(5) above; or (7) takes any action in furtherance of, or

indicating its consent to, approval of, or acquiescence in, any of the

foregoing acts.


 

"Current Value" means, with respect to a terminated Service Agreement and the

Non-Defaulting Party, an amount determined on the basis of quotations from

Reference Market-makers. The Current Value of each terminated Service

Agreement will be the amount, if any, that would be paid to the Non-Defaulting

Party (expressed as a negative number) or by the Non-Defaulting Party

(expressed as a positive number) in consideration of an agreement between the

Non-Defaulting Party and a Reference Market-maker to enter into a transaction

that would have the effect of preserving for the Non-Defaulting Party the

economic equivalent of any payment, delivery, or service under the Service

Agreement that would, but for the occurrence of the early termination on the

Early Termination Date, have been required of the Parties after that date (but

not including Unpaid Amounts in respect of the terminated Service Agreement).

The Non-Defaulting Party will request such quotation from three (3) Reference

Market-makers and will request that each Reference Market-maker provide its

quotation to the extent reasonably practicable as of the same day and time

(without regard to different time zones) on or as soon as reasonably

practicable after the Early Termination Date. The market quotation used in

determining the Current Value will be the quotation remaining after

disregarding the highest and lowest quotations; for this purpose, if more than

one quotation has the same highest value or lowest value, then one of such

quotations shall be disregarded. If the Non-Defaulting Party cannot, after

using its best efforts, obtain three quotations as provided above, two such

quotations may be used and the Current Value will be the average of the two

quotations. If no such quotations are available, the Current Value with

respect to such Service Agreement shall be based on the Non-Defaulting Party’s

Loss as of the Early Termination Date. The Non-Defaulting Party will cause

all market quotations to be documented by the Reference Market-maker and will

make all such documentation available for review by the Defaulting Party.


 

"Loss" means, with respect to one or more terminated Service Agreements and

the Non-Defaulting Party, the amount that the Non-Defaulting Party reasonably

determines in good faith to be its total losses and costs (or gain, which is

expressed as a negative number) in connection with the terminated Service

Agreement(s) (but not including any loss related to any hedge or related

trading position).


 

"Reference Market-maker" means a third-party gas storage service provider or

leading dealer in the natural gas futures and/or forward contract market which

is ready, willing and able to enter into a service transaction with terms

substantially the same as the terminated transaction (i.e., with regard to

injection rate, withdrawal rate, maximum inventory, demand and commodity

charges, length of term of service, and the service beginning and ending

dates) and which is selected in good faith by the Non-Defaulting

Party from among storage service providers and/or dealers of the highest

credit standing which satisfies all the criteria that the Non-Defaulting Party

applies generally when deciding whether to make an extension of credit.


 


 

"Unpaid Amounts" owing to a Party means, with respect to the Early Termination

Date and in respect of all terminated Service Agreements, the amounts that

became payable (or that would have become payable but for the legal or

equitable right of a Party to not pay as a result of a default by the other

Party) (whether or not such amounts are yet invoiced or overdue) on or prior

to the Early Termination Date and which remain unpaid as of such Early

Termination Date.


 

23.8 Insufficient Proceeds. In the event Shipper’s Gas in the Storage

Facility is liquidated and the proceeds therefrom are insufficient to satisfy

all outstanding payment obligations due to Freebird under the terminated

Service Agreements, Shipper will remain liable for all such outstanding and

unsatisfied