DEFINITIONS

“Business Day” means any day except Saturday, Sunday, a Federal Reserve Bank holiday or a holiday according to the North American Electric Reliability Council or any successor organization thereto. 

“Buyer” means the Party to a Transaction that is obligated to purchase and receive, or cause to be received, the Product.

“Contract Price” means the price in $U.S. per unit of Product (unless otherwise provided for) to be paid by Buyer to Seller for the purchase of the Product.

“Delivery Period” means the period of delivery for a Transaction specified in the Confirmation.

“Delivery Point” means the point at which the Product will be delivered, which may be designated in any Transaction by referring to a Delivery Point listed  in Schedule ___ ‑ Delivery Points attached hereto or as may be agreed by the Parties in any Transaction.

“Effective Date” means                                    .

“Guarantee” shall mean a guarantee issued by a parent company or another entity which benefits from providing such credit support to a Party, in a form satisfactory to the requesting Party, guaranteeing responsibility for all financial obligations associated with this Agreement and/or with respect to a particular Transaction; provided, however, that said guarantor shall either (i) be rated a minimum of BBB or Baa2 by Standard & Poor’s or Moody’s, respectively, or (ii) be acceptable to the requesting Party.

“Interest Rate” means, for any date, the lesser of (a) two (2) percent over the per annum rate of interest equal to the prime lending rate as may from time to time be published in the Wall Street Journal under “Money Rates” and (b) the maximum rate permitted by applicable law. 

“Letter of Credit” shall mean an irrevocable, transferable, standby letter of credit, issued by a major U.S. commercial bank acceptable to the Party that is requesting said letter of credit.

“Price” means the price to be paid by Buyer to Seller for the purchase of the Product.

“Product” means the product bought and sold pursuant to any Transaction, which may be designated in any Transaction by referring to a Product listed in Schedule ___ ‑ Products attached hereto, or as may be agreed by the Parties in any Transaction.

“Quantity” means that quantity of the Product that Seller agrees to make available or sell and deliver, or cause to be delivered, to Buyer, and that Buyer agrees to purchase and receive, or cause to be received, from Seller pursuant to the terms of a Transaction.  

“Schedule” or “Scheduling” means the acts of Seller, Buyer and/or their designated representatives, including each Party’s Transmission Providers, if applicable, of notifying, requesting and confirming to each other the quantity and type of Product to be delivered on any given day or days during the Period of Delivery at a specified Delivery Point.

“Seller” means the Party to a Transaction that is obligated to sell and deliver, or cause to be delivered, the Product.

“Transmission Provider” means entity or entities transmitting or transporting the Product on behalf of Seller or Buyer to or from the Delivery Point in a particular Transaction.  

TRANSACTION TERMS AND CONDITIONS

1.	Transactions.  From time to time, the Parties may, but shall not be obligated to, enter into transactions for the purchase and sale of any Product or Products (each a "Transaction").  A Transaction shall be entered upon agreement of the Parties orally or, if expressly required by either Party with respect to a particular Transaction, in writing, including an electronic means of communication.  Each Party agrees not to contest, or assert any defense to, (i) the validity or enforceability of an oral Transaction under laws relating to whether certain agreements are to be in writing or signed by the Party to be thereby bound, or (ii) its authority or the authority of any employee of the Party to enter into a Transaction.  

2.	Governing Terms.  Unless otherwise specifically agreed, each Transaction between the Parties shall be governed by this Agreement.  This Agreement and all Transactions shall form a single integrated agreement between the Parties (hereinafter referred to as this "Agreement").  Any inconsistency between any terms of this Agreement and any terms of any Transaction shall be resolved in favor of any terms of such Transaction.  Any Transaction shall contain the applicable terms set forth in Exhibit A.  

3.	Confirmation.  Seller may confirm a Transaction by forwarding to Buyer by facsimile within three (3) Business Days a confirmation (“Confirmation”) substantially in the form of Exhibit A, which shall be executed by Buyer and returned to Seller within two (2) Business Days of Buyer's receipt of it.  If Buyer objects to any term(s) of such Confirmation, Buyer shall notify Seller in writing of such objections within two (2) Business Days of Buyer's receipt thereof, failing which Buyer shall be deemed to have accepted the terms as sent.  If Seller fails to send a Confirmation within three (3) Business Days of  the Transaction, a Confirmation forwarded by Buyer, substantially in the form of Exhibit A, shall be executed by Seller and returned to Buyer within two (2) Business Days of Seller's receipt of it, but not less than five (5) Business Days after the Transaction.  If Seller objects to any term(s) of such Confirmation, Seller shall notify Buyer of such objections within two (2) Business Days of Seller's receipt thereof, failing which Seller shall be deemed to have accepted the terms as sent.  Failure by either Party to send or either Party to return an executed Confirmation or any objection by either Party shall not invalidate any Transaction agreed by the Parties. If Seller and Buyer each send a Confirmation and neither Party objects to the other Party’s Confirmation within two (2) Business Days of receipt, Seller’s Confirmation shall be deemed to be accepted and shall be the controlling Confirmation, unless (i) Seller’s Confirmation was sent more than three (3) Business Days after the Transaction was agreed and (ii) Buyer’s Confirmation was sent prior to Seller’s Confirmation, in which case Buyer’s Confirmation shall be deemed to be accepted and shall be the controlling Confirmation.

4.	Recording.  Each Party to this Agreement acknowledges and agrees that either party may create tape or electronic recording (“Recording”) of conversations between the Parties to this Agreement whether by one or the other or both Parties, and that any such Recordings will be retained in confidence, secured from improper access, and may be submitted in evidence in any proceeding or action relating to this Agreement.  Each Party waives any further notice of such monitoring or recording, and agrees to notify its officers and employees of such monitoring or recording and to obtain any necessary consent of such officers and employees.  The Recording, and the terms and conditions described therein, [if admissible,] shall be the controlling evidence for the Parties’ agreement with respect to a particular Transaction in the event a Confirmation is not fully executed (or deemed accepted) by both Parties.  Upon full execution (or deemed acceptance) of a Confirmation, such Confirmation shall control in the event of any conflict with the terms of a Recording, or in the event of any conflict with the terms of this Agreement. 

OBLIGATIONS AND DELIVERIES

1.	Seller's and Buyer's Obligations.  With respect to each Transaction, Seller shall sell and deliver, or cause to be delivered, and Buyer shall purchase and receive, or cause to be received, at the Delivery Point the Quantity of the Product, and Buyer shall pay Seller the Price  The Parties’ obligations to perform are subject to Section __ [Events of Default; Remedies]. 

2.	Transmission and Scheduling.  Seller shall arrange and be responsible for transmission service to the Delivery Point and shall Schedule or arrange for Scheduling services with its Transmission Providers to deliver the Quantity of the Product to the Delivery Point.  Buyer shall arrange and be responsible for transmission service at and from the Delivery Point and shall Schedule or arrange for Scheduling services with its Transmission Providers to receive the Quantity of the Product at the Delivery Point.  Each Party shall designate authorized representatives to effect the Scheduling of the delivery of the Quantity of the Product.  

REMEDIES FOR FAILURE TO 
DELIVER/ACCEPT TRANSACTIONS

1.	 If Seller fails to deliver all or part of the Product pursuant to a Transaction, and such failure is not excused under the terms of the Product or by Buyer’s failure to perform, then Seller shall pay Buyer, on the date payment would otherwise be due, in respect of the month in which the failure occurred [or, if demanded by Buyer, within five (5) Business Days of invoice delivery SUBCOMMITTEE TO REPORT], an amount for such deficiency equal to the positive difference, if any, obtained by subtracting the Contract Price from the Replacement Price. The Replacement Price shall equal the price at which Buyer, acting in a commercially reasonable manner, [purchases/could purchase SUBCOMMITTEE TO REPORT] substitute Product not delivered by Seller (plus or minus any increase or decrease in transmission charges incurred by Buyer to the Delivery Point) or, absent such a purchase, the market price for such Quantity delivered to the Delivery Point as determined by Buyer in a commercially reasonable manner.

2.	If Buyer fails to receive all or part of the Product pursuant to a Transaction and such failure is not excused under the terms of the Product or by Seller’s failure to perform, then Buyer shall pay Seller, on the date payment would otherwise be due in respect of the month in which the failure occurred [or, if demanded by Seller, within five (5) Business Days of invoice delivery SUBCOMMITTEE TO REPORT], an amount for each Quantity unit of such Product of such deficiency equal to the positive difference, if any, obtained by subtracting the Sales Price from the Contract Price. The Sales Price shall equal the price at which Seller, acting in a commercially reasonable  manner, [resells/or could resell SUBCOMMITTEE TO REPORT] the Product not accepted by Buyer (including additional transmission charges, if any, incurred by Seller in delivering such Product to the third party purchasers) or, absent such a resale, the market price for such Quantity delivered to the Delivery Point as determined by Seller in a commercially reasonable manner.

3.	[“Commercially reasonable manner” shall include commercially reasonable purchases and sales of the Product in the market, but shall not require a Non‑Defaulting Party to utilize or change its utilization of its owned or controlled assets or market positions to minimize a Defaulting Party’s liability].

[Each Party agrees that it has a duty to mitigate damages and covenants that it will use commercially reasonable efforts to minimize any damages it may incur as a result of the other Party's performance or non-performance of this Agreement.]

EVENTS OF DEFAULT; REMEDIES

	1.1.	Events of Default.  An "Event of Default" shall mean, with respect to a Party ("Defaulting Party"), the occurrence of any of the following:

	(i)	the failure to make, when due, any payment required pursuant to this Agreement if such failure is not remedied within three (3) Business Days after written notice of such failure is given by the other Party and provided the payment is not the subject of a good faith dispute;

	(ii)	any representation or warranty made by the Defaulting Party herein shall be false or misleading in any material respect when made or when deemed to be repeated;

	(iii)	the failure to perform any covenant set forth in this Agreement (other than the events that are otherwise specifically covered as a separate Event of Default, or its obligations to deliver or receive the Product, the remedy for which is provided in Section __ in which event timely payment of damages set forth in Section __ constitutes performance) and such failure is not cured within three (3) Business Days after written notice of such failure is given by the other Party;

	(iv)	the Defaulting Party shall be subject to a Bankruptcy Proceeding ("Bankruptcy Proceeding" means with respect to a Party, such Party (a) files a petition or otherwise commences a proceeding under any bankruptcy, insolvency, reorganization or similar law, or has any such petition filed or commenced against it, (b) makes an assignment or any general arrangement for the benefit of creditors, (c) otherwise becomes bankrupt or insolvent (however evidenced), (d) has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets, or (e) is generally unable to pay its debts as they fall due); or

	(v)	the failure of a Party to provide satisfactory assurances as to its ability to perform as described in Section ___ hereof. [NOTE: PARTIES MAY SELECT FROM THE OPTIONS LISTED IN THE CREDITWORTHINESS/COLLATERAL REQUIREMENTS SECTION]

	1.2.	Remedies upon an Event of Default.  After the occurrence of an Event of Default with respect to a Defaulting Party, the other Party (the "Non‑Defaulting Party") shall have the right to designate a day, no earlier than the day such notice is effective and no more than 20 days after an Event of Default occurs, as an early termination date ("Early Termination Date") to liquidate and terminate all, but not less than all, of the Transactions then outstanding between the Parties.  The Non‑Defaulting Party shall calculate, in a commercially reasonable manner, a Settlement Amount for each such Transaction as of the Early Termination Date (or, to the extent that in the good faith opinion of the Non‑Defaulting Party certain of such Transactions are (i) commercially impracticable to close out and liquidate or (ii) may not be closed out and liquidated under applicable law on the Early Termination Date, as soon thereafter as is reasonably practicable) and shall net such Settlement Amounts in the manner provided for in Section 1.2.2.

	1.2.1.	"Settlement Amount" shall mean, with respect to a Transaction and the Non‑Defaulting Party, the losses and costs (or gains), expressed in U.S. Dollars, which such party incurs as a result of the liquidation, including, but not limited to, losses and costs (or gains) based upon the then current replacement value of such Transaction together with, at the Non‑Defaulting Party's option, but without duplication, all brokerage fees, commissions and other similar transaction costs and expenses reasonably incurred by such Party either in terminating any arrangement pursuant to which it has hedged its obligations or entering into new arrangements which replace a terminated Transaction; reasonable attorneys’ fees, if any, incurred in connection with enforcing its rights under this Agreement; and all losses and costs which such party incurs [to modify its use of owned or controlled generation assets as a result of the termination of such Transaction].  The Settlement Amount shall be due to or from the Non‑Defaulting Party as appropriate.  In calculating a Settlement Amount, the Non‑Defaulting Party shall discount to present value (in a commercially reasonable manner based on the Interest Rate for the applicable period) any amount which would otherwise have been due at a later date and shall add interest at the Interest Rate to any amount due prior to the date of the calculation.  “Interest Rate” means, for any date, the lesser of (a) two (2) percent over the per annum rate of interest equal to the prime lending rate as may from time to time be published in the Wall Street Journal under “Money Rates” and (b) the maximum rate permitted by applicable law. 

	1.2.2.	The Non‑Defaulting Party shall [set off/net out] (i) all such Settlement Amounts that are due to the Defaulting Party, plus any cash or other form of security then available to the Non‑Defaulting Party pursuant to Section ___, plus (at the Non‑Defaulting Party's election) any or all other amounts due (whether under the Agreement or otherwise and whether or not due) against (ii) all such Settlement Amounts that are due to the Non‑Defaulting Party, plus any cash or other form of security then available to the Defaulting Party pursuant to Section ___, plus (at the Non‑Defaulting Party's election) any or all other amounts due (whether under the Agreement or otherwise and whether or not due), so that all such amounts shall be netted to a single liquidated amount (the "Termination Payment") payable by one party to the other.

	1.2.3.	Notice that a liquidation and [set-off/net out] pursuant to this Article 1.2 have occurred shall be given by the Non‑Defaulting Party to the Defaulting Party before the close of business on the Business Day following such liquidation and net out, provided that failure to give such notice shall not affect the validity or enforceability of the liquidation and [set-off/net out] or give rise to any claim by the Defaulting Party against the Non‑Defaulting Party.  The notice shall specify the amount of the Termination Payment and whether it is owed by or to the Defaulting Party.  The Termination Payment shall be made by the Party that owes it within two (2) Business Days after such notice is given.

	1.2.4.	If the Defaulting Party disputes the Non‑Defaulting Party's calculation of the Termination Payment, in whole or in part, the Defaulting Party shall, within two (2) Business Days of receipt of Non‑Defaulting Party's calculation of the Termination Payment, provide to the Non‑Defaulting Party a detailed written explanation of the basis for such dispute; provided, however, that if the Termination Payment is due from the Defaulting Party, the Defaulting Party shall first transfer collateral (of a type and in a form acceptable to the Non‑Defaulting Party) to the Non‑Defaulting Party in an amount equal to the Termination Payment.  If the Parties cannot resolve such dispute within three (3) Business Days of the Non‑Defaulting Party's receipt of the Defaulting Party's written explanation, then either Party may submit such dispute to arbitration in accordance with the arbitration procedures set forth in Article __ hereof.  Any payment that is due as a result of the arbitrator's award shall be paid in full, along with interest accrued at the Interest Rate from the Early Termination Date until the date paid, by the Party that owes it within two (2) Business Days after the award is rendered.  

	[1.3	Set‑Offs / Net Outs.  Without limiting its rights under this Section 1 or otherwise, after an Event of Default, the Non‑Defaulting Party may from time to time net out any or all amounts which the Defaulting Party owes to it (whether under the Agreement or otherwise and whether or not then due) against any or all amounts which it owes to the Defaulting Party (whether under the Agreement or otherwise and whether or not then due), provided that any amount not then due which is included in such net out shall be discounted to present value (in the manner specified in Article 1.2.1) as at the time of net out (to take account of the period between the date of net out and the date on which such amount would have otherwise been due). SUBCOMMITTEE TO REPORT]

	1.3.1	Notwithstanding any other provision of this Agreement, after the occurrence of an Event of Default, or an event which, with the giving of notice or the passage of time or both, would constitute an Event of Default, with respect to a Party, the other Party shall have the right to suspend performance under any or all Transactions. 

PAYMENT/NETTING

1.	Billing Period.  Unless otherwise specifically agreed upon by the Parties in a Transaction, the calendar month shall be the standard period for all payments (other than Termination Payments) under this Agreement.  As soon as practicable after the end of each month, each Party will render to the other Party an invoice for the payment obligations, if any, incurred hereunder during the preceding month.

2.	Timeliness of Payment.  Unless otherwise specifically agreed upon by the Parties in a Transaction, all invoices for service under this Agreement shall be rendered as soon as practicable after the end of each month and shall be due and payable, unless otherwise agreed upon, in accordance with each Party’s invoice instructions on or before the later of the twentieth (20th) day of each month, or ten (10) days after receipt of the invoice.  Each Party will make payments by wire transfer, or by other mutually agreeable method(s), to the account designated by the other Party.  Any amounts, both principal and interest, remaining unpaid or received after the due date will be deemed delinquent and will accrue interest at the Interest Rate, such interest to be calculated from the due date to the date the unpaid amount is paid in full.

3.	Disputes and Adjustments of Invoices.  A Party may, in good faith, challenge the correctness of any invoice rendered under the Agreement or adjust any invoice for any arithmetic or computational error within a period no later than twelve (12) months after the date the invoice was rendered.  In the event an invoice or portion thereof, or any other claim or adjustment arising hereunder, is challenged, payment of the undisputed portion of the invoice shall be made when due, with notice of the objection given to the other Party at the time.  Any billing challenge or billing adjustment shall be in writing and shall state the specific basis for the challenge or adjustment.  If it is subsequently determined or agreed that an adjustment to the invoice is appropriate, then such payment shall be made within two (2) Business Days of such determination along with interest accrued at the Interest Rate from the due date until the date paid.  Inadvertent overpayments shall be returned by Seller upon request or deducted by Seller from subsequent payments, with interest accrued at the Interest Rate from the date of such overpayment until the date repaid or deducted by Seller.  An invoice rendered under the Agreement shall be binding unless challenged in accordance with this Section __ within  twelve (12) months after the invoice is rendered or any specific adjustment to the invoice made by such Party prior to such time.

4.	Netting of Payments.  Unless otherwise specifically agreed in writing by the Parties as an amendment to this Agreement, the Parties hereby agree that they shall discharge mutual debts and payment obligations due and owing to each other pursuant to the Transactions through netting, in which case all amounts owed by each Party to the other Party for the purchase of the Product during the monthly billing period under this Agreement, including any related damages pursuant to Section _____, interest, and payments or credits, shall be netted against each other so that only the excess amount remaining due after such amounts owed by each of the Parties have been netted against each other shall be paid by the Party who owes such net amount to the other Party.  

5.	Payment Obligation Absent Netting.  If no mutual debts or payment obligations exist and only one Party owes a debt or obligation to the other Party for the purchase of the Product during the monthly billing period of the Agreement, including any related liquidated damages, interest, and payments or credits, then the Party who owes such amount shall pay such sum in full when due to the other Party. 

6.	Security.  Unless the Party benefiting from a security arrangement notifies the other Party in writing or in connection with termination netting in accordance with Section _____, all amounts netted pursuant to this Section shall not take into account or include any security arrangements, including, but not limited to, Guarantees, Letters of Credit, and escrow or margin accounts, which may be in effect to secure a Party’s performance under the Agreement.

LIMITATIONS

	Limitation of Remedies, Liability and Damages.  The parties confirm that the express remedies and measures of damages provided in this agreement  satisfy the essential purposes hereof.  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, the obligor's liability 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, the obligor'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, otherwise obtaining an adequate remedy is inconvenient and the liquidated damages constitute a reasonable approximation of the harm or loss. 

MISCELLANEOUS

1.	Term of Agreement.  The term of this Agreement shall commence on the Effective Date and shall remain in effect until terminated by either Party upon (thirty) 30 days' prior written notice; provided, however, that such termination shall not affect or excuse the performance of either Party under any provision of this Agreement that by its terms survives any such termination, and, provided further, that this Agreement and any other documents executed and delivered hereunder shall remain in effect with respect to any Transaction(s) entered into prior to the effective date of such termination until both Parties have fulfilled all of their obligations with respect to such Transaction(s).

2.	Representations and Warranties.  On the Effective Date and the date of entering into each Transaction, each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation, (ii) it has all regulatory authorizations necessary for it to legally perform its obligations under this Agreement and any other documentation relating to this Agreement or such Transaction to which it is a party, (iii) the execution, delivery and performance of this Agreement and any other documentation relating to this Agreement or such Transaction to which it is a party are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any law, rule, regulation, order or the like applicable to it, (iv) this Agreement and each other document executed and delivered in accordance with this Agreement constitutes its legally valid and binding obligation enforceable against it in accordance with its terms, (v) there are no Bankruptcy Proceedings pending or being contemplated by it or, to its knowledge, threatened against it, (vi) there is not pending or, to its knowledge, threatened against it or any of its affiliates any legal proceedings that could materially adversely affect its ability to perform its obligations under this Agreement or any other document relating to this Agreement to which it is a party, (vii) no Event of Default or event which, absent a cure, with the giving of notice or lapse of time, or both, would constitute an Event of Default with respect to it has occurred and is continuing and no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement or any other document relating to this Agreement or any Transaction, and (viii) it is acting for its own account, has made its own independent decision to enter into each Transaction and as to whether each such Transaction is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations of the other Party in so doing, and is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions and risks of each such Transaction.

3.	Title and Risk of Loss.  Title to and risk of loss related to the Product shall transfer from Seller to Buyer at the Delivery Point.  Seller warrants that it will deliver to Buyer the Quantity of the Product free and clear of all liens, claims and encumbrances arising prior to the Delivery Point.  

4.	Indemnity.  Each Party shall indemnify, defend and hold harmless the other Party from any Claims from any act or incident occurring during the period when control and title to Product is vested, as between the Parties as provided in Section _____, in the indemnifying Party.  "Claims" means all claims or actions, threatened or filed and, whether groundless, false or fraudulent, that directly or indirectly relate to the subject matter of an indemnity, and the resulting losses, damages, expenses, attorneys' fees and court costs, whether incurred by settlement or otherwise, and whether such claims or actions are threatened or filed prior to or after the termination of this Agreement.  Each Party shall indemnify, defend and hold harmless the other Party against any Taxes for which such Party is responsible under Section _____.

5.	Assignment.  Neither Party shall assign this Agreement or its rights or obligations hereunder without the prior written consent of the other Party; provided, however, either Party may, without the consent of the other Party (and without relieving itself from liability hereunder), (i) transfer, sell, pledge, encumber or assign this Agreement or the accounts, revenues or proceeds hereof in connection with any financing or other financial arrangements, (ii) transfer or assign this Agreement to an affiliate of such Party which affiliate's creditworthiness is comparable to or higher than that of such Party, or (iii) transfer or assign this Agreement to any person or entity succeeding to all or substantially all of the assets of such Party; provided, however, that in each such case, any such assignee shall agree to in writing be bound by the terms and conditions hereof.

6.	Governing Law and Jurisdiction.  THIS AGREEMENT AND THE RIGHTS AND DUTIES OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED, ENFORCED AND PERFORMED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.  Each Party herein waives its respective right to any jury trial with respect to any litigation arising under or in connection with this Agreement or any Transaction.

7.	Notices.  All notices, requests, statements or payments shall be made as specified below.  Notices required to be in writing shall be delivered by letter, facsimile or other documentary form.  Notice by facsimile or hand delivery shall be deemed to have been received by the close of the Business Day on which it was transmitted or hand delivered (unless transmitted or hand delivered after close in which case it shall be deemed received at the close of the next Business Day).  Notice by overnight mail or courier shall be deemed to have been received the next Business Day after it was sent.  A Party may change its addresses by providing notice of same in accordance herewith.

To ____________:

NOTICES & CORRESPONDENCE:			PAYMENTS:

INVOICES:						CREDIT AND COLLECTIONS:

SCHEDULING:

To ______________:

NOTICES & CORRESPONDENCE:		PAYMENTS:

INVOICES:					SCHEDULING:

9.	General.  This Agreement (including the Exhibit hereto) and each Transaction constitute the entire agreement between the Parties relating to the subject matter contemplated by this Agreement.  Notwithstanding the foregoing, any collateral, credit support or margin agreement or similar provisions between the Parties shall be deemed part of this Agreement incorporated herein by reference.  The Agreement shall be considered for all purposes as prepared through the joint efforts of the parties and shall not be construed against one party or the other as a result of the preparation, substitution, submission or other event of negotiation, drafting or execution hereof.  No amendment or modification to this Agreement shall be enforceable unless reduced to writing and executed by both Parties.  This Agreement shall not impart any rights enforceable by any third party (other than a permitted successor or assignee bound to this Agreement).  No waiver by a Party of any default by the other Party shall be construed as a waiver of any other default.  Any provision declared or rendered unlawful by any applicable court of law or regulatory agency or deemed unlawful because of a statutory change will not otherwise affect the remaining lawful obligations that arise under this Agreement.  The term "including" when used in this Agreement shall be by way of example only and shall not be considered in any way to be in limitation.  The headings used herein are for convenience and reference purposes only.  All indemnity and audit rights shall survive the termination of this Agreement for twelve (12) months.  

10.	Audit.  Each Party has the right, at its sole expense and during normal working hours, to examine the records of the other Party to the extent reasonably necessary to verify the accuracy of any statement, charge or computation made pursuant to this Agreement.  If requested, a Party shall provide to the other Party statements evidencing the Quantity of the Product delivered at the Delivery Point.  If any such examination reveals any inaccuracy in any statement, the necessary adjustments in such statement and the payments thereof will be made promptly and shall bear interest calculated at the Interest Rate from the date the overpayment or underpayment was made until paid; provided, however, that no adjustment for any statement or payment will be made unless objection to the accuracy thereof was made prior to the lapse of twelve (12)months from the rendition thereof.

11.	Forward Contract.  The Parties acknowledge and agree that all Transactions constitute “forward contracts” within the meaning of the United States Bankruptcy Code. Each Party represents that it is a “forward contract merchant” within the meaning of the United States Bankruptcy Code.

CREDITWORTHINESS/COLLATERAL REQUIREMENT

Option A:  

1.	For the purpose of determining the financial ability of the other Party to meet its obligations hereunder, a Party may require reasonable credit review procedures which may include, but not be limited to, verification that the other Party is not operating under any state or federal bankruptcy laws, is not subject to the uncertainty of pending liquidation or regulatory proceedings in state or federal courts, and that no significant lawsuits or judgments are outstanding which would seriously affect such other Party's ability to remain solvent.

2.	If during the term of this Agreement a Party has exceeded its credit limit as established by the Parties, or if a Party (“Requesting Party”) has commercially reasonable grounds to believe, in its sole discretion, that the other Party's creditworthiness, financial responsibility or performance has become unsatisfactory, the Requesting Party will provide the other Party with written notice of the problem.  Upon receipt of such notice the other Party shall have [three (3) Business Days] to remedy the situation by either (a) posting a letter of credit, (b) providing a cash prepayment, or (c) providing other acceptable form of security to the Requesting Party (“Credit Assurances”).  In the event that the other Party fails to provide such Credit Assurances within three (3) Business Days of receipt of notice, then an Event of Default under Section ___ will be deemed to have occurred and the Requesting Party will be entitled to the remedies set forth in Section ____ of this Agreement as though an Event of Default has occurred.

Option B:  

1.	It shall be an Event of Default if a Party fails to, or can no longer, demonstrate its creditworthiness to the other Party.  A Party will be considered creditworthy if (a) a Party’s long‑term unsecured debt securities are, and remain, rated a minimum of BBB or Baa2 by Standard & Poor’s or Moodys, respectively, (b) a Party either prepays for service or provides an irrevocable standby Letter of Credit in full amount of its payment obligation, (c) a Party has, as determined by the other Party in its sole discretion, a qualified long‑term payment history with the other Party, (d) a Party issues a Guarantee in an amount satisfactory to the other Party, or (e) a Party otherwise demonstrates, to the other Party’s satisfaction, that it is creditworthy.  Unless otherwise mutually agreed, each Party shall be responsible for providing the information specified in this Section __.

2.	If during the term of this Agreement a Party has exceeded its credit limit as established by the Parties, or if a Party (“Requesting Party”) has commercially reasonable grounds to believe, in its sole discretion, that the other Party's creditworthiness, financial responsibility or performance has become unsatisfactory, the Requesting Party will provide the other Party with written notice of the problem.  Upon receipt of such notice the other Party shall have [three (3) Business Days] to remedy the situation by either (a) posting a letter of credit, (b) providing a cash prepayment, or (c) providing other acceptable form of security to the Requesting Party (“Credit Assurances”).  In the event that the other Party fails to provide such Credit Assurances within three (3) Business Days of receipt of notice, then an Event of Default under Section ___ will be deemed to have occurred and the Requesting Party will be entitled to the remedies set forth in Section ____ of this Agreement as though an Event of Default has occurred.

Option C:

1.	If at any time during the term of this Agreement, the Termination Payment (as calculated pursuant to Section ______ of this Agreement) that would be owed to Party A exceeds $______________________, then Party A, on any Business Day, may request that Party B provide either i) cash, ii) a Letter of Credit, (iii) a Guarantee or iv) other security in a form acceptable to Party A, in an amount equal to the amount by which the Termination Payment exceeds $__________________ (rounding upwards for any fractional amount to the next $250,000.00) (“Party B Performance Assurance”).  Such Party B Performance Assurance shall be delivered to Party A within three (3) Business Days of the date of such request.  On any Business Day (but no more frequently than weekly with respect to Letters of Credit and daily with respect to cash), Party B, at its sole cost, may request that such Party B Performance Assurance be reduced correspondingly to the amount of such excess Termination Payment (rounding upwards for any fractional amount to the next $250,000.00). In the event that Party B fails to provide  Party B Performance Assurance pursuant to the terms of this Section ___, then an Event of Default shall be deemed to have occurred and  Party A will be entitled to the remedies set forth in Section ____ of this Agreement. 

2.	If at any time during the term of this Agreement, the Termination Payment (as calculated pursuant to Section _____ of the Agreement) that would be owed to Party B exceeds $_______________, then Party B, on any Business Day, may request that Party A provide either i) cash, ii) a Letter of Credit, (iii) a Guarantee or iv) other security in a form acceptable to Party B, in an amount equal to the amount by which the Termination Payment exceeds $______________ (rounding upwards for any fractional amount to the next $250,000.00) (“Party A Performance Assurance”).  Such Party A Performance Assurance shall be delivered to Party B within three (3) Business Days of the date of such request.  On any Business Day (but no more frequently than weekly with respect to Letters of Credit and daily with respect to cash), Party A, at its sole cost, may request that such Party A Performance Assurance be reduced correspondingly to the amount of such excess Termination Payment (rounding upwards for any fractional amount to the next $250,000.00).  In the event that Party A fails to provide  Party A Performance Assurance pursuant to the terms of this Section ___ within three (3) Business Days, then an Event of Default shall be deemed to have occurred and Party B will be entitled to the remedies set forth in Section ____ of this Agreement.

Option D:

	The failure by a Party to provide adequate assurance of its ability to perform all of its outstanding obligations to the other Party (“Requesting Party”) under this Agreement, any Transaction or otherwise within a period not to exceed three (3) Business days (but at least one Business Day) of a demand therefor when the Requesting Party has reasonable grounds for insecurity shall constitute an Event of Default and the Requesting Party shall be entitled to the remedies set forth in Section ___ of this Agreement.

DISPUTE RESOLUTION

Option A:

	1.	In the event of a dispute regarding this Agreement, the Parties shall attempt, in good faith, to resolve the dispute amicably and promptly.  If the dispute is not resolved in five (5) days in the normal course of business, the Parties shall attempt to resolve the dispute by appointing a senior representative of each Party to attempt to mutually agree upon a resolution.  If the two senior representatives cannot reach a resolution within an additional five (5) day period, the dispute may be set for arbitration as defined herein; provided, however, any dispute which lies within the exclusive jurisdiction of the FERC shall not be submitted to arbitration.

	2.	If the senior representatives of the Parties are unable to resolve the dispute, and adjudication of the dispute is not within the exclusive jurisdiction of the FERC, the dispute may be submitted upon request of either Party to binding arbitration by one arbitrator who has not previously been employed by either Party, and does not have a direct or indirect interest in either Party or the subject matter of the arbitration.  Such arbitrator shall either be as mutually agreed by the Parties within thirty (30) days after written notice from either Party requesting arbitration, or failing agreement, shall be selected under the expedited rules of the American Arbitration Association (the "AAA").  Such arbitration shall be held in alternating locations of the home offices of the Parties or in any other mutually agreed upon location.  The rules of the AAA shall apply to the extent not inconsistent with the rules herein specified.

	The judgment rendered by the arbitrator may be enforced in any court having jurisdiction of the subject matter and the Parties.  All costs of the arbitration shall be paid equally by the Parties, unless the award shall specify a different division of the costs.  Each Party shall be responsible for its own expenses, including attorney’s fees.  Both Parties shall be afforded adequate opportunity to present information in support of its position on the dispute being arbitrated.  The arbitrator may also request additional information from the Parties.

	3.	The arbitrator shall be bound by the terms of this Agreement and may not detract from or add to its terms.  The Parties may by mutual agreement specify the rules that are to govern the arbitration proceedings and limit the matters to be considered. 

	4.	The findings and award of the arbitrator shall be final and conclusive and shall be binding upon the Parties, except as otherwise provided by law.  Each Party agrees that it will not bring a lawsuit concerning any dispute covered by this arbitration provision.  Any monetary award of the arbitrator may be enforced by the Party in whose favor such monetary award is made in any court of competent jurisdiction.

	5.	Nothing in this section shall restrict the rights of either Party to file a complaint with the FERC under the relevant provisions of the Federal Power Act and the FERC’s rules and regulations regarding any issue the adjudication of which lies within the exclusive jurisdiction of the FERC.  Additionally, this arbitration provision does not affect the jurisdiction of the FERC over this Agreement.

Option B:

	In the event of a dispute among the Parties to this Agreement, the Parties shall attempt, in good faith, to resolve the dispute amicably and promptly.  If the Parties are unable to resolve the dispute, despite such good faith efforts, the Parties may:

(i)	by mutual agreement, submit the dispute to binding arbitration under rules and procedures as they may so agree; or

(ii)	pursue any legal or equitable remedies that may be available.

Option C (Billing Dispute/Termination Payment Only):

	Arbitration Proceedings.  Any dispute or need of interpretation arising out of this Agreement pertaining to the calculation of a Termination Payment or a payment required pursuant to Section ____  may be submitted upon request of either Party to binding arbitration by one arbitrator who has not previously been employed by either Party, and does not have a direct or indirect interest in either Party or the subject matter of the arbitration.  Such arbitrator shall either be as mutually agreed by the Parties within thirty (30) days after written notice from either Party requesting arbitration, or failing agreement, shall be selected under the expedited rules of the American Arbitration Association (the "AAA").  Such arbitration shall be held in alternating locations of the home offices of the Parties, or in any other mutually agreed upon location.  The rules of the AAA shall apply to the extent not inconsistent with the rules herein specified.  Either Party may initiate arbitration by written notice to the other Party and the arbitration shall be conducted according to the following: (a) not later than seven (7) days prior to the hearing date set by the arbitrator each Party shall submit a brief with a single proposal for settlement, (b) the hearing shall be conducted on a confidential basis without continuance or adjournment, (c) the arbitrator shall be limited to selecting only one of the two proposals submitted by the Parties, (d) each Party shall divide equally the cost of the arbitrator and the hearing and each Party shall be responsible for its own expenses and those of its counsel and representatives and (e) evidence concerning the financial position or organizational make‑up of the Parties, any offer made or the details of any negotiation prior to arbitration and the cost to the Parties of their representatives and counsel shall not be admissible.  Each Party agrees that it will not bring a lawsuit concerning any dispute covered by this arbitration provision.  Any monetary award of the arbitrator may be enforced by the Party in whose favor such monetary award is made in any court of competent jurisdiction.

TAXES

Taxes

	(A)	Seller shall pay or cause to be paid, all taxes, fees, levies, penalties, licenses or charges imposed by any government authority (“Taxes) on or with respect to the Product prior to its delivery to Buyer up to and at the Delivery Point.  Buyer shall pay or cause to be paid, all Taxes on or with respect to the Product from the Delivery Point (other than ad valorem, franchise, or income taxes which are related to the sale of the Product and therefore the responsibility of the Seller.).  In the event Seller is required by law or regulation to remit or pay Taxes which are Buyer’s responsibility hereunder, Buyer shall promptly reimburse Seller for such Taxes.  If Buyer is required by law or regulation to remit or pay Taxes, which are Seller’s responsibility hereunder, Buyer may deduct the amount of any such Taxes from the sums due to Seller hereunder.  Nothing shall obligate or cause a Party to pay or be liable to pay any taxes for which it is exempt under the law.

[New Taxes

	(1)	Notwithstanding any other provision of this Agreement to the contrary, if (i) a New Tax is imposed and (ii) Buyer or Seller would be responsible for such New Tax and (iii) such New Tax is (as a result of laws, regulations, and applicable contracts of Buyer in effect as of the effective date of the New Tax) of the type that Buyer can pass directly through to, or be reimbursed by, another person or entity, Buyer shall pay or cause to be paid, or reimburse Seller if Seller has paid, all such New Taxes, and Buyer shall indemnify, defend and hold harmless Seller from any Claims for such New Taxes. “Claims” shall mean all claims or actions, threatened or filed and whether groundless, false or fraudulent, that directly or indirectly relate to the subject matter of an indemnity, and the resulting losses, damages, expense, attorneys’ fees and court costs, whether incurred by settlement or otherwise, and whether such claims or actions are threatened or filed prior to or after the termination of this Agreement.

	(2)	If (i) a New Tax is imposed and (ii) Buyer or Seller would be responsible for paying such New Tax and (iii) Paragraph (1) does not apply, the Party responsible for the New Tax (the “Affected Party”) shall be entitled to declare an Early Termination Date with respect to those Transactions affected by the New Tax (the “Affected Transactions”) in accordance with the provisions of this Agreement subject to the following conditions: (a) the Affected Party must give the other Party (the “Non‑Affected Party”) at least thirty (30) days’ prior written notice (the “Agreement Period”) of its intent to declare an Early Termination Date (which notice shall be given no later than ninety (90) days after the later of the enactment or effective date of the relevant New Tax), and prior to the proposed Early Termination Date, Buyer and Seller shall attempt to reach a mutual agreement as to the sharing of the New Tax; (b) if a mutual sharing agreement is not reached, the Non‑Affected Party shall have the right, but not the obligation, upon written notice to the Affected Party within the Agreement Period, to pay the New Tax for any continuous period it so elects on a month‑to‑month basis, and in such case the Affected Party shall not have the right during such continuous period to declare the Early Termination Date on the basis of the New Tax; (c) should the Non‑Affected Party at its election agree to pay the New Tax on a month‑to‑month basis, then upon thirty (30) days’ prior written notice to the Affected Party of its election to cease payments of such New Tax, the Affected Party shall then be liable for the payment of the New Tax, and the Parties shall again be subject to this Section ___ (B)(1),(2) as if the New Tax had an effective date as of the date the Non‑Affected Party ceases payment of the New Tax; (d) for any period of time within the Agreement Period, the Early Termination Date shall take effect and all Affected Transactions must be terminated and be subject to the same Early Termination Date; (e) the Early Termination Date shall be affected as if an Event of Default had occurred; provided, both Seller and Purchaser shall calculate in a commercially reasonable manner their net gain (amount of gain after netting losses and costs) or net loss (amount of losses and costs after netting gains) resulting from the termination of all Affected Transactions as if they each were a notifying Party; and provided further, that each Party’s gains and losses shall be determined without taking into effect the impact of the New Taxes; (f)(i) if both Parties have a net gain, the Party with the greater net gain shall pay to the other Party fifty percent (50%) of the difference between the two (2) net gains; (ii) if both Parties have a net loss, the Party with the lesser net loss shall pay to the other Party fifty percent (50%) of the absolute value of the difference between the two (2) net losses; and (iii) if one Party shall have a net gain and the other Party shall have a net loss, the Party with the net gain shall pay to the other Party the lower of:

(A)	fifty percent (50%) of the sum of the absolute value of the net gain and the absolute value of the net loss;

(B)	the value of the net loss; or

(C)	the value of the net gain; and 

(g) such payment shall be payable as provided under Section __ and its calculation shall be subject to alternative dispute resolution procedures in accordance Section __ of this Agreement.  Prior to and including the initial agreement period invoked under this Section __ (B)(1),(2), New Taxes shall be allocated as if they were Taxes as provided above in Section __(A). [In no event, however, shall a Party’s gains, losses or costs include any penalties, ratcheted demand or similar charges or stranded costs.] [Discuss.]  The intent of this Section __(B)(2) is to fairly distribute the burden on any open Transactions that are impacted as a result of New Taxes.]

[Cooperation.

	(i) 	Each Party shall use reasonable efforts to implement the provisions of and to administer this Agreement in accordance with their intent to minimize Taxes, so long as neither Party is materially adversely affected by such efforts. Either Party with knowledge of a tax on the purchase, sale, delivery or receipt of the Product(s) that may be applicable to any Transaction under this Agreement shall notify the other Party in advance of entering into such Transaction under this Agreement of the applicability of such tax and shall also notify the other Party of any proposal to implement a new tax or apply an existing tax to the purchase, sale, delivery, or receipt of the Product(s) hereunder.

	(ii)	Either Party, upon written request of the other, shall provide a certificate of exemption or other reasonably satisfactory evidence of exemption if either Party is exempt from Taxes and shall use reasonable efforts to obtain and cooperate with obtaining any exemption from or reduction of Tax. Unless and until such certificate(s) is (are) provided, Seller shall add such Tax to Seller’s invoice to Buyer.

	(iii)	The Party responsible for paying the Taxes shall also remit the tax to the appropriate taxing authority and file the required returns unless otherwise provided by law or upon agreement of the Parties. In such case the Party otherwise responsible for payment of the tax shall provide to the Party responsible for remitting the tax, all information necessary to make proper and timely payments and to file the required returns.]

MUNI RIDER (FOLLOW THIS RIDER IF ONE PARTY IS A MUNICIPALITY)

	A.	Add the definition of “Act” to the defined terms section and cite the state enabling statute.

	B.	Add the following representations and warranties at the end of the representations and warranties section:

Further and with respect to a party who is a governmental entity (“Governmental Entity”) only, such Government Entity represents and warrants to the other Party continuing throughout the term of this Agreement as follows: (i) all acts necessary to the valid execution and performance of this Agreement, including ______________________________, have been duly adopted and all ________________ of Governmental Entity have been duly elected or appointed to _____________________ in accordance with the Act, (ii) with respect to the contractual obligations hereunder and performance thereof, it is not entitled to claim immunity on the grounds of sovereignty or similar grounds with respect to itself or its revenues or assets from (a) suit, (b) jurisdiction of court, (c) relief by way of injunction, order for specific performance or recovery of property, (d) attachment of assets, or (e) execution or enforcement of any judgment, (iii) its obligations to make payments hereunder are unsubordinated obligations and such payments are operating and maintenance costs which enjoy first priority of payment at all times under any and all indentures to which it is a party, its constitutional and governing documents and applicable law, and (iv) if obligations to make payments hereunder do not constitute any kind of indebtedness of Governmental Entity or create any kind of lien on, or security interest in, any property or revenues of Governmental Entity which, in either case, is proscribed by any provision of its constitutional and governing documents, any order or judgment of any court or other agency of government applicable to it or its assets, or any contractual restriction binding on or affecting it or any of its assets.

	C.	Add the following section:

Governmental Entity’s Obligations.  On the Effective Date Governmental Entity shall provide ____ (i) certified copies of all documents evidencing the necessary authorizations with respect to the execution, delivery and performance by Governmental Entity of this Agreement and (ii) an opinion of counsel for Governmental Entity regarding the validity, binding effect and enforceability of this Agreement in respect of the Act and other applicable law.  With respect to each Transaction, Governmental Entity shall either (i) have created and set aside a special fund pledged to satisfy Governmental Entity’s obligations hereunder (the “Special Fund”) out of which funds shall be paid to satisfy all of Governmental Entity’s obligations for the entire Delivery Period or (ii) upon execution of this Agreement and prior to the commencement of each subsequent fiscal year of Governmental Entity during any Delivery Period, obtain all necessary budgetary certifications for payment of all of its obligations under this Agreement for such fiscal year; any breach of this provision shall be deemed to have arisen during a fiscal period of Governmental Entity for which budgetary certification of its obligations under this Agreement is in effect and, notwithstanding anything to the contrary in Section __, an Early Termination Date shall automatically and without further notice occur hereunder as of such date wherein Governmental Entity shall be treated as the Defaulting Party.  Governmental Entity shall have allocated to the Special Fund or its general funds a revenue base that is adequate to cover Governmental Entity’s payment obligations hereunder throughout the entire Delivery Period.

	D.	Add the following language to the end of the first sentence of the choice of law section:

EXCEPT IN RESPECT OF THE APPLICABILITY OF THE ACT AS HEREIN PROVIDED IN WHICH INSTANCE THE LAWS OF THE STATE OF ______________ SHALL APPLY.

	E.	Add the following provision as a separate section at the end of the security section:

Security.  As security for payment and performance of Governmental Entity’s obligations hereunder, Governmental Entity hereby pledges, sets over, assigns and grants to _________ a security interest in all of Governmental Entity’s right, title and interest in and to all amounts deposited in the Special Fund, including all investments made with such funds and the proceeds thereof.  Governmental Entity hereby authorizes and directs the depository of the Special Fund to hold all such amounts deposited therein as bailee and custodian for ____.

SCHEDULE ___ : PRODUCTS AND RELATED DEFINITIONS 

SUBJECT TO DISCUSSION [SUBCOMMITTEE TO REPORT]

“Ancillary Services” means any of the services identified by a Transmission Provider in its transmission tariff as “ancillary services” including, but not limited to, regulation and frequency response, energy imbalance, operating reserve‑spinning and operating reserve‑supplemental. 

“Capacity” means the megawatt output level that a generating unit is capable of continuously producing.

“Energy” means electric energy in the form of merchantable electricity expressed in megawatt hours and shall be three‑phase, 60‑cycle alternating current. 

“Exchange‑defined Force Majeure” means  [to come from subcommittee]

“Financially Firm” (No Force Majeure) means, with respect to a Transaction, if either Party fails to deliver or receive the Quantity of the Product due, the Non‑Defaulting Party shall be entitled to receive from the Defaulting Party an amount calculated as provided in Section ____.  No Force Majeure shall excuse performance of a Financially Firm Transaction.

“Firm (LD)” means, with respect to a Transaction, that either Party shall be relieved of its obligations to deliver or receive without liability only to the extent that, and for the period during which, such performance is prevented by Force Majeure. In the absence of Force Majeure, the Non‑Defaulting Party shall be entitled to receive from the Defaulting Party an amount calculated as provided in Section ____.

“Force Majeure” means an event or circumstances which prevents one party from performing its obligations under one or more Transactions, which event or circumstances was not anticipated as of the Effective Date, which is not within the reasonable control of the Party claiming force majeure (the “Claiming Party”), and which, by the exercise of due diligence, the Claiming Party is unable to overcome or avoid or cause to be avoided.  Force Majeure includes, but is not restricted to a transmission interruption which makes it impossible to deliver or receive the Product at the Delivery Point, or an action or restraint by court order or public or governmental authority (so long as the Claiming Party has not applied for or assisted in the application for such Court or government action). Force Majeure shall not include (i) the loss of Buyer's markets; (ii) Buyer's inability economically to use or resell the Product purchased hereunder; (iii) the loss or failure of Seller’s supply; (iv) Seller’s ability to sell the Product at a more advantageous price.  The settlement of strikes, walkouts, lockouts, and other labor disputes shall be entirely within the discretion of the Party involved, and such Party may make settlement at such time and on such terms and conditions as it may deem to be advisable.  Interruption by a Transmission Provider shall not be deemed to be an event of Force Majeure unless (i) the Party contracting with such Transmission Provider shall have made arrangements with such Transmission Provider for the firm transmission, as defined under the Transmission Provider's tariff, of the Product to be delivered or received hereunder and (ii) such interruption is due to “force majeure” or “uncontrollable force” or a similar term as defined under the Transmission Provider's tariff.

“Force Majeure ‑ Delivery Point Only” means with respect to transmission at the Delivery Point, interruption or curtailment shall constitute Force Majeure only if (a) Seller had previously acquired sufficient firm transmission capacity for delivery of the Transaction to Buyer for such hour(s) at the Delivery Point, and even then such an Event of Force Majeure shall be limited to that portion of the Transaction (b) for which there is no transmission capacity available through any interface connection with the Delivery Point for delivery to Buyer for such hour(s), and (c) which cannot be purchased at the Delivery Point for delivery to Buyer for such hour(s).  Such an event of Force Majeure shall be applicable only for the particular hour(s) that each of the above three conditions are satisfied. However, Force Majeure shall not include any interruption or curtailment of a Transaction by any Transmission Provider or security coordinator at any point along the transmission path other than at the Delivery Point.  If either Party is rendered unable by an event of Force Majeure to deliver or receive the Quantity of  the Product due under any Transaction, then, during the pendency of such Force Majeure, that Party shall be relieved of its obligations (other than the obligation to make payments then due and becoming due with respect to performance which occurred prior to the event) insofar as they are rendered unable to perform by Force Majeure.  The Party rendered unable to perform by an event of Force Majeure shall provide the other Party with written notice setting forth the full details thereof as soon as practicable after the occurrence of such event and shall take all reasonable measures to mitigate or minimize the effects of such event of Force Majeure.

“Non‑Firm” means, with respect to a Transaction, that delivery or receipt of the Product may be interrupted for any reason, without liability by either Party except as provided in Section _____.

“Option” means an option to purchase or sell a Product as specified in the Confirmation. The premium amount for the purchase of an Option shall be paid within two (2) Business Days of receipt of an invoice from the Party selling the Option. A Party who wishes to exercise an Option must notify the other Party by 10:00 a.m. Central Time one Business Day prior to the Expiration Date specified in the  Confirmation.

“Physically Firm” means, with respect to a Transaction, that either Party shall be relieved of its obligation to deliver or receive the Product (but not of its obligation to make payment then due and becoming due with respect to a Transaction which occurred prior to the event) to the extent that, and for the period during which, performance is prevented by Force Majeure.  In the absence of Force Majeure, a Party’s failure to deliver or receive any portion of the Energy, as the case may be, shall entitle the Non‑Defaulting Party to terminate the Transaction and recover damages pursuant to Section ___ plus an additional _____% of the amount of such damages to recoup difficult to quantify out‑of‑pocket costs.  In addition, the Non‑Defaulting Party may declare an Event of Default with respect to any other Physically Firm Transactions upon which the Non‑Defaulting Party may pursue all other remedies for default hereunder. 

“System Contingent” means, with respect to a Transaction, that the Energy subject to the Transaction is intended to be supplied from the Seller’s owned or controlled generation assets or pre‑existing purchase obligations.  A Party’s failure to deliver Energy under a “System Contingent” transaction shall be excused and the non‑delivering Party shall not be liable for damages if Seller’s total system contingent sales, in addition to native load, firm and physically firm sales exceed the Seller’s available physical resources and pre‑existing purchases.

“Unit Contingent” means, with respect to a Transaction, that the Energy subject to the Transaction is intended to be supplied from a particular identified generation asset or assets.  A Party’s failure to deliver Energy under a “Unit Contingent” Transaction shall be excused and the non‑delivering Party shall not be deemed in default or be liable for damages if the identified generation asset or assets is or are unavailable for any reason.

SCHEDULE ___ : DELIVERY POINTS

“Into Cinergy”: [To come from Marty Rogers]

“Into Entergy”: [To come from Marty Rogers]

CONFIRMATION LETTER
	This letter shall confirm the Transaction agreed to on ___________, ___ between __________________________ ("[Party]") and _____________________ ("Counterparty") regarding the sale/purchase of the Product under the terms and conditions as follows:

Seller:
	
Buyer:
	                           	
Product:                   Energy                    AND	Financially Firm    
                                 Capacity	Firm (LD)    
                                 Other    	Physically Firm    
System Contingent    
Unit Contingent    
Other    
		
Type of Force Majeure (if any): 	None
					Force Majeure
					Exchange‑Defined Force Majeure
					Force Majeure (Limited Duration of ___ days) 

Other Products:                                                                                           
	
Contract Quantity:                                                                                 

Delivery Point:                                                                                      
	
Contract Price:                                                                                       

Energy Price:                                                                                	
Demand Charges:                                                                         
Transmission Charges:	                                                               
          Other Charges:                                                                             
	
Delivery Period:	                                                                           

Special Conditions:                                                                               

Scheduling:                                                                                            

ADDITIONAL TERMS FOR OPTIONS:

Option Buyer:	                                                                                       	

Option Seller:	                                                                                       	

Type:	Monthly/Daily _______ Options

Expiration Date(s):	                                                                                       					
		
Monthly Option:	If exercised, ________ will have the right to buy and receive from, and ________ will have the obligation to sell and deliver to ________, at the Delivery Point the Quantity of the Product called for during all Delivery Hours for any day during the month in which ______ has exercised its monthly option.

Delivery Hours:	                            
		
Option Premium:	$_____ per _____ ($___________), payable by ______ within two (2) Business Days after receipt of ________ invoice.

Option Exercise:	If exercising the option , ________ will contact ________ on or before 10:00 Central Time on the above expiration dates.

Each of [Party] and Counterparty (i) has entered into this Transaction with a full understanding of its material terms and risks, and it is capable of assuming those risks; (ii) has made its trading and investment decisions (including regarding the suitability thereof) based upon its own evaluation and judgment and any advice from such advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party; and (iii) the other Party (x) is acting solely in the capacity of an arm’s‑length contractual counterparty with respect to this Transaction; (y) is not acting as a financial advisor or fiduciary (or in any similar capacity) with respect to this Transaction and (z) has not given to or received from the other party any assurance or guarantee as to the expected performance or result of this Transaction.  
This Confirmation is being provided pursuant to and in accordance with the _______________________ Agreement dated ________________,  ___ (the "Master Agreement") between [Party] and Counterparty, and constitutes part of and is subject to all of the terms and provisions of such Master Agreement.  Terms used but not defined herein shall have the meanings ascribed to them in this the Master Agreement.
Please confirm that the terms stated herein accurately reflect the agreement between you and [Party] by returning an executed copy of this letter by facsimile to [Party].  If you do not return this Confirmation or object to this Confirmation within two (2) Business Days of your receipt of it, you will have accepted and agreed to all of the terms included herein, including the terms and provisions of the Agreement.

_________________________________

By:_____________________________
     Authorized Signatory

ACCEPTED AND AGREED:

[COUNTERPARTY] 
By:_____________________________