Common use of Nature of Gas Sale and Purchase Commitment and Remedies Clause in Contracts

Nature of Gas Sale and Purchase Commitment and Remedies. (A) Each Day, except as otherwise provided in this Agreement, Seller will sell and deliver, and Buyer will buy and receive, the Daily Contract Quantity on a Firm basis. (B) If Seller for any reason, including a Force Majeure Event or quality issues, does not deliver (or make available for delivery) all of the applicable Daily Contract Quantity, or if Buyer, because of a Force Majeure Event, cannot take from Seller all of the applicable Daily Contract Quantity, Buyer may make whatever purchases are necessary to replace the shortage. Buyer will in good faith attempt to purchase only the amount of Gas necessary to replace the shortage. Should any provision of this Agreement constrain Buyer in such a way that Buyer cannot replace the shortage on reasonable terms and conditions, that provision (or provisions) shall be relaxed or waived but only to the extent necessary to permit Buyer to purchase its requirements on reasonable terms and conditions. Buyer’s purchase obligations under this Agreement shall be reduced by the volumes Seller does not deliver or Buyer cannot take under this subsection. (C) On any given Day, if Seller fails to sell and deliver (or make available for delivery) the applicable Daily Contract Quantity as scheduled as provided in Section 2.3 for such Day, and such failure is not excused or permitted under this Agreement, the difference between such Daily Contract Quantity and the amount of Gas actually delivered (or made available for delivery) that Day is called the “Delivery Shortfall Volume.” Except as provided in subsection 2.4(H), Buyer’s sole remedy with respect to such failure by Seller shall be Cover as provided below and as communicated by Formal Notice. (1) Upon receiving notice or otherwise having actual knowledge of Seller’s delivery failure, Buyer shall make reasonable commercial efforts to replace the Delivery Shortfall Volume via Cover. For the avoidance of doubt, Buyer, in its sole discretion, may choose to withdraw Gas stored by it or on its behalf in CINGSA (or any other storage facility), up to the Delivery Shortfall Volume (“CINGSA Gas Substitution”), and in such circumstance Buyer may attempt to replace the Gas representing such CINGSA Gas Substitution via Cover. (2) With respect to the replacement of the Delivery Shortfall Volume, Seller shall be responsible for, and shall pay Buyer, the positive difference, if any, between the weighted average purchase price paid by Buyer for Gas purchased through Cover and the Sales Price applicable that Year, multiplied by the volume of such replacement Gas. If Buyer implements the CINGSA Gas Substitution, the price of that replacement Gas shall be the Cost of Gas Withdrawn from Storage as defined in Buyer’s Tariff at § 2301(3) or the actual cost of replacement Gas obtained through Cover. If Buyer is unable to obtain replacement Gas and must call on electric utilities to alter their generation to allow Buyer access to additional Gas, Buyer will incur Interruption Expenses as defined by § 1205 of Buyer’s Tariff, and this shall represent the purchase price of Buyer’s replacement Gas. (3) To the extent the Delivery Shortfall Volume cannot be fully replaced through Cover within two (2) Months, then Seller shall be responsible for, and shall pay Buyer, the Sales Price applicable for that Contract Year times such portion of the Delivery Shortfall Volume not replaced through Cover. (4) In no event shall Seller be liable to Buyer for the payment (as Cover or otherwise) of more than an amount equal to the Delivery Shortfall Volume multiplied by the Sales Price applicable for that Contract Year. Exhibit D includes, for illustration purposes only, examples of amounts that might be due under this Section 2.4(C). (D) On any given Day, if Buyer fails to purchase and take the applicable Daily Contract Quantity made available by Seller as scheduled as provided in Section 2.3 for such Day and such failure is not excused or permitted under this Agreement, the difference between such Daily Contract Quantity and the amount of Gas actually taken by Buyer that Day is called the “Receipt Shortfall Volume.” Seller’s sole remedy with respect to such failure by Buyer shall be Cover as provided below and as communicated by Formal Notice. (1) Upon receiving notice or otherwise having actual knowledge of Buyer’s receipt failure, Seller shall make reasonable commercial efforts to sell the Receipt Shortfall Volume via Cover. For the avoidance of doubt, Seller, in its sole discretion, may choose to inject Gas in Seller’s Gas storage facility, up to the Receipt Shortfall Volume (“Storage Gas Alternative”), and in such circumstance Seller shall attempt to sell the Gas representing such Storage Gas Alternative via Cover. (2) With respect to the sale of the Receipt Shortfall Volume, Buyer shall be responsible for, and shall pay Seller, the positive difference, if any, between the Sales Price applicable that Contract Year and the weighted average sales price received by Seller for Gas sold through Cover multiplied by the volume of such sales Gas. If Seller implements the Storage Gas Alternative, the price of that sales Gas shall include the costs associated with the injection and withdrawal of the sales Gas from storage. (3) To the extent the Receipt Shortfall Volume cannot be fully sold through Cover within two (2) Months, then Buyer shall be responsible for, and shall pay Seller, the Sales Price applicable for that Contract Year times such portion of the Receipt Shortfall Volume not sold through Cover. (4) In no event shall Buyer be liable to Seller for the payment (as Cover or otherwise) of more than an amount equal to the Receipt Shortfall Volume multiplied by the Sales Price applicable for that Contract Year. Exhibit E includes, for illustration purposes only, examples of amounts that might be due under this Section 2.4(D). (E) Each Party shall provide to the other Party all information, including price and volume information, as soon as practicable after the purchase or sale of Gas under Section 2.4(C) or (D). (F) The remedy of Cover does not apply to Incidental Deviations, the sole remedy for which is adjustment through Imbalance Volumes. (G) Neither Party shall be entitled to an award of, and hereby waives the right to recover, incidental, consequential, punitive, exemplary, or other non- direct damages or any other damages from the other Party arising from or related to this Agreement, whether asserted by or awarded to such Party or any third party and whether based on contract, tort, strict liability, or other claim or theory of liability. (H) In the event Seller willfully diverts Gas which would have been sold and delivered to Buyer under this Agreement in order to provide such diverted Gas to a buyer under an Industrial GSA, Buyer shall have the additional remedy of injunctive relief to compel specific performance by Seller as provided in this subsection 2.4(H). (1) Seller acknowledges and agrees that in the case of Seller’s willful diversion of Gas as set forth in this subsection 2.4(H), Buyer may be irreparably and immediately harmed and may not be made whole by Cover damages as provided in subsection 2.4(C). Accordingly, in addition to the remedy of Cover, Buyer shall be entitled to injunctive relief (without the posting of any bond) to prevent Seller from willfully diverting Gas which would have been sold and delivered to Buyer under this Agreement, in order for Seller to provide such diverted Gas to a buyer under an Industrial GSA, and to compel specific performance of Seller’s obligation to sell and deliver Gas under this Agreement in such circumstances. (2) For the sole and exclusive purpose of the remedy of injunctive relief to compel specific performance as set forth in this subsection 2.4(H), Seller waives the dispute resolution process of direct negotiations, mediation, and arbitration as set forth in Section 15, and agrees to judicial jurisdiction as set forth in Section 15.7 for Buyer’s application for injunctive relief and specific performance. (I) The remedies listed in this Section 2.4 are the sole and exclusive remedies for Buyer’s failure or refusal to receive Gas, or Seller’s failure or refusal to deliver Gas, where such failures or refusals are not excused or permitted under this Agreement.

Nature of Gas Sale and Purchase Commitment and Remedies. (A) Each Day, except as otherwise provided in this Agreement, Seller will sell and deliver, and Buyer will buy and receive, the Daily Contract Quantity on a Firm basis. (B) If Seller for any reason, including a Force Majeure Event or quality issues, does not deliver (or make available for delivery) all of the applicable Daily Contract Quantity, or if Buyer, because of a Force Majeure Event, cannot take from Seller all of the applicable Daily Contract Quantity, Buyer may make whatever purchases are necessary to replace the shortage. Buyer will in good faith attempt to purchase only the amount of Gas necessary to replace the shortage. Should any provision of this Agreement constrain Buyer in such a way that Buyer cannot replace the shortage on reasonable terms and conditions, that provision (or provisions) shall be relaxed or waived but only to the extent necessary to permit Buyer to purchase its requirements on reasonable terms and conditions. Buyer’s purchase obligations under this Agreement shall be reduced by the volumes Seller does not deliver or Buyer cannot take under this subsection. (C) On any given Day, if Seller fails to sell and deliver (or make available for delivery) the applicable Daily Contract Quantity as scheduled as provided in Section 2.3 for such Day, and such failure is not excused or permitted under this Agreement, the difference between such Daily Contract Quantity and the amount of Gas actually delivered (or made available for delivery) that Day is called the “Delivery Shortfall Volume.” Except as provided in subsection 2.4(H), BuyerXxxxx’s sole remedy with respect to such failure by Seller shall be Cover as provided below and as communicated by Formal Notice. (1) Upon receiving notice or otherwise having actual knowledge of Seller’s delivery failure, Buyer shall make reasonable commercial efforts to replace the Delivery Shortfall Volume via Cover. For the avoidance of doubt, Buyer, in its sole discretion, may choose to withdraw Gas stored by it or on its behalf in CINGSA (or any other storage facility), up to the Delivery Shortfall Volume (“CINGSA Gas Substitution”), and in such circumstance Buyer may attempt to replace the Gas representing such CINGSA Gas Substitution via Cover. (2) With respect to the replacement of the Delivery Shortfall Volume, Seller shall be responsible for, and shall pay Buyer, the positive difference, if any, between the weighted average purchase price paid by Buyer for Gas purchased through Cover and the Sales Price for Tier 1 Firm Annual Contract Quantity Gas applicable that Year, multiplied by the volume of such replacement Gas. If Buyer implements the CINGSA Gas Substitution, the price of that replacement Gas shall be the Cost of Gas Withdrawn from Storage as defined in Buyer’s Tariff at § 2301(3) or the actual cost of replacement Gas obtained through Cover. If Buyer Xxxxx is unable to obtain replacement Gas and must call on electric utilities to alter their generation to allow Buyer access to additional Gas, Buyer will incur Interruption Expenses as defined by § 1205 of Buyer’s Tariff, and this shall represent the purchase price of Buyer’s replacement Gas. (3) To the extent the Delivery Shortfall Volume cannot be fully replaced through Cover within two (2) Months, then Seller shall be responsible for, and shall pay Buyer, the Sales Price for Tier 1 Firm Annual Contract Quantity Gas applicable for that Contract Year times such portion of the Delivery Shortfall Volume not replaced through Cover. (4) In no event shall Seller be liable to Buyer for the payment (as Cover or otherwise) of more than an amount equal to the Delivery Shortfall Volume multiplied by the Sales Price for Tier 1 Firm Annual Contract Quantity Gas applicable for that Contract Year. Exhibit D includes, for illustration purposes only, examples of amounts that might be due under this Section 2.4(C). (D) On any given Day, if Buyer fails to purchase and take the applicable Daily Contract Quantity made available by Seller as scheduled as provided in Section 2.3 for such Day and such failure is not excused or permitted under this Agreement, the difference between such Daily Contract Quantity and the amount of Gas actually taken by Buyer that Day is called the “Receipt Shortfall Volume.” Seller’s sole remedy with respect to such failure by Buyer shall be Cover as provided below and as communicated by Formal Notice. (1) Upon receiving notice or otherwise having actual knowledge of BuyerXxxxx’s receipt failure, Seller shall make reasonable commercial efforts to sell the Receipt Shortfall Volume via Cover. For the avoidance of doubt, Seller, in its sole discretion, may choose to inject Gas in Seller’s Gas storage facility, up to the Receipt Shortfall Volume (“Storage Gas Alternative”), and in such circumstance Seller shall attempt to sell the Gas representing such Storage Gas Alternative via Cover. (2) With respect to the sale of the Receipt Shortfall Volume, Buyer shall be responsible for, and shall pay Seller, the positive difference, if any, between the Sales Price for Tier 1 Firm Annual Contract Quantity Gas applicable that Contract Year and the weighted average sales price received by Seller for Gas sold through Cover multiplied by the volume of such sales Gas. If Seller implements the Storage Gas Alternative, the price of that sales Gas shall include the costs associated with the injection and withdrawal of the sales Gas from storage. (3) To the extent the Receipt Shortfall Volume cannot be fully sold through Cover within two (2) Months, then Buyer shall be responsible for, and shall pay Seller, the Sales Price for Tier 1 Firm Annual Contract Quantity Gas applicable for that Contract Year times such portion of the Receipt Shortfall Volume not sold through Cover. (4) In no event shall Buyer be liable to Seller for the payment (as Cover or otherwise) of more than an amount equal to the Receipt Shortfall Volume multiplied by the Sales Price for Tier 1 Firm Annual Contract Quantity Gas applicable for that Contract Year. Exhibit E includes, for illustration purposes only, examples of amounts that might be due under this Section 2.4(D). (E) Each Party shall provide to the other Party all information, including price and volume information, as soon as practicable after the purchase or sale of Gas under Section 2.4(C) or (D). (F) The remedy of Cover does not apply to Incidental Deviations, the sole remedy for which is adjustment through Imbalance Volumes. (G) Neither Party shall be entitled to an award of, and hereby waives the right to recover, incidental, consequential, punitive, exemplary, or other non- direct damages or any other damages from the other Party arising from or related to this Agreement, whether asserted by or awarded to such Party or any third party and whether based on contract, tort, strict liability, or other claim or theory of liability. (H) In the event Seller willfully diverts Gas which would have been sold and delivered to Buyer under this Agreement in order to provide such diverted Gas to a buyer under an Industrial GSA, Buyer shall have the additional remedy of injunctive relief to compel specific performance by Seller as provided in this subsection 2.4(H). (1) Seller acknowledges and agrees that in the case of SellerXxxxxx’s willful diversion of Gas as set forth in this subsection 2.4(H), Buyer may be irreparably and immediately harmed and may not be made whole by Cover damages as provided in subsection 2.4(C). Accordingly, in addition to the remedy of Cover, Buyer shall be entitled to injunctive relief (without the posting of any bond) to prevent Seller from willfully diverting Gas which would have been sold and delivered to Buyer under this Agreement, in order for Seller to provide such diverted Gas to a buyer under an Industrial GSA, and to compel specific performance of Seller’s obligation to sell and deliver Gas under this Agreement in such circumstances. (2) For the sole and exclusive purpose of the remedy of injunctive relief to compel specific performance as set forth in this subsection 2.4(H), Seller waives the dispute resolution process of direct negotiations, mediation, and arbitration as set forth in Section 15, and agrees to judicial jurisdiction as set forth in Section 15.7 for Buyer’s application for injunctive relief and specific performance. (I) The remedies listed in this Section 2.4 are the sole and exclusive remedies for BuyerXxxxx’s failure or refusal to receive Gas, or Seller’s failure or refusal to deliver Gas, where such failures or refusals are not excused or permitted under this Agreement.

Nature of Gas Sale and Purchase Commitment and Remedies. (A) Each Day, except as otherwise provided in this Agreement, Seller will sell and deliver, and Buyer will buy and receive, the Daily Contract Quantity on a Firm basis. (B) If Seller for any reason, including a Force Majeure Event or quality issues, does not deliver (or make available for delivery) all of the applicable Daily Contract Quantity, or if Buyer, because of a Force Majeure Event, cannot take from Seller all of the applicable Daily Contract Quantity, Buyer may make whatever purchases are necessary to replace the shortage. Buyer will in good faith attempt to purchase only the amount of Gas necessary to replace the shortage. Should any provision of this Agreement constrain Buyer in such a way that Buyer cannot replace the shortage on reasonable terms and conditions, that provision (or provisions) shall be relaxed or waived but only to the extent necessary to permit Buyer to purchase its requirements on reasonable terms and conditions. Buyer’s purchase obligations under this Agreement shall be reduced by the volumes Seller does not deliver or Buyer cannot take under this subsection. (C) On any given Day, if Seller fails to sell and deliver (or make available for delivery) the applicable Daily Contract Quantity as scheduled as provided in Section 2.3 2.1 for such Day, and such failure is not excused or permitted under this Agreement, the difference between such Daily Contract Quantity and the amount of Gas actually delivered (or made available for delivery) that Day is called the “Delivery Shortfall Volume.” Except as provided in subsection 2.4(H), BuyerXxxxx’s sole remedy with respect to such failure by Seller shall be Cover as provided below and as communicated by Formal Notice. (1) Upon receiving notice or otherwise having actual knowledge of Seller’s delivery failure, Buyer shall make reasonable commercial efforts to replace the Delivery Shortfall Volume via Cover. For the avoidance of doubt, Buyer, in its sole discretion, may choose to withdraw Gas stored by it or on its behalf in CINGSA (or any other storage facility), up to the Delivery Shortfall Volume (“CINGSA Gas Substitution”), and in such circumstance Buyer may attempt to replace the Gas representing such CINGSA Gas Substitution via Cover. (2) With respect to the replacement of the Delivery Shortfall Volume, Seller shall be responsible for, and shall pay Buyer, the positive difference, if any, between the weighted average purchase price paid by Buyer for Gas purchased through Cover and the Gas Sales Price applicable that Year, multiplied by the volume of such replacement Gas. If Buyer implements the CINGSA Gas Substitution, the price of that replacement Gas shall be the Cost of Gas Withdrawn from Storage as defined in Buyer’s Tariff at § 2301(3) or the actual cost of replacement Gas obtained through Cover. If Buyer Xxxxx is unable to obtain replacement Gas and must call on electric utilities to alter their generation to allow Buyer access to additional Gas, Buyer will incur Interruption Expenses as defined by § 1205 of Buyer’s Tariff, and this shall represent the purchase price of Buyer’s replacement Gas. (3) To the extent the Delivery Shortfall Volume cannot be fully replaced through Cover within two (2) Months, then Seller shall be responsible for, and shall pay Buyer, the Gas Sales Price applicable for that Contract Year times such portion of the Delivery Shortfall Volume not replaced through Cover. (4) In no event shall Seller be liable to Buyer for the payment (as Cover or otherwise) of more than an amount equal to the Delivery Shortfall Volume multiplied by the Sales Price applicable for that Contract Year. Exhibit D includes, for illustration purposes only, examples of amounts that might be due under this Section 2.4(C). (D) On any given Day, if Buyer fails to purchase and take the applicable Daily Contract Quantity made available by Seller as scheduled as provided in Section 2.3 2.1 for such Day and such failure is not excused or permitted under this Agreement, the difference between such Daily Contract Quantity and the amount of Gas actually taken by Buyer that Day is called the “Receipt Shortfall Volume.” Seller’s sole remedy with respect to such failure by Buyer shall be Cover as provided below and as communicated by Formal Noticebelow. (1) Upon receiving notice or otherwise having actual knowledge of BuyerXxxxx’s receipt failure, Seller shall make reasonable commercial efforts to sell the Receipt Shortfall Volume via Cover. For the avoidance of doubt, Seller, in its sole discretion, may choose to inject Gas in Seller’s Gas storage facility, up to the Receipt Shortfall Volume (“Storage Gas Alternative”), and in such circumstance Seller shall attempt to sell the Gas representing such Storage Gas Alternative via Cover. (2) With respect to the sale of the Receipt Shortfall Volume, Buyer shall be responsible for, and shall pay Seller, the positive difference, if any, between the Gas Sales Price applicable that Contract Year and the weighted average sales price received by Seller for Gas sold through Cover multiplied by the volume of such sales Gas. If Seller implements the Storage Gas Alternative, the price of that sales Gas shall include the costs associated with the injection and withdrawal of the sales Gas from storage. (3) To the extent the Receipt Shortfall Volume cannot be fully sold through Cover within two (2) Months, then Buyer shall be responsible for, and shall pay Seller, the Gas Sales Price applicable for that Contract Year times such portion of the Receipt Shortfall Volume not sold through Cover. (4) In no event shall Buyer be liable to Seller for the payment (as Cover or otherwise) of more than an amount equal to the Receipt Shortfall Volume multiplied by the Sales Price applicable for that Contract Year. Exhibit E includes, for illustration purposes only, examples of amounts that might be due under this Section 2.4(D). (E) Each Party shall provide to the other Party all information, including price and volume information, as soon as practicable after the purchase or sale of Gas under Section 2.4(C) or (D)2.1. (F) The remedy of Cover does not apply to Incidental Deviations, the sole remedy for which is adjustment through Imbalance Volumes. (G) Neither Party shall be entitled to an award of, and hereby waives the right to recover, incidental, consequential, punitive, exemplary, or other non- non-direct damages or any other damages from the other Party arising from or related to this Agreement, whether asserted by or awarded to such Party or any third party and whether based on contract, tort, strict liability, or other claim or theory of liability. (H) In the event Seller willfully diverts Gas which would have been sold and delivered to Buyer under this Agreement in order to provide such diverted Gas to a buyer under an Industrial GSA, Buyer shall have the additional remedy of injunctive relief to compel specific performance by Seller as provided in this subsection 2.4(H). (1) Seller acknowledges and agrees that in the case of Seller’s willful diversion of Gas as set forth in this subsection 2.4(H), Buyer may be irreparably and immediately harmed and may not be made whole by Cover damages as provided in subsection 2.4(C). Accordingly, in addition to the remedy of Cover, Buyer shall be entitled to injunctive relief (without the posting of any bond) to prevent Seller from willfully diverting Gas which would have been sold and delivered to Buyer under this Agreement, in order for Seller to provide such diverted Gas to a buyer under an Industrial GSA, and to compel specific performance of Seller’s obligation to sell and deliver Gas under this Agreement in such circumstances. (2) For the sole and exclusive purpose of the remedy of injunctive relief to compel specific performance as set forth in this subsection 2.4(H), Seller waives the dispute resolution process of direct negotiations, mediation, and arbitration as set forth in Section 15, and agrees to judicial jurisdiction as set forth in Section 15.7 for Buyer’s application for injunctive relief and specific performance. (I) The remedies listed in this Section 2.4 are the sole and exclusive remedies for Buyer’s failure or refusal to receive Gas, or Seller’s failure or refusal to deliver Gas, where such failures or refusals are not excused or permitted under this Agreement.