Loading...
HomeMy WebLinkAbout2008-07-10-Resolutions 08-164_Natural Gas Purchase - 28E Agr - PEFARESOLUTION NO.08-164 A RESOLUTION APPROVING A MEMBER'S CERTIFICATE AND A BASE CONTRACT FOR SALE AND PURCHASE OF NATURAL GAS, SUPPLEMENTED AND AMENDED BY SPECIAL PROVISIONS AND A TRANSACTION CONFIRMATION,APPROVING ENTRY INTO SAID CERTIFICATE M'ID CONTRA-CT,AUTHORIZING EX~CUTION OF SAID CERTIFICATE AND CONTRACT,AMENDING AND RESTATING A 28E AGREEMENT,AND AUTHORIZING AND APPROVING CERTAIN OTHER ACTIONS WHEREAS the City is currently a Member of the Public Energy Financing Authority pursuant to that certain Agreement Establishing the Public Energy Financing Authority dated as of September 1,2007 as an Iowa joint powers agency (the "Agency")organized under Chapter 28E of the Iowa Code (the "Original 28E Agreement"),and in connection with the undertakings described therein,the City must now agree to amend and restate the Original 28E Agreement and approve and execute a Certificate and a Gas Supply Contract (as further described herein). NOW THEREFORE BE IT RESOLVED by the City Council of Waukee,Iowa (the "City") that: Section One:The proposed "MEMBER'S CERTIFICATE"(said certificate to be substantially in the form as is attached hereto as Exhibit A,with such changes therein as the person executing the same shall approve,such approval to be conclusively evidenced by the execution thereof (the "Certificate"))is hereby approved and the City intends to be bound by the terms of said Certificate upon the execution thereof. Section Two:The proposed "BASE CONTRACT FOR SALE AND PURCHASE OF NATURAL GAS,SUPPLEMENTED AND AMENDED BY THE SPECIAL PROVISIONS AND SUBJECT TO A TRANSACTION CONFIRMATION"(said contract and supplements to be substantially in the form as are attached hereto as Exhibit B,with such changes therein as the person executing the same shall approve,such approval to be conclusively evidenced by the execution thereof (collectively,the "Gas Supply Contract"))is hereby approved and the City intends to be bound by the terms of said Gas Supply Contract upon the execution thereof. Section Three:The amount of natural gas authorized to be purchased pursuant to the Gas Supply Contract shall not be greater than 80%of the City's average annual natural gas usage in MMBtus over the past five calendar years at an estimated discount from the first of the month index price as published in FERC Gas Market Report of not less than $.50IMMBtu,including investment eamings.The term of the Gas Supply Contract shall not exceed 31 years from the dated date thereof. Section Four:The Original 28E Agreement shall be amended and restated by that certain AMENDED AND RESTATED AGREEMENT ESTABLISHING THE PUBLIC ENERGY FACILITIES AUTHORITY,AN IOWA JOINT POWERS AGENCY UNDER IOWA CODE CHAPTER 28E (Dated as of June 1,2008)(the "Agreement")in the form attached hereto as Exhibit C and the City intends to be bound by the terms of the Agreement upon the execution thereof. Section Five:The City Council hereby authorizes and approves the formation of one or more non-profit corporations (each,a "Non-Profit Corporation")pursuant to Chapter 504 of the Code of Iowa known as the Revised Iowa Non-Profit Corporation Act (the "Act"),for the benefit of the City and the Agency.The purposes of each such Non-Profit Corporation shall be limited to: (i)making and entering into contracts associated with the acquisition of natural gas or other energy sources (including without limitation prepaid energy purchase agreements,energy supply agreements,energy remarketing agreements,energy price management and exchange agreements,interest rate management and exchange agreements,agreements providing for payments based on levels of,or changes or differences in,interest rates or energy or natural gas prices,agreements to exchange cash flows or payments,and agreements for credit enhancement and liquidity support in connection with such contracts),and (ii)incurring debts,liabilities and other financial obligations,including through the issuance of bonds,notes and other obligations for borrowed money ("Bonds")and the pledging of its property (whether real or personal, tangible or intangible)or revenues or both as security for such Bonds,all as provided by the Act. Such Bonds shall be special limited obligations of the Non-Profit Corporation including the principal,redemption price and purchase price (to the extent payable by the Non-Profit Corporation upon tender for purchase in accordance with the provisions of the financing documents authorizing issuance thereof,or any loan agreement,trust agreement or other agreements of the Non-Profit Corporation required thereby (hereinafter,the "Financing Documents")thereof and the interest thereon,shall be payable solely from,and secured solely by,the revenues,funds and other assets of the Non-Profit Corporation pledged therefor under the applicable Financing Documents and shall not constitute a special or general obligation of the Agency or the City,or a charge against the general credit or other funds of the Agency or the City. The Bonds shall not be secured by a legal or equitable pledge of,or lien or charge upon or security interest in,any property of the Agency or the City or any of its income or receipts. Neither the faith and credit nor the taxing power of the State of Iowa (the "State"),the Agency, or the City or any other public agency shall be pledged to the payment of the principal, redemption price or purchase price of,or the interest on,the Bonds.The issuance by the Non- Profit Corporation of the Bonds shall not directly,indirectly or contingently obligate the State, the Agency,or the City,to levy or pledge any form of taxation or to make any appropriation for the payment of the Bonds.The payment of the principal,redemption price or purchase price of, or interest on,the Bonds shall not constitute a debt,liability or obligation of the State,the Agency,the City,or any other public agency. Section Six:The Mayor and City Clerk are hereby authorized and directed to establish and determine the final terms to be set forth in said Certificate and Gas Supply Contract,within the limitations imposed by this Resolution,and to execute the same on behalf ofthe City. Section Seven:The Certificate,the Gas Supply Contract,and the Agreement,once executed by all parties,shall be effective. PASSED AND APPROVED this lOth day of July,2008. ATTEST: (SEAL) ROLL CALL VOTE Donald L.Bailey,Jr. Casey L.Harvey C.Isaiah McGee Darlene Stanton Mike Watts AYE X X NAY ABSENT ABSTAIN X X X I EXHIBIT A (See Attached) MEMBER'S CERTIFICATE This Member's Certificate (the "Certificate")is executed in connection with the Base Contract for Sale and Purchase of Natural Gas,as supplemented and amended by the Special Provisions,each dated as of ,2008,subject to a Transaction Confirmation dated the date of execution thereof (collectively,the "Gas Supply Contract")by and between Public Energy Facilities Authority,an Iowa Joint Powers Agency (the "Agency")and the City of Waukee,Iowa ("Member")and in connection with the issuance of Bonds (as hereinafter defined). Capitalized terms used and not otherwise defined herein shall have the meanings given to them in the Gas Supply Contract,the Purchase and Sale Agreement (as hereinafter defined),or in the Trust Agreement (as hereinafter defined). WHEREAS pursuant to the Articles of Incorporation and the Bylaws of PEF A,Inc.,an Iowa nonprofit corporation (the "Issuer"),(a)the members of the Board of the Agency will sit,ex officio,as the members of the Board of the Issuer identified on Appendix 1 hereto,(b)the Issuer may not enter into any contracts withont the specific written approval of the Agency;and (c)the Issuer may not issue any indebtedness without the specific written approval of each Member of the Agency for whose benefit such indebtedness is issued;and WHEREAS the Issuer proposes to issue indebtedness in the form of tax exempt bonds (the "Bonds")pursuant to that certain Trust Agreement dated as of ,2008 (the "Trust Agreement")between the Issuer and Wells Fargo Bank,N.A.,as trustee (the "Trustee")to fund the prepayment price for purchase of natural gas pursuant to the Prepaid'Natural Gas Purchase and Sale Agreement dated ,2008 between Lehman Brothers Commodity Services Inc.,a corporation organized and existing under the laws of the State of Delaware ("LBCS"),and the Issuer (the "Purchase and Sale Agreement");and WHEREAS the Issuer and the Agency propose to enter into an Assignment and Assnmption Agreement (the "Assignment Agreement")pursuant to which (i)the Issuer will assign to the Agency most of the Issuer's rights and obligations under the Purchase and Sale Agreement, and (ii)the Agency will agree to make payments to the Issuer at times and in amounts at least sufficient to pay principal,interest and other expenses associated with the Bonds;and WHEREAS the Agency and LBCS propose to enter into a Natural Gas Remarketing Agreement (the "Remarkcting Agreement"),obligating LBCS under specified circumstances to remarket certain natural gas that Member has purchased from the Agency pursuant to the Gas Supply Contract,but that Member has failed to resell to its retail gas customers;and WHEREAS the Bonds are intended to qualify for tax exemption under Section 103 of the Internal Revenue Service Code of 1986,as amended;and WHEREAS Member's historic retail natural gas loads,the use of the natural gas acquired pursuant to the Gas Supply Contract,and certain funds and accounts of Member will affect the Bonds'qualification for such tax exemption;and WHEREAS Member acknowledges that Ahlers &Cooney,P.c.,bond counsel to the Issuer in respect of the Bonds ("Bond Counsel"),will rely in part on this Certificate in opining that I interest on the Bonds qualifies for exclusion from federal gross income under Section 103 of the Internal Revenue Service Code of 1986,as amended. NOW,THEREFORE,MEMBER HEREBY CERTIFIES COVENANTS AND AGREES AS FOLLOWS: 1.General (a)The above recitals are true,accurate,and correct. (b)Member is a municipal corporation organized under the laws of the State of Iowa. 2.Member Approvals Member hereby approves: (a)the Issuer's issuance of the Bonds in aggregate principal amount not to exceed $[]and with final maturity not later than 31 years from the date on which Member executes the Gas Supply Contract; (b)the Issuer's execution of: 1.the Trust Agreement; ii.a Bond Purchase Agreement or similar contract,together with associated contracts,certificates and documents,pursuant to which the Issuer will sell the Bonds to the underwriter; lll.the Purchase and Sale Agreement; IV.the Assignment Agreement; v.a Receivables Purchase Agreement entitling the Issuer to sell and obligating LBCS to purchase the Issuer's right to receive certain payments; vi.one or more commodity swap agreements with respect to gas acquired pursuant to the Purchase and Sale Agreement;and vii.any other agreements,certificates and documents deemed by authorized representatives of the Issuer to be necessary or appropriate in connection with the above described agreements and transactions; (c)the Agency's execution of: 1.the Assignment Agreement; 11.the Gas Supply Contracts; lll.the Remarketing Agreement; iv.a Receivables Purchase Agreement entitling the Agency to sell and obligating LBCS to purchase the Agency's right to receive certain payments;and v.any other agreements,certificates and documents deemed by authorized representatives of the Agency to be necessary or appropriate in connection with the above described agreements and transactions. 3.No Private Business Use (a)Member reasonably expects to resell all of the natural gas acquired pursuant to the Gas Supply Contract to its retail natural gas customers (including,without limitation,the Member and its agencies and instrumentalities)pursuant to regularly established and generally applicable tariffs. (b)To the extent the natural gas acquired by Member pursuant to the Gas Supply Contract at any time exceeds the requirements of its retail natural gas customers,Member certifies, covenants and agrees that it will cause the excess natural gas acquired pursuant to the Gas Supply Contract to be remarketed for Member's account pursuant to the Gas Supply Contract and the Remarketing Agreement. (c)Unless Bond Counsel delivers an unqualified written opinion to the Member,the Issuer and the Trustee that other action will not adversely affect the exclusion of interest on the Bonds from gross income of Bondholders for federal income tax purposes,Member certifies, covenants and agrees that it will not permit any natural gas purchased from the Agency pursuant to the Gas Supply Contract to be used in any manner that gives rise to private business use of said natural gas for purposes of section 141(b)of the Internal Revenue Code of 1986.IN PARTICULAR,MEMBER WILL USE NATURAL GAS PURCHASED AND RECEIVED FROM THE AGENCY PURSUANT TO THE GAS SUPPLY CONTRACT ONLY TO PROVIDE NATURAL GAS UTILITY SERVICE TO MEMBER'S RETAIL CUSTOMERS (INCLUDING, WITHOUT LIMITATION,MEMBER AND ITS AGENCIES AND INSTRUMENTALITIES)AT COST OF SERVICE BASED RATES THAT ARE GENERALLY APPLICABLE AND UNIFORMLY APPLIED,SUBJECT TO CUSTOMARY AND REASONABLE DIFFERENCES IN RATES FOR DIFFERENT CLASSES OF CUSTOMERS.Member will cause any remaining natural gas purchased pursuant to the Gas Supply Contract to be remarketed pursuant to the Gas Supply Contract for the account of Member.Member will notify the Agency promptly in writing if any natural gas received from the Agency pursuant to the Gas Supply Contract in fact is used in a manner that might give rise to private business use of that natural gas. 4.Prepaid Gas Sizing (a)The amount ofnatnral gas purchased (other than forresale)during each of the last five calendar years from Member by customers located within Member's Service Area were at least as follows: 2007 MMBtns 2006 MMBtus 2005 MMBtus 2004 MMBtus 2003 MMBtus For purposes of this Certificate,the term "Service Area"means the area throughout which Member provided (i)natural gas transmission or distribution service at all times during the five-year period ending on the Date of this Certificate (the "Testing Period"),(ii)any area within a county contiguous to the area described in 4(a)(i)in which retail customers of Member are located if such area is not also served by another utility providing natnral gas services,and (iii)any area recognized as the service area of the Member under State or federal law.Therefore,the annual average amount during the Testing Period of natural gas purchased (other than for resale)by customers of Member who are located within the Service Area is at least MMBtns. This annual average amount does not exceed the annual amount of natnral gas reasonably expected to be purchased (other than for resale)by persons who are located within the Service Area and who,as of the Date of this Certificate,are retail customers of Member. (b)The amount of natural gas used to transport natnral gas purchased by Member pursuant to the Gas Supply Contract during each year is reasonably expected to be not less than ______MMBtus per year throughout the term of the Gas Supply Contract. (c)On the Closing Date,(i)Member holds no more than MMBtus of natural gas,and (ii)apart from its right to acquire natural gas pursuant to the Gas Supply Contract, Member has no right to acquire natural gas prior to ,2038. 5.No Future Disgualifyillg Intentional Acts Unless Bond Counsel delivers an unqualified written opinion to Member,the Issuer and the Trustee that other action will not adversely affect the exclusion of interest on the Bonds from gross income of Bondholders for federal income tax purposes,Member covenants and agrees that it will not engage in any intentional act to render the volume of natnral gas acquired by Member pursuant to the Gas Supply Contract to exceed the sum of (i)the amount or natural gas needed (other than for resale)by customers of Member who are located in the Service Area,and (ii)the amount of natural gas nsed to transport natural gas purchased pursuant to the Gas Supply Contract to Member. 6.Member Payments Under the Gas Supply Contract Member expects to pay for natural gas acquired pursuant to the Gas Supply Contract with funds derived from Member's natural gas utility business.Member expects to use current natural gas utility revenues to fund all current payments required of Member pursuant to the Gas Supply Contract.Member reasonably expects there will be no funds or accounts of Member or any person who is a Related Person to Member in which monies will be invested for more than six months and which are reasonably expected to be used to fund payments required of Member pursuant to the Gas Supply Contract.No portion of the proceeds of the Bonds will be used directly or indirectly to replace funds of Member or any persons who are Related Persons to Member that are or were intended to be used to purchase natural gas. ,2008 (SEAL) By: ATTEST:_ APPENDIX 1 Initial Directors and Officers of the Issuer 1.John Bird 2.Kenneth Spies 3.Jim Zeutenhorst 4.Bradley Honold 5.Bryan Gerritson EXHIBITB (See Attached)] Base Contract for Sale and Purchase of Natural Gas This Base Contract is entered into as of the following date: The parties to this Base Contract are the following' PARTY A PARTY NAME PARTY B [INSERT COUNTERPARTY LEGAL ENTITY NAME'IINSERT COUNTERPARTY LEGAL ENTITY NAME] ADDRESS WWW,BUSINESS WEBSITE www, CONTRACT NUMBER D·U·N·S®NUMBER 0 US FEDERAL:0 US FEDERAL: 0 OTHER: 0 OTHER:TAX lD NUMBERS JURISDICTION OF ORGANIZA flON 0 Corporation 0 LLC 0 Corporation 0 LLC 0 Limited Partnership 0 Partnership COMPANY TYPE 0 LImited Partnership 0 Partnership 0 LLP 0 Other:0 LLP 0 other: GUARANTOR IIF APPLICABLE' CONTACT INFORMATION ATTN:ATTN:•COMMERCIALTEL#:TEL#: FAX#:FAX#: EMAfL:EMAIL: ATTN:A7TN: TEL#:•SCHEDULING TEL#: FAX#:FAX#: EMAIL:EMAIL: ATTN:•CONTRAGT AND ATTN: TEL#:LEGAL NOTiCES TEL#: FAX#:FAX#: EMAIL:EMAIL: ATTN:ATTN: TEL#:•CREDIT TEL#: FAX#:FAX#: EMAIL:EMAIL: ATTN:ATTN: TEL#:•TRANSACTfON CONFIRMA TJONS TEL#: FAX#:FAX#: EMAIL:EMAIL: ACCOUNTING INFORMATION AITN:•INVOICES AITN: TEL#:•PAYMENTS TEL#: FAX#:•SEITLEMENTS FAX#: EMAIL:EMAIL: BANK:BANK: ABA:WIRE TRANSFER ABA: ACCT:NUMBERS ACCT: OTHER DETAfLS:(IF APPLICABLE)OTHER DETAILS: BANK:BANK: ABA:ACHNUMBERS ABA: ACCT:(IF APPLICABLE)ACCT: OTHER DETAILS:OTHER DETAILS: AITN:ATTN: ADDRESS:CHECKS ADDRESS:(IF APPLICABLE) Copyright ©2006 North American Energy Standards Board,Inc.NAESB Standard 6.3,1 All Rights Reserved Page 1 of 13 September 5,2006 Base Contract for Sale and Purchase of Natural Gas (Continued) 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 lollo,,"ng provisions offered in said Generai Terms and Conditions.In the event the parties lail to check a box,the specified default provision shall apply.Select the approoriate box(es) from each section' Section 1.2 0 Oral (default)Section 10,2 0 No Additional Events of Default (default) Transaction OR Additional Procedure 0 Written Events of 0 Indebtedness Cross Default Default 0 Party A: Section 2.7 0 2 Business Days after receipt (default) Confinn Deadline OR 0 Party B: 0 __Business Days after receipt u Transactional Cross Default Specified Transactions: Section 2.8 0 Seller (default) Contlrmlnq Party OR 0 Buyer 0 Section 3.2 0 Gover Standard (default)Section 10.3.1 0 Early Termination Damages Apply (default) Performance OR Early Obligation 0 Spot Price Standard Termination OR Damages 0 Early Termination Damages Do Not Apply Note:The following Spot Price PublicatIon applies to both of the immediatelv orecedln-a.Section 10.3.2 0 Other Agreement Setoffs Apply (default) Other Section 2.31 0 Gas Daily Midpoint (default)Agreement 0 Bilateral {default} Spot Price OR Setoffs 0 TriangularPublication0OR 0 Other Agreement Setoffs Do Not Apply Section 6 0 Buyer Pays At and After Delivery Point Taxes (defaull)OR 0 Seller Pays Before and At Delivery Point Section 7.2 0 25th Day of Month following Month of delivery Section 15.5 Payment Date (default)Choice Of Law OR 0 Dav of Month followino Month of deliverv Section 7.2 0 Wire transfer (default)Section 15.10 0 Confidentiality applies (default) Method of Payment 0 Automated Clearinghouse Credit (ACH)Confidentiality OR 0 Check 0 Confidentiality does not apply Section 7.7 0 Netting applies (default) Netting OR 0 Netting does not anelv o Special Provisions Number of sheets attached:o Addendum(s): IN WITNESS WHEREOF the parties hereto have executed this Base Contract in duplicate, [INSERT COUNTERPARlYLEGAUENTITY NAME]PARTY NAME [INSERTCOUNTERPARTYcLEGAL ENTITY NAME] SIGNATURE Bv:Bv: llnsert Namel PRINTED NAME llnsert Namel llnsert Tltlel TITLE rJnsertTillel Copyright ©2006 North American Energy Standards Board,Inc.NAESB Standard 6.3.1 All Rights Reserved Page 2 of 13 September 5,2006 J SECTION 1. General Terms and Conditions Base Contract for Sale and Purchase of Natural Gas 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 2.9. 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 (l.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 aareed to bv the parties. Written Transaction Procedure: 1.2.The parties will use the following Transaction Confirmation procedure.Shoutd the parties come to an agreement regarding a Gas purchase and sale transaction for a particular Detivery 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 ctose 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 Cornlrmatlons or the oassaoe of the Confirm Deadline without obiection from the receivino party,as nrovided in Section 1.3. 1.3.If a sending party's Transaction Confirmation is materially differenlfrom the receiVingparty'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 eiectronic 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 confiict among the terms of (i)a binding Transaction Confirmation pursuant to Section 1.2,(i1)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 govem 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 no lice tv the other party.Each party shall obtain any necessary consent of Hs 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. SECTION 2.DEFINITIONS The terms set forth below shall have the meaning ascribed to them below.Other terms are also defined eisewhere tn the Contract and shall have the meanings ascribed to them herein. 2.1."Additional Event of Detault"shall mean Transactional Cross Default or Indebtedness Cross Default,each as and if selected by the parties pursuant to the Base Contract. 2.2."Affiliate"shall mean,in retationto any person,any entity controlled,directly or indirectly,by the person,any entity that controls, dlrectiy or indirectly,the person or any entity directly or indirectly under common control with the person.For this purpose,"control"of any entity or person means ownership of at least 50 percent of the voting power of the entity or person. 2.3."Aitemative 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. Copyright ©2006 North American Energy Standards Board,Inc.NAESB Standard 6.3.1 All Rights Reserved Page 3 of 13 September 5,2006 2.4."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 identifiedon page one. 2.5."British thermal unlt"or "Btu"shall mean the Intemational BTU,which is also called the Btu (IT).1 2.6."Business Day(s)"shall mean Monday through Friday,excluding Federal Banking Holidays for transactions in the U.S. 2.7."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. 2.8."Confirming Party"shall mean the party designated in the Base Contract to prepare and forward Transaction Confirmations to the other party. 2.9."Contract"shall mean the legally-binding relationship established by (i)the Base Contract,(il)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,all of which shall form a single integrated agreement between the parties. 2.10."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.. 2.11."Contract Quantity"shall mean the quantity of Gas to be delivered and taken as agreed to by the parties in a transaction. 2.12."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 shail use commerciaily reasonable efforts to (i)if Buyer is the performing party,obtain Gas,(or an aiternate 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 nonperformlng party;the immediacy of the Buyer's Gas consumption needs or Seiler's Gas sales requirements,as applicable;the quantities involved;and the anticipated length of failure by the non performing party. 2.13."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 cash,an irrevocable standby letter of credit,a margin agreement,a prepayment,a security interest in an asset,guaranty,or other good and sufficient security of a continuing nature. 2.14."Day"shall mean a period of 24 consecutive hours,coextensive with a "day"as defined by the Receiving Transporter in a particular transaction. 2.15."Delivery Period"shall be the period during which deliveries are 10be made as agreed to by the parties in a transaction. 2.16."Delivery Point(s)"shall mean such point(s)as are agreed to by the parties in a transaction. 2.17."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. 2.18."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 shaH 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 repulated under the Commodity Exchange Act. 2.19."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. 2.20."Gas"shall mean any mixture of hydrocarbons and noncombustible gases in a gaseous state consisting primarily of methane. 2.21."Guarantor"shail mean any entity that has provided a guaranty of the obligations of a party hereunder. 2.22."Imbaiance 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. 2.23."indebtedness Cross Default"shall mean if selected on the Base Contract by the parties with respect to a party,that it or its Guarantor,if any,experiences a default,or similar condition or event however therein defined,under one or more agreements or instruments,lndlvidually or collectively,relating to indebtedness (such indebtedness to include any obligation whether present or future,contingent or otherwise,as principal or surety or otherwise)for the payment or repayment of borrowed money in an aggregate amount greater than the threshold specified in the Base Contract with respect to such party or its Guarantor,if any,which results in such indebtedness becoming immediately due and payable. 2.24."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 Copyright ©2006 North American Energy Standards Board,Inc.NAESB Standard 6.3,1 All Rights Reserved Page 4 of 13 September 5,2006 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. 2.25."MMBtu"shall mean one million British thermal units,which is equivalent to one dekatherm. 2.26."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. 2.27."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, 2.28."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. 2,29,"Scheduled Gas"shall mean the quantity of Gas confirmed by Transporter(s)for movement,transportation or management. 2.30."Specified Transaction(s)"shall mean any other transaction or agreement between the parties for the purchase,sale or exchange of physical Gas,and any other transaction or agreement identifiedas a Specified Transaction under the Base Contract. 2,31,"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 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, 2,32,"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. 2,33,"Transactional Cross Default"shall mean if selected on the Base Contract by the parties with respect to a party,that it shall be in default,however therein defined,under any Specified Transaction, 2,34."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, 2,35."Transporter(s)"shall mean all Gas gathering or pipeline companies,or iocal distribution companies,acling in the capacity of a transporter,transporting Gas for Selier or Buyer upstream or downstraam,respectively,of the Delivery Point pursuant to a particular transaction. SECTION 3.PERFORMANCE OBLIGATION 3.1 ,Selier 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 Intenuptible 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 tho Contract Quantity and the quantity actually delivered by Seller for such Day(s)excluding any quantity for which no replacement is available;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 Contracl Quantity and the quantity actually taken by Buyer for such Day(s)excluding any quantity for which no sale is available;and (iii)in the event that Buyer has used commercially reasonable efforts to repiace 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 for all or any portion of the Contract Quantity of Gas,then in addition to (i)or (Ii)above,as applicable,the sale and exclusive remedy of the performing party with respect to the Gas not replaced or sold shall be an amount equal to any unfavorable difference between the Contract Price and the Spot Price,adjusted for such transportation to the applicable Delivery Point,multiplied by the quantity of such Gas not replaced or sold,Imbalance Charges shall not be recovered under this Section 3.2,but Seller andlor 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 sale and exclusive remedy of the parties in the event of a breach of a Firm obligation to deliver or receive Gas shall be recoverv of the followino:(j)in the event of a breach bv Seller on anv Dav!s),oavment bv Seller to Buyer in an amount eoual to the Copyrrght ©2006 North American Energy Standards Board,Inc.NAESB Standard 6,3.1 All Rights Reserved Page 5 of 13 September 5,2006 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 subtractlnq 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),muttiplied by the positive difference,if any, obtained by sUbtracting the applicable Spot Price from fhe Contract Price.Imbaiance Charges shali not be recovered under this Section 3.2,but Selier and/or Buyer shali 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 uoon 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 Terminallou 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.Selier shali have the sale 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 shali coordinate their nomination activities,giving suffcient 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 aUT ransporter(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 Poinf(s)are greater or lesser than the Scheduled Gas,such party shali promptly notify the other party. 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 Buyers receipt of quantllies of Gas greater than or iess than the Scheduled Gas,then Buyer shall pay for such Imbalance Charges or reimburse Selier for such imbalance Charges paid by Selier.if the Imbaiance Charges were incurred as a result of Sellers 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 Ail Gas delivered by Seller shali 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. Buver Pavs At and After Deliverv Point: Seller shali payor cause to be paid all taxes,fees,ievies,penalties,licenses or charges imposed by any government authority ("Taxes") on or with respectio the Gas prior to the Deiivery Point(s).Buyer shall payor cause to be paid all Taxes on or with respect to the Gas at the Deiivery 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 exernntion from anv such Taxes or charoes shall fumish the other nartv anv necessarv documentation thereof. Seller Pavs Before ~d AtDeiivery Point: Seller shall payor 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 payor cause to be paid ali 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 charaes shall fumish the other oartv anv necessarv 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 dale,billing will be prepared based on the quantity of Scheduled Gas.The invoiced quantity wili then be adjusted to the actuat quantity on the following Month's billing or as soon thereafter as actual delivery infonnation 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 laler 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 acoordance with this Section 7.2. Copyright ©2006 North American Energy Standards Board,Inc.NAESB Standard 6.3.1 All Rights Reserved Page 6 of 13 September 5,2006 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 without undue delay.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 shaH 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. 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 Polnt(s).Buyer shall have responsibility for and assume 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 15.8,ALL OTHER WARRANTIES,EXPRESS OR IMPLIED,INCLUDING ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR ANY PARTICULAR PURPOSE,ARE DISCLAIMED. 8.3.SeHer agrees to indemnify Buyer and save it harmless from all losses,liabilities or claims including reasonable attorneys'fees and costs of court ("Clalms"),from any and all persons,arising from or out of claims of title,personal injury (including death)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(inciuding death)or property damage from said Gas or other chargesthereon which attach after title passes to Buyer. 8.4.The parties agree that the delivery of and the transfer of title to all Gas under this Contract shall take place within the Customs Territory of the United States (as defined In general note 2 of the Harmonized Tariff Schedule of the United States 19 U.S.C.§1202,General Notes,page 3);provided,however,that in the event Seller took title to the Gas outside the Customs Territory of the United States,Seller represents and warrants that it is the importer of record for all Gas entered and delivered into the United States,and shall be responsible for entry and entry summary filings as well as the payment of duties,taxes and fees,if any,and all applicable record keeping requirements. 8.5.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,payment instructions,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 shall be in writing and 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. Copyright ©2006 North American Energy Standards Board,Inc.NAESB Standard 6.3,1 All Rights Reserved Page 7 of 13 September 5,2006 9.4.The party receiving a commercially acceptable Notice of change in payment instructions or other payment information shall not be obligated to implement such change until ten Business Days after receipt of such Notice. 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 or its Guarantor,if applicable),X may demand Adequate Assurance of Performance."Adequate Assurance of Performance"shall mean sufficient security in the form,amount,for a term,and from an issuer,all as reasonably acceptable to X,including,but not limited to cash,a standby irrevocable letter of credit,a prepayment,a security interest in an asset or guaranty. Y hereby grants to X a continuing first priority security interest in,lien on,and right of setoff against all Adequate Assurance of Performance in the form of cash transferred by Y to X pursuant to this Section 10.1.Upon the return by X to Y of such Adequate Assurance of Performance,the security interest and lien granted hereunder on that Adequate Assurance of Performance shall be released automatically and,to the exlent possible,without any further acllon by either party. 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 acquesce 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;(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;or ix)be the affected party with respect to any Additional Event of Default;then the other party (the "Non-DefaUlting Party")shall have the right,at its sale election,to immediately withhold andlor suspend deliveries or payments upon Notice and/or to terminate and llquldate 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 ("Excluded Transactions"),which Excluded Transactions must be liquidated and terminated as soon thereafter as is legally permissible,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. The parties have selected either "Early Termination Damages Apply"or "Early Termination Damages Do Not Apply"as indicated on the Base Contract. Earlv Termination Damaqes Apply: 10.3.1.As of the Early Termination Date,the Non-Defaulting Party shalt 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 deiivered 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)shail be due to the Buyer under the Terminated Transaction(s)if such Market Value exceeds the Contract Value and to the Seller jf 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-Defaultinq 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 oresent value shall be determined bv the Non-Defauilino Partv in a cornmerclallv reasonable manner. Early Termination Damages Do Not Apply: Copyright ©2006 North American Energy Standards Board,Inc.NAESB Standard 6.3.1 All Rights Reserved Page 8 of 13 September 5,2006 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 navrnent has not vet been made bv the nartv that owes such oavment 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 Aoreement Setoffs Apply: Bilateral Setoff Option: 10.3.2.The Non-Defaultinq Party shall net or aggregate,as appropriate,any and all amounts owing between the parties under Section 10.3.1,so Ihat all such amounts are natted 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 is hereby authorized to setoff any Net Settlement Amount against (i)any margin or other collateral held by a party in connection with any Credit Support Obligation relating to the Contract;and (ii)any amount(s)(inclUding any excess cash margin or excess cash collateral)owed or held by the party that is entitled to the Net Settlement Amount under any other agreemenl or arrangement between the parties. Triangular Setoff Option: 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 is hereby authorized to setoff (i)any Net Settlement Amount against any margin or other collateral held by a party in connection with any Credit Support Obligation relating to the Contract;(il)any Net Settlement Amount against any amount(s)(Including any excess cash margin or excess cash collateral)owed by or to a party under any other agreement or arrangement between the parties;(iii) any Net Settlement Amount owed to the Non-Defaulting Party against any amount(s)(inclUding any excess cash margin or excess cash collateral)owed by the Non-Defaulting Party or its Affiliates to the Defaulting Party under any other agreement or arrangement;(IV)any Net Settiement Amount owed to the Defaulting Party against any amount(s)(including any excess cash margin or excess cash collateral)owed by the Defaulting Party to the Non-Defaulting Party or its Affiliates under any other agreement or arrangement;and/or (v)any Net Settlement Amount owed to the Defaulting Party against any amount(s)(including any excess cash margin or excess cash collateral)owed by the Defaulting Party or its Affiliates to the Non-Defaulting Party under anv other aoreernent or arranoement, other Aareement Setoffs Do Not Applv: 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 llquldated amount payable by one party to the other (the "Net Settlement Amount").At Its sale option and without prior Notice to the Defaulting Party,the Non-Defaulting Party may setoff any Net Settlement Amount against any margin or other collateral held by a party in connection with any Credit Support Oblination relallnn 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 the Net Settlement 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 as well as any setoffs applied against such amount pursuant to Section 10.3.2,shall be paid by the close of business on the second Business Day following such Notice,which date shall not be eariier than the Early Terminatton Date.Interest on any unpaid portion of the Net Settlement Amount as adjusted by setoffs,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. 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 Slates Bankruptcy Code. 1 0.6.The Non-Defaulting Party's remedies under this Section 10 are the sale 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. Copyright ©2006 North American Energy Standards Board,lnc.NAESB Standard 6.3.1 All Rights Reserved Page 9 of 13 September 5,2006 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,or acts of terror;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 ail 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 petformance 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 resulling from this Contract;(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 sale 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 possibie.Upon providing written Notice of Force Majeure to the other party,the affected party will be reiieved of its obiigation,from the onset of the Force Majeure event,to make or accept delivery of Gas,as appiicable,to the extent and for the duralion of FoneeMajeure, 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 aiternative Force Majeure provisions in a Transaction Confirmation executed in writing by both parties. SECTION 12.TERM This Contract may be tenninated 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,Section 10,Section 13,the obligations to make payment hereunder, and the obiigation 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.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.MARKET DISRUPTION If a Market Disruption Event has occurred then the parties shall negotiate in good faith to agree on a replacement price for the Floating Price (or on a method for determining a replacement price for the Floating Price)for the affected Day,and if the parties have not so agreed on or before the second Business Day following the affected Day then the replacement price for the Floating Price shall be determined within the next two following Business Days with each party obtaining,in good faith and from non- Copyright ©2006 North American Energy Standards Board,Inc.NAESB Standard 6.3.1 All Rights Reserved Page 10 of 13 September 5,2006 affiliated market participants in the relevant market,two quotes for prices of Gas for the affected Day of a similar quality and quantity in the geographical location closest in proxlmtty to the Delivery Point and averaging the four quotes.If either party fails to provide two quotes then the average of the other party's two quotes shall determine the replacement price for the Floating Price. "Floating Price"means the price or a factor of the price agreed to in the transaction as being based upon a specified index. "Market Disruption Event"means,with respect to an index specified for a transaction,any of the following events:(a)the failure of the index to announce or publish information necessary for determining the Floating Price;(b)the failure of trading to commence or the permanent discontinuation or material suspension of trading on the exchange or market acting as the index;(c)the temporary or permanent discontinuance or unavailability of the index;(d)the temporary or permanent closing of any exchange acting as the index;or (e)both parties agree that a material change in the formula for or the method of determining the Floating Price has occurred.For the purposes of the calculation of a replacement price for the Floating Price,all numbers shall be rounded to three decimal places.If the fourth decimal number is five or greater,then the third decimal number shall be increased by one and if the fourth decimal number is less than five,then the third decimal number shall remain unchanged. SECTION 15.MISCELLANEOUS 15.1.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. 15.2.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. 15.3.No waiver of any breach of this Contract shall be held to be a waiver of any other or subsequent breach. 15.4.This Contract sets forth all understandings between the parties respecling 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. 15.5.The interpretation and performance oflhis Contract shall be governed by the laws of the jurisdiction as indicated on the Base Contract,excluding,however,any confiict of laws rule which would apply the law of another jUrisdiction. 15.6.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. 15.7.There is no third party beneficiary to this Contract. 15.8.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. 15.9.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. 15.10.Unless the parties have elected on the Base Contract not to make this Section 15.10 applicable to this Contract,neither party shall disclose directly or indirectiy 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,(il)to the extent necessary for the enforcement of this Contract,(iii)to the extent necessary to implement any transaction,(iv)to the extent necessary to comply with a regulatory agency's reporting requirements including but not limited to gas cost recovery proceedings;or (v)to the extent such information is delivered to such third party for the sale 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 pariles 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 shali 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 materiai terms of this Contract to the extent so required,but shall promptly notify the other party,prior to disciosure, and shall cooperate (consistent wilh 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. 15.11.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 15.12.Any original executed Base Contract,Transaction Confirmation or other related document may be digitally copied, photocopied,or stored on computer tapes and disks (the "Imaged Agreement").The Imaged Agreement,if introduced as evidence Copyright ©2006 North American Energy Standards Board,Inc.NAESB Standard 6.3.1 All Rights Reserved Page 11 of 13 September 5,2006 on paper,the Transaction Confirmation,if introduced as evidence in automated facsimile form,the recording,if introduced as evidence in its original form,and all computer records of the foregoing,if introduced as evidence in printed format,in any judicial, arbitration,mediation or administrative proceedings will be admissible as between the parties to the same extent and under the same conditions as other business records originated and maintained in documentary form.Neither Party shall object to the ] admissibility of the recording,the Transaction Confirmation,or the Imaged Agreement on the basis that such were not originated or maintained in documentary form.However,nothing herein shall be construed as a waiver of any other objection to the admissibility of such evidence. 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 oflhis Contract by any party.NAESB DISCLAIMS AND EXCLUDES,AND ANY USER OF THIS CONTRACT ACKNOWLEDGES AND AGREES TO NAESB'S DISCLAJMER OF,ANY AND ALL WARRANTIES,CONDITIONS OR REPRESENTATIONS,EXPRESS OR IMPLIED,ORAL DR WRITTEN,WITH RESPECT TO THIS CONTRACT OR ANY PART THEREoF,lNCLUDING ANY AND ALL IMPLIED WARRANTIES DR 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,DR BY COURSE OF DEAUNG.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. Copyright ©2006 North American Energy Standards Board,fnc.NAESB Standard 6.3.1 All Rights Reserved Page 12 of 13 September 5,2006 EXHIBIT A TRANSACTION CONFIRMATION FOR IMMEDIATE DELIVERY Letierhead/Logo Date:,--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:BUYER: Atln:Atln: Phone:Phone: Fax:Fax: Base Contract No.Base Contract No. Transporter:Transporter: Transporter Contract Number:Transporter Contract Number: Contract Price:$IMMBtu or Delivery Period:Begin:End: Performance Obligation and Contract Quantity:(Select One) Firm (Fixed Quantity):Firm (Variable Quantity):Interruptible: ___MMBtus/day ___MMBtus/day Minimum Up to ___MMBtus/day o EFP ___MMBtus/day Maximum subject to Section 4.2.at election of o Buyer or 0 Seller Delivery Point(s): (If a pooling point is used,list a specific geographic and pipeline IDeation): Special Conditions: Seller:Buyer: By:By: Title:Title: Oate:Date: Copyright ©2006 North American Energy Standards Board,Inc.NAESB Standard 6.3.1 All Rights Reserved Page 13 of 13 September 5,2006 OH&S DRAFT 02/05/08 SPECIAL PROVISIONS TO THE BASE CONTRACT between PUBLIC ENERGY FINANCING AUTHORITY and [BUYER] Dated as of [Date],2008 Public Energy Financing Authority,an Iowa joint powers agency ("Seller")and [Buyer]("Buyer")hereby agree effective as of [Date],2008,to supplement and amend the NAESB Standard 6.3.1 Base Contract for Sale and Purchase of Natural Gas (September 5,2006 Version)dated as of [Date],2008 (the "Base Contract"),with the special provisions contained herein ("Special Provisions").The Base Contract,including the General Terms and Conditions thereat,as modified by these Special Provisions, shall apply to all confirmed transactions between the parties for the purchase and sale of Gas unless otherwise specifically stated in a written confirmation executed by both parties. The Contract is being entered into for the sale of Gas by Seller to Buyer that Seller has purchased from Lehman Brothers Commodities Services Inc.("LBCS").Seller Intends to prepay the purchase price of the Gas purchased from LBCS pursuant to a Prepaid Natural Gas Purchase and Sale Agreement ("Prepaid Gas Purchase Agreement")from the proceeds of Seller's bonds ("Bonds")issued simultaneously with the execution of this Contract. All capitalized terms used but not otherwise defined herein shall have the meanings set forth in the Base Contract. SECTION 7.BILLING,PAYMENT AND AUDIT Section 7.1 is hereby amended to add the foJ/owing sentence at the end thereof: "Seller shall invoice Buyer on or prior to the [15th]day of each Month." Section 7.4 is hereby amended to read in its entirety as follows: "The invoiced party shall pay the invoice in full,including any disputed amounts.After such payment,if the invoiced party disputes the amount due,it must provide supporting documentation acceptable in industry practices to support the amount paid and disputed.In the event the parties are unable to resolve such dispute,either party may pursue any remedy at law or In equity, including but not limited to mandamus,to enforce its rights pursuant to this Section 7.4.The obligations of Buyer to make the payments under this Contract and to observe and perform the other covenants and agreements contained herein shall not be subject to setoff,recoupment or counterclaim against Seller or any other person,and Buyer shall pay absolutely net the payments required by this Contract as prescribed herein,free of any deductions and without abatement,diminution,reduction or setoff, including without limitation any defense related to force majeure." SECTION 15.MISCELLANEOUS A new Section 15.13 is hereby added to read as follows: "Notwithstanding anything herein to the contrary,Seller's duty to deliver Gas pursuant to this Contract may be terminated by Seller, in whole or in part,upon the occurrence of an early termination of the Prepaid Gas Purchase Agreement,in whole or in part.Any such termination by Seller shall not constitute a breach of or default under this Contract,and in any such event,no early termination damages shall be owed by either Seller or Buyer under Section 10.3.1.In addition,any invocation of force majeure by LBCS under the Prepaid Gas Purchase Agreement shall automatically constitute an invocation of force majeure by Seiler under this Contract." A new Section 15.14 is hereby added fa read as foHows: "Seller represents and warrants to Buyer as of the date hereof that:(i)it is a public corporation,duly created,validly exlstinq and in good standing under the laws of the State;(Ii)this Contract represents valid and binding obligation of Seller enforceable against it in accordance with its terms,SUbject to bankruptcy,insolvency,reorganization or similar laws as applicable;(iii)the execution, delivery and performance by Seller of this Contract has been duly authorized by the governing body of Seller;and (iv)there is no pending or,to the knowledge of Seller,threatened action or proceeding against it that could affect the validity,legality or enforceability of this Contract." A new Section 15.15 is hereby added to read as follows: "Buyer represents and warrants to Seller as of the date hereof that:(i)it is a municipal corporation,duly created,validly existing and in good standing under the laws of the State;(ii)this Conlract represents the valid and binding obligation of Buyer enforceable against it in accordance with its terms,subject to bankruptcy,insolvency,reorganization or similar laws as applicable;(iii)the execution,delivery and performance by Buyer of this Contract has been duly authorized by the governing body of Buyer;and Special Provisions -Page 1 OH&S DRAFT 02/05/08 (iv)there is no pending or,to the knowledge of Buyer,threatened action or proceeding against it that could affect the validity, legality or enforceability of this Contract." A new Section 15.16 is hereby added to read as follows: "Buyer represents,warrants,covenants and agrees that the payments due hereunder constitute operating expenses of Buyer payable from revenues of its gas system,prior to the payment of debt service on any bonded indebtedness of Buyer or other obligations for borrowed money.Buyer hereby covenants and agrees that it will establish,maintain,and collect rates and charges for the natural gas and other related services provided by Buyer so as to provide revenues sufficient,together with other available monies,to pay Seller all amounts payable under this Contract and to pay all other obligations payable from the revenues of its gas system.Buyer further covenants and agrees that it shall not issue or incur any obligations payable from the revenues of its gas system on a basis prior or superior to its payment obligation hereunder." A new Section 15.17 is hereby added to read as follows: "It is Seller's and Buyer's intention that the interest on the Bonds will be excludable from the gross income of the holders thereof for Federal income tax purposes under applicable provisions of the Internal Revenue Code of 1986,as amended (the "Code"),and the applicable Treasury Regulations promulgated thereunder.Buyer therefore covenants and agrees that it will not take any action or omit to take any action that would adversely affect the tax-exempt status of the Bonds,as may be further instructed by Seller or its counsel in writing.Buyer further covenants and agrees that it will resell the Gas in a manner that (i)will be a qualifying use of the Gas within the meaning of Section 1.148-1(e)(2)(iii)(A)(2)of the Treasury Regulations ("Qualifying Use"),and (i1)will not result In private business use at the Gas within the meaning of Section 141(b)(1)of the Code." A new Section 15.18 is hereby added to read as follows: "Buyer shall provide to Seller,in such form as shall be reasonably requested by Seller,any and all documents,releases,financial statements and other information necessary to enable Seller to comply with any disclosure or other reporting requirement inciuding but not limited to Rule 15c2-12 of the Securities and Exchange Commission,now or hereafter imposed by the United States of America,the State of Iowa,any other State,or any political subdivision or agency of the foregoing havingjurisdiction over Buyer,Seller or the issuance and sale of Seller's bonds or other debt obligations,by iaw,judicial decision,regulation,rule or policy. Such information shall be provided by Buyer from time to time as requested by Seller,but in any case,no less frequently than shall enable Seller to comply with any such law,judicial decision,regulation,rule or policy.Notwithstanding any other provision of this Contract to the contrary,faiiure of Buyer to comply with the requirements of this Section 15.18 shall not be considered a default by Buyer hereunder;provided,however,that Seller and the beneficial owner of any Bonds may take such actions as may be necessary and appropriate,including seeking mandate or specific petformance by court order,to cause Buyer to comply with its obligations in this Section 15.1B." A new Section 15.19 is hereby added to read as follows: "Buyer hereby agrees that it shall at all times maintain rates,fees and other charges for its gas supply services to its customers as shall be sufficient to provide revenues in each fiscal year,together with other available funds,to pay ail amounts due as they come due under this Contract,together with ali other obligations of Buyer,and Buyer shali promptly enforce the payment of all material accounts due and owing to Buyer." A new Section 15.20 is hereby arJded to read as follows: "Buyer agrees to indemnify and hold harmless Seller from and against any and all actions,claims,lawsuits,liabilities and judgments arising from or relating to the negligence or misconduct of Buyer or its failure to fully perform any of its obligations hereunder." A new Section 15.21 is hereby added to read as follows: "Buyer acknowledges and agrees that Seller will pledge its right,title and interest in and to this Contract and the revenues to be received hereunder as further security for the payment of principal of and interest on the Bonds." A new Section 15.22 is hereby added to read as fofiows: "If for any day during the term of this Contract,Buyer determines that the Daily Quantities of Gas that Buyer is obligated to purchase hereunder for a Qualifying Use is less than Buyer's Gas Requirements,Buyer shall give written notice thereof to Seller. For purposes of this Section 15.22,"Buyer's Gas Requirements"shall mean the amount of Gas needed to serve the Gas demand of Buyer's retail customers on such day.For remarketing of gas on a monthly basis,Buyer shall provide notice to Seller at least eight (8)Business Days prior to the first calendar day of the month for which Buyer requests that Selier remarket such Gas.For remarketing of Gas on a daily basis,Buyer shali provide notice to Seller by 8:00 a.m.,Central Time,three (3)Business Days prior to the day for which Buyer requests that Selier remarket such Gas;and for remarketing of Gas on an intra-day basis,Buyer shali provide notice to Selier as soon as practicable on such day.Such notices shall specify the quantity of Gas to be remarketed by Seller.Upon receipt of such notice,Seller agrees to use commercially reasonable efforts to remarket or cause to be remarketed such Gas to another utility that is owned by a state or local governmental unit (or an instrumentality thereof)for a Qualifying Use at the best practicable price;provided,that Seiler shall not remarket or cause to be remarketed such Gas at a price less than the Contract Price without the prior written consent of Buyer.Upon such resale,Seller shall credit the amount received against Buyer's Special Provisions -Page 2 OH&S DRAFT 02/05/08 payment obligations hereunder,less (i)all direct costs and expenses incurred by Seller to make and effect such remarketin9J...and. 'ii)an administrative fee eQllal to five cents ($0 05)per MMBftJ of resold Gas." A new Section 15.23 is hereby added to read as follows: "If requested by Seller to remediate Non-Qualifying Uses of Gas by Buyer or by other purchasers of Gas acquired by Selier under the Prepaid Gas Purchase Agreement,Buyer shall use commercially reasonable efforts to purchase additional Gas from Seller and to apply such additional Gas to Qualifying Uses.Anything herein to the contrary notWithstanding,Buyer covenants and agrees that Gas delivered pursuant to this Contract shall at all limes be deemed to be and treated as the first Gas delivered to and utilized by Buyer." A new Section 15.24 is hereby added to read as follows: "Buyer's obligations to make payments hereunder shall not constitute a charge against the general credit of Buyer but shall constitute special and limited obligations of Buyer payable solely from revenues of its gas system.Neither the faith and credit nor the taXing power of the State,Buyer or any other pubiic agency is pledged to the payment of amounts due hereunder.Neither the State,Buyer nor any other public agency shall be obligated under this Contract.directly or indirectly,to levy or pledge any form of taxation or to make any appropriation therefrom to make payments due hereunder.The obligation of Buyer to make payments hereunder shali not constitute a debt,liability or obligation of the State,Buyer or any other public agency,other than the special obligation of Buyer as set forth above." "Buyer's obligation to make the payments it is required to make under this Contract is a several obligation and not a joint obligation with the obligations of any other municipality under contract with Seller for the purchase of natural gas,Buyer further covenants and agrees that it shall not furnish or supply gas services free of charge to any person,firm,corporation,association,or other entity,public or private,except any such service free of charge that Buyer is supplying on the date of this Contract,and that it shail promptiy enforce the payment of any and all accounts owing to Buyer for the sale of naturai gas or the provision of transportation or other services to its customers.Buyer further covenants and agrees that in connection with any future bond issue,borroWing, financing or other financial transaction payable from revenues of its gas system,Buyer shall not pledge or encumber the revenues of its gas system through a gross revenue pledge or in any other way which would create a prior or superior obligation to its obligation to make payments under this Contract." A new Section 15.25 is hereby added to read as follows: "Neither the members of the governing body of Buyer,nor any person executing this Contract,nor any officer or employee of Buyer shail be liable personally for any payments to be made by Buyer hereunder or be subject to any personal liability or accountability by reason of the execution and delivery of this Contract or in respect of any undertakings by Buyer under this Contract." A new Section 15.26 is hereby added to read as follows: "After the end of each twelve (12)month period starting from the first month of the term hereof,Seller shall review Its revenues and expenses relating to the Project for the preceding twelve-month period.if as a resuit of such review It is established that the revenues of Seiler exceeded its expenses (including but not limited to,for the purpose hereof,the payments of principal and interest on the Bonds and related expenses associated with the Bonds,deposits into any debt service reserve fund,allowance for appropriate contingencies,accounting and legal costs and other similar expenses)for the respective period,Seller shall refund to Buyer a pro-rata portion of such amount (based upon the total MMBtus of Gas purchased and utilized for Qualifying Uses by Buyer during such period)as reasonably determined by the governing body of Seller,provided,that Buyer has made ail necessary payments hereunder." A new Section 15.27 is hereby added to read as follows: "Notwithstanding the provisions of Section 15.7 hereof,the Parties agree that LBCS,as Seiler under the Prepaid Gas Purchase Agreement,shall be a third party beneficiary of this Contract and as such shail have the right to take all actions and pursue ail remedies to which the non-defauiting party is entitled in the event of default by Seller or Buyer hereunder.Any amendment or modification to this Contract shall be valid only if both parties have executed such amendment or modification in writing and the trustee with respect to the Bonds (if the Bonds are outstanding at such time)and LBCS (if the Prepaid Gas Purchase Agreement is in effect at such time)have respectively consented thereto," Special Provisions -Page 3 OH&S DRAFT 02/05/08 IN WITNESS WHEREOF,the parties have executed these Special Provisions in duplicate. PUBLIC ENERGY FINANCING AUTHORITY ("Seller") [BUYER] ("Buyer") [Seal] Name: Title: Date: Name: Title: Date: Special Provisions ~Page 4 OH&S DRAFT 02/05/08 TRANSACTION CONFIRMATION FOR IMMEDIATE DELIVERY Date:,2008 Transaction Confirmation #: This Transaction Confirmation is subject to the Base Contract and Supplemental Provisions between Seller and Buyer dated as of [Date],2008.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:BUYER: PUBLIC ENERGY FINANCING AUTHORITY Attn:Attn: Phone:Phone: Fax:Fax: Base Contract No.Base Contract No. Transporter:Transporter: Transporter Contract Number:Transporter Contract Number: Contract Price:Spot index Price _¢/MMBtu Delivery Period:Begin:[Date],2008 End:[Date],2038 Performance Obligation and Contract Quantity: Firm (Fixed Quantity):The amount of MMBtu's per day set forth in Appendix A hereto. Delivery Point(s): (If a pooling point is used,list a specific geographic and pipeline iocation): Special Conditions: The following Special Conditions shall apply to the transaction set forth in this Transaction Confirmation: "Spot index"means,with respect to any day and for the Delivery Point,the index price (in $/MMBtu)published in Inside FERC's Gas Market Report (published by Platts,a division of The McGraw-Hili Companies lnc.)in the first issue of the calendar month in which such day begins,as listed in the table entitled "Prices of Spot Gas Delivered to Pipelines"for the Inside FERC pricing point corresponding to such Delivery Point,or in the revised edition,if applicable.If Piatts Inside FERC's Gas Market Report should cease to publish such monthly index price or or there is a temporary interruption in the publicafion of such notice,or should cease to publish entirely,report,the Spot Index shall be the price determined pursuant to the Prepaid Gas Purchase Agreement between Seller and LBCS. Seller:PUBliC ENERGY FINANCING AUTHORiTY Buyer: By:By: Titie:Title: Date:Date: OH&S DRAFT 02/05/08 Appendix A Volumes EXHIBITC (See Attached) AMENDED AND RESTATED AGREEMENT ESTABLISHING THE PUBLIC ENERGY FACILITIES AUTHORITY, AN IOWA JOINT POWERS AGENCY,UNDER lOW A CODE CHAPTER 28E (Dated as of June 1,2008) BE IT REMEMBERED for the mutual promises,covenants and considerations herein contained, the those certain municipalities listed on Schedule A hereto (together,the "Members")have entered into the following Amended and Restated Agreement Establishing The Public Energy Facilities Authority,an Iowa Joint Powers Agency,originally dated as of September 1,2007 and amended and restated as of June 1,2008 (the "Agreement")under Iowa Code chapter 28E (the "Joint Powers Act")to wit: Article One.The organization herein created is a separate legal entity,a body corporate and politic which shall be known as the Public Energy Facilities Authority,an Iowa Joint Powers Agency (hereinafter the "Agency"). Article Two.The purposes of the Agency are to acquire and procure energy resources,or the rights thereto,including in particular natural gas and electric energy,and to provide for the transportation,transmission,distribution,sale and/or storage thereof in and to each Member's service area,or to assist in the provision thereof for the benefit of the public entities which are or become Members of the Agency. Article Three.The Agency shall have the power (A)to sue and be sued;(B)to malce and enter into contracts (including without limitation prepaid energy purchase agreements,energy supply agreements,energy remarketing agreements,energy price management and exchange agreements,interest rate management and exchange agreements,agreements providing for payments based on levels of,or changes or differences in,interest rates or energy or natural gas prices,agreements to exchange cash flows or payments,and agreements for credit enhancement and liquidity support in connection with such contracts);(C)to hire agents,consultants, underwriters,trustees,contractors,attorneys and employees;CD)to acquire,construct,maintain and operate (or to provide for the construction,maintenance and operation of)any buildings, works or improvements;(E)to acquire,hold or dispose of properly,by purchase,lease or otherwise,whether real or personal,tangible or intangible,wherever located;(F)to receive gifts, contributions and donations of property,funds,services and other forms of assistance from persons,firms,corporations and any governmental entity;and (G)to (i)act as a "member"in one or more Iowa nonprofit corporations organized under Iowa Code Chapter 504,(ii)appoint and remove the officers and the directors of such corporations from time to time,(iii)authorize contracts of which said corporations may enter into from time to time,and (iv)approve the issuance of any indebtedness of said corporations.In addition,the Agency shall have all powers conferred by Iowa Code chapter 28E. Article Four.The Board of Directors (the "Board")shall initially consist of five people (the "Initial Directors"),each of whom shall be appointed by each Initial Member.The Initial Members are listed on Schedule B hereto.Initial Directors shall be for a term of either four (4)or five (5)years,to be established by lot at the first meeting of the Board.The election of subsequent Boards,the manner of election,size of the Board,and tenure of Board members shall be as established in the Bylaws. Article Five.The Board of Directors shall adopt Bylaws consistent with this Agreement.The Bylaws shall provide for officers of the Agency.The Bylaws shall provide for the periodic meeting of the Board ofDi.rectors and may provide for an executive committee which may act on behalf of the Agency between meetings of the Board of Directors.The Agency's fiscal year shall be set in its Bylaws.The Board of Directors may,by resolution,designate two or more of its representatives to constitute a committee.Such committee shall,if authorized by resolution of the Board of Directors,provide advice and recommendations to the Board of Directors.The designation of such committee shall not operate to relieve the Board of Directors of any responsibility imposed by this Agreement.Meetings of such committees may be held at such time and place as the committee members may fix from time to time. Article Six.Except as otherwise provided in this Agreement,all powers (including without limitation the powers listed in Article Three (G)herein)of the Agency are vested in the Board of Directors. Article Seven.The Board of Directors may employ an executive director for the Agency and provide for direct employment of such other persons as are deemed necessary or prudent,and shall have the power to engage the services of independent contractors,including attorneys, engineers,financial and other technical consultants and such other persons or entities as it may deem prudent or necessary. Article Eight.The Board of Directors shall control the finances of the Agency and may expend or invest funds of the Agency as it deems necessary to accomplish the purposes of the Agency; provided,however,that all funds shall be invested in accord with Iowa Code sections 12B.1O and 12B.IOA through 12B.lOC (2007),as supplemented and amended,or any successor statutes. Article Nine.The Board of Directors shall establish the fiscal year for the Agency and shall annually adopt a budget prior to the start of the Agency's fiscal year.The budget shall provide for such contributions from Members as may be deemed necessary.A copy of a proposed budget shall be forwarded to each Member at least 30 days before adoption.A copy of the budget as adopted shall be sent to each Member within 30 days after adoption. Article Ten.The Agency shall hold all personal and intangible property which it acquires in its own name.The Agency may acquire such property as it needs to accomplish its public purposes by sale,exchange or otherwise.The Agency may dispose of any of its property in the same manner as a city.All proceeds from the sale or disposition of property is property of the Agency. The Agency may accept contributions in any form. The Agency may administer contracts and may talee assignments of contract rights from Members or other public or private entities upon such terms and conditions as the Board of Directors may deem proper or in the best interest of the Agency. The Board of Directors shall establish and maintain appropriate funds and accounts for the purposes set forth in this Agreement to the extent necessary or desirable,including but not limited to separate accounts for operation and maintenance,administrative expenses,and reserves for working capital.All funds held by the Board of Directors shall be accounted for, managed and invested in compliance with Iowa law,including but not limited to Chapters 12B and l2C of the Iowa Code,as supplemented and amended. Each year the receipts,expenditures and allocation of expenses for the operation of the Agency shall be audited by the independent auditing finn engaged by or on behalf of the Board of Directors for that year to conduct the audit of the Agency.Such audit shall be conducted in accordance with anditing standards generally accepted in the United States of America and the standards applicable to the fmancial audits contained in Govermnent Auditing Standards,issued by the Comptroller General of the United States and Chapter II of the Iowa Code.Following the receipt of the audit report,the Board shall deliver a copy of the same to the Members and shall schedule a meeting of the Board for the purpose of having representatives of the independent auditing finn submit an oral presentation of the audit and answer questions as may be posed to them by the Board of Directors. Article Eleven.This Agreement shall become effective upon execution and approval of all the Members and shall continue in full force and effect for a period of sixty (60)years from such date,or until such earlier time as it is terminated by a writing signed by all the Members; provided,however,that,notwithstanding the foregoing,this Agreement shall not expire or be terminated until the date on which:(i)all contracts and agreements of the Agency (a)shall have expired or been otherwise terminated and all amounts owed by the Agency thereunder have been paid;or (b)the Agency's obligations thereunder have been transferred or assigned to another party in accordance with the terms of such contracts and agreements;and (ii)all other liabilities incurred by the Agency shall have been paid. Article Twelve.At the end of the term hereof or upon the earlier termination of this Agreement as provided herein,after payment of all expenses and liabilities of the Agency,all property of the Agency both real and personal shall be distributed to the Members as directed by the Board; provided,however,that any surplus money on hand shall be returned in proportion to the contribntions made by the Members and if no contributions have been made in proportion to the payments made by each of the Members to or for the account of the Agency in connection with its projects and programs. Article Thirteen.The Agency shall hold all licenses and certificates necessary to its purposes in its own name or through affiliated entities formed by the Agency for specified purposes. Article Fourteen.Additional Members may join or be added to the Agency.Any city,city utility,or organization composed of cities or city utilities or other public entities organized under the laws of any state,may,to the extent permitted by applicable law,adopt this Agreement (as amended,if amended)as provided by law and become a Member of the Agency.Any such joinder shall be subject to the prior approval of the Board of Directors.Furthermore,any such joinder shall be accomplished by a supplement to tins Agreement between the Agency and the new Member and such supplement shall be in a form approved by the Board of Directors. Except as expressly provided in this Agreement,all Members shall have the same rights and obligations hereunder. Article Fifteen.This Agreement may be amended by the mntual agreement of all of the Members as provided by law. Article Sixteen.Any Member may withdraw from the Agency,provided,that no such withdrawal shall be permitted if it would result in the dissolution of the Agency and provided further,that no Member will be permitted to withdraw unless said Member has fulfilled any,or made provision to fulfill any,obligations the Member may have under any gas supply contract with the Agency.Any such withdrawal shall only be effective following the receipt by the Agency of such notice of withdrawal in writing,The Agency shall file such notice of withdrawal from this Agreement as an amendment hereto,and such amendment and withdrawal shall be effective upon such filing. Article Seventeen.The Agency shall at all times during the term of this Agreement maintain comprehensive general liability and automobile liability insurance policies with policy limits of not less than $1,000,000 to provide protection for the Agency and the Members, Such policies shall name each Party and its officials,directors,officers,employees,contractors and agents as additional insured and will be considered primary pursuant to or incidental to this Agreement.Such policies shall include a cross-liability or severability of interest provision. Upon the request of any Party,the Agency shall provide certificates of insurance to such Party to the effect that at least the minimum coverage stated above are in effect and shall identify the insurance policies providing such coverage. Article Eighteen.If anyone or more of the terms,provisions,promises,covenants or conditions of this Agreement shall to any extent be adjudged invalid,unenforceable,void or voidable for any reason whatsoever by a court of competent jurisdiction,each and all of the remaining terms, provisions,promises,covenants and conditions of this Agreement shall not be affected thereby, and shall be valid and enforceable to the fullest extent permitted by law.j Article Nineteen.No official,director,officer,contractor,agent or employee of the Agency, past,present or future,shall be individually or personally liable for the observance or performance of any of the terms,conditions or provisions hereof or for any claims,losses, damages,costs,injury and liability of any kind,nature or description arising from the actions of the Agency or the actions undertaken pursuant to this Agreement;provided,however,that nothing herein shall relieve any such person from the performance of any official duty provided hereby or by applicable provision of law. All of the privileges and immunities from liabilities,exemptions from laws,ordinances and rules, all pension,relief,disability,workers'compensation,and other benefits which apply to the activity of officers,agents,employees or other representatives of a Member when performing their respective functions within the territorial Iimits of their public agency,shall apply to them to the same degree and extent while engaged as a Director,officer,agent,employee or other representative of the Agency or while engaged in the performance of any of their functions or duties under the provisions of this Agreement whether within or outside of the boundaries of the applicable Member. Article Twenty.This Agreement is the complete and exclusive statement of the agreement between the Members with respect to the subject matter hereof,and this Agreement supersedes and merges all prior proposals,understandings,and other agreements,whether oral,written,or implied in conduct,between the Members relating to the subject matter of this Agreement. Article Twenty-One.This Agreement is made and shall be construed in accord with the law of the State. Article Twenty-Two.Each Member represents,warrants and agrees that it (i)is a "public agency"as that term is defined in Section 28E.2 of the Joint Powers Act,(ii)owns and operates either or both a municipal natural gas distribution utility and/or a municipal electric utility,and (iii)is anthorized to purchase and sell natural gas and/or electricity for use in connection with its natural gas and/or electric utility systems. Article Twenty-Three.This Agreement is an amendment and restatement of the Agreement Establishing The Iowa Public Energy Financing Authority Under Iowa Code Chapter 28E,dated as of September 1,2007 (the "Original Agreement"),as previously amended,and is intended to provide for the continuation and expansion of the joint project commenced under the Original Agreement. Dated:,2008 (SEAL) Attest: By:--,--_--,--__ Tammy L.Thompson,City Clerk CITY OF BEDFORD,IOWA By:_ Lary D.Wyckoff,Mayor t Dated:,2008 (SEAL) Attest: By:_ Carol Taylor,City Clerk CITY OF BLOOMFIELD,row A By:~ Sam Eakins,Mayor Dated:,2008 (SEAL) Attest: By:_---,-~,_____-__c-,_____,_____--- Linda Burger,City Cleric CITY OF BRlGHTON,IOWA By:_ ScottHughes,1dayor ] Dated:,2008 (SEAL) Attest: By:_ Board Secretary BROOKLYN MUNICIP AL UTILITIES By:_ Board Chairman Dated:"2008 (SEAL) Attest: By:_ Ron Benke,Utility Manager CASCADE MUNICIPAL UTILITIES By:_--,-_--,----;---;_ Clay Gavin,Chairman j Dated:,2008 (SEAL) Attest: By:-----,_ Marlceeta Balcer,City Cleric C1TY OF CLEARFIELD,IOWA By:_ Roger Hering,Mayor Dated:,2008 (SEAL) Attest: By:----,-----...,.-::-c--------- General Manager COON RAPIDS MUNICIPAL UTILITIES By:_ Chairman of Board Dated:~~~~~-"2008 (SEAL) Attest: By:~~~~~_ City Administrator EMMETSBURG MUNICIPAL UTILITIES By:~~~~~~~~~~~~~ Chairman CITY OF FAIRBANK,IOWA 1 Dated:-',2008 (SEAL) By:_ Maurice Welsh,Mayor Attest By:_ Marlene Strempke,City Clerk Dated:,,2008 (SEAL) Attest: By:_--,-------,-----,------,-__::::---,-------,--__ Sandra Henderson,City Clerk CITY OF GRAETTINGER,IOWA By:--c-~-c---------- Kevin Hanson,Mayor Dated:,2008 (SEAL) Attest: By:--,-----,-----,------=--,------,--------,----,------~__c_- Brian Pals,City Administrator/Clerk CITY OF HARTLEY,row A By:._ Clayton Pyle,Mayor J Dated:,2008 (SEAL) Attest: By:_ Jason R.Metten,City Administrator/Clerk CITY OF HAW ARDEN,IOWA / HAWARDEN MUNICIPAL UTILITIES By:__-----:_ Ricard R.Porter,Mayor Dated:,2008 (SEAL) Attest: By:----,-,-,---,---_ Linda Treharne,Utility Clerk LAKE PARK MUNICIPAL UTILITIES By:_ Brent Jacobsen,Chairperson ] Dated:,2008 (SEAL) Attest: By:---,-----,-----:---:_ Karen Zabel,City Clerk CITY OF LENOX,lOW A By:_---,--_ Glen Grout,Mayor Dated:~,2008 CITY OF LORlMOR,IOWA (SEAL) By:--:-::---c---c---c------:,---,------ Kent M.Forbes,Mayor Attest: By:_ Mary Seales,City Clerk I Dated:,2008 (SEAL) Attest: By:_ James Heller,City Clerk MANILLA MUNICIPAL UTILITIES By:_ Pat Wuestewald,Mayor Dated:,2008 (SEAL) Attest: By:_ Secretary MANNING MUNICIPAL GAS DEPARTMENT By:_--:::--,----_ Chairman Dated:~,2008 (SEAL) Attest: By:_ Holly Fletcher,City Clerk CITY OF MORNING SUN,lOW A By:_ Tom Bryant,Mayor CITY OF PRESTON,IOWA Dated:~,2008 (SEAL) By:_ Steven T.Ritenour,Mayor Attest: By:_ Brenda Tebbe,City Clerk Dated:,2008 (SEAL) Attest: By:_ Steven J.Pick,Operations Director REMSEN MUNICIPAL UTILITIES By:_ Don Kolker,Board Chairman Dated:,2008 (SEAL) Attest: By:_ Angela Schneider,City Manager,Clerk CITY OF ROLFE,IOWA By:_ Gloria Gunderson,Mayor 1 Dated:,2008 (SEAL) Attest: By:_ Sandy Consoer,City Clerk CITY OF ROUND LAKE,MINNESOTA By:,_-,--_-,--_ Timothy Kennedy,Mayor Dated:,2008 (SEAL) Attest: By:_ Thomas L.Ginger,Mayor CITY OF SANBORN,IOWA By:_ Jim Zeutenhorst,City Administrator 1 Dated:,2008 (SEAL) Attest: By:_ Jeanette Cordes,City Clerk CITY OF SCRlBNER,NEBRASKA By:_ Steven A.Swanson,Mayor Dated:,2008 (SEAL) Attest: By:_-,---,--,-;-~c-==----::-=--=~--Melissa M.Harrell,City Clerk CITY OF WARGO,NEBRASKA By:_._~.. Daryl Reitmajer,Mayor Dated:,2008 (SEAL) Attest: By:_ Marlene Anderson,City Clerk CITY OF WALL LAKE,IOWA By:__-,---_ Edwin Reiter,Mayor Dated:1 u I'-{/0 ,2008 (SEAL) Attest: CITY OF WAUKEE,lOW A j J Dated:,2008 (SEAL) Attest: By:-,---,--_-,---,---,---,--_ Beverly Conrad,City Clerk CITY OF WAYLAND,IOWA By:_ Bradley Roth,Mayor Dated:,2008 (SEAL) Attest: By:_ Donna B.Wade,City Clerk CITY OF WELLMAN,row A By:_ Ryan J.Miller,Mayor Dated:"2008 (SEAL) Attest: By:_ Lisa Sewell,City Cleric CITY OF WEST BEND,IOWA By:_ Robert Klepper,Mayor Dated:"2008 (SEAL) Attest: By:_ Linda K.Farrell,City Cleric CITY OF WHITTEMORE,row A By:__---,--:---,--:,...,.,--------,---,---_ Daniel J.Elbert,Mayor I Dated:"2008 (SEAL) Attest: By:_ Jan Walter,City Clerk CITY OF WINFIELD,row A By:_ Jeff Suter,Mayor Dated:"2008 (SEAL) Attest: By:,-----_,-----_ Bob Sullivan,City Cleric CITY OF WOODBINE,IOWA By:__,-----_,-----_,-----_ William H.Hutcheson,Mayor SCHEDULE A City of Bedford,Iowa City of Bloomfield,Iowa City of Brighton,Iowa Brooklyn Municipal Utilities Cascade Municipal Utilities City of Clearfield,Iowa Coon Rapids Municipal Utilities Emmetsburg Municipal Utilities City ofFairbanlc,Iowa City of Graettinger,Iowa City of Hartley,Iowa City of Hawarden,Iowa!Hawarden Municipal Utilities Lake Park Municipal Utilities City of Lenox,Iowa City of Lorimor,Iowa Manilla Municipal Utilities Manning Municipal Gas Department City of Morning Sun,Iowa City of Preston,Iowa Remsen Municipal Utilities City of Rolfe,Iowa City of Round Lake,Minnesota City of Sanborn,Iowa City of Scribner,Nebraska City of Wahoo,Nebraska City of Wall Lake,Iowa City of Waukee,Iowa City of Wayland,Iowa City of Wellman,Iowa City of West Bend,Iowa City of Whittemore,Iowa City of Winfield,Iowa City of Woodbine,Iowa City of Sanborn,Iowa Emmetsburg Municipal Utilities Manning Municipal Gas Department Coon Rapids Mnnicipal Utilities Manilla Municipal Utilities JPETERSO/584465.1/MSWord22170.00l SCHEDULEB