Subject: ENA-ECC Force Majeure
From: [email-masked]
To: [email-masked]
Cc: [email-masked]
Date: Fri, 20 Jul 2001 08:11:22 -0700 (PDT)

Kevin, further to your voice-mail, as indicated to you yesterday, our physical gas master agreement with ENA is in their form of Enfolio master agreement and not our form of master.  What that means is that, although the mechanics of declaring force majeure, etc. are the same, the definition of force majeure under our Enfolio master with ENA is not restricted to delivery point force majeure as it is in ECC's standard form, but is rather a broader based force majeure.  However, it must be kept in mind that, depending on the transaction, the definition of "force majeure" may be amended in the terms of the particular confirmation letter.  The application section (which is basically the same as in our form) is as follows:

This Article 5 is the sole and exclusive excuse of performance permitted under this Agreement, and all other excuses at law or in equity are waived to the extent permitted by law.  Except with regard to payment obligations, in the event either Party is rendered unable, wholly or in part, by Force Majeure to carry out its obligations hereunder, it is agreed that upon such Party's giving notice and full particulars of such Force Majeure to the other Party as soon as reasonably possible (such notice to be confirmed in writing), the obligations of the Party giving such notice, to the extent that they are affected by such event, shall be suspended from the inception and during the continuance of the Force Majeure for a period of up to 60 Days in the aggregate during any 12 Month period, but for no longer period.  The Party receiving notice of Force Majeure may immediately take such action as it deems necessary at its expense for the entire 60 Day period or any part thereof.  The Parties expressly agree that upon the expiration of the 60 Day period Force Majeure shall no longer apply to the obligations hereunder and both Buyer and Seller shall be obligated to perform...

I will send a copy of the agreement over to you which also contains the definition of Force Majeure, but again it must be remembered that such definition may be amended in the particular confirm.

Greg Johnston
Senior Counsel
Enron Canada Corp.
phone: 403-974-6745
[email-masked]