EEI Gas Annex V2.0 (Final 10.16.13)

Gas Annex to the EEI Master Power Purchase & Sale Agreement – Version 2.0, 10/16/13

Gas Annex to the
EEI Master Power Purchase & Sale Agreement

Version 2.0
10/16/13

ALL RIGHTS RESERVED UNDER U.S. AND FOREIGN LAW, TREATIES AND CONVENTIONS. AUTOMATIC LICENSE – PERMISSION OF THE COPYRIGHT OWNERS IS GRANTED FOR REPRODUCTION BY DOWNLOADING FROM A COMPUTER AND PRINTING ELECTRONIC COPIES OF THE WORK. NO AUTHORIZED COPY MAY BE SOLD. WHEN USED AS A REFERENCE, ATTRIBUTION TO THE COPYRIGHT OWNERS IS REQUESTED.

GAS ANNEX COVER SHEET

This Gas Annex to the EEI Master Power Purchase & Sale Agreement (“Gas Annex”) is entered into as of the following date: ______(“Effective Date”), and is pursuant to the EEI Master Power Purchase & Sale Agreement (including without limitation any amendments, annexes or Cover Sheet thereto which are provided for and incorporated into the EEI Master Power Purchase & Sale Agreement, the “EEI Master Agreement”) previously entered into between the Parties. The Gas Annex, together with the EEI Master Agreement (including any Gas Transactions accepted in accordance with Paragraph 1.3 hereto) shall be referred to as the “Agreement.” Party A (as defined below) and Party B (as defined below) are referred to individually as the “Party” and collectively as the “Parties.” The Parties to this Gas Annex are the following:

Name: ______, a ______organized under the laws of the State of ______(“Party A”) / Name: ______, a ______organized under the laws of the State of ______(“Party B”)
Date of the EEI Master Agreement between Party A and Party B:
Effective Date of Gas Annex: / (the “Gas Annex Effective Date”)
If the Parties do not specify a Gas Annex Effective Date, the Gas Annex Effective Date shall be the Date of the EEI Master Agreement.
All Notices: / All Notices:
As set forth on the Cover Sheet to the EEI Master Agreement unless otherwise set forth below: / As set forth on the Cover Sheet to the EEI Master Agreement unless otherwise set forth below:
Street: / Street:
City, State, Zip: / City, State, Zip:
Attn: / Attn:
Phone: / Phone:
Facsimile: / Facsimile:
Email: / [NOTE: Parties should consider potential implications of email notice and confer with legal counsel before completing this field.] / Email: / [NOTE: Parties should consider potential implications of email notice and confer with legal counsel before completing this field.]
Duns: / Duns:
Federal Tax ID Number: / Federal Tax ID Number:
Invoices: / Invoices:
As set forth on the Cover Sheet to the EEI Master Agreement unless otherwise set forth below: / As set forth on the Cover Sheet to the EEI Master Agreement unless otherwise set forth below:
Attn: / Attn:
Phone: / Phone:
Facsimile: / Facsimile:
Email: / Email:
Nominations: / Nominations:
As set forth on the Cover Sheet to the EEI Master Agreement unless otherwise set forth below: / As set forth on the Cover Sheet to the EEI Master Agreement unless otherwise set forth below:
Attn: / Attn:
Phone: / Phone:
Facsimile: / Facsimile:
Email: / Email:
Confirmations: / Confirmations:
As set forth on the Cover Sheet to the EEI Master Agreement with respect to “All Notices” unless otherwise set forth below: / As set forth on the Cover Sheet to the EEI Master Agreement with respect to “All Notices” unless otherwise set forth below:
Attn: / Attn:
Phone: / Phone:
Facsimile: / Facsimile:
Email: / Email:
Option Exercise: / Option Exercise:
As set forth on the Cover Sheet to the EEI Master Agreement with respect to “All Notices” unless otherwise set forth below: / As set forth on the Cover Sheet to the EEI Master Agreement with respect to “All Notices” unless otherwise set forth below:
Attn: / Attn:
Phone: / Phone:
Facsimile: / Facsimile:
o Wire Transfer - or - o ACH (check one box): / o Wire Transfer - or - o ACH (check one box):
As set forth in Part 4 of the Schedule unless otherwise set forth below: / As set forth in Part 4 of the Schedule unless otherwise set forth below:
Bank: / Bank:
ABA: / ABA:
Account: / Account:
Other Details: / Other Details:

Paragraph One Elections:

1.2 Alternative Spot Price Index: / The Parties have agreed to the following Alternative Spot Price Index:
[None.]
If no index is specified, then no Alternative Spot Price Index will apply unless otherwise specified in a Confirmation with respect to a Gas Transaction.
1.3 Applicability to Outstanding Gas transactions: / o Option A: All Gas transactions outstanding between the Parties in respect of Gas Products as of the Gas Annex Effective Date.
o Option B: All Gas transactions outstanding between the Parties in respect of Gas Products that are specified in Schedule 1 to this Gas Annex.
o Option C: None of the Gas transactions outstanding between the Parties in respect of Gas Products as of the Gas Annex Effective Date.
If none of the options specified above are selected, Option A shall apply.
1.4 Outstanding Gas Credit Support: / o Applicable.
o Not Applicable.
If neither of the options specified above are selected, Paragraph 1.4 shall not apply.

Paragraph Two Elections:

2.2 Timing of Payments: / o Option A: Payment Netting, with Payment for Gas Transactions and Transactions other than Gas Transactions on the 25th.
o Option B: Payment Netting, with Payment for Gas Transactions and Transactions other than Gas Transactions on the 20th.
o Option C: No Payment Netting, with Payment for Gas Transactions on the 25th.
o Option D: No Payment Netting, with Payment for Gas Transactions on the following date of each month:
If none of the options specified above are selected, Option C shall apply.

Paragraph Three Elections

3.2 Remedies For Failure to Deliver/Receive Gas Products: / o Option A: Cover Standard
o Option B: Spot Price Standard
If neither of the options specified above are selected, Option A shall apply.
3.6 Governmental Charges (Taxes): / o Option A: Buyer Pays At the Delivery Point
o Option B: Seller Pays Before the Delivery Point
If neither of the options specified above are selected, Option A shall apply.
3.9 U.S. Customs: / o Option A: Importer of Record
o Option B: Importer of Record and Provision of North American Free Trade Agreement Certificate of Origin
If neither of the options specified above are selected, Option A shall apply.

Other changes:

Specify, if any:

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, the Parties have caused this Gas Annex to be duly executed in one or more counterparts (each of which shall be deemed an original, and all of which, taken together, shall constitute one and the same agreement) effective as of the date specified as the Gas Annex Effective Date. The Parties expressly acknowledge the validity of facsimile counterparts of the executed Gas Annex, if any, which may be transmitted in advance of, or in lieu of, executed original documents.

PARTY A / PARTY B
By: / By:
Name: / Name:
Title: / Title:

Gas Annex to the EEI Master Power Purchase & Sale Agreement – Version 2.0, 10/16/13

GENERAL TERMS OF THE GAS ANNEX

TO THE

EEI MASTER POWER PURCHASE & SALE AGREEMENT

WHEREAS, Party A and Party B have entered into that certain EEI Master Power Purchase & Sale Agreement, dated as of the date specified on the Gas Annex Cover Sheet (and including without limitation any amendments, annexes or Cover Sheet thereto which are provided for and incorporated into the EEI Master Power Purchase & Sale Agreement, the “EEI Master Agreement”), which EEI Master Agreement governs the terms and conditions pursuant to which the Parties may enter into Transactions relating to the purchase and sale of electric capacity, energy and other products related thereto;

WHEREAS, the Parties desire to enter into this Gas Annex to the EEI Master Agreement to provide for the terms and conditions under which the Parties may enter into Transactions relating to the purchase and sale of natural gas and products related thereto;

WHEREAS, the Gas Annex, together with the EEI Master Agreement, shall be referred to as the “Agreement”; and

NOW, THEREFORE, the Parties agree as follows:

PARAGRAPH ONE: GENERAL TERMS

1.1 Scope of Agreement.

The Parties agree that they are entering into this Gas Annex in order to provide for the terms and conditions pursuant to which the Parties may enter into Transactions (or which, pursuant to Section 1.3 of this Annex, may govern certain Outstanding Gas transactions) for the purchase and sale of natural gas, including any mixture of hydrocarbons and noncombustible gases in a gaseous state consisting primarily of methane, or such similar product otherwise specified by the Parties in a Confirmation and identified as being governed by this Gas Annex. This Gas Annex supplements, forms a part of, and is subject to the Agreement, and each reference to the Agreement shall include this Gas Annex. Unless otherwise expressly amended pursuant to this Gas Annex, all of the terms and conditions set forth in the EEI Master Agreement shall be applicable to Gas Transactions entered into between the Parties. In the event of any inconsistency between a Confirmation with respect to a Gas Transaction and this Gas Annex, the terms of such Confirmation will govern with respect to such Gas Transaction. In the event of any inconsistency among or between the EEI Master Agreement and this Gas Annex, this Gas Annex will govern with respect to Gas Transactions only.

1.2 Defined Terms.

(a) Capitalized terms used in this Gas Annex but not defined herein shall have the meanings given such terms in the EEI Master Agreement.

(b) Upon execution of this Gas Annex the following definitions and terms in the EEI Master Agreement will be amended as follows:

(i) “Product” means electric capacity, energy, Gas Product(s) or other product(s) related thereto as specified in a Transaction by reference to a Product listed in Schedule P hereto or as otherwise specified by the Parties in the Transaction.

(ii) “Transaction” means a particular transaction or Gas Transaction agreed to by the Parties relating to the sale and purchase of a Product pursuant to this Master Agreement.

(iii) The term “written supplements” in the EEI Master Agreement shall apply to annexes to the EEI Master Agreement, and shall include this Gas Annex.

“Alternative Damages” means such damages, expressed U.S. Dollars or in U.S. Dollars per MMBtu, as the Parties shall agree upon with respect to a Gas Transaction, in the event either Seller fails to perform a Firm obligation to deliver Gas or Buyer fails to perform a Firm obligation to receive Gas.

“Alternative Spot Price Index” if any, has the meaning specified in the Gas Annex Cover Sheet or, with respect to a particular Gas Transaction, means the Alternative Spot Price Index specified in the Confirmation in respect of such Gas Transaction.

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

“Contract Price” means 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 Gas Transaction.

“Contract Quantity” means the quantity of Gas to be delivered and taken as agreed to by the Parties in a Gas Transaction.

“Cover Standard” means that if there is an unexcused failure to take or deliver any quantity of Gas pursuant to this Gas Annex, then the performing Party shall use commercially reasonable efforts to (a) if Buyer is the performing Party, obtain Gas, (or an alternate fuel if elected by Buyer and replacement Gas is not available), or (b) 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.

“Day” means a period of 24 consecutive hours, coextensive with a “day” as defined by the Receiving Transporter with respect to a particular Gas Transaction.

“EFP” means 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 (7 U.S.C. §1 et. seq., as amended).

“Firm” means 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 Paragraph 3.4(c) 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.

“Floating Price” means a Contract Price or factor of a Contract Price specified in a Transaction based upon a Price Source.

“Force Majeure” shall have the meaning specified in Paragraph 3.3 of this Gas Annex.