A DESIGNATED JURISDICTION FOR SUCH
COMMODITY, WITHOUT THE PRIOR WRITTEN CONSENT OF PARTY A.
(X)
FIXED PRICE LIMIT.
PARTY B SHALL NOT
ENTER INTO FINANCIALLY OR PHYSICALLY SETTLED TRANSACTIONS IN RESPECT OF GAS AS
PURCHASER FOR A FIXED FORWARD PRICE OF GREATER THAN $9/MMBTU (BASED ON EITHER
THE RELEVANT STRIP PRICES OR AVERAGE PRICE PER TRADE), WITHOUT THE PRIOR WRITTEN
CONSENT OF PARTY A; PROVIDED, HOWEVER, THAT PARTY A, IN ITS SOLE DISCRETION AND
WITH TWO BUSINESS DAYS NOTICE TO PARTY B, MAY INCREASE OR DECREASE SUCH FIXED
PRICE LIMIT AND, PROVIDED FURTHER, THAT PARTY B MAY REQUEST
54
A WAIVER OF THE FIXED PRICE LIMIT ON A PER TRADE BASIS AND PARTY A SHALL USE
COMMERCIALLY REASONABLE EFFORTS TO RESPOND TO SUCH REQUEST WITHIN TRADING HOURS
ON THE DATE OF SUCH REQUEST.
(XI)
RCE LIMITS.
PARTY B SHALL NOT ENTER INTO
NEW CONTRACTS WITH CUSTOMERS IN ANY CONTRACT YEAR IF THE SUM OF (A) THE NUMBER
OF RESIDENTIAL CUSTOMER-EQUIVALENTS ASSOCIATED WITH ALL NEW CONTRACTS FOR GAS
ENTERED INTO WITH CUSTOMERS BY PARTY B OR MX CANADA, AS APPLICABLE, DURING SUCH
CONTRACT YEAR AND (B) THE NUMBER OF RESIDENTIAL CUSTOMER-EQUIVALENTS ASSOCIATED
WITH ALL NEW CONTRACTS FOR ENERGY ENTERED INTO WITH CUSTOMERS (AS DEFINED IN THE
MX ELECTRIC AGREEMENT) BY MX ELECTRIC DURING SUCH CONTRACT YEAR, WOULD EXCEED
235,000 RESIDENTIAL CUSTOMER-EQUIVALENTS DURING SUCH CONTRACT YEAR; PROVIDED,
HOWEVER, THAT, NOTWITHSTANDING THE FOREGOING, PARTY B, WITHOUT THE PRIOR WRITTEN
CONSENT OF PARTY A, SHALL NOT ENTER INTO ANY CONTRACT FOR THE SALE OF GAS WITH
ANY CUSTOMER IF, AS THE RESULT OF ENTERING INTO SUCH CONTRACT, THE AGGREGATE
NUMBER OF FIXED PRICE CUSTOMER-EQUIVALENTS SERVED BY PARTY B AND MX ELECTRIC
WOULD EXCEED 325,000 IN THE AGGREGATE.
(XII)
CUSTOMER LOAD.
PARTY B SHALL NOT PURCHASE GAS
HEREUNDER OR OTHERWISE FOR ANY REASON OTHER THAN TO SERVE PARTY B'S ACTUAL OR
FORECASTED AGGREGATE GAS CUSTOMER LOAD.
(XIII)
LIMITATION ON SALES.
PARTY B SHALL NOT DIRECTLY
OR INDIRECTLY SELL GAS TO ANY PERSON EXCEPT FOR, AND LIMITED TO THE EXTENT OF,
(A) GAS SOLD TO AN LDC OR OTHER APPROVED THIRD-PARTY FOR BALANCING PURPOSES OR
FOR STORAGE BEHIND AN LDC CITYGATE, AND (B) GAS SOLD TO A CUSTOMER OF PARTY B IN
THE ORDINARY COURSE OF ITS BUSINESS.
PART 14.
ADDITIONAL DEFINITIONS
(A)
SECTION 14 IS HEREBY AMENDED TO ADD THE
FOLLOWING ADDITIONAL DEFINITIONS:
"AAA" has the meaning specified in Part 5(c)(vii).
"Account Control Agreement" means, as applicable, the Huntington Control
Agreement or the Wachovia Control Agreement.
"Acquisition" means any transaction, or any series of related transactions,
consummated on or after the date of this Agreement, by which Party B, any
Specified Entity of Party B (a) acquires any going business or all or
substantially all of the assets of any firm, corporation or limited liability
company, or division thereof, whether through purchase of assets, merger or
otherwise or (b) directly or indirectly acquires (in one transaction or as the
most recent transaction in a series of transactions) at least a majority (in
number of