agreement or any other transaction entered into pursuant
to the Duke Master Agreement which default, breach or non-performance arises or
has arisen prior to the Effective Time,
and (ii) the observance and performance of the covenants, representations
and agreements under the Assigned Transactions, the Duke Master Agreement or any
other transaction entered into pursuant to the Duke Master Agreement prior to
the Effective Time.


 


4.                                       No Known Default, Breach or
Non-Performance.  Each
of the Assignor and the Third Party represent and warrant to each other and to
the Assignee that, to the best of its knowledge, there is no event, occurrence
or circumstance pursuant to which it would have a claim for damages against the
Third Party or Assignor, as applicable, or a right to terminate any of the Assigned Transactions pursuant to the terms
and conditions of the Assigned Transactions or the Duke Master Agreement, in
each case in respect of the period prior to the Effective Time.


 


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5.                                       Release.


 


(a)                                  Effective as of and from the Effective Time,
the Third Party hereby releases and forever discharges the Assignor and any
party guaranteeing its obligations, if applicable, of and from any and all
liability as a consequence of or relating to all manner of action and actions,
cause or causes of action, suits, debts, dues, sums of money, claims and demands whatsoever at law or in equity
arising out of, or which are in any way related to the Assigned Transactions
after the Effective Time; provided that, for certainty, the foregoing shall not
release or discharge the Assignor or any party guaranteeing its obligations, if
applicable, in respect of the settlement, payment or performance of any
liabilities or obligations arising or accruing prior to the Effective Time but
which have not been settled, paid or performed as of the Effective Time.


 


(b)                                 Effective as of and from the Effective Time,
the Assignor hereby releases and forever discharges the Third Party and any party
guaranteeing its obligations, if applicable, of and from any and all liability
as a consequence of or relating to all manner of action and actions, cause or
causes of action, suits, debts, dues, sums of money, claims and demands
whatsoever at law or in equity, arising out of or which are in any way related
to, the Assigned Transactions after the Effective Time; provided that, for
certainty, the foregoing shall not release or discharge the Third Party or any
party guaranteeing its obligations, if applicable, in respect of the
settlement, payment or performance of any liabilities or obligations arising or accruing prior to the Effective
Time but which have not been settled, paid or performed as of the Effective
Time.


 


6.                                    Further Assurances.  The
Assignor agrees that it shall, from time to time and at all times hereafter,
execute such further assurances and do all such acts and things as may be
reasonably required for the purpose of vesting in the Assignee the rights of
the Assignor in the Assigned Transactions.


 


7.                                    Confirmation Under Nexen Master
Agreement.  Immediately
upon the Effective Time, the Assignee and the Third Party agree that the
Assigned Transactions, for all purposes whatsoever, are and are deemed to be
subject to, form part of, and confirmed pursuant to the terms and conditions of
the Nexen Master Agreement on the same basis as if the confirmations for such Assigned
Transactions between the Assignor and the Third Party under the Duke Master Agreement
had, with effect from and after the Effective Time, been entered into between
the Assignee and the Third Party under the Nexen Master Agreement.


 


8.                                       No Assignment of Master Agreement.  The
Assignor and the Third Party confirm and agree that neither the Duke Master
Agreement nor any right, title,
estate or interest therein (other than the Assigned Transactions) are assigned
to the Assignee and such Duke Master Agreement, other than the Assigned
Transactions, remains in full force and effect between the Assignor and the Third
Party, unaffected by this Assignment.


 


9.                                      Address for Notices.


 


The
address for the Assignee for notices under the Assigned Transactions shall be:


 


Nexen Marketing


1700,801 — 7th Avenue S.W.


Calgary, AB T2P 3P7


Attention: Contracts
Administrator


Telephone: 403. 699.4088 or
403.699.5724


 


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Facsimile:
403.699.5707


 


10.                                 Enurement.  This
Assignment shall enure to the benefit of and be binding upon the parties hereto
and their respective successors and assigns.


 


11.                               Counterpart Execution.  This Assignment may be executed in separate
counterparts and delivered by facsimile, each of which when so executed and
delivered shall constitute the one and the same original document.


 


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12.                                 Governing Law.  This
Assignment will be governed by and construed in accordance with the laws of the
Province of Alberta, Canada, without giving effect to principles of conflicts
of laws.


 


THIS ASSIGNMENT
executed effective as of the day and year first above written.


 


 


	
   

  	
  ASSIGNOR:

  
	
   

  	
   

  
	
   

  	
  ENGAGE ENERGY CANADA L.P., a partnership formed under the laws of
  Alberta, Canada, by its general partner, Engage Energy Canada

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ L Hall

  
	
   

  	
  Name:

  	
  Lindsay Hall

  
	
   

  	
  Title:

  	
  CFO-

  



 


	
   

  	
  ASSIGNEE:

  
	
   

  	
   

  
	
   

  	
  NEXEN MARKETING

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Janet E. Vellutini

  	
   

  
	
   

  	
  Name:

  	
  Janet E. Vellutini

  	
   

  
	
   

  	
  Title:

  	
  Vice President,

  Natural Gas Marketing

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Susan L. Schulli

  
	
   

  	
  Name:

  	
  Susan L. Schulli

  
	
   

  	
  Title:

  	
  Associate
  General Counsel

  



 


	
   

  	
  THIRD
  PARTY:

  
	
   

  	
   

  	
   

  
	
   

  	
  CASCADE NATURAL GAS CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jon T.
  Stoltz

  
	
   

  	
  Name:

  	
   Jon T. Stultz

  
	
   

  	
  Title:

  	
   Senior Vp Regulatory & Gas Supply

  



 


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SCHEDULE “A”


to the Assignment and Novation Agreement
dated June 24, 2004

among ENGAGE ENERGY CANADA L.P., a partnership formed under the laws of
Alberta, Canada, by its general partner,

Engage Energy Canada (“Assignor”), NEXEN MARKETING (“ Assignee”)

and CASCADE NATURAL GAS CORPORATION (“Third Party”)


 


 


Duke Master Agreement


 


Gas Transaction Agreement
dated July 1, 1994 between
Engage Energy Canada L.P. and Cascade Natural Gas Corporation


 


Assigned Transactions


 


S-CASCADENAT-0009-001-Bl-SC


 


 


The Assigned Transactions are attached to this Schedule “A”, which has           pages,
including this page.