DIRECTLY OR INDIRECTLY, MORE THAN
1% OF THE EQUITY OR VOTING SHARES OF PARTY B OR ANY SPECIFIED ENTITY OF PARTY B,
THEN THE TRANSACTION WILL BE ON TERMS THAT ARE AT LEAST AS FAVORABLE TO PARTY B
OR SUCH SPECIFIED ENTITY AS THOSE AVAILABLE FROM AN INDEPENDENT THIRD PARTY;
PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATION SHALL NOT APPLY TO
(A) TRANSACTIONS BETWEEN PARTY B OR ANY SPECIFIED ENTITY OF PARTY B AND PARTY A,
(B) EMPLOYMENT AGREEMENTS ENTERED INTO IN THE ORDINARY COURSE OF BUSINESS THAT
ARE CONSISTENT WITH CURRENT PRACTICES AND AT COMPENSATION LEVELS THAT ARE
CONSISTENT WITH COMPENSATION LEVELS FOR SIMILAR POSITIONS IN COMPARABLE
COMPANIES (1) IN SIMILAR INDUSTRIES, (2) OF THE SAME SIZE AND (3) IN THE SAME
GEOGRAPHIC AREA, (C) THE ISSUANCE OF EQUITY SECURITIES PERMITTED HEREBY,
(D) DIRECTOR'S FEES AS PERMITTED BY THE CERTIFICATE OF INCORPORATION,
(E) PAYMENTS OR TRANSACTIONS WITH RESPECT TO THE NOTES AS PERMITTED UNDER THE
INTERCREDITOR AGREEMENT AND (F) RESTRICTED PAYMENTS PERMITTED HEREBY.
(B)
TRANSACTIONAL NEGATIVE COVENANTS.
PARTY B
AS TO ITSELF AS SET FORTH BELOW, AGREES WITH PARTY A THAT, AT ALL TIMES PRIOR TO
THE DISCHARGE OF ISDA OBLIGATIONS:
(I)
LONG TERM TRANSACTIONS.
PARTY B SHALL
NOT ENTER INTO ANY (A) PHYSICALLY SETTLED TRANSACTIONS IN RESPECT OF GAS FOR A
FIXED FORWARD PRICE WITH A SUPPLY TERM (MEASURED FROM THE FIRST DAY OF GAS
DELIVERY) OF GREATER THAN 24 MONTHS, (B) ANY SWAP TRANSACTION WITH A TERM
GREATER THAN 24 MONTHS (MEASURED FROM THE COMMENCEMENT OF THE FIRST CALCULATION
PERIOD THEREOF), OR (C) ANY TRANSACTION THAT HAS A TERM THAT EXPIRES ON A DATE
THAT IS 27 OR MORE MONTHS FROM THE DATE SUCH TRANSACTION WAS ENTERED INTO, IN
EACH CASE WITHOUT THE PRIOR WRITTEN CONSENT OF PARTY A.
(II)
VOLUMETRIC TENOR.
PARTY B SHALL NOT
DIRECTLY OR INDIRECTLY SELL ANY COMMODITY AT A FIXED PRICE, OR ENTER INTO A SWAP
TRANSACTION OR AN OPTION TRANSACTION, WHICH WHEN COMBINED WITH ALL
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TRANSACTIONS ENTERED INTO BETWEEN PARTY B AND ITS CUSTOMERS, WOULD CAUSE THE
AVERAGE TENOR WEIGHTED BY NOTIONAL AND ACTUAL VOLUME OF ALL PHYSICALLY AND
FINANCIALLY SETTLED GAS TRANSACTIONS ENTERED INTO BY PARTY B TO EXCEED 14 MONTHS
IN DURATION.
(III)
COUNTERPARTY LIMITATIONS. PARTY B SHALL NOT
DIRECTLY OR INDIRECTLY PURCHASE ANY COMMODITY FROM, OR ENTER INTO ANY
FINANCIALLY SETTLED SWAP TRANSACTION, OPTION TRANSACTION OR OTHER DERIVATIVE
TRANSACTION WITH, ANY PERSON OTHER THAN PARTY A; PROVIDED, HOWEVER, THAT PARTY B
MAY PURCHASE GAS (A) FROM LDCS OR OTHER "BEHIND-THE-GATE" THIRD PARTIES APPROVED
BY PARTY A, IN ITS SOLE DISCRETION, SOLELY FOR BALANCING PURPOSES OR IN
CONNECTION WITH THE PURCHASE OF BUNDLED SERVICES AND (B) UPON THE FAILURE OF
PARTY A TO SATISFY AN OBLIGATION TO SCHEDULE A DELIVERY OF GAS TO PARTY B ON ANY
DAY, IN ACCORDANCE WITH CLAUSE (B)(II) OF THE GAS ANNEX.
(IV)
REQUIRED HEDGES.
(A)
EXCEPT TO THE EXTENT EXPRESSLY PERMITTED BY
PART 12(A)(XIV), PARTY B SHALL NOT DIRECTLY OR INDIRECTLY ENTER INTO ANY
TRANSACTION FOR THE SALE OF GAS WITH ANY