GAS SUPPLY ASSET ASSIGNMENT AND AGENCY AGREEMENT

Exhibit 10(lxiii)

Confidential treatment has been requested for portions of this exhibit.  The copy filed herewith omits the information subject to the confidentiality request.  Omissions are designated as [*].  A complete version of this exhibit has been filed separately with the Securities and Exchange Commission

GAS SUPPLY ASSET ASSIGNMENT AND AGENCY AGREEMENT

            This GAS SUPPLY ASSET ASSIGNMENT AND AGENCY AGREEMENT (this "Agreement") is made and entered into as of the 7th day of April, 2004, by and between NUI Utilities, Inc., a New Jersey corporation having its principal place of business at One Elizabethtown Plaza, Union, New Jersey 07083 ("NUIU"), and Cinergy Marketing and Trading, LP, a Delaware limited partnership having its principal place of business at 1100 Louisiana, Suite 4900, Houston, Texas 77002 ("CMT").

            WHEREAS, subject to the terms and conditions contained herein, CMT agrees to accept, and NUIU agrees to grant, the assignment or, in the case of non-assignable agreements, the agency to control NUIU's supply assets including the rights and the obligations under NUIU's existing Gas supply arrangements during the Term; and

            WHEREAS, subject to the terms and conditions contained herein, CMT would be permitted to use NUIU's supply assets in furtherance of CMT's overall business strategies and transactions, including its obligations to NUIU under the Gas Supply Agreement; and

             WHEREAS, subject to the terms and conditions contained herein, NUIU also would be entitled to receive certain payments from CMT during the Term in consideration for CMT's right to utilize and derive the profits or losses with respect to the Supply Assets; and

            NOW, THEREFORE, in consideration of the mutual agreements, covenants, and conditions herein contained, NUIU and CMT agree as follows:

ARTICLE 1.  DEFINITIONS

            As used in this Agreement, the following terms shall have the following meanings; any term used herein that is defined in the Gas Supply Agreement shall have that definition incorporated herein:

            (a)        "Affiliate" means with respect to any Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with such Person.  The term "control" (including, with correlative meaning, the terms, "controlled by" and "under common control with") as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.

            (b)        "Agreement" means this Gas Supply Asset Assignment and Agency Agreement, including all amendments, modifications or supplements thereto.

            (c)        The terms "assign," "assigned" and "assignment," when used in the context of a Gas transportation or storage arrangement, shall be deemed to include Capacity Releases.

            (d)        "Assigned Contracts" shall have the meaning assigned to such term in Section 2.1.

            (e)        [*]

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[*] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

            (f)         "Btu" means the amount of energy required to raise the temperature of one pound of pure water one degree Fahrenheit from 59 degrees Fahrenheit to 60 degrees Fahrenheit .  The term "MMBtu" means one million Btus.

           (g)        "Business Day" shall mean any day on which Federal Reserve member banks in New York City are open for business, and shall begin at 8:00 a.m. E.S.T. and close at 5:00 p.m. E.S.T.

            (h)        "Capacity Release" (and to "Release Capacity") means the release of transportation or storage capacity pursuant to the terms and conditions of an effective FERC gas tariff of a Gas transporter as contemplated by 18 C.F.R. Part 284 or successor regulations, and "Released Capacity" shall refer to capacity that has been released pursuant to a Capacity Release.

            (i)    "Confidential Information" means trade secrets, patentable or non-patentable inventions and ideas, know-how, formulae, processes, designs, sketches, plans, drawings, specifications, reports, projections, plant and equipment expansion plans, lists of employees, customers and suppliers, monetizing techniques and strategies, commodity and derivatives hedging and trading strategies and techniques, financial statements and other financial data, pricing information, cost and expense information, product development, strategic and marketing plans and all other information, data and experience of any kind whatsoever, whether technical, marketing or financial, regarding the business, facilities and operations of NUIU and its Affiliates or of CMT and its Affiliates, as the case may be, whether oral, written or electronic.  "Confidential Information" also shall be deemed to include all notes, analyses, compilations, studies, interpretations and other documents or electronic recording, which reflect Confidential Information furnished pursuant to the terms of any Transaction Agreement, the Guaranty or any transaction contemplated hereby or thereby.  The term "Confidential Information" shall not include information which a recipient can demonstrate: (a) is or becomes generally available to the public other than as a result of disclosure by the recipient; (b) was within the recipient's possession prior to it being furnished by or on behalf of the other Party, provided that the source of such information was not known by the recipient to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the disclosing Party or any other Party with respect to such information; (c) becomes available to the recipient on a non-confidential basis from a source other than the disclosing Party or any of its Representatives, provided that such source is not known by the recipient to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the disclosing Party or any other Party with respect to such information; or (d) was independently developed by the recipient without reference to the Confidential Information, provided such independent development can reasonably be demonstrated by the recipient.  The term "recipient," as used in this Agreement, refers to the Person receiving any item of Confidential Information and the Affiliates of such Person.

            (j)         "Consequential Damages" shall have the meaning assigned to such term in Section 7.4.

            (k)        "Counterparty" means, as to any Supply contract, the party to such contract other than NUIU.

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            (l)         "Daily Delivery Quantity" (or "DDQ") shall have the meaning given such term in the Gas Supply Agreement.

            (m)      "Day" means a period of 24 consecutive hours, beginning 10:00 a.m. E.T. on any calendar Day and ending at 10:00 a.m. E.T. on the following calendar Day.

            (n)        [*]

            (o)        "E.S.T." means Eastern Standard Time.

            (p)        "Effective Date" shall have the meaning assigned to such term in the introductory sentence of Article 4 of this Agreement.

            (q)        "Excluded Liabilities" means any liabilities or obligations that either: (a) arise under or are attributable to acts or omissions of NUIU or its Counterparty under any Gas Contract before or after the Term, (b) arise under or are attributable to acts or omissions of NUIU or its Counterparty under any Non-Assigned Contract during the term, unless such liability arises as the result of CMT's actions as NUIU's agent under such Non-Assigned Contract, or (c) arise as a result of any breach by NUIU of any Transaction Agreement.

            (r)        "FERC" means the Federal Energy Regulatory Commission, or any successor federal agency.

            (s)        "Gas" means methane and other gaseous hydrocarbons meeting the quality standards and specifications of NUIU's upstream pipeline suppliers.

            (t)         "Gas Contract" means any Gas Supply Contract, any Gas Storage Contract or any Gas Transportation Contract.

            (u)        "Gas Supply Agreement" means the Gas Supply Agreement, dated as of the date hereof, between NUIU and CMT, as amended or supplemented from time to time, incorporated herein by this reference and attached hereto as Exhibit C.

            (v)        "Gas Storage Contract" means any Gas storage contract entered into by NUIU to store Gas during the Term for NUIU.

            (w)       "Gas Supply Contract" means any Gas supply contract entered into by NUIU to supply Gas during the Term to NUIU.

            (x)        "Gas Transportation Contract" means any Gas transportation contract entered into by NUIU to transport Gas during the Term directly or indirectly to NUIU, along with any ancillary agreements such as operational balancing agreements, exchange, parking, hub service, gas supply, peaking or other agreements.

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[*] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

            (y)        "Governmental Authority" means any nation, state, sovereign or government, any federal, regional, state, local or political subdivision and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including without limitation the NJBPU and FERC.

            (z)        "Grandfathered Transaction" mean the Gas purchase and sale transactions between NUIU and CogenTechnologies.

            (aa)      "Hedging Program" shall mean NUIU's Gas Procurement Strategy and Plan ("GPS&P") as filed with the New Jersey Board of Public Utilities, a copy of which shall be provided to CMT

            (bb)      "Independent Amount" shall mean Five Hundred Thousand Dollars ($500,000.00) per month in the Summer Season, and Two Million Dollars ($2,000,000.00) per month during the Winter Season.

            (cc)      "Initial Storage Inventory" shall mean, with respect to any Storage Asset, the quantity of Gas in such Storage Asset on April 1, 2004.

            (dd)      "Investment Grade" shall mean having a long term debt rating of "Baa3" or higher by Moody's Investment Service and "BBB-" or higher by Standard & Poor's.

           (ee)      "Liens" means any claims, liens, encumbrances, security interests, pledges, options, charges, restrictions and defects in title of any nature whatsoever, except for indentures, mortgages or similar security interests created in connection with NUIU's ordinary course bond issuances and similar indebtedness.

            (ff)        "Natural Gas Act" means the Natural Gas Act of 1938, as amended.

            (gg)      "Non-Assignable Contracts" shall have the meaning assigned to such term in Section 2.2.

            (hh)      "NJBPU Filings" means NUIU's submission or submissions to the NJBPU containing NUIU's request for authorization for NUIU to enter into the transactions contemplated in the Transaction Agreements, and for such other authorizations, waivers or determinations as NUIU in its sole discretion shall determine are necessary or appropriate for NUIU to perform under the Transaction Agreements.

            (ii)        "NJBPU" means the New Jersey Board of Public Utilities.

            (jj)        "NUIU" shall have the meaning set forth in the introductory sentence to this Agreement and includes NUIU's New Jersey, Florida and Maryland divisions.

            (kk)      "Operational Procedures" means the procedures agreed upon by the Parties for communications, notices, scheduling, forecasting and other activities pertaining to the arrangements contemplated by the Transaction Agreements.  The Parties agree to negotiate in good faith to reach agreement on the Operational Procedures.

            (ll)        "Parties" means, collectively, NUIU and CMT.

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            (mm)   "Performance Assurance" shall mean an irrevocable stand-by letter of credit, guaranty, cash collateral, prepayment or other good and sufficient security of a continuing nature, satisfactory in a form determined by the requesting Party in its reasonable discretion.

            (nn)      "Person" means an individual, corporation, partnership, joint venture, limited liability company trust, university, unincorporated organization, or a government or any agency or political subdivision thereof.

            (oo)      "Representatives" shall have the meaning assigned to such term in Section 8.3.

            (pp)      "Resale Agreement" means the Base GISB Agreement between NUIU and CMT or any successor Gas purchase and sale agreement between the Parties.

            (qq)      "SEC" means the United States Securities and Exchange Commission or any successor federal agency that may regulate the issuance and sale of securities.

            (rr)       "Supply Assets" means, collectively, the Supply Contracts and the right of CMT to use Gas in storage in accordance with Section 2.5.

            (ss)      "Supply Contracts" means, collectively, the Assigned Contracts and the Non-Assignable Contracts.

            (tt)        "Taxes" means any or all ad valorem, property, occupation, severance, production, extraction, first use, conservation, BTU or energy, gathering, pipeline, utility, gross receipts, gas or oil revenue, gas or oil import, privilege, sales, use, consumption, excise, lease, transaction, and other or new taxes, governmental charges, licenses, fees, permits and assessments, or increases therein, but otherwise excluding taxes based on net income or net worth.

            (uu)      "Term" shall have the meaning assigned to such term in Section 2.9.

            (vv)      "Transaction Agreement" means this Agreement, the Gas Supply Agreement and the Resale Agreement, as each may be amended or supplemented from time to time.

           (ww)    [*]

ARTICLE 2.  TERMS AND CONDITIONS

            2.1.      Assignment Of Certain Contracts .  Subject to the terms and conditions contained herein, NUIU agrees to assign to CMT, through Capacity Release or other means, effective for the Term, all of NUIU's right, title and interest in the following contracts (the "Assigned Contracts"), free and clear of all Liens:

                        (a)        each Gas Transportation Contract listed on Part 1 to Exhibit A hereto;

                        (b)        each Gas Storage Contract listed on Part II to Exhibit A hereto; and

                        (c)        each Gas Supply Contract listed on Part III to Exhibit A   hereto.

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[*] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

Each such assignment that is a Capacity Release shall be done at the maximum rate, as contemplated by 18 C.F.R. Part 284 or successor regulations.

            2.2.      Agency For Certain Contracts .  Subject to the terms and conditions contained herein, NUIU hereby appoints CMT, and CMT accepts NUIU's appointment, as NUIU's exclusive agent and attorney-in-fact for the Term under the following contracts (the "Non-Assignable Contracts"):

                        (a)        each Gas Supply Contract listed on Part IV to Exhibit A hereto;

                        (b)         each Gas Transportation Contract listed on Part V to Exhibit A   hereto; and

                        (c)        each Gas Storage Contract listed on Part VI to Exhibit A hereto.

            2.3.      NUIU's Capacity Release Obligation .  NUIU shall be entitled to recall Released Capacity in the manner, volume, and to the extent necessary for NUIU to satisfy its obligations imposed by any Governmental Authority to provide transportation capacity to third party suppliers serving customers on NUIU's system.  If such recall will result in a reduction in the transportation capacity available to CMT of more than 1,000 dekatherms per day, NUIU shall provide CMT with thirty (30 ) Days prior written notice before exercising any such recall right and the parties shall meet in good faith to determine whether the reduction in capacity available to CMT shall result in any modifications to this Agreement.  If the Parties have not reached mutual agreement as to the modification(s) resulting from a recall within thirty (30) days after the exercise of such a recall, the matter may be subject to arbitration under Article 9 of this Agreement.  Notwithstanding anything to the contrary in any capacity release transaction executed through the individual pipeline electronic bulletin board procedures, the Parties agree that NUIU's rights to recall capacity shall be limited to one of the following events occurring: (i) obligations to provide capacity to third parties as required by NUIU's tariff as approved by appropriate Governmental Authorities as identified above; (ii) the declaration by NUIU of an Early Termination Date pursuant to Sections 6.2; (iii) the expiration of the Term; or (iv) if CMT fails to perform as set forth in Section 5.01 of the Gas Supply Agreement (and in such circumstances such recall right shall be only for the amount of day(s) necessary for NUIU to serve its load using the released capacity, unless such CMT failure has resulted in the early termination of the Transaction Agreements under Article 6 hereof).

            2.4.      Assumption Of Liabilities .  Subject to the terms and conditions contained herein, CMT agrees to assume, pay, perform, satisfy and discharge all Assumed Liabilities, unless such liability was caused by CMT acting at the direction of NUIU.  CMT shall have no obligation related to the Excluded Liabilities nor shall it be obligated to pay, perform, satisfy, participate in any way in the resolution of, or discharge any Excluded Liabilities. As between the Parties to the Transaction Agreements, NUIU agrees to be fully responsible for all Excluded Liabilities.  

            2.5.      Gas In Storage .  Subject to the terms and conditions contained herein and in the Gas Supply Agreement, CMT shall have the right, in its sole discretion, during the Term to have dispatch control with respect to all Gas in storage attributable to the Gas Storage Contracts.  NUIU hereby transfers title to the Initial Storage Inventory in the Part 284 Storage Assets to CMT to the extent that such gas is stored under a contract assigned to CMT under Section 2.1 of this Agreement.  As consideration for this transfer, CMT shall have an obligation to transfer to NUIU title to Gas in the Storage Assets in accordance with the terms of Sections 6.4 and 6.5 of the this Agreement at the expiration or termination of this Agreement.

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            2.6.      [*]

            2.7.      Payment Of Certain Charges .  NUIU agrees to pay CMT for 100% of all demand and reservation charges CMT pays to Counterparties under the Supply Contracts.  NUIU shall be entitled, at its sole expense, to audit those applicable books and records of CMT to verify the accuracy of CMT's payment of such demand and reservation charges, at CMT's offices and at a time during reasonable business hours acceptable to both Parties.  CMT shall pay to NUIU all credits or refunds CMT receives from Counterparties attributable to (i) demand and reservation charges CMT or NUIU paid to Counterparties under the Supply Contracts, and (ii) commodity charges NUIU paid to Counterparties under the Supply Contracts (collectively, "Refunds").  In the event CMT has not forwarded or reflected any such credit or refund to NUIU in the very next billing cycle after receipt of such a Refund, CMT shall reimburse NUIU for interest accumulated on Refunds during the period between the date CMT should have returned such Refunds and the date CMT pays or credits such Refund to NUIU, and the interest rate thereon shall be equal to the percentage rate prescribed by the Federal Energy Regulatory Commission regulations from time to time applicable generally to customer refunds made by pipelines of credits received from suppliers.

            2.8.      NJBPU Authorizations .  NUIU shall submit the NJBPU Filings to the NJBPU by April 1, 2004.        

            2.9.      Term .  The term of this Agreement (the "Term") shall commence on the Effective Date and shall end on March 31, 2005 unless earlier terminated as expressly provided in this Agreement.

ARTICLE 3.  AGREEMENTS

            3.1.      Preservation Of Supply Assets .  Except as set forth in Section 2.3, during the Term NUIU shall not sell, convey, transfer, assign or deliver any interest in any Supply Asset to any Person other than CMT unless NUIU has provided CMT prior written notification of such sale, conveyance, transfer, assignment or delivery and CMT has indicated to NUIU in writing that such action, in CMT's sole discretion, will have no effect on CMT's ability to obtain the full economic benefit of the Supply Assets.  NUIU shall not allow any of the NUIU Assets identified in Exhibit A to the Gas Supply Agreement to expire before or during the Term of this Agreement and shall take whatever actions are necessary to enter into, extend, renew or roll-over the term of any such NUIU Asset until at least through the end of the Term.  CMT shall take no action that prevents NUIU from receiving the full economic benefits of all of the Supply Assets after the end of the Term with no diminution in such assets occurring during the Term.  NUIU shall have the right to advise any Counterparty that NUIU's assignment to CMT or NUIU's appointment of CMT as NUIU's agent, as the case may be, is subject to termination as provided in Article 6 of this Agreement.

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[*] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

            3.2.      CMT's Rights And Obligations Under The Non-Assignable Contracts .  During the Term, CMT shall act as NUIU's exclusive agent for all purposes under the Non-Assignable Contracts and, in so acting, may exercise all of NUIU's rights under the Non-Assignable Contracts and receive the benefits thereof during the Term.  CMT shall be entitled to exercise its authority with respect to the Non-Assignable Contracts in a manner that would give CMT maximum flexibility and utilization under the Non-Assignable Contracts during the Term, provided that CMT shall in all respects comply with the terms and conditions of the Non-Assignable Contracts and perform all of the obligations of NUIU thereunder except for Excluded Liabilities.  CMT shall be entitled to cause NUIU to take such actions as may be required to enforce NUIU's rights under the Non-Assignable Contracts during the Term.  CMT shall defend and, if required to do so, pay any claims made under the Non-Assignable Contracts except to the extent such claims relate to Excluded Liabilities and except to the extent such claim was caused by an act or omission of NUIU, or by CMT as a result of CMT following the direction of NUIU.  If any claim relates to Excluded Liabilities, CMT shall have no obligation to defend or participate in any negotiation, arbitration or other proceeding for or on behalf of NUIU.  CMT may negotiate with any Counterparty to a Non-Assignable Contract any settlement of an Assumed Liability with such Counterparty, except that no such settlement shall be permitted without the consent of NUIU if it would have any effect after the end of the Term or on Excluded Liabilities and, in connection with such settlements, CMT shall receive the benefits thereof or make any payments on Assumed Liabilities.

            3.3.      NUIU's Rights And Obligations Under The Non-Assignable Contracts .  During the Term, NUIU shall exercise its rights under the Non-Assignable Contracts only as directed by CMT except with respect to Excluded Liabilities.  On or before the Effective Date, NUIU shall give written notice to the Counterparties under the Non-Assignable Contracts of NUIU's appointment of CMT as NUIU's exclusive agent under the Non-Assignable Contracts for the Term.  CMT shall not be NUIU's agent for billing and payment, and NUIU shall instruct the Counterparties under those Non-Assignable Contracts that, during the Term, they should send to NUIU all payments to which NUIU would be entitled, send all correspondence and the originals of all invoices to NUIU, but Counterparties should accept and act upon all communications and instructions given by CMT on behalf of NUIU relating to NUIU's rights and obligations and performance under the Non-Assignable Contracts, commencing as of the Effective Date.  To the extent NUIU learns that a Counterparty to a Non-Assignable contract has failed to comply with NUIU's direction to send copies of correspondence to CMT, promptly upon receipt thereof NUIU shall forward a copy of such correspondence to CMT.

            3.4.      Resales Under The Gas Supply Contracts .  CMT shall be entitled to require NUIU to sell to CMT, pursuant to a Resale Agreement, Gas that CMT acting as NUIU's agent causes NUIU to purchase.  Deliveries of Gas under such Resale Agreement shall be made at the same point at which such Gas was delivered to NUIU, or in any event at such other mutually agreeable delivery points at which CMT may lawfully obtain title and ownership of the Gas and to which points CMT, acting as NUIU's agent, would be able to deliver such Gas.  The price payable by CMT under such Resale Agreement shall be equal to the price payable by NUIU to which the resale relates and any costs incurred by NUIU to transport such Gas to the point at which NUIU sells such Gas to CMT under the Resale Agreement, together with all Taxes and charges that NUIU must pay or remit as a result of such sale and/or transportation.

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            3.5.      Amendments And Waivers Of Supply Contracts .  CMT shall not amend, extend or cause the early termination of any Supply Contract that survives the Term without the prior written consent of NUIU.

            3.6.      New Contracts .  Except as set forth herein, NUIU shall not enter, nor commit to enter, into any new Gas Contract that will be effective during the Term to satisfy NUIU's Gas requirements without the prior written consent of CMT; provided, however, that (a) NUIU shall continue to diligently monitor its load patterns and forecasts during the Term and use reasonable efforts to bring to the attention of CMT future contract opportunities or other similar arrangements that could be entered into by NUIU and included within the Supply Assets, and (b) NUIU shall be permitted to (i) enter into, commit to enter into, or have in place any Gas supply, transportation or storage contract or any other commitments where the start date of such contract or other commitment would be after the end of the Term, and (ii) renew, or enter into new, Gas Contracts as deemed necessary by NUIU during the Term, provided that such contract renewals or new contracts shall not be included in the Supply Assets absent the mutual agreement of the Parties.  Notwithstanding the foregoing clauses (i) and (ii), NUIU shall not be permitted to utilize any such assets or contracts to reduce the amount of Gas it would otherwise purchase from CMT under the Gas Supply Agreement.  Further, notwithstanding the foregoing, NUIU shall execute additional gas supply arrangements for delivery at NUIU's City Gate on or before November 1, 2004, in such quantities as NUIU shall determine.  Third parties may supply such needs, provided, CMT shall have a right to match any offer that NUIU is prepared to accept to meet such supply needs.  If NUIU purchases these supply needs from a third party, CMT shall act as NUIU's agent under any supply contracts to provide these supply needs.

            3.7.      Cooperation .  CMT and NUIU shall fully cooperate in good faith and make commercially reasonable efforts to carry out the intent of the transactions contemplated in the Transaction Agreements, including actions necessary to properly administer and implement the terms of the Supply Contracts with the Counterparties thereto and in connection with any proceedings or litigation relating thereto.  The Parties anticipate that representatives of NUIU and CMT would meet periodically throughout the Term to review developments affecting the subject matter hereof, including, without limitation, changes in NUIU's actual or projected firm demand requirements and prospective regulatory changes that could affect the transactions contemplated in the Transaction Agreements.

            3.8       Implementing NUIU's Hedging Program .  CMT shall consult with and use commercially reasonable efforts to provide market intelligence and to assist NUIU with communications with its broker in implementing its Hedging Program.  Provided, however, CMT shall have no obligation, liability or responsibility whatsoever, including but not limited to any obligation to indemnify NUI, its Affiliates or any NUIU Representative, for or related to any transaction NUIU enters into or does not enter into as part of its Hedging Program unless otherwise agreed in a writing signed by both Parties. 

ARTICLE 4.  CONDITIONS PRECEDENT

            Each of the Parties agrees to use commercially reasonable efforts to satisfy, on or before April1, 2004 (the "Effective Date"), each of the following conditions precedent insofar as it is applicable to such Party:

            4.1.      Representations And Warranties .  For each Party, each of the representations and warranties set forth in Article 5 of this Agreement for such Party shall be true, accurate and correct at the Effective Date with the same effect as though made at and as of such time.

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            4.2.      Supply Assets . (a) NUIU shall have assigned/released all Assigned Contracts to CMT for the Term free and clear of all Liens and obtained all requisite consents to such assignments as contemplated in Section 2.1 hereof, and (b) for each Non-Assignable Contract, either (i) NUIU shall have appointed CMT as NUIU's exclusive agent under such contract for the Term as contemplated in 2.2 hereof free and clear of all Liens and obtained all requisite consents to such appointment, including, if such contract imposes a non-disclosure obligation on NUIU, a consent or waiver from the Counterparty permitting NUIU to disclose to CMT the commercial terms of such contract specifically for the purpose of CMT acting as NUIU's agent under such contract for the Term, or (ii) to the extent that after reasonable diligence NUIU is unable to satisfy the conditions set forth in clause (i) above, NUIU and CMT shall have agreed on an arrangement whereby NUIU exercises its rights and performs its obligations under such contract only as directed by CMT and CMT reimburses NUIU for all payments made by NUIU under such contract related to transactions that are not to serve NUIU's requirements.

            4.3.      NJBPU Filings .  NUIU shall have submitted the NJBPU Filings to the NJBPU.

            4.4.      No Proceedings Or Litigation .  Except for any proceeding arising out of or in connection with the NJPBU Filings, no action, suit or proceeding before any Governmental Authority shall have been commenced, and no investigation by any Governmental Authority shall have been commenced or threatened, against CMT, NUIU or any of either Party's respective officers or directors, seeking to restrain, prevent or change the transactions contemplated by any or all of the Transaction Agreements, or seeking damages in connection with such transactions.

            4.5.      Regulatory Authorizations .  Except for the authorizations and waivers sought by NUIU in connection with the NJBPU Filings, the Parties shall have received all governmental consents or approvals required or reasonably necessary to perform each Transaction Agreement (including, without limitation, compliance with the provisions of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, if compliance is required), without material modification of such Transaction Agreement.

           4.6       Guaranty .  NUI and Cinergy Corp., CMT's parent, shall have executed a corporate guaranty agreement in a form and substance acceptable to NUIU and Cinergy Corp. and providing that Cinergy Corp. will guarantee CMT's obligations under all Transaction Agreements.

            4.7.      Failure Of Conditions Precedent .  Each Party agrees to use commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable for such Party to satisfy the conditions precedent set forth in this Article 4 applicable to it.  Each Party shall provide the other Party with written notice promptly following the satisfaction of the conditions precedent applicable to such notifying Party, as described in this Article 4.  In the event a condition precedent set forth in this Article 4 has not been satisfied, or waived in writing by the Party entitled to rely on such condition precedent, on or prior to the Effective Date, then this Agreement may be terminated five (5) Business Days following written notice sent by one Party to the other, except that such termination shall not be effective if within such five (5) Business Day period such condition precedent is satisfied or waived by the other Party.

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ARTICLE 5.  REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGEMENTS

            5.1.      NUIU .  NUIU represents and warrants as follows:

                        (a)        NUIU is a corporation duly organized, validly existing and in good standing under the laws of the State of New Jersey.

                        (b)        NUIU has all requisite corporate power and authority to own its respective properties and assets and to carry on its respective businesses as currently conducted and as proposed to be conducted during the Term.  NUIU has all requisite corporate power and authority to execute, deliver and (provided the NJBPU has not disapproved such agreement) perform its obligations under each Transaction Agreement to which it is a party.

                        (c)        Each Transaction Agreement to which NUIU is a Party has been duly authorized, executed and delivered by NUIU, the Transaction Agreements collectively constitute a single, integrated agreement, and each constitutes a legal, valid and binding obligation of NUIU enforceable against it in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other laws from time to time in effect relating to creditors' rights generally and to general equity principles.

                        (d)        CMT has received true and correct copies of each of the Supply Contracts (including all exhibits and schedules constituting part thereof) and all amendments thereto, waivers relating thereto and other agreements affecting the terms thereof during the Term.  Except as set forth on Exhibit A , each of the Supply Contracts is in full force and effect and is valid, binding and enforceable in accordance with its terms with no default, anticipated or threatened default or failure of performance or observance of any obligations or conditions contained therein, and no notice of default or no notice of intention to terminate any Supply Contract has been provided.

                        (e)        Assuming that the NJBPU does not disapprove this Agreement, the execution, delivery and performance by NUIU of each Transaction Agreement to which it is a party, and all other Agreements and instruments to be executed and delivered by NUIU pursuant hereto or thereto or in connection herewith or therewith, and compliance with the terms and provisions hereof and thereof, do not and will not (i) violate any provision of any law, statute, rule or regulation, order, writ, judgment, injunction, decree, governmental permit, determination or award having applicability to NUIU or any of its properties or assets, (ii) conflict with or result in a breach or violation of or constitute a default under any provision of the charter documents, by-laws or other comparable documents of NUIU or (iii) require any consent, approval or notice under or result in a violation or breach of or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration) under any note, bond, mortgage, license, contract, agreement or loan or credit agreement to which NUIU is a party or by which NUIU or any of its properties or assets may be bound or affected.

                        (f)         To the best of NUIU's knowledge, none of the information supplied by NUIU to CMT, including information and data provided in NUIU's Request for Proposal process, as updated, contains any untrue statement of a material fact or omits to state any material fact which is required to be stated therein or which is necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.

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                        (g)        With the exception of proceedings before the NJBPU, there is no action or proceeding pending or, to the knowledge of NUIU, contemplated or threatened against or affecting NUIU or its properties or assets before or by any Governmental Authority, which relates to or challenges the legality, validity or enforceability of any Transaction Agreement or the ability or obligation of NUIU to perform fully on a timely basis any obligation which it has or shall have under any Transaction Agreement to which it is a Party.

                        (h)        With the exception of a filing with the NJBPU, no authorization, consent, approval, waiver, license, qualification or formal exemption from, nor any filing, declaration, qualification or registration with, any Governmental Authority or any other Person is required in connection with the execution, delivery or performance by NUIU of each Transaction Agreement to which it is a Party.  No Transaction Agreement is a material contract (within the meaning of Regulation S-K promulgated by the SEC) and is not required to be filed by NUIU as an exhibit to any registration statement, schedule or report filed or required to be filed with the SEC or by NUIU or any of its Affiliates with any other Governmental Authority.

            5.2.      CMT .  CMT represents and warrants as follows:

                        (a)        CMT is a limited partnership duly organized, validly existing and in good standing under the laws of the State of Delaware.

                        (b)        CMT has all