Attached files
file | filename |
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S-1/A - FORM S-1/A - American Midstream Partners, LP | h80486a2sv1za.htm |
EX-10.10 - EX-10.10 - American Midstream Partners, LP | h80486a2exv10w10.htm |
EX-10.11 - EX-10.11 - American Midstream Partners, LP | h80486a2exv10w11.htm |
EX-10.13 - EX-10.13 - American Midstream Partners, LP | h80486a2exv10w13.htm |
Exhibit 10.12
Base Contract for Sale and Purchase of Natural Gas
This Base Contract is entered into as of the following date June 1, 2010.
The parties to this Base Contract are the following:
This Base Contract is entered into as of the following date June 1, 2010.
The parties to this Base Contract are the following:
PARTY A | ||||||
ExxonMobil Gas & Power Marketing Company | PARTY B | |||||
(a division of Exxon Mobil Corporation) | PARTY NAME | MID LOUISIANA GAS TRANSMISSION, LLC | ||||
CORP-EMB-3573M | 8300 FM 1960 West, Suite 225, Houston, TX 77070 | |||||
800
Bell Street
|
ADDRESS | |||||
Houston,
TX 77002 |
||||||
www.exxonmobil.com | BUSINESS WEBSITE | www.americanmidstream.com | ||||
CONTRACT NUMBER | ||||||
00-121-3214
|
D-U-N-S® NUMBER | |||||
þ US FEDERAL: 13-5409005 | þ US FEDERAL: 84-1074614 | |||||
o OTHER:
|
TAX ID NUMBERS | o OTHER: | ||||
New Jersey
|
JURISDICTION OF ORGANIZATION |
Delaware | ||||
þ Corporation
|
o LLC | o Corporation þ LLC | ||||
o Limited Partnership
|
o Partnership | COMPANY TYPE | o Limited Partnership o Partnership | |||
o LLP
|
o Other: | o LLP o Other: | ||||
GUARANTOR |
||||||
(IF APPLICABLE) | ||||||
CONTACT
INFORMATION |
||||||
CORP-EMB-3562, P.O. Box 2180, Houston, TX 77252-2180 | MID LOUISIANA GAS TRANSMISSION LLC | |||||
ATTN: Gas Marketing Manager (West & Central U.S.) or | § COMMERCIAL | ATTN: MARK HUGHES | ||||
Gas
Marketing Manager (Gulf Coast and East U.S.) |
TEL#: 281-955-4817 FAX#: 281-955-4855 | |||||
TEL#: (713) 656-8354 FAX#: (713) 656-9276 | EMAIL: mhughes@americanmidstream.com | |||||
EMAIL: | ||||||
CORP-EMB-3562, P.O. Box 2180, Houston, TX 77252-2180 | MID LOUISIANA GAS TRANSMISSION, LLC | |||||
ATTN: Gas Control | § SCHEDULING | ATTN: JESSE KLANKE | ||||
TEL#: (713) 656-1168 or 1-800-473-9966 FAX#: (713) 656-4144 | TEL#: 281-955-4812 FAX#: 713-589-7965 | |||||
EMAIL: | EMAIL: jklanke@americanmidstream.com | |||||
CORP-EMB-3573M, P.O. Box 2180, Houston, TX 77252-2180 | MID LOUISIANA GAS TRANSMISSION, LLC | |||||
ATTN: Contract Administration, Natural Gas - Americas | § CONTRACT AND LEGAL NOTICES | ATTN: MARY ANN GONZALES | ||||
TEL#: (713) 656-8354 FAX#: (713) 656-9276 | TEL#: 281-955-4815 FAX#: 281-955-4855 | |||||
EMAIL: | EMAIL: mgonzales@americanmidstream.com | |||||
CORP-EMB-3771, 800 Bell Street, Houston, TX 77002 | § CREDIT | MID LOUISIANA GAS TRANSMISSION, LLC | ||||
ATTN: Credit Manager | ATTN: SANDRA FLOWER | |||||
TEL#: (713) 656-8049 FAX#: (713) 656-3557 | TEL#: 720-457-6042 FAX#: 720-457-6040 | |||||
EMAIL: | EMAIL: sflower@americanmidstream.com | |||||
CORP-EMB-3573M, P.O. Box 2180, Houston, TX 77252-2180 | MID LOUISIANA GAS TRANSMISSION, LLC | |||||
ATTN: Contract Administrator - Confirmations | § TRANSACTION CONFIRMATIONS | ATTN: JESSE KLANKE | ||||
TEL#: (713) 656-7854 FAX#: (713) 656-2727 | TEL#: 281-955-4812 FAX#: 713-589-7965 | |||||
EMAIL: | EMAIL: jklanke@americanmidstream.com | |||||
ACCOUNTING
INFORMATION |
||||||
CORP-BH4-9065D,
Exxon Mobil Corporation, P.O. Box 4721, Houston, TX 77210-4721 |
§ INVOICES | MID LOUISIANA GAS TRANSMISSION, LLC | ||||
ATTN: Upstream Controllers Gas Marketing | § PAYMENTS | ATTN: PETER MCNAMARA | ||||
TEL#: (713) 680-5721 FAX#: (713) 680-6909 | § SETTLEMENTS | TEL#: 281-955-4809 FAX#: 281-955-4855 | ||||
EMAIL: | EMAIL: pmcnamara@americanmidstream.com | |||||
BANK: Citibank. N.A., New York. New York | ||||||
ABA: 0210-0008-9 ACCT: 30439217 | WIRE TRANSFER | BANK: COMERICA BANK | ||||
OTHER DETAILS: For
Credit To: Exxon Mobil Corporation Gas Marketing
Remittance Account |
NUMBERS | ABA: 111000753 ACCT: 1881319493 | ||||
(IF APPLICABLE) | OTHER DETAILS: Beneficiary Acct - American Midstream, LLC | |||||
BANK: Not Applicable | ACH NUMBERS | BANK: Not Applicable | ||||
ABA: ACCT: | (IF APPLICABLE) | ABA: ACCT: | ||||
OTHER DETAILS: | OTHER DETAILS: | |||||
ATTN: Not Applicable | ATTN: Not Applicable | |||||
ADDRESS: | CHECKS | ADDRESS: | ||||
(IF APPLICABLE) | ||||||
ATTN: Manager Americas Gas Marketing | VERIFICATION OF | ATTN: Sandra Flower VP, Finance & Controller | ||||
ADDRESS: CORP-EMB-3573M, P.O. Box 2180 Houston. TX 77252-2180 | CHANGE IN BANKING | ADDRESS: 1614
15th
Street, Suite 300, Denver, CO 80202 TEL#: 720-457-6042 FAX#: 720-457-6040 |
||||
TEL#: (713) 656-8354 FAX#: (713) 656-9276 | INSTRUCTIONS (IF APPLICABLE) |
Copyright © 2006 North American Energy Standards Board, Inc. | NAESB Standard 6.3.1 | |
All Rights Reserved | September 5, 2006 |
[*] Certain information in this document has been omitted and filed separately with the
Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Base Contract for Sale and Purchase of Natural Gas
(Continued)
(Continued)
This Base Contract incorporates by reference for all purposes the General Terms and
Conditions for Sale and Purchase of Natural Gas published by the North American Energy
Standards Board. The parties hereby agree to the following provisions offered in said
General Terms and Conditions. In the event the parties fail to check a box, the specified
default provision shall apply. Select the appropriate box(es) from each section:
Section 1.2
|
o | Oral (default) | Section 10.2 | þ | No Additional Events of Default (default) | |||||
Transaction
|
OR | Additional | ||||||||
Procedure
|
þ | Written | Events of Default |
o | Indebtedness Cross Default | |||||
Section 2.7
|
þ | 2 Business Days after receipt (default) | o Party A: | |||||||
Confirm Deadline
|
OR | |||||||||
o | Business Days after receipt | o Party B: | ||||||||
o | Transactional Cross Default | |||||||||
Section 2.8
|
o | Seller (default) | Specified Transactions: | |||||||
Confirming Party
|
OR | |||||||||
o | Buyer | |||||||||
þ | ExxonMobil Gas & Power Marketing Company (a division of Exxon Mobil Corporation) |
|||||||||
Section 3.2
|
o | Cover Standard (default) | Section 10.3.1 | þ | Early Termination Damages Apply (default) | |||||
Performance
|
OR | Early | ||||||||
Obligation
|
þ | Spot Price Standard | Termination | OR | ||||||
Damages | ||||||||||
o | Early Termination Damages Do Not Apply | |||||||||
Note: The following Spot Price Publication applies to both of the immediately preceding. | Section 10.3.2 | þ | Other Agreement Setoffs Apply (default) | |||||||
Other | ||||||||||
Section 2.31
|
[*] | Gas Daily Midpoint (default) | Agreement | þ Bilateral (default) | ||||||
Spot Price
|
OR | Setoffs | ||||||||
Publication
|
[*] | o Triangular | ||||||||
OR | ||||||||||
o | Other Agreement Setoffs Do Not Apply | |||||||||
Section 6
|
þ | Buyer Pays At and After Delivery Point (default) | ||||||||
Taxes
|
OR | |||||||||
o | Seller Pays Before and At Delivery Point | |||||||||
Section 7.2
|
þ | 25th Day of Month following Month of delivery | Section 15.5 | Texas | ||||||
Payment Date
|
(default) | Choice Of Law | ||||||||
OR | ||||||||||
o | Day of Month following Month of delivery | |||||||||
Section 7.2
|
þ | Wire transfer (default) | Section 15.10 | þ | Confidentiality applies (default) | |||||
Method of Payment
|
o | Automated Clearinghouse Credit (ACH) | Confidentiality | OR | ||||||
o | Check | o | Confidentiality does not apply | |||||||
Section 7.7
|
o | Netting applies (default) | ||||||||
Netting
|
OR | |||||||||
þ | Netting does not apply | |||||||||
þ Special Provisions Number of sheets attached: 3 | ||||||||||
o
Addendum(s):
|
IN WITNESS WHEREOF, the parties hereto have executed this Base Contract in duplicate.
ExxonMobil Gas & Power Marketing Company (a division of Exxon Mobil Corporation) |
PARTY NAME | MID LOUISIANA GAS TRANSMISSION, LLC | ||||||
By:
|
/s/ Diaco Aviki | SIGNATURE | By: | /s/ Marty Patterson | ||||
Diaco Aviki 5/13/10 | PRINTED NAME | MARTY PATTERSON | ||||||
Gas Marketing Manager (Gulf Coast & East U.S.) | TITLE | SR. VICE PRESIDENT |
Copyright © 2006 North American Energy Standards Board, Inc. | NAESB Standard 6.3.1 | |||
All Rights Reserved | Page 3 of 14 | September 5, 2006 |
[*] Certain information in this document has been omitted and filed separately with the
Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
General Terms and Conditions
Base Contract for Sale and Purchase of Natural Gas
Base Contract for Sale and Purchase of Natural Gas
SECTION 1. PURPOSE AND PROCEDURES
1.1. These General Terms and Conditions are intended to facilitate purchase and sale
transactions of Gas on a Firm or
Interruptible 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.
The parties have selected either the Oral Transaction Procedure or the Written Transaction
Procedure as indicated on
the Base Contract.
Oral Transaction Procedure:
1.2. The parties will use the following Transaction Confirmation procedure. Any Gas purchase and
sale transaction may be
effectuated in an EDI transmission or telephone conversation with the offer and acceptance
constituting the agreement of the
parties. The parties shall be legally bound from the time they so agree to transaction terms and
may each rely thereon. Any such
transaction shall be considered a writing and to have been signed. Notwithstanding the
foregoing sentence, the parties agree
that Confirming Party shall, and the other party may, confirm a telephonic transaction by
sending the other party a Transaction
Confirmation by facsimile, EDI or mutually agreeable electronic means within three Business Days
of a transaction covered by this
Section 1.2 (Oral Transaction Procedure) provided that the failure to send a Transaction
Confirmation shall not invalidate the oral
agreement of the parties. Confirming Party adopts its confirming letterhead, or the like, as
its signature on any Transaction
Confirmation as the identification and authentication of Confirming Party. If the Transaction
Confirmation contains any provisions
other than those relating to the commercial terms of the transaction (i.e., price, quantity,
performance obligation, delivery point,
period of delivery and/or transportation conditions), which modify or supplement the Base
Contract or General Terms and
Conditions of this Contract (e.g., arbitration or additional representations and warranties),
such provisions shall not be deemed to
be accepted pursuant to Section 1.3 but must be expressly agreed to by both parties; provided
that the foregoing shall not
invalidate any transaction agreed to by the parties.
Written Transaction Procedure:
1.2. The parties will use the following Transaction Confirmation procedure. Should the parties
come to an agreement regarding
a Gas purchase and sale transaction for a particular Delivery Period, the Confirming Party
shall, and the other party may, record
that agreement on a Transaction Confirmation and communicate such Transaction Confirmation by
facsimile, EDI or mutually
agreeable electronic means, to the other party by the close of the Business Day following the
date of agreement. The parties
acknowledge that their agreement will not be binding until the exchange of nonconflicting
Transaction Confirmations or the
passage of the Confirm Deadline without objection from the receiving party, as provided in
Section 1.3.
1.3. If a sending partys Transaction Confirmation is materially different from the receiving
partys understanding of the agreement
referred to in Section 1.2, such receiving party shall notify the sending party via facsimile,
EDI or mutually agreeable electronic means by
the Confirm Deadline, unless such receiving party has previously sent a Transaction Confirmation
to the sending party. The failure of the
receiving party to so notify the sending party in writing by the Confirm Deadline constitutes
the receiving partys agreement to the terms of
the transaction described in the sending partys Transaction Confirmation. If there are any
material differences between timely sent
Transaction Confirmations governing the same transaction, then neither Transaction Confirmation
shall be binding until or unless such
differences are resolved including the use of any evidence that clearly resolves the differences
in the Transaction Confirmations. In the
event of a conflict among the terms of (i) a binding Transaction Confirmation pursuant to
Section 1.2, (ii) the oral agreement of the parties
which may be evidenced by a recorded conversation, where the parties have selected the Oral
Transaction Procedure of the Base
Contract, (iii) the Base Contract, and (iv) these General Terms and Conditions, the terms of the
documents shall govern in the priority
listed in this sentence.
1.4. The parties agree that each party may electronically record all telephone conversations
with respect to this Contract between
their respective employees, without any special or further notice to the other party. Each party
shall obtain any necessary consent of its
agents and employees to such recording. Where the parties have selected the Oral Transaction
Procedure in Section 1.2 of the
Base Contract, the parties agree not to contest the validity or enforceability of telephonic
recordings entered into in accordance with the
requirements of this Base Contract.
SECTION 2. DEFINITIONS
The terms set forth below shall have the meaning ascribed to them below. Other terms are also
defined elsewhere in the Contract and shall have the meanings ascribed to them herein.
2.1. Additional Event of Default shall mean Transactional Cross Default or Indebtedness Cross
Default, each as and if
selected by the parties pursuant to the Base Contract.
2.2. Affiliate shall mean, in relation to any person, any entity controlled, directly or
indirectly, by the person, any entity that controls,
directly or indirectly, the person or any entity directly or indirectly under common control
with the person. For this purpose, control of any
entity or person means ownership of at least 50 percent of the voting power of the entity or
person.
Copyright © 2006 North American Energy Standards Board, Inc.
|
NAESB Standard 6.3.1 | |||
All Rights Reserved
|
Page 4 of 14 | September 5, 2006 |
[*] Certain information in this document has been omitted and filed separately with the
Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
2.3. Alternative Damages shall mean such damages, expressed in dollars or dollars per MMBtu, as
the parties shall agree upon in
the Transaction Confirmation, in the event either Seller or Buyer fails to perform a Firm
obligation to deliver Gas in the case of Seller or to
receive Gas in the case of Buyer.
2.4. Base Contract shall mean a contract executed by the parties that incorporates these General
Terms and Conditions by
reference; that specifies the agreed selections of provisions contained herein; and that sets
forth other information required herein and any
Special Provisions and addendum(s) as identified on page one.
2.5. British thermal unit or Btu shall mean the International BTU, which is also called the
Btu (IT).
2.6. Business Day(s) shall mean Monday through Friday, excluding Federal Banking Holidays for
transactions in the U.S.
2.7. Confirm Deadline shall mean 5:00 p.m. in the receiving partys time zone on the second
Business Day following the
Day a Transaction Confirmation is received or, if applicable, on the Business Day agreed to by the
parties in the Base Contract;
provided, if the Transaction Confirmation is time stamped after 5:00 p.m. in the receiving partys
time zone, it shall be deemed
received at the opening of the next Business Day.
2.8. Confirming Party shall mean the party designated in the Base Contract to prepare and
forward Transaction Confirmations to the
other party.
2.9. Contract shall mean the legally-binding relationship established by (i) the Base Contract,
(ii) any and all binding
Transaction Confirmations and (iii) where the parties have selected the Oral Transaction Procedure
in Section 1.2 of the Base
Contract, any and all transactions that the parties have entered into through an EDI transmission
or by telephone, but that have not
been confirmed in a binding Transaction Confirmation, all of which shall form a single integrated
agreement between the parties.
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.
2.11. Contract Quantity shall mean the quantity of Gas to be delivered and taken as agreed to by
the parties in a
transaction.
2.12. Cover Standard, as referred to in Section 3.2, shall mean that if there is an unexcused
failure to take or deliver any
quantity of Gas pursuant to this Contract, then the performing party shall use commercially
reasonable efforts to (i) if Buyer is the
performing party, obtain Gas, (or an alternate fuel if elected by Buyer and replacement Gas is not
available), or (ii) if Seller is the
performing party, sell Gas, in either case, at a price reasonable for the delivery or production
area, as applicable, consistent with:
the amount of notice provided by the nonperforming party; the immediacy of the Buyers Gas
consumption needs or Sellers Gas
sales requirements, as applicable; the quantities involved; and the anticipated length of failure
by the nonperforming party.
2.13. Credit Support Obligation(s) shall mean any obligation(s) to provide or establish credit
support for, or on behalf of, a
party to this Contract such as cash, an irrevocable standby letter of credit, a margin agreement, a
prepayment, a security interest in
an asset, guaranty, or other good and sufficient security of a continuing nature.
2.14. Day shall mean a period of 24 consecutive hours, coextensive with a day as defined by the
Receiving Transporter in
a particular transaction.
2.15. Delivery Period shall be the period during which deliveries are to be made as agreed to by
the parties in a transaction.
2.16. Delivery Point(s) shall mean such point(s) as are agreed to by the parties in a
transaction.
2.17. EDI shall mean an electronic data interchange pursuant to an agreement entered into by the
parties, specifically
relating to the communication of Transaction Confirmations under this Contract.
2.18. EFP shall mean the purchase, sale or exchange of natural Gas as the physical side of an
exchange for physical
transaction involving gas futures contracts. EFP shall incorporate the meaning and remedies of
Firm, provided that a partys
excuse for nonperformance of its obligations to deliver or receive Gas will be governed by the
rules of the relevant futures
exchange regulated under the Commodity Exchange Act.
2.19. Firm shall mean that either party may interrupt its performance without liability only to
the extent that such
performance is prevented for reasons of Force Majeure; provided, however, that during Force Majeure
interruptions, the party
invoking Force Majeure may be responsible for any Imbalance Charges as set forth in Section 4.3
related to its interruption after
the nomination is made to the Transporter and until the change in deliveries and/or receipts is
confirmed by the Transporter.
2.20. Gas shall mean any mixture of hydrocarbons and noncombustible gases in a gaseous state
consisting primarily of
methane.
2.21. Guarantor shall mean any entity that has provided a guaranty of the obligations of a party
hereunder.
2.22. Imbalance Charges shall mean any fees, penalties, costs or charges (in cash or in kind)
assessed by a Transporter for
failure to satisfy the Transporters balance and/or nomination requirements.
2.23. Indebtedness Cross Default shall mean if selected on the Base Contract by the parties with
respect to a party, that it
or its Guarantor, if any, experiences a default, or similar condition or event however therein
defined, under one or more
agreements or instruments, individually or collectively, relating to indebtedness (such
indebtedness to include any obligation
whether present or future, contingent or otherwise, as principal or surety or otherwise) for the
payment or repayment of borrowed
money in an aggregate amount greater than the threshold specified in the Base Contract with respect
to such party or its
Guarantor, if any, which results in such indebtedness becoming immediately due and payable.
Copyright © 2006 North American Energy Standards Board, Inc.
|
NAESB Standard 6.3.1 | |||
All Rights Reserved
|
Page 5 of 14 | September 5, 2006 |
[*] Certain information in this document has been omitted and filed separately with the
Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
2.24. Interruptible shall mean that either party may interrupt its performance at any time for
any reason, whether or not
caused by an event of Force Majeure, with no liability, except such interrupting party may be
responsible for any Imbalance
Charges as set forth in Section 4.3 related to its interruption after the nomination is made to the
Transporter and until the change in
deliveries and/or receipts is confirmed by Transporter.
2.25. MMBtu shall mean one million British thermal units, which is equivalent to one dekatherm.
2.26. Month shall mean the period beginning on the first Day of the calendar month and ending
immediately prior to the
commencement of the first Day of the next calendar month.
2.27. Payment Date shall mean a date, as indicated on the Base Contract, on or before which
payment is due Seller for Gas
received by Buyer in the previous Month.
2.28. Receiving Transporter shall mean the Transporter receiving Gas at a Delivery Point, or
absent such receiving
Transporter, the Transporter delivering Gas at a Delivery Point.
2.29. Scheduled Gas shall mean the quantity of Gas confirmed by Transporter(s) for movement,
transportation or
management.
2.30. Specified Transaction(s) shall mean any other transaction or agreement between the parties
for the purchase, sale or
exchange of physical Gas, and any other transaction or agreement identified as a Specified
Transaction under the Base Contract.
2.31.
Spot Price as referred to in Section 3.2 shall mean the price listed in the publication
indicated on the Base Contract,
under the listing applicable to the geographic location closest in proximity to the Delivery
Point(s) for the relevant Day; provided, if
there is no single price published for such location for such Day, but there is published a range
of prices, then the Spot Price shall
be the average of such high and low prices. If no price or range of prices is published for such
Day, then the Spot Price shall be
the average of the following: (i) the price (determined as stated above) for the first Day for
which a price or range of prices is
published that next precedes the relevant Day; and (ii) the price (determined as stated above) for
the first Day for which a price or
range of prices is published that next follows the relevant Day.
2.32. Transaction Confirmation shall mean a document, similar to the form of Exhibit A, setting
forth the terms of a
transaction formed pursuant to Section 1 for a particular Delivery Period.
2.33. Transactional Cross Default shall mean if selected on the Base Contract by the parties with
respect to a party, that it
shall be in default, however therein defined, under any Specified Transaction.
2.34. Termination Option shall mean the option of either party to terminate a transaction in the
event that the other party fails to
perform a Firm obligation to deliver Gas in the case of Seller or to receive Gas in the case of
Buyer for a designated number of days during a
period as specified on the applicable Transaction Confirmation.
2.35. Transporter(s) shall mean all Gas gathering or pipeline companies, or local distribution
companies, acting in the capacity of a
transporter, transporting Gas for Seller or Buyer upstream or downstream, respectively, of the
Delivery Point pursuant to a particular
transaction.
SECTION
3. PERFORMANCE OBLIGATION
3.1. Seller agrees to sell and deliver, and Buyer agrees to receive and purchase, the Contract
Quantity for a particular transaction in
accordance with the terms of the Contract. Sales and purchases will be on a Firm or Interruptible
basis, as agreed to by the parties in a
transaction.
The parties have selected either the Cover Standard or the Spot Price Standard as indicated
on the Base Contract.
Cover
Standard:
3.2. The sole and exclusive remedy of the parties in the event of a breach of a Firm obligation to
deliver or receive Gas 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(s), 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 of a breach by Buyer on any Day(s), payment
by Buyer to Seller in the
amount equal to the positive difference, if any, between the Contract Price and the price received
by Seller utilizing the Cover
Standard for the resale of such Gas, adjusted for commercially reasonable differences in
transportation costs to or from the
Delivery Point(s), multiplied by the difference between the Contract Quantity and the quantity
actually taken by Buyer for such
Day(s) excluding any quantity for which no sale is available; and (iii) in the event that Buyer has
used commercially reasonable
efforts to replace the Gas or Seller has used commercially reasonable efforts to sell the Gas to a
third party, and no such
replacement or sale is available for all or any portion of the Contract Quantity of Gas, then in
addition to (i) or (ii) above, as
applicable, the sole and exclusive remedy of the performing party with respect to the Gas not
replaced or sold shall be an amount
equal to any unfavorable difference between the Contract Price and the Spot Price, adjusted for
such transportation to the
applicable Delivery Point, multiplied by the quantity of such Gas not replaced or sold. Imbalance
Charges shall not be recovered
under this Section 3.2, but Seller and/or Buyer shall be responsible for Imbalance Charges, if any,
as provided in Section 4.3. The
amount of such unfavorable difference shall be payable five Business Days after presentation of the
performing partys invoice,
which shall set forth the basis upon which such amount was calculated.
Copyright © 2006 North American Energy Standards Board, Inc.
|
NAESB Standard 6.3.1 | |||
All Rights Reserved
|
Page 6 of 14 | September 5, 2006 |
[*] Certain information in this document has been omitted and filed separately with the
Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Spot Price Standard:
3.2. The sole and exclusive remedy of the parties in the event of a breach of a Firm obligation to
deliver or receive Gas 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
difference between the Contract Quantity and the actual quantity delivered by Seller and received
by Buyer for such Day(s),
multiplied by the positive difference, if any, obtained by subtracting the Contract Price from the
Spot Price; or (ii) in the event of a
breach by Buyer on any Day(s), payment by Buyer to Seller in an amount equal to the difference
between the Contract Quantity
and the actual quantity delivered by Seller and received by Buyer for such Day(s), multiplied by
the positive difference, if any,
obtained by subtracting the applicable Spot Price from the Contract
Price. Imbalance Charges shall
not be recovered under this
Section 3.2, but Seller and/or Buyer shall be responsible for Imbalance Charges, if any, as
provided in Section 4.3. The amount of
such unfavorable difference shall be payable five Business Days after presentation of the
performing partys invoice, which shall
set forth the basis upon which such amount was calculated.
3.3. Notwithstanding Section 3.2, the parties may agree to Alternative Damages in a Transaction
Confirmation executed in
writing by both parties.
3.4. In addition to Sections 3.2 and 3.3, the parties may provide for a Termination Option in a
Transaction Confirmation
executed in writing by both parties. The Transaction Confirmation containing the Termination
Option will designate the length of
nonperformance triggering the Termination Option and the procedures for exercise thereof, how
damages for nonperformance will
be compensated, and how liquidation costs will be calculated.
SECTION 4. TRANSPORTATION, NOMINATIONS, AND IMBALANCES
4.1. Seller shall have the sole responsibility for transporting the Gas to the Delivery Point(s).
Buyer shall have the sole responsibility
for transporting the Gas from the Delivery Point(s).
4.2. The parties shall coordinate their nomination activities, giving sufficient time to meet the
deadlines of the affected Transporter(s).
Each party shall give the other party timely prior Notice, sufficient to meet the requirements of
all Transporter(s) involved in the transaction, of
the quantities of Gas to be delivered and purchased each 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.
4.3. The parties shall use commercially reasonable efforts to avoid imposition of any Imbalance
Charges. If Buyer or Seller receives
an invoice from a Transporter that includes Imbalance Charges, the parties shall determine the
validity as well as the cause of such
Imbalance Charges. If the Imbalance Charges were incurred as a result of Buyers receipt of
quantities of Gas greater than or less than the
Scheduled Gas, then Buyer shall pay for such Imbalance Charges or reimburse Seller for such
Imbalance Charges paid by Seller. If the
Imbalance Charges were incurred as a result of Sellers delivery of quantities of Gas greater than
or less than the Scheduled Gas, then Seller
shall pay for such Imbalance Charges or reimburse Buyer for such Imbalance Charges paid by Buyer.
SECTION
5. QUALITY AND MEASUREMENT
All Gas delivered by Seller shall meet the pressure, quality and heat content requirements of the
Receiving Transporter. The unit of quantity measurement for purposes of this Contract shall be
one MMBtu dry. Measurement of Gas quantities hereunder shall be in accordance with the
established procedures of the Receiving Transporter.
SECTION 6. TAXES
The parties have selected either Buyer Pays At and After Delivery Point or Seller Pays Before
and At Delivery Point as
indicated on the Base Contract.
Buyer
Pays At and After Delivery Point:
Seller shall pay or cause to be paid all taxes, fees, levies, penalties, licenses or charges
imposed by any government authority (Taxes)
on or with respect to the Gas prior to the Delivery Point(s). Buyer shall pay or cause to be paid
all Taxes on or with respect to the Gas at
the Delivery Point(s) and all Taxes after the Delivery Point(s). If a party is required to remit
or pay Taxes that are the other partys
responsibility hereunder, the party responsible for such Taxes shall promptly reimburse the other
party for such Taxes. Any party entitled
to an exemption from any such Taxes or charges shall furnish the other party any necessary
documentation thereof.
Seller Pays Before and At Delivery Point:
Seller shall pay or cause to be paid all taxes, fees, levies, penalties, licenses or charges
imposed by any government authority (Taxes)
on or with respect to the Gas prior to the Delivery Point(s) and all Taxes at the Delivery
Point(s). Buyer shall pay or cause to be paid all
Taxes on or with respect to the Gas after the Delivery Point(s). If a party is required to remit
or pay Taxes that are the other partys
responsibility hereunder, the party responsible for such Taxes shall promptly reimburse the other
party for such Taxes. Any party entitled
to an exemption from any such Taxes or charges shall furnish the other party any necessary
documentation thereof.
SECTION 7. BILLING, PAYMENT, AND AUDIT
7.1. Seller shall invoice Buyer for Gas delivered and received in the preceding Month and for any
other applicable charges, providing
supporting documentation acceptable in industry practice to support the amount charged. If the
actual quantity delivered is not known by the billing date, billing will be prepared based on the
quantity of Scheduled Gas. The invoiced quantity will then be adjusted to the actual quantity on
the following Months billing or as soon thereafter as actual delivery information is available.
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[*] Certain information in this document has been omitted and filed separately with the
Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
7.2. Buyer shall remit the amount due under Section 7.1 in the manner specified in the Base
Contract, in immediately available funds,
on or before the later of the Payment Date or 10 Days after receipt of the invoice by Buyer;
provided that if the Payment Date is not a
Business Day, payment is due on the next Business Day following that date. In the event any
payments are due Buyer hereunder, payment
to Buyer shall be made in accordance with this Section 7.2.
7.3. In the event payments become due pursuant to Sections 3.2 or 3.3, the performing party may
submit an invoice to the
nonperforming party for an accelerated payment setting forth the basis upon which the invoiced
amount was calculated. Payment
from the nonperforming party will be due five Business Days after receipt of invoice.
7.4. If the invoiced party, in good faith, disputes the amount of any such invoice or any part
thereof, such invoiced party will pay such
amount as it concedes to be correct; provided, however, if the invoiced party disputes the amount
due, it must provide supporting
documentation acceptable in industry practice to support the amount paid or disputed without undue
delay. In the event the parties are
unable to resolve such dispute, either party may pursue any remedy available at law or in equity to
enforce its rights pursuant to this Section.
7.5. If the invoiced party fails to remit the full amount payable when due, interest on the unpaid
portion shall accrue from the date due
until the date of payment at a rate equal to the lower of (i) the then-effective prime rate of
interest published under Money Rates by The Wall
Street Journal, plus two percent per annum; or (ii) the maximum applicable lawful interest rate.
7.6. 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 this 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 in writing, with adequate explanation
and/or documentation, within two years after the
Month of Gas delivery. All retroactive adjustments under Section 7 shall be paid in full by the
party owing payment within 30 Days of Notice
and substantiation of such inaccuracy.
7.7. Unless the parties have elected on the Base Contract not to make this Section 7.7 applicable
to this Contract, 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. If the parties have executed a separate netting agreement, the terms and
conditions therein shall prevail to the
extent inconsistent herewith.
SECTION 8. TITLE, WARRANTY, AND INDEMNITY
8.1. Unless otherwise specifically agreed, title to the Gas shall pass from Seller to Buyer at the
Delivery Point(s). Seller shall
have responsibility for and assume any liability with respect to the Gas prior to its delivery to
Buyer at the specified Delivery
Point(s). Buyer shall have responsibility for and assume any liability with respect to said Gas
after its delivery to Buyer at the
Delivery Point(s).
8.2. Seller warrants that it will have the right to convey and will transfer good and merchantable
title to all Gas sold
hereunder and delivered by it to Buyer, free and clear of all liens, encumbrances, and claims.
EXCEPT AS PROVIDED IN THIS
SECTION 8.2 AND IN SECTION 15.8, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY
OF MERCHANTABILITY OR OF FITNESS FOR ANY PARTICULAR PURPOSE, ARE DISCLAIMED.
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. 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.
8.4. The parties agree that the delivery of and the transfer of title to all Gas under this
Contract shall take place within the
Customs Territory of the United States (as defined in general note 2 of the Harmonized Tariff
Schedule of the United States 19
U.S.C. §1202, General Notes,
page 3); provided, however, that in the event Seller took title to the Gas outside the Customs Territory of the United States, Seller represents and warrants that it is the importer of record for all Gas entered and delivered into the United States, and shall be responsible for entry and entry summary filings as well as the payment of duties, taxes and fees, if any, and all applicable record keeping requirements.
page 3); provided, however, that in the event Seller took title to the Gas outside the Customs Territory of the United States, Seller represents and warrants that it is the importer of record for all Gas entered and delivered into the United States, and shall be responsible for entry and entry summary filings as well as the payment of duties, taxes and fees, if any, and all applicable record keeping requirements.
8.5. Notwithstanding the other provisions of this Section 8, as between Seller and Buyer, Seller
will be liable for all Claims to the extent
that such arise from the failure of Gas delivered by Seller to meet the quality requirements of
Section 5.
SECTION 9. NOTICES
9.1. All Transaction Confirmations, invoices, payment instructions, and other communications made
pursuant to the Base
Contract (Notices) shall be made to the addresses specified in writing by the respective parties
from time to time.
9.2. All Notices required hereunder shall be in writing and may be sent by facsimile or mutually
acceptable electronic means,
a nationally recognized overnight courier service, first class mail or hand delivered.
9.3. Notice shall be given when received on a Business Day by the addressee. In the absence of
proof of the actual receipt
date, the following presumptions will apply. Notices sent by facsimile shall be deemed to have
been received upon the sending
partys receipt of its facsimile machines confirmation of successful transmission. If the day on
which such facsimile is received is
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[*] Certain information in this document has been omitted and filed separately with the
Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
not a Business Day or is after five p.m. on a Business Day, then such facsimile shall be deemed
to have been received on the next following Business Day. Notice by overnight mail or courier
shall be deemed to have been received on the next Business Day after it was sent or such earlier
time as is confirmed by the receiving party. Notice via first class mail shall be considered
delivered five Business Days after mailing.
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 ten Business Days after receipt of such Notice.
SECTION 10. FINANCIAL RESPONSIBILITY
10.1. If either party (X) has reasonable grounds for insecurity regarding the performance of any
obligation under this Contract
(whether or not then due) by the other party (Y) (including, without limitation, the occurrence
of a material change in the
creditworthiness of Y or its Guarantor, if applicable), X may demand Adequate Assurance of
Performance. Adequate Assurance
of Performance shall mean sufficient security in the form, amount, for a term, and from an issuer,
all as reasonably acceptable to
X, including, but not limited to cash, a standby irrevocable letter of credit, a prepayment, a
security interest in an asset or guaranty.
Y hereby grants to X a continuing first priority security interest in, lien on, and right of setoff
against all Adequate Assurance of
Performance in the form of cash transferred by Y to X pursuant to this Section 10.1. Upon the
return by X to Y of such Adequate
Assurance of Performance, the security interest and lien granted hereunder on that Adequate
Assurance of Performance shall be
released automatically and, to the extent possible, without any further action by either party.
10.2. In the event (each an Event of Default) either party (the Defaulting Party) or 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) fail to perform any
obligation to the other party with respect
to any Credit Support Obligations relating to the Contract; (vii) 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 the other party; (viii) not
have paid any amount due the other
party hereunder on or before the second Business Day following written Notice that such payment is
due; or ix) be the affected
party with respect to any Additional Event of Default; 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.
10.3. If an Event of Default has occurred and is continuing, the Non-Defaulting Party shall have
the right, by Notice to the
Defaulting Party, to designate a Day, no earlier than the Day such Notice is given and no later
than 20 Days after such Notice is
given, as an early termination date (the Early Termination Date) for the liquidation and
termination pursuant to Section 10.3.1 of
all transactions under the Contract, each a Terminated Transaction. On the Early Termination
Date, all transactions will
terminate, other than those transactions, if any, that may not be liquidated and terminated under
applicable law (Excluded
Transactions), which Excluded Transactions must be liquidated and terminated as soon thereafter as
is legally permissible, and
upon termination shall be a Terminated Transaction and be valued consistent with Section 10.3.1
below. With respect to each
Excluded Transaction, its actual termination date shall be the Early Termination Date for
purposes of
Section 10.3.1.
Section 10.3.1.
The parties have selected either Early Termination Damages Apply or Early Termination Damages
Do Not Apply as
indicated on the Base Contract.
Early Termination Damages Apply:
10.3.1. As of the Early Termination Date, the Non-Defaulting Party shall determine, in good
faith and in a commercially reasonable manner, (i) the amount owed (whether or not then due) by
each party with respect to all Gas delivered and received between the parties under Terminated
Transactions and Excluded Transactions on and before the Early Termination Date and all other
applicable charges relating to such deliveries and receipts (including without limitation any
amounts owed under Section 3.2), for which payment has not yet been made by the party that owes
such payment under this Contract and (ii) the Market Value, as defined below, of each Terminated
Transaction. The Non-Defaulting Party shall (x) liquidate and accelerate each Terminated
Transaction at its Market Value, so that each amount equal to the difference between such Market
Value and the Contract Value, as defined below, of such Terminated
Transaction(s) shall be due to
the Buyer under the Terminated Transaction(s) if such Market Value exceeds the Contract Value and
to the Seller if the opposite is the case; and (y) where appropriate, discount each amount then
due under clause (x) above to present value in a commercially reasonable manner as of the Early
Termination Date (to take account of the period between the date of liquidation and the date on
which such amount would have otherwise been due pursuant to the relevant Terminated
Transactions).
For purposes of this Section 10.3.1, Contract Value means the amount of Gas remaining to be
delivered or purchased under a transaction multiplied by the Contract Price, and Market Value
means the amount of Gas remaining to be delivered or purchased under a transaction multiplied by
the market price for a similar transaction at the Delivery Point determined by the Non-Defaulting
Party in a commercially reasonable manner. To ascertain the Market Value, the Non-Defaulting
Party may consider, among other valuations, any or all of the settlement prices of NYMEX Gas
futures contracts, quotations from leading dealers in energy swap contracts or physical gas
trading markets, similar sales or purchases and any other bona fide third-party offers, all
adjusted for the length of the term and differences in transportation costs. A party shall not be
required to enter into a replacement transaction(s) in order to determine the Market Value. Any
extension(s) of the term of a transaction to which parties are not bound as of the Early
Termination Date (including but not limited to evergreen provisions) shall not be
considered in determining Contract Values and
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[*] Certain information in this document has been omitted and filed separately with the
Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Market Values. For the avoidance of doubt, any option pursuant to which one party has the right to
extend the term of a
transaction shall be considered in determining Contract Values and Market Values. The rate of
interest used in calculating net
present value shall be determined by the Non-Defaulting Party in a commercially reasonable
manner.
Early Termination Damages Do Not Apply: |
10.3.1. As of the Early Termination Date, the Non-Defaulting Party shall determine, in good
faith and in a commercially
reasonable manner, the amount owed (whether or not then due) by each party with respect to all
Gas delivered and received
between the parties under Terminated Transactions and Excluded Transactions on and before the
Early Termination Date and all
other applicable charges relating to such deliveries and receipts (including without
limitation any amounts owed under Section 3.2),
for which payment has not yet been made by the party that owes such payment under this
Contract.
The parties have selected either Other Agreement Setoffs Apply or Other Agreement Setoffs Do
Not Apply as
indicated on the Base Contract.
Other Agreement Setoffs Apply:
Bilateral Setoff Option:
10.3.2. The Non-Defaulting Party shall net or aggregate, as appropriate, any and all amounts
owing between the parties
under Section 10.3.1, so that all such amounts are netted or aggregated to a single liquidated
amount payable by one party to the
other (the Net Settlement Amount). At its sole option and without prior Notice to the
Defaulting Party, the Non-Defaulting Party is
hereby authorized to setoff any Net Settlement Amount against (i) any margin or other
collateral held by a party in connection with
any Credit Support Obligation relating to the Contract; and (ii) any amount(s) (including any
excess cash margin or excess cash
collateral) owed or held by the party that is entitled to the Net Settlement Amount under any
other agreement or arrangement
between the parties.
Triangular Setoff Option:
10.3.2. The Non-Defaulting Party shall net or aggregate, as appropriate, any and all amounts
owing between the parties
under Section 10.3.1, so that all such amounts are netted or aggregated to a single
liquidated amount payable by one party to the
other (the Net Settlement Amount). At its sole option, and without prior Notice to the
Defaulting Party, the Non-Defaulting Party is
hereby authorized to setoff (i) any Net Settlement Amount against any margin or other
collateral held by a party in connection with
any Credit Support Obligation relating to the Contract; (ii) any Net Settlement Amount
against any
amount(s) (including any excess cash margin or excess cash collateral) owed by or to a party under any other agreement or arrangement between the parties; (iii) any Net Settlement Amount owed to the Non-Defaulting Party against any amount(s) (including any excess cash margin or excess cash collateral) owed by the Non-Defaulting Party or its Affiliates to the Defaulting Party under any other agreement or arrangement; (iv) any Net Settlement Amount owed to the Defaulting Party against any amount(s) (including any excess cash margin or excess cash collateral) owed by the Defaulting Party to the Non-Defaulting Party or its Affiliates under any other agreement or arrangement; and/or (v) any Net Settlement Amount owed to the Defaulting Party against any amount(s) (including any excess cash margin or excess cash collateral) owed by the Defaulting Party or its Affiliates to the Non-Defaulting Party under any other agreement or arrangement.
amount(s) (including any excess cash margin or excess cash collateral) owed by or to a party under any other agreement or arrangement between the parties; (iii) any Net Settlement Amount owed to the Non-Defaulting Party against any amount(s) (including any excess cash margin or excess cash collateral) owed by the Non-Defaulting Party or its Affiliates to the Defaulting Party under any other agreement or arrangement; (iv) any Net Settlement Amount owed to the Defaulting Party against any amount(s) (including any excess cash margin or excess cash collateral) owed by the Defaulting Party to the Non-Defaulting Party or its Affiliates under any other agreement or arrangement; and/or (v) any Net Settlement Amount owed to the Defaulting Party against any amount(s) (including any excess cash margin or excess cash collateral) owed by the Defaulting Party or its Affiliates to the Non-Defaulting Party under any other agreement or arrangement.
Other Agreement Setoffs Do Not Apply:
10.3.2. The Non-Defaulting Party shall net or aggregate, as appropriate, any and all amounts
owing between the parties
under Section 10.3.1, so that all such amounts are netted or aggregated to a single liquidated
amount payable by one party to the
other (the Net Settlement Amount). At its sole option and without prior Notice to the
Defaulting Party, the Non-Defaulting Party
may setoff any Net Settlement Amount against any margin or other collateral held by a party in
connection with any Credit Support
Obligation relating to the Contract.
10.3.3. If any obligation that is to be included in any netting, aggregation or setoff
pursuant to Section 10.3.2 is
unascertained, the Non-Defaulting Party may in good faith estimate that obligation and net,
aggregate or setoff, as applicable, in
respect of the estimate, subject to the Non-Defaulting Party accounting to the Defaulting
Party when the obligation is ascertained.
Any amount not then due which is included in any netting, aggregation or setoff pursuant to
Section 10.3.2 shall be discounted to
net present value in a commercially reasonable manner determined by the Non-Defaulting Party.
10.4. 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 the Net
Settlement 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 as well as any setoffs applied against
such amount pursuant to
Section 10.3.2, shall be paid by the close of business on the second Business Day following such
Notice, which date shall not be
earlier than the Early Termination Date. Interest on any unpaid portion of the Net Settlement
Amount as adjusted by setoffs, shall accrue
from the date due until the date of payment at a rate equal to the lower of (i) the then-effective
prime rate of interest published under Money
Rates by The Wall Street Journal, plus two percent per annum; or (ii) the maximum applicable
lawful interest rate.
10.5. The parties agree that the transactions hereunder constitute a forward contract within the
meaning of the United
States Bankruptcy Code and that Buyer and Seller are each forward contract merchants within the
meaning of the United States
Bankruptcy Code.
10.6. The Non-Defaulting Partys remedies under this Section 10 are the sole and exclusive remedies
of the Non-Defaulting
Party with respect to the occurrence of any Early Termination Date. Each party reserves to
itself all other rights, setoffs,
counterclaims and other defenses that it is or may be entitled to arising from the Contract.
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[*] Certain information in this document has been omitted and filed separately with the
Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
10.7. With respect to this Section 10, if the parties have executed a separate netting
agreement with close-out netting provisions, the terms and conditions therein shall prevail to the
extent inconsistent herewith.
SECTION 11. FORCE MAJEURE
11.1.
Except with regard to a partys obligation to make payment(s) due under Section 7, Section
10.4, and Imbalance Charges
under Section 4, neither party shall be liable to the other for failure to perform a Firm
obligation, to the extent such failure was caused by
Force Majeure. The term Force Majeure as employed herein means any cause not reasonably within
the control of the party claiming
suspension, as further defined in Section 11.2.
11.2. Force Majeure shall include, but not be limited to, the following: (i) physical events such
as acts of God, landslides,
lightning, earthquakes, fires, storms or storm warnings, such as hurricanes, which result in
evacuation of the affected area, floods,
washouts, explosions, breakage or accident or necessity of repairs to machinery or equipment or
lines of pipe; (ii) weather related
events affecting an entire geographic region, such as low temperatures which cause freezing or
failure of wells or lines of pipe;
(iii) interruption and/or curtailment of Firm transportation and/or storage by Transporters; (iv)
acts of others such as strikes,
lockouts or other industrial disturbances, riots, sabotage, insurrections or wars, or acts of
terror; and (v) governmental actions such
as necessity for compliance with any court order, law, statute, ordinance, regulation, or policy
having the effect of law promulgated
by a governmental authority having jurisdiction. Seller and Buyer shall make reasonable efforts to
avoid the adverse impacts of a
Force Majeure and to resolve the event or occurrence once it has occurred in order to resume
performance.
11.3. Neither party shall be entitled to the benefit of the provisions of Force Majeure to the
extent performance is affected by
any or all of the following circumstances: (i) the curtailment of interruptible or secondary Firm
transportation unless primary, in-path,
Firm transportation is also curtailed; (ii) the party claiming excuse failed to remedy the
condition and to resume the performance of
such covenants or obligations with reasonable dispatch; or (iii) economic hardship, to include,
without limitation, Sellers ability to sell
Gas at a higher or more advantageous price than the Contract Price, Buyers ability to purchase Gas
at a lower or more advantageous
price than the Contract Price, or a regulatory agency disallowing, in whole or in part, the pass
through of costs resulting from this
Contract; (iv) the loss of Buyers market(s) or Buyers inability to use or resell Gas purchased
hereunder, except, in either case, as
provided in Section 11.2; or (v) the loss or failure of Sellers gas supply or depletion of
reserves, except, in either case, as provided in
Section 11.2. The party claiming Force Majeure shall not be excused from its responsibility for
Imbalance Charges.
11.4. Notwithstanding anything to the contrary herein, the parties agree that the settlement of
strikes, lockouts or other
industrial disturbances shall be within the sole discretion of the party experiencing such
disturbance.
11.5. The party whose performance is prevented by Force Majeure must provide Notice to the other
party. Initial Notice may
be given orally; however, written Notice with reasonably full particulars of the event or
occurrence is required as soon as reasonably
possible. Upon providing written Notice of Force Majeure to the other party, the affected party
will be relieved of its obligation, from the
onset of the Force Majeure event, to make or accept delivery of Gas, as applicable, to the extent
and for the duration of Force Majeure,
and neither party shall be deemed to have failed in such obligations to the other during such
occurrence or event.
11.6. Notwithstanding Sections 11.2 and 11.3, the parties may agree to alternative Force Majeure
provisions in a Transaction
Confirmation executed in writing by both parties.
SECTION 12. TERM
This Contract may be terminated on 30 Days written Notice, but shall remain in effect until the
expiration of the latest Delivery Period of any transaction(s). The rights of either party pursuant
to Section 7.6, Section 10, Section 13, the obligations to make payment hereunder, and the
obligation of either party to indemnify the other, pursuant hereto shall survive the termination
of the Base Contract or any transaction.
SECTION 13. LIMITATIONS
FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS REMEDY OR MEASURE OF DAMAGES IS PROVIDED, SUCH
EXPRESS REMEDY OR MEASURE OF DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY. A PARTYS LIABILITY
HEREUNDER SHALL BE LIMITED AS SET FORTH IN SUCH PROVISION, AND ALL OTHER REMEDIES OR DAMAGES AT
LAW OR IN EQUITY ARE WAIVED. IF NO REMEDY OR MEASURE OF DAMAGES IS EXPRESSLY PROVIDED HEREIN OR IN
A TRANSACTION, A PARTYS LIABILITY SHALL BE LIMITED TO DIRECT ACTUAL DAMAGES ONLY. SUCH DIRECT
ACTUAL DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY, AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR
IN EQUITY ARE WAIVED. UNLESS EXPRESSLY HEREIN PROVIDED, NEITHER PARTY SHALL BE LIABLE FOR
CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS OR OTHER BUSINESS
INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE.
IT IS THE INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF
DAMAGES BE WITHOUT REGARD TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY
PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE. TO THE EXTENT
ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE LIQUIDATED, THE PARTIES ACKNOWLEDGE THAT THE DAMAGES
ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE, OR OTHERWISE OBTAINING AN ADEQUATE REMEDY IS
INCONVENIENT AND THE DAMAGES CALCULATED HEREUNDER CONSTITUTE A REASONABLE APPROXIMATION OF THE
HARM OR LOSS.
Copyright © 2006 North American Energy Standards Board, Inc.
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NAESB Standard 6.3.1 | |||
All Rights Reserved
|
Page 11 of 14 | September 5, 2006 |
[*] Certain information in this document has been omitted and filed separately with the
Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
SECTION 14. MARKET DISRUPTION
If a Market Disruption Event has occurred then the parties shall negotiate in good faith to
agree on a replacement price for the Floating Price (or on a method for determining a replacement
price for the Floating Price) for the affected Day, and if the parties have not so agreed on or
before the second Business Day following the affected Day then the replacement price for the
Floating Price shall be determined within the next two following Business Days with each party
obtaining, in good faith and from non-affiliated market participants in the relevant market, two
quotes for prices of Gas for the affected Day of a similar quality and quantity in the geographical
location closest in proximity to the Delivery Point and averaging the four quotes. If either party
fails to provide two quotes then the average of the other partys two quotes shall determine the
replacement price for the Floating Price. Floating Price means the price or a factor of the price
agreed to in the transaction as being based upon a specified index. Market Disruption Event
means, with respect to an index specified for a transaction, any of the following events: (a) the
failure of the index to announce or publish information necessary for determining the Floating
Price; (b) the failure of trading to commence or the permanent discontinuation or material
suspension of trading on the exchange or market acting as the index; (c) the temporary or permanent
discontinuance or unavailability of the index; (d) the temporary or permanent closing of any
exchange acting as the index; or (e) both parties agree that a material change in the formula for
or the method of determining the Floating Price has occurred. For the purposes of the calculation
of a replacement price for the Floating Price, all numbers shall be rounded to three decimal
places. If the fourth decimal number is five or greater, then the third decimal number shall be
increased by one and if the fourth decimal number is less than five, then the third decimal number
shall remain unchanged.
SECTION 15. MISCELLANEOUS
15.1. This Contract shall be binding upon and inure to the benefit of the successors, assigns,
personal representatives, and heirs of the respective parties hereto, and the covenants,
conditions, rights and obligations of this Contract shall run for the full term of this Contract.
No assignment of this Contract, in whole or in part, will be made without the prior written consent
of the non-assigning party (and shall not relieve the assigning party from liability hereunder),
which consent will not be unreasonably withheld or delayed; provided, either party may (i)
transfer, sell, pledge, encumber, or assign this Contract or the accounts, revenues, or proceeds
hereof in connection with any financing or other financial arrangements, or (ii) transfer its
interest to any parent or Affiliate by assignment, merger or otherwise without the prior approval
of the other party. Upon any such assignment, transfer and assumption, the transferor shall remain
principally liable for and shall not be relieved of or discharged from any obligations hereunder.
15.2. If any provision in this Contract is determined to be invalid, void or unenforceable by any
court having jurisdiction, such determination shall not invalidate, void, or make unenforceable any
other provision, agreement or covenant of this Contract.
15.3. No waiver of any breach of this Contract shall be held to be a waiver of any other or
subsequent breach.
15.4. This Contract sets forth all understandings between the parties respecting each transaction
subject hereto, and any prior contracts, understandings and representations, whether oral or
written, relating to such transactions are merged into and superseded by this Contract and any
effective transaction(s). This Contract may be amended only by a writing executed by both parties.
15.5. The interpretation and performance of this Contract shall be governed by the laws of the
jurisdiction as indicated on the Base Contract, excluding, however, any conflict of laws rule which
would apply the law of another jurisdiction.
15.6. This Contract and all provisions herein will be subject to all applicable and valid statutes,
rules, orders and regulations of any governmental authority having jurisdiction over the parties,
their facilities, or Gas supply, this Contract or transaction or any provisions thereof.
15.7. There is no third party beneficiary to this Contract.
15.8. Each party to this Contract represents and warrants that it has full and complete authority
to enter into and perform this Contract. Each person who executes this Contract on behalf of either
party represents and warrants that it has full and complete authority to do so and that such party
will be bound thereby.
15.9. The headings and subheadings contained in this Contract are used solely for convenience and
do not constitute a part of this Contract between the parties and shall not be used to construe or
interpret the provisions of this Contract.
15.10. Unless the parties have elected on the Base Contract not to make this Section 15.10
applicable to this Contract, 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
employees, lenders, royalty owners, counsel, accountants and other agents of the party, or
prospective purchasers of all or substantially all of a partys assets or of any rights under this
Contract, provided such persons shall have agreed to keep such terms confidential) except (i) in
order to comply with any applicable law, order, regulation, or exchange rule, (ii) to the extent
necessary for the enforcement of this Contract, (iii) to the extent necessary to implement any
transaction, (iv) to the extent necessary to comply with a regulatory agencys reporting
requirements including but not limited to gas cost recovery proceedings; or (v) to the extent such
information is delivered to such third party for the sole purpose of calculating a published index.
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) and use
reasonable efforts to prevent or limit the disclosure. The existence of this 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. The terms of any transaction hereunder shall be kept confidential by
the parties hereto for one year from the expiration of the transaction.
In the event that disclosure is required by a governmental body or applicable law, the party
subject to such requirement may disclose the material terms of this Contract to the extent so
required, but shall promptly notify the other party, prior to disclosure,
Copyright © 2006 North American Energy Standards Board, Inc.
|
NAESB Standard 6.3.1 | |||
All Rights Reserved
|
Page 12 of 14 | September 5, 2006 |
[*] Certain information in this document has been omitted and filed separately with the
Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
and shall cooperate (consistent with the disclosing partys legal obligations) with the other
partys efforts to obtain protective orders or similar restraints with respect to such disclosure
at the expense of the other party.
15.11. The parties may agree to dispute resolution procedures in Special Provisions attached to the
Base Contract or in a Transaction Confirmation executed in writing by both parties
15.12. Any original executed Base Contract, Transaction Confirmation or other related document may
be digitally copied, photocopied, or stored on computer tapes and disks (the Imaged Agreement).
The Imaged Agreement, if introduced as evidence on paper, the Transaction Confirmation, if
introduced as evidence in automated facsimile form, the recording, if introduced as evidence in its
original form, and all computer records of the foregoing, if introduced as evidence in printed
format, in any judicial, arbitration, mediation or administrative
proceedings will be admissible as
between the parties to the same extent and under the same conditions as other business records
originated and maintained in documentary form. Neither Party shall object to the admissibility of
the recording, the Transaction Confirmation, or the Imaged Agreement on the basis that such were
not originated or maintained in documentary form. However, nothing herein shall be construed as a
waiver of any other objection to the admissibility of such evidence.
DISCLAIMER: The purposes of this Contract are to facilitate trade, avoid misunderstandings and
make more definite the terms of contracts of purchase and sale of natural gas. Further, NAESB does
not mandate the use of this Contract by any party. NAESB DISCLAIMS AND EXCLUDES, AND ANY USER OF
THIS CONTRACT ACKNOWLEDGES AND AGREES TO NAESBS DISCLAIMER OF, ANY AND ALL WARRANTIES, CONDITIONS
OR REPRESENTATIONS, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THIS CONTRACT OR ANY PART
THEREOF, INCLUDING ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT,
MERCHANTABILITY, OR FITNESS OR SUITABILITY FOR ANY PARTICULAR PURPOSE (WHETHER OR NOT NAESB KNOWS,
HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER
ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE,
OR BY
COURSE OF DEALING, EACH USER OF THIS CONTRACT ALSO AGREES THAT UNDER
NO CIRCUMSTANCES WILL NAESB BE LIABLE FOR ANY
DIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF ANY
USE OF THIS CONTRACT.
Copyright © 2006 North American Energy Standards Board, Inc.
|
NAESB Standard 6.3.1 | |||
All Rights Reserved
|
Page 13 of 14 | September 5, 2006 |
[*] Certain information in this document has been omitted and filed separately with the
Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
TRANSACTION CONFIRMATION
FOR IMMEDIATE DELIVERY
FOR IMMEDIATE DELIVERY
EXHIBIT A
Date:
,
Transaction Confirmation #: |
This Transaction Confirmation is subject to the Base Contract between Seller and Buyer dated
. The
terms of this Transaction Confirmation are binding unless disputed in writing within 2
Business Days of receipt unless otherwise specified in the Base Contract.
SELLER:
|
BUYER: | |
Attn:
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Attn:
|
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Phone: |
Phone:
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Fax:
|
Fax:
|
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Base
Contract No.
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Base Contract No.
|
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Transporter:
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Transporter:
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Transporter
Contract Number:
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Transporter Contract Number:
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Contract
Price: $ /MMBtu or
Delivery Period: Begin:
,
End:
,
Performance Obligation and Contract Quantity: (Select One) |
Firm
(Fixed Quantity):
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Firm (Variable Quantity): | Firm (Formula-Based Quantity): | Interruptible: | |||
MMBtus/day
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MMBtus/dav Minimum | (specify formula) | Up to MMBtus/dav | |||
o EFP
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MMBtus/dav Maximum | |||||
subject to Section 4.2. at | MMBtus/dav | |||||
election of o Buyer or o Seller |
Delivery
Point(s):
(If a pooling point is used, list a specific geographic and pipeline location):
Special Conditions:
Seller:
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Buyer: | |||||
By: |
By: |
|||||
Title:
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Title:
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|||||
Date:
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Date:
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Page 14 of 14 |
[*] Certain information in this document has been omitted and filed separately with the
Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.