Message-ID: <12190757.1075852754393.JavaMail.evans@thyme> Date: Fri, 20 Jul 2001 08:11:22 -0700 (PDT) From: greg.johnston@enron.com To: kevin.heal@enron.com Subject: ENA-ECC Force Majeure Cc: jonathan.mckay@enron.com Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: quoted-printable Bcc: jonathan.mckay@enron.com X-From: Johnston, Greg X-To: Heal, Kevin X-cc: Mckay, Jonathan X-bcc: X-Folder: \JMCKAY1 (Non-Privileged)\Mckay, Jonathan\Deleted Items X-Origin: McKay-J X-FileName: JMCKAY1 (Non-Privileged).pst Kevin, further to your voice-mail, as indicated to you yesterday, our physi= cal gas master agreement with ENA is in their form of Enfolio master agreem= ent and not our form of master. What that means is that, although the mech= anics of declaring force majeure, etc. are the same, the definition of forc= e majeure under our Enfolio master with ENA is not restricted to delivery p= oint 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 te= rms 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 un= der 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, i= n the event either Party is rendered unable, wholly or in part, by Force Ma= jeure to carry out its obligations hereunder, it is agreed that upon such P= arty's giving notice and full particulars of such Force Majeure to the othe= r Party as soon as reasonably possible (such notice to be confirmed in writ= ing), the obligations of the Party giving such notice, to the extent that t= hey are affected by such event, shall be suspended from the inception and d= uring 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 P= arty 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 Da= y period Force Majeure shall no longer apply to the obligations hereunder a= nd both Buyer and Seller shall be obligated to perform... I will send a copy of the agreement over to you which also contains the def= inition of Force Majeure, but again it must be remembered that such definit= ion may be amended in the particular confirm. Greg Johnston Senior Counsel Enron Canada Corp. phone: 403-974-6745 greg.johnston@enron.com