ESBD_372566_1724889787625_ESBD RFB FM2025-001 Attachment A Special Provisions UTARL UTDAL.docx

ATTACHMENT A

SPECIAL PROVISIONS

TO THE NAESB BASE CONTRACT

FOR SALE AND PURCHASE OF NATURAL GAS

(NAESB STANDARD 6.3.1 DATED SEPTEMBER 5, 2006

REVISED BY R15003/R15007, APRIL 4, 2016; R19006, NOVEMBER 21, 2019;

R18007, AUGUST 6, 2020; MC23001, MAY 1, 2023)

DATED MAY _____________, 2024

BETWEEN

AND

THE UNIVERSITY OF TEXAS AT [ARLINGTON/DALLAS] [To be completed before the Contract is signed.]

If the terms of these Special Provisions and the other terms of the Base Contract conflict, the terms of these Special Provisions shall govern. Any definitions used in the Base Contract, unless otherwise defined in these Special Provisions, shall have the same meaning in these Special Provisions. Any reference to a Section in these Special Provisions refers to the same Section of the General Terms and Conditions to the Base Contract.

Section 1. Purpose and Procedures

Section 1.1 is deleted in its entirety and the following is substituted in its place:

“These General Terms and Conditions are intended to facilitate purchase and sale transactions of Gas on a Firm basis. ‘Buyer’ refers to the party receiving Gas and ‘Seller’ refers to the party delivering Gas. The entire agreement between the parties shall be the Contract as defined in Section 2.9.”

Section 1.2 is hereby amended by deleting the last sentence of the Section and replacing it with the following:

“If a Transaction Confirmation contains additional provisions or special conditions, other than those provisions relating to the basic commercial terms of the transaction (e.g., Contract Price, Delivery Period, Performance Obligation and Contract Quantity), which purport to modify or supplement the General Terms and Conditions of the Base Contract or these Special Provisions, such provisions shall not be binding on the parties unless agreed to in the form of an amendment containing the additional Special Provisions to the Contract and executed by both parties; provided, that, the foregoing shall not invalidate the remaining terms of any Transaction Confirmation agreed to by the parties.”

New Sections 1.5 through 1.7 are added as follows:

“1.5. Buyer shall be charged the Contract Price for the Contract Quantity received at the Delivery Point. Buyer shall be responsible for transportation charges incurred downstream of the Delivery Point.”

“1.6 At any point during the Term of the Contract, Buyer shall be entitled to lock in a fixed Contract Price for a designated Contract Quantity and Delivery Period under the following procedures:

(a) The Indicative Price at any time shall be calculated based on the following formula:

[Example to be completed before the Contract is signed:

Indicative Price = (NYMEX plus WAHA Basis)+/- $_______/MMBtu

OR

(NYMEX plus HSC Basis)+/- $_______/MMBtu]

OR

(NYMEX plus NGPL TexOk Basis)+/- $_______/MMBtu]

(b) To the extent that Buyer expresses an interest to Seller of locking in a fixed Contract Price for a designated Contract Quantity and Delivery Period, Seller shall immediately calculate the Indicative Price and submit it by telephone conversation to Buyer’s Authorized Representative. Buyer’s Authorized Representative, at its sole discretion, may then lock in the fixed Contract Price for the designated Contract Quantity and Delivery Period over the phone.

(c) The Confirming Party shall then send the Transaction Confirmation, the form of which is attached as Addendum B, via email to the receiving party in accordance with the terms of the Contract.

(d) The minimum Delivery Period for any transaction locking in a fixed Contract Price shall be one month. Buyer may lock in a fixed Contract Price for a different Delivery Period in each transaction.

(e) There is no limit to the number of times that Buyer can lock-in a fixed Contract Price for any designated Contract Quantity and Delivery Period, provided that the Contract Quantity designated in a transaction shall be no less than 20% of the total Estimated Gas Consumption Volume for any particular month as set forth in Addendum A.

(f) Buyer shall also have the options to (i) set lock trigger prices in advance indicating how much gas to lock when the NYMEX price for a given month(s) reaches specified price points, and (ii) lock the [WAHA/HSC/NGPL TexOk] Basis at any reasonable time during the Contract Term.

1.7 Seller shall not include any other charges, either implicit or explicit, in addition to the Contract Price as stated in any Transaction Confirmation including, but not limited to, system operating and/or maintenance expenses, scheduling charges, nominating charges, imbalance charges, administrative fees, and trading fees.”

Section 2. Definitions

Sections 2.7, 2.10, 2.11, 2.13, 2.14, 2.15, 2.16 and 2.26 are deleted in their entirety and the following are substituted in their place:

“2.7 “Confirm Deadline” shall mean 5:00 p.m. in the receiving party's time zone on the second Business Day following the Day a Transaction Confirmation is received; provided, if the Transaction Confirmation is time stamped after 5:00 p.m. in the receiving party's time zone, it shall be deemed received at the opening of the next Business Day.

2.10 “Contract Price” shall mean the amount expressed in U.S. Dollars per MMBtu to be paid by Buyer to Seller for the purchase of Gas as agreed to by the parties in a Transaction Confirmation, and will either be based on a floating price or on fixed prices as may be agreed to by the parties in a Transaction Confirmation.

2.11 “Contract Quantity” shall mean the quantity of Gas to be delivered and taken as agreed to by the parties in a transaction, as such quantities from time to time may be amended through mutual written volume amendment, as more particularly provided in Addendum A, attached and incorporated for all purposes.

2.13 “Credit Support Obligation(s)” shall mean any obligation(s) to provide or establish credit support for, or on behalf of, Seller such as an irrevocable standby letter of credit, a margin agreement, a prepayment, a security interest in an asset, a performance bond, guaranty, or other good and sufficient security of a continuing nature.

2.14 “Day” shall mean the period of twenty-four (24) consecutive hours beginning at 12:00 midnight Central Prevailing Time on any calendar day and ending at 12:00 midnight Central Prevailing Time on the calendar day immediately following.

2.15 “Delivery Period” shall be the period during which deliveries are to be made as agreed by the parties in a transaction. If a transaction does not specify that a renewal period applies, but Seller continues to deliver and Buyer continues to receive Gas after the expiration of the initial Delivery Period specified therein, then the Delivery Period will be deemed to automatically extend month-to-month under the terms of the transaction until terminated by either party on not less than 30 days’ notice; provided, however, if the Contract Price in such transaction is a fixed price, then the applicable Contract Price during any monthly extension of the Delivery Period will be the then-current monthly spot price for Gas in the geographic area where the Delivery Point is located, as determined by Seller in a commercially reasonable manner. If a transaction specifies that a renewal period applies and the parties agree to a fixed price with respect to all or part of the Contract Quantity for any Month(s) occurring after the initial Delivery Period or renewal thereof, as applicable and then in effect, then the Delivery Period of the transaction will be deemed to have been extended through and including the last calendar month of the last renewal period in which all or part of the Contract Quantity for any Month occurring during such renewal period is subject to a fixed price.

2.16 “Delivery Point(s)” shall mean, for purposes of the Contract, any and all then active pooling stations on Atmos’ pipeline.

2.26 “Month” shall mean a period beginning at 12:00 midnight Central Prevailing Time on the first day of a calendar month and ending at 12:00 midnight Central Prevailing Time on the first day of the calendar month immediately following, except that the first month shall begin on the date of initial deliveries of Gas under the Contract and shall end at 12:00 midnight Central Prevailing Time on the first day of the calendar month immediately following.”

New Sections 2.36 through 2.39 are added as follows:

[These Sections will be revised prior to contract execution depending on Section 1.6(a) formula.]

2.36 [Option: “HSC Basis” shall be expressed in cents per MMBtu and calculated based on the difference in the HSC Index Price and the NYMEX index price at any particular point in time.] [Alternate Option (1): “WAHA Basis” shall be expressed in cents per MMBtu and calculated based on the difference in the WAHA Index Price and the NYMEX index price at any particular point in time.] [Alternate Option (2): “NGPL TexOk Basis” shall be expressed in cents per MMBtu and calculated based on the difference in the NGPL TexOk Index Price and the NYMEX index price at any particular point in time.]

2.37 [Option: “HSC Index Price” shall mean the price expressed in dollars per MMBtu as published each month by Platts Inside FERC’s Gas Market Report in the section titled “Market Centers” under the heading “East Texas” and under the subheading “Houston Ship Channel Index” as listed in the first-of-the-month issue of such publication for each month during the term of the Contract.] [Alternate Option (1): “WAHA Index Price” shall mean the price expressed in cents per MMBtu as published by Platts Inside FERC’s Gas Market Report in the section titled “Market Centers” under the heading “West Texas” and under the subheading “Waha Index” as listed in the first-of-the- month issue of such publication for each month during the Contract term. ] [Alternate Option (2): “NGPL TexOk Index Price” shall mean the price expressed in cents per MMBtu as published by Platts Inside FERC’s Gas Market Report in the section titled “Market Centers” under the heading “East Texas” and under the subheading “NGPL TexOk Index” as listed in the first-of-the- month issue of such publication for each month during the Contract term. ]

2.38 “Indicative Pricing” shall mean the Contract Price calculated at any point in time under the formula set forth in Section 1.6(a) of the Contract.”

2.39 “NYMEX” shall mean the price expressed in dollars per MMBtu that is equal to the weighted average of current natural gas futures strip prices publically traded at the New York Mercantile Exchange.

Section 3. Performance Obligation

The last sentence of Section 3.1 is deleted in its entirety and the following language is substituted in its place:

“Sales and purchases shall be on a Firm basis.

(a) For any Contract Quantity of Gas received by Buyer that is not subject to a fixed Contract Price transaction, Buyer shall pay the Contract Price stated in the corresponding Transaction Confirmation. For all Gas received by Buyer that is not subject to a fixed Contract Price transaction, there is no consumption bandwidth or resulting change in Contract Price with regard to purchases of such Gas by Buyer to the extent that Buyer’s actual consumption is less than or greater than the expected volume for any particular month during the Term as set forth in Addendum A.

(b) To the extent that Buyer locks in a fixed Contract Price for a specified Contract Quantity during any month of the Contract Term, and Buyer fails to receive the specified Contract Quantity of Gas during such month due to no fault of Seller, Buyer shall: (i) in the event that the then-current [WAHA/HSC/NGPL TexOk] Index Price is less than the fixed Contract Price, pay to Seller the difference between the fixed Contract Price and the [WAHA/HSC/NGPL TexOk] Index Price multiplied by the difference in the Contract Quantity and the quantity of Gas actually received by Buyer under the transaction; or (ii) in the event that the then-current [WAHA/HSC/NGPL TexOk] Index Price is more than the fixed Contract Price, receive a credit from Seller for the difference between the [WAHA/HSC/NGPL TexOk] Index Price and the fixed Contract Price multiplied by the difference in the Contract Quantity and the quantity of Gas actually received by Buyer under the transaction.”

Section 3.2 is deleted in its entirety and the following is substituted in its place:

“3.2 The sole and exclusive remedy of Seller in the event of a breach of a Firm obligation to receive Gas by Buyer shall be as set forth in Section 3.1(b) of these Special Provisions. The sole and exclusive remedy of Buyer in the event of a breach of a Firm obligation to deliver Gas by Seller shall be recovery of the following: (i) in the event of a breach by Seller on any Day(s), payment by Seller to Buyer in an amount equal to the positive difference, if any, between the purchase price paid by Buyer utilizing the Cover Standard and the Contract Price, adjusted for commercially reasonable differences in transportation costs to or from the Delivery Point, multiplied by the difference between the Contract Quantity and the quantity actually delivered by Seller for such Day(s) excluding any quantity for which no replacement is available; or (ii) in the event that Buyer has used commercially reasonable efforts to replace the Gas, and no such replacement is available for all or any portion of the Contract Quantity of Gas, then in addition to (i) above, as applicablethe sole and exclusive remedy of Buyer with respect to the Gas not replaced shall be an amount equal to any unfavorable difference between the Contract Price and the Spot Price, adjusted for such transportation to the Delivery Point, multiplied by the difference between the Contract Quantity and the quantity actually received by Buyer for such Day(s). The amount of such unfavorable difference shall be paid in accordance with Section 7.2 upon presentation of Buyer’s invoice.”

Section 3.3 is deleted in its entirety and the following is substituted in its place:

“3.3 INTENTIONALLY DELETED.”

Section 3.4 is deleted in its entirety and the following is substituted in its place:

“3.4 INTENTIONALLY DELETED.”

Section 4. Transportation, Nominations, and Imbalances

[These Sections will be revised prior to contract execution depending on pricing scenario asubmitted and agreed to.]

Section 4.1 is amended to delete the second sentence in its entirety and to substitute the following in its place:

“Buyer agrees to sign a limited agent letter in the form attached as Addendum C, naming Seller as Buyer’s limited agent pursuant to the Contract solely for purposes of (i) nominating and scheduling with Receiving Transporter(s) the receipt of all Gas purchased by Buyer and the redelivery of such Gas to the Delivery Point(s), and (ii) regularly and timely obtaining from Receiving Transporter(s) all data regarding Buyer’s actual consumption of Gas necessary to perform such nominating and scheduling activities.”

Section 4.2 is deleted in its entirety and the following is substituted in its place:

“4.2 Seller shall coordinate all nomination activities with all Transporters, and shall monitor and manage the quantities of Gas purchased by Buyer under the Contract and/or transported by Buyer, in each case on its own behalf and on behalf of Buyer with Receiving Transporters, giving sufficient time to meet the deadlines of the affected Transporter(s). Buyer shall not be required to provide advance notice of any quantity of Gas to be purchased in a particular Day. Should either party become aware that actual deliveries at the Delivery Point(s) are greater or lesser than the Scheduled Gas, such party shall promptly notify the other party. Seller shall regularly and timely obtain from Receiving Transporter(s) all data regarding Buyer's actual consumption of gas that may be necessary to perform all nomination and scheduling activities under the Contract.”

Section 4.3 is deleted in its entirety and the following is substituted in its place:

“4.3 The parties shall use commercially reasonable efforts to avoid imposition of any Imbalance Charges. Regardless of whether incurred upstream or downstream of the Delivery Point(s), Seller shall (i) be responsible for and pay such Imbalance Charges directly to the Transporter(s) or (ii) indemnify and reimburse Buyer for any such Imbalance Charges paid by Buyer. For any such amounts paid by Buyer and not reimbursed by Seller, all credits due Buyer shall be applied to Buyer’s account within ninety (90) days of receipt of Notice from Buyer to Seller. Seller shall not be responsible for (1) Operational Flow Order (also known as OFOs) fees, (2) over pull curtailment fees, (3) unscheduled Buyer facility repairs, unless Buyer provides Seller with twenty-four (24) hours prior Notice or (4) scheduled Buyer facility repairs, unless Buyer provides Seller with seventy-two (72) hours prior Notice.”

Section 5. Quality and Measurement

Section 5 is amended by adding the following to the end of the Section:

“The parties agree that the metering facilities to measure volumes of Gas delivered at the Delivery Point(s) shall be maintained and operated by the owner thereof and that the Btu content of the Gas shall be determined at the metering facilities at the Delivery Point(s). Such Gas metering facilities and Gas measurement data shall be subject to joint inspection by the parties, as mutually agreed by the parties and the owner of such facilities and data. The methods of measurement and calibration of meters and instruments shall be in a manner that is mutually agreeable to the parties and the owner of such meters and instruments.”

Section 6. Taxes

Section 6 is amended by adding the following to the end of the Section:

“Notwithstanding the foregoing, Seller acknowledges that Buyer is not subject to certain Taxes under Texas law, including as specifically provided in Texas Utilities Code, Section 104.202.

Pursuant to Section 151.309(4), Texas Tax Code, as a state agency, Buyer is exempt from sales taxes. In addition, as set forth in Texas Comptroller Rule 3.322(c) (34 Texas Administrative Code (“TAC”) 3.322), Buyer is not required to prove its exempt status. In the event of a change in tax exemption status, the party entitled to an exemption from any taxes or related charges shall furnish the other party all reasonably requested documentation evidencing the change in status.”

Section 7. Billing, Payment and Audit

Section 7.1 is deleted in its entirety and the following is substituted in its place:

“By the fifteenth (15th) Day of each Month following the Month in which Gas was delivered, Seller shall provide Buyer with a written invoice setting forth the quantity of Gas which was scheduled under the Contract and delivered for the preceding Month, the Contract Price for such Gas, and any quantity and/or payment adjustments to scheduled quantities to reflect the actual quantities delivered for any prior Months, detailing such adjustments by Delivery Point(s), quantity adjusted and the total amount due. The invoice shall be sufficiently detailed to support the amount billed and shall include such other information as reasonably requested by Buyer.”

Section 7.2 is deleted in its entirety and the following is substituted in its place:

“Buyer shall remit payments under the Contract in accordance with the Texas Prompt Payment Act (“Act”), Chapter 2251, Texas Government Code. Pursuant to the Act, Buyer’s payment shall be deemed late on the 31st day after the later of (1) the date goods are delivered or performance of services is completed, or (2) the date Buyer receives an invoice for the goods or services. If the payment date is not a Business Day, payment is due on the next Business Day following that date. Buyer shall pay interest on overdue payments at an annual rate of interest equal to the sum of (1) one percent, plus (2) the annual prime rate of interest as published in the Wall Street Journal on the first day of July of the preceding fiscal year (Buyer’s fiscal year begins September 1) that does not fall on a Saturday or Sunday. Any payment required by Seller under the Contract shall be deemed late on the 31st day after the date that Seller receives Notice that a payment is due. If the payment date is not a Business Day, payment is due on the next Business Day following that date. Seller shall pay interest on overdue payments at an annual rate of interest equal to the sum of (1) one percent, plus (2) the then-effective annual prime rate of interest as published in the Wall Street Journal.

Section 51.012, Texas Education Code, authorizes Buyer to make any payment through electronic funds transfer methods. Seller agrees to receive payments from Buyer through electronic funds transfer methods, including the automated clearing house system (also known as ACH). Seller agrees to provide Seller’s bank information to Buyer in writing on Seller letterhead signed by an authorized representative of Seller. Prior to the first payment under the Contract, Buyer will confirm Seller’s bank information. Changes to Seller’s bank information must be communicated to Buyer in writing at least thirty (30) days before the effective date of the change and must include an IRS Form W-9 signed by an authorized representative of Seller.”

Section 7.3 is deleted in its entirety and the following is substituted in its place:

“In the event payments become due pursuant to Section 3.2, the performing party may submit an invoice to the nonperforming party for payment in accordance with Section 7.2 setting forth the basis upon which the invoiced amount was calculated.”

Section 7.4 is deleted in its entirety and the following is substituted in its place:

“If the invoiced party, in good faith, disputes the amount of any such invoice or any part thereof in writing, then upon receipt of a corrected invoice such invoiced party shall pay such amount as it concedes to be correct. In the event the parties are unable to resolve such dispute, either party may pursue any remedy available under the Contract, at law or in equity to enforce its rights pursuant to this Section.”

Section 7.5 is deleted in its entirety and the following is substituted in its place:

“7.5 INTENTIONALLY DELETED.”

Section 7.6 is deleted in its entirety and the following is substituted in its place:

“A party shall have the right, at its own expense, upon reasonable Notice and at reasonable times, to examine and audit and to obtain copies of the relevant portion of the books, records, and telephone recordings of the other party only to the extent reasonably necessary to verify the accuracy of any statement, charge, payment, or computation made under the Contract. This right to examine, audit, and to obtain copies shall not be available with respect to proprietary information not directly relevant to transactions under the Contract. All invoices and billings shall be conclusively presumed final and accurate and all associated claims for under- or overpayments shall be deemed waived unless such invoices or billings are objected to by ECS or in writing, with adequate explanation and/or documentation, within four (4) years after the Month of Gas delivery, subject to Applicable Laws. All retroactive adjustments under Section 7 shall be paid in full by the party owing payment in accordance with Section 7.2 upon substantiation of such inaccuracy. This Section 7.6 is subject to the other terms of the Contract including Sections 14.19, 14.21 through 14.25, 14.33, 14.34, and 14.35.”

Section 7.7 is deleted in its entirety and the following is substituted in its place:

“The parties shall net all undisputed amounts due and owing, and/or past due, arising under the Contract such that the party owing the greater amount shall make a single payment of the net amount to the other party in accordance with Section 7; provided, that, no payment required to be made pursuant to the terms of any Credit Support Obligation or pursuant to Section 7.3 shall be subject to netting under this Section.”

Section 8. Title, Warranty, and Indemnity

Section 8.3 is deleted in its entirety and the following is substituted in its place:

“8.3 Seller agrees to indemnify Buyer and save it harmless from all losses, liabilities or claims including reasonable attorneys’ fees and costs of court (“Claims”), from any and all persons, arising from or out of claims of title, personal injury (including death) or property damage from said Gas or other charges thereon which attach before title passes to Buyer. To the extent permitted under the laws and Constitution of the State of Texas, Buyer agrees to indemnify Seller and save it harmless from all Claims, from any and all persons, arising from or out of claims regarding payment, personal injury (including death) or property damage from said Gas or other charges thereon which attach after title passes to Buyer. All Buyer indemnification obligations under the Contract, whether in this Section or otherwise, are limited to the extent permitted under the laws and Constitution of the State of Texas.”

Section 9. Notices

Section 9.4 is hereby amended as follows:

“9.4 The party receiving a commercially acceptable Notice of change in payment instructions or other payment information shall not be obligated to implement such change until five Business Days after receipt of such Notice.”

Section 10. Financial Responsibility

Section 10.1 is deleted in its entirety and the following is substituted in its place:

“10.1 If Buyer has reasonable grounds for insecurity regarding the performance of any obligation under the Contract (whether or not then due) by Seller (including, without limitation, the occurrence of a material change in the creditworthiness of Seller), Buyer may demand Adequate Assurance of Performance. ‘Adequate Assurance of Performance’ shall mean sufficient security in the form, amount and for the term reasonably acceptable to Buyer, including, but not limited to, a standby irrevocable letter of credit, a prepayment, a security interest in an asset or a performance bond or guaranty (including the issuer of any such security).”

Section 10.2 is deleted in its entirety and the following is substituted in its place:

“10.2 In the event (each an "Event of Default") either party (the "Defaulting Party") or, to the extent applicable, its guarantor, shall: (i) make an assignment or any general arrangement for the benefit of creditors; (ii) file a petition or otherwise commence, authorize, or acquiesce in the commencement of a proceeding or case under any bankruptcy or similar law for the protection of creditors or have such petition filed or proceeding commenced against it; (iii) otherwise become bankrupt or insolvent (however evidenced); (iv) be unable to pay its debts as they fall due; (v) have a receiver, provisional liquidator, conservator, custodian, trustee or other similar official appointed with respect to it or substantially all of its assets; (vi) as to Seller, fail to perform any obligation to Buyer with respect to any Credit Support Obligations relating to the Contract; (vii) as to Seller, fail to give Adequate Assurance of Performance under Section 10.1 within 48 hours but at least one Business Day of a written request by Buyer; or (viii) not have paid any amount due the other party hereunder on or before the fifteenth Business Day following written Notice that such payment is due; then the other party (the "Non-Defaulting Party") shall have the right, at its sole election, to immediately withhold and/or suspend deliveries or payments upon Notice and/or to terminate and liquidate the transactions under the Contract, in the manner provided in Section 10.3, in addition to any and all other remedies available hereunder.”

Section 10.4 is deleted in its entirety and the following is substituted in its place:

“As soon as practicable after a liquidation, Notice shall be given by the Non-Defaulting Party to the Defaulting Party of the Net Settlement Amount, and whether the Net Settlement Amount is due to or due from the Non-Defaulting Party. The Notice shall include a written statement explaining in reasonable detail the calculation of such amount, provided that failure to give such Notice shall not affect the validity or enforceability of the liquidation or give rise to any claim by the Defaulting Party against the Non-Defaulting Party. The Net Settlement Amount shall be paid in accordance with the terms of Section 7.2.”

Section 10.5 is deleted in its entirety and the following is substituted in its place:

“10.5 Bankruptcy Matters.

(a) Each party acknowledges and agrees that the transaction(s) entered into by the parties pursuant to the Contract constitute “forward contracts” within the meaning of Title 11 of the United States Code (the “Bankruptcy Code”); (ii) each party is a “forward contract merchant” within the meaning of the Bankruptcy Code with respect to any transactions that constitute “forward contracts”; (iii) all payments made or to be made by one party to the other party pursuant to the Contract constitute “settlement payments” within the meaning of the Bankruptcy Code; (iv) all transfers of Adequate Assurance of Performance by Seller to the Buyer under the Contract constitute “margin payments” within the meaning of the Bankruptcy Code; and (v) each party’s rights under Sections 10.2, 10.3 and 10.4 of the Contract constitutes a “contractual right to liquidate” the transactions within the meaning of the Bankruptcy Code.

(b) Each party acknowledges and agrees that, for purposes of the Contract, the other party is not a "utility" as such term is used in Section 366 of the Bankruptcy Code, and each party agrees to waive and not to assert the applicability of the provisions of Section 366 in any bankruptcy proceeding wherein such party is a debtor.”

Section 10.7 is deleted in its entirety and the following is substituted in its place:

“10.7 INTENTIONALLY DELETED.”

Section 11. Force Majeure

Section 11.6 is deleted in its entirety and the following is substituted in its place:

“11.6 INTENTIONALLY DELETED.”

Section 12. Term

Section 12 is deleted in its entirety and the following is substituted in its place:

[NOTE: Length of initial term and renewals will be selected by Buyer based on proposal pricing (ref. Section 4.1 of the RFB) prior to Contract execution.]

“Subject to the terms of the Contract, the Contract shall be in effect from November 1 , 2024 through October 31, ____ (“Initial Term”). At Buyer’s sole option, the Contract may be renewed on the same terms and conditions, at a mutually agreeable Contract Price for _________(____) [Complete before the Contract is signed in accordance with Section 4.1 of RFB.] additional one-year periods (each an “Extension Term”). The Initial Term and each Extension Term are collectively the “Contract Term.”

Notwithstanding the foregoing and the expiration of the Initial Term or any Extension Term, the Contract shall continue at the same Contract Price and terms on a month-to-month basis upon mutual written agreement by both Buyer and Seller until Buyer is able to negotiate and execute new agreements for the supply and transportation of Gas to the Delivery Point.

Notwithstanding the foregoing, the provisions of Sections 3, 6, 7, 8, 10, 12, 13, 14 and 15 of the Contract shall survive the termination of the Contract or any transaction hereunder.”

Section 15. Miscellaneous

Section 15.7 is deleted in its entirety and the following substituted in its place:

“15.7 Relationship of the Parties. Subject to the provisions above under "Assignment," nothing in the Contract shall provide any benefit to any third party or entitle any third party to any claim, cause of action, remedy or right of any kind, it being the intent of the parties that the Contract shall not be construed as a third party beneficiary contract. Seller shall not provide, and nothing herein shall be construed as the provision of, advice regarding the value or the advisability of trading in “commodity interests” which would cause Seller or an affiliate of Seller to be considered a commodity-trading advisor under the Commodity Exchange Act, 7 U.S.C. §§1-25, et seq., as amended.”

Section 15.10 is deleted in its entirety and the following substituted in its place:

“Neither party shall disclose directly or indirectly without the prior written consent of the other party the terms of any transaction to a third party (other than the legislature and agencies of the State of Texas and their employees and agents, and the employees, lenders, royalty owners, counsel, accountants and other agents of the party, or prospective purchasers of all or substantially all of a party’s assets or of any rights under the Contract, provided such persons shall have agreed to keep such terms confidential) except (i) in order to comply with Applicable Laws, (ii) to the extent necessary for the enforcement of the Contract, (iii) to the extent necessary to implement any transaction, (iv) to the extent such information is delivered to such third party for the sole purpose of calculating a published index, or (v) to the extent necessary to comply with a regulatory agency’s reporting requirements including, but not limited to, gas cost recovery proceedings. Each party shall notify the other party of any proceeding of which it is aware which may result in disclosure of the terms of any transaction (other than as permitted hereunder). The existence of the Contract is not subject to this confidentiality obligation. Subject to Section 13, the parties shall be entitled to all remedies available at law or in equity to enforce or seek relief in connection with this confidentiality obligation.

Further, Seller may (1) create, (2) receive from or on behalf of Buyer, or (3) have access to, records or record systems (collectively, “Buyer Records”). However, it is expressly agreed that Buyer will not provide to Seller, and Seller will never seek to access, any Buyer Records that contain personally identifiable information regarding any individual that is not available to any requestor under the Texas Public Information Act, Chapter 552, Texas Government Code, including “directory information” of any student who has opted to prohibit the release of their “directory information” as that term is defined under the Family Educational Rights and Privacy Act, 20 U.S.C. §1232g (“FERPA”) and its implementing regulations. Seller represents, warrants, and agrees that it will: (1) hold Buyer Records in strict confidence and will not use or disclose Buyer Records except as (a) permitted or required by the Contract, (b) required by Applicable Laws, or (c) otherwise authorized by Buyer in writing; (2) safeguard Buyer Records according to reasonable administrative, physical and technical standards (such as standards established by the National Institute of Standards and Technology and the Center for Internet Security, as well as the Payment Card Industry Data Security Standards) that are no less rigorous than the standards by which Seller protects its own confidential information; (3) continually monitor its operations and take any action necessary to assure that Buyer Records are safeguarded and the confidentiality of Buyer Records is maintained in accordance with all Applicable Laws and the terms of the Contract; and (4) comply with Buyer Rules regarding access to and use of Buyer’s computer systems, including UTS165 at https://www.utsystem.edu/sites/policy-library/policies/uts-165-information-resources-use-and-security-policy. At the request of Buyer, Seller agrees to provide Buyer with a written summary of the procedures Seller uses to safeguard and maintain the confidentiality of Buyer Records.

15.10.1 Notice of Impermissible Use. If an impermissible use or disclosure of any Buyer Records occurs, Seller will provide written notice to Buyer within one (1) business day after Seller’s discovery of that use or disclosure. Seller will promptly provide Buyer with all information requested by Buyer regarding the impermissible use or disclosure.

15.10.2 Return of Buyer Records. Seller agrees that within thirty (30) days after the expiration or termination of the Contract, for any reason, all Buyer Records created or received from or on behalf of Buyer will be (1) returned to Buyer, with no copies retained by Seller; or (2) if return is not feasible, destroyed. Twenty (20) days before destruction of any Buyer Records, Seller will provide Buyer with written notice of Seller’s intent to destroy Buyer Records. Within five (5) days after destruction, Seller will confirm to Buyer in writing the destruction of Buyer Records.

15.10.3 Disclosure. If Seller discloses any Buyer Records to a subcontractor or agent, Seller will require the subcontractor or agent to comply with the same restrictions and obligations as are imposed on Seller by this Section 15.10.

15.10.4 Press Releases. Except when defined as part of the work performed by Seller, Seller will not make any press releases, public statements, or advertisement referring to the Contract or the engagement of Seller as an independent contractor of Buyer in connection with the Contract, or release any information relative to the Contract for publication, advertisement or any other purpose without the prior written approval of Buyer.

15.10.5 Public Information. Buyer strictly adheres to all statutes, court decisions and the opinions of the Texas Attorney General with respect to disclosure of public information under the Texas Public Information Act (“TPIA”), Chapter 552, Texas Government Code. In accordance with Section 552.002 of TPIA and Section 2252.907, Texas Government Code, and at no additional charge to Buyer, Contractor will make any information created or exchanged with University pursuant to this Agreement (and not otherwise exempt from disclosure under TPIA) available in a format reasonably requested by University that is accessible by the public.

15.10.6 Termination. In addition to any other termination rights set forth in the Contract and any other rights at law or equity, if Buyer reasonably determines that Seller has breached any of the restrictions or obligations set forth in this Section, Buyer may immediately terminate the Contract without notice or opportunity to cure.

15.10.7 Duration. The restrictions and obligations under this Section will survive expiration or termination of the Contract for any reason.”

Section 15.11 is deleted in its entirety and the following is substituted in its place:

“15.11 INTENTIONALLY DELETED.”

Section 15.12 is deleted in its entirety and the following is substituted in its place:

15.12 Any original executed Base Contract, Transaction Confirmation or other related document may be effected by scanned signature or digitally copied portable document format (.pdf) signatures (“Imaged Agreement”), all of which shall be treated as originals; provided, however, that the party receiving an Imaged Agreement, by Notice to the other, require the prompt delivery of an original signature to evidence and confirm the delivery of the Imaged Agreement. Buyer and Seller each intend to be bound by its respective Imaged Agreement, and is aware that the other party will rely thereon, and each party waives any defenses to the enforcement of the Contract, and documents, and any Notices delivered by Imaged Agreement.

Section 15 is amended to add the following Paragraphs 15.13 through Paragraph 15.43:

15.13. No Other Modifications. The parties represent and warrant that the General Terms and Conditions of the Base Contract have not been modified, altered, or amended in any respect except for these Special Provisions (and all exhibits, addenda, and attachments hereto) which are attached to and made a part of the Base Contract.

15.14 Dispute Resolution. To the extent that Chapter 2260, Texas Government Code, as it may be amended from time to time ("Chapter 2260"), is applicable to the Contract and is not preempted by other Applicable Laws, the dispute resolution process provided for in Chapter 2260 shall be used, as further described herein, by Buyer and Seller to attempt to resolve any claim for breach of contract made by Seller:

a. Seller’s claims for breach of the Contract that the parties cannot resolve pursuant to other provisions of the Contract or in the ordinary course of business shall be submitted to the negotiation process provided in subchapter B of Chapter 2260. To initiate the process, Seller shall submit written notice, as required by subchapter B of Chapter 2260, to Buyer in accordance with the notice provisions in the Contract. Seller’s notice shall specifically state that the provisions of subchapter B of Chapter 2260 are being invoked, the date and nature of the event giving rise to the claim, the specific contract provision that Buyer allegedly breached, the amount of damages Seller seeks, and the method used to calculate the damages. Compliance by Seller with subchapter B of Chapter 2260 is a required prerequisite to Seller’s filing of a contested case proceeding under subchapter C of Chapter 2260. The chief business officer of Buyer, or such other officer of Buyer as may be designated from time-to-time by Buyer by written notice thereof to Seller in accordance with the notice provisions in the Contract, shall examine Seller’s claim and any counterclaim and negotiate with Seller in an effort to resolve such claims.

b. If the parties are unable to resolve their disputes under subparagraph a. of this Section, the contested case process provided in subchapter C of Chapter 2260 is Seller’s sole and exclusive process for seeking a remedy for any and all of Seller’s claims for breach of the Contract by Buyer.

c. Compliance with the contested case process provided in subchapter C of Chapter 2260 is a required prerequisite to seeking consent to sue from the Legislature under Chapter 107, Texas Civil Practices and Remedies Code. The parties hereto specifically agree that (i) neither the execution of the Contract by Buyer nor any other conduct, action or inaction of any representative of Buyer relating to the Contract constitutes or is intended to constitute a waiver of Buyer’s or the state's sovereign immunity to suit, and (ii) Buyer has not waived its right to seek redress in the courts.

d. The submission, processing and resolution of Seller’s claim is governed by the published rules adopted by the Texas Attorney General pursuant to Chapter 2260, as currently effective, hereafter enacted or subsequently amended.

e. The parties agree that any periods set forth in the Contract for notice and cure of defaults are not waived.

15.15 Approval by the Texas General Land Office. As required by Texas law, the Texas General Land Office may periodically review and approve the Contract in accordance with Subchapter H, Chapter 31, Texas Natural Resources Code, and Chapter 8, Volume 31, TAC. Seller acknowledges and agrees that if at any time the Texas General Land Office fails to approve the Contract, Buyer may terminate the Contract without penalty, except as otherwise specifically provided in the Contract.

15.16 Payment of Debt or Delinquency to the State. Pursuant to Sections 2107.008 and 2252.903, Texas Government Code, Seller agrees that any payments owing to Seller under the Contract may be applied directly toward any debt or delinquency that Seller owes the State of Texas or any agency of the State of Texas regardless of when it arises, until such debt or delinquency is paid in full.

15.17 Texas Family Code Child Support Certification. Pursuant to Section 231.006, Texas Family Code, Seller certifies that it is not ineligible to receive the award of or payments under the Contract and acknowledges that the Contract may be terminated and payment may be withheld if this certification is inaccurate.

15.18 Venue. [Tarrant/Collin] [The correct county will be selected before the Contract is signed.] County, Texas, shall be the proper place of venue for suit on or in respect of the Contract.

15.19 Loss of Funding. Performance by Buyer under the Contract may be dependent upon the appropriation and allotment of funds by the Texas State Legislature (the "Legislature") and/or allocation of funds by the Board of Regents of The University of Texas System (the "Board"). If the Legislature fails to appropriate or allot the necessary funds, or the Board fails to allocate the necessary funds, then Buyer shall issue written notice to Seller and Buyer may terminate the Contract without further duty or obligation hereunder; except with regard to making payments then due and owing for gas delivered. Seller acknowledges that appropriation, allotment, and allocation of funds are beyond the control of Buyer.

15.20 State Auditor’s Office. Seller understands that acceptance of funds under the Contract constitutes acceptance of the authority of the Texas State Auditor's Office, or any successor agency (collectively, “Auditor”), to conduct an audit or investigation in connection with those funds pursuant to Sections 51.9335(c), 73.115(c) and 74.008(c), Texas Education Code. Seller agrees to cooperate with the Auditor in the conduct of the audit or investigation, including without limitation providing all records requested. Seller shall include this provision in all contracts with permitted subcontractors.

15.21 Technology Access. Seller represents and warrants (the “EIR Accessibility Warranty”) that the electronic and information resources and all associated information, documentation, and support that it provides to Buyer under the Contract (collectively, the “EIRs”) comply with the applicable requirements set forth in Title 1, Chapter 213, TAC, and Title 1, Chapter 206, Rule §206.70, TAC (as authorized by Chapter 2054, Subchapter M, Texas Government Code.) To the extent Seller becomes aware that the EIRs, or any portion thereof, do not comply with the EIR Accessibility Warranty, then Seller represents and warrants that it shall, at no cost to Buyer, either (1) perform all necessary remediation to make the EIRs satisfy the EIR Accessibility Warranty or (2) replace the EIRs with new EIRs that satisfy the EIR Accessibility Warranty. In the event that Seller fails or is unable to do so, then Buyer may terminate the Contract and Seller shall refund to Buyer all amounts Buyer has paid under the Contract within thirty (30) days after the termination date.

15.22 Subcontracting. Except as specifically provided in Addendum D, Historically Underutilized Business Subcontracting Plan, attached and incorporated for all purposes, the Seller’s duties and obligations to provide goods and perform services (collectively, the “Work”) under the Contract may not be subcontracted, in whole or in part, and any attempt to do so shall (a) not be binding on Buyer; and (b) be a breach of the Contract for which Seller shall be subject to all remedial actions provided by Texas law, including Chapter 2161, Texas Government Code, and 34 TAC Section 20.285. The benefits and burdens of the Contract are assignable by Buyer.

15.23 Historically Underutilized Business Subcontracting Plan. Seller agrees to use good faith efforts to subcontract the Work in accordance with the Historically Underutilized Business Subcontracting Plan (“HSP”), if applicable. Seller agrees to maintain business records documenting its compliance with the HSP and to submit a monthly compliance report to Buyer in the format required by the Texas Procurement and Support Services Division (“TPASS”) of Texas Comptroller of Public Accounts. Submission of compliance reports shall be required as a condition for payment under the Contract. If Buyer determines that Seller has failed to subcontract as set out in the HSP, Buyer shall notify Seller of any deficiencies and give Seller an opportunity to submit documentation and explain why the failure to comply with the HSP should not be attributed to a lack of good faith effort by Seller. If Buyer determines that Seller failed to implement the HSP in good faith, Buyer, in addition to any other remedies, may report nonperformance to the TPASS in accordance with 34 TAC Section 20.285. Buyer may also revoke the Contract for breach and make a claim against the Seller.

15.24 Changes to the HSP. If at any time during the term of the Contract, Seller desires to change the HSP, before the proposed changes become effective (a) Seller must comply with 34 TAC Section 20.285 (g)(2); (b) the changes must be reviewed and approved by Buyer; and (c) if Buyer approves changes to the HSP, the Contract must be amended in accordance with Section 15.4 to replace the HSP with the revised subcontracting plan.

15.25 Expansion of the Work. If Buyer expands the scope of the Work through a change order or any other amendment, including a contract renewal that expands the scope of work, Buyer shall determine if the additional Work contains probable subcontracting opportunities not identified in the initial solicitation for the Work. If Buyer determines additional probable subcontracting opportunities exist, Seller shall submit an amended subcontracting plan covering those opportunities. The amended subcontracting plan must comply with the provisions of 34 TAC Section 20.285 before (a) the Contract may be amended to include the additional Work; or (b) Seller may perform the additional Work. If Seller subcontracts any of the additional subcontracting opportunities identified by Buyer without prior authorization and without complying with 34 TAC Section 20.285, Seller shall be deemed to be in breach of the Contract under Section 10 and shall be subject to any remedial actions provided by Texas law including Chapter 2161, Texas Government Code, and 34 TAC Section 20.285. Buyer may report nonperformance under the Contract to the TPASS in accordance with 34 TAC Section 20.285.

15.26 LIMITATIONS. THE PARTIES TO THE CONTRACT ACKNOWLEDGE THAT BUYER IS AN AGENCY OF THE STATE OF TEXAS AND UNDER THE CONSTITUTION AND LAWS OF THE STATE OF TEXAS POSSESSES CERTAIN RIGHTS AND PRIVILEGES, IS SUBJECT TO CERTAIN LIMITATIONS AND RESTRICTIONS TO ENTER INTO CERTAIN TERMS AND CONDITIONS THAT MAY BE PART OF…