1
EXHIBIT 10
"Pages where confidential treatment has been requested are stamped
Confidential Treatment Requested. The redacted material has been separately
filed with the Commission, the appropriate section has been marked at the
appropriate place and in the margin with a star (*)."
GAS PURCHASE AND SALE AGREEMENT
This Gas Purchase and Sale Agreement (this "Agreement"), dated
effective as of September 1, 1997 ("Effective Date"), is between Vastar
Resources, Inc., a Delaware corporation ("Seller"), and Southern Company Energy
Marketing L.P., a Delaware limited partnership ("Purchaser"). Seller and
Purchaser are sometimes referred to collectively as "Parties" or singularly as
a "Party."
RECITAL:
Under the terms and conditions of this Agreement, Seller will sell and
deliver, and Purchaser will purchase and receive, natural gas.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained in this Agreement, Seller and Purchaser agree as follows:
1. DEFINITIONS
The following terms when used in this Agreement have the following
meanings:
"Acquiree" is defined in Section 16.8.2.
"Acquiror" is defined in Section 16.8.3.
"Advisory Representative" is defined in Section 12.1.
"Agency Agreement" means the Agency Agreement attached as Exhibit C.
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"Agreement" means this Gas Purchase and Sale Agreement, as it may be
amended from time to time.
"Annual Equity Volumes" means, for any calendar year, the total volume
of gas (in Mcf's) produced and owned by Seller and all Seller Affiliates (not
including royalty or call gas) in the Committed Area for the preceding calendar
year, net of processing. If Seller is required to file an annual report (Form
10-K) with the Securities and Exchange Commission ("SEC") or any successor
agency for any calendar year, the Annual Equity Volumes will be Seller's and
Seller Affiliates' equity gas production volumes for the Committed Area
published in such annual report, as required by SEC regulations and guidelines,
including SEC guideline No. 2, Disclosure of Oil and Gas Operations.
"ARCO" is defined in Section 16.8.1.
"ARCO Consolidation" is defined in Section 16.8.1.
"Btu" means British Thermal Unit and will be defined for each Delivery
Point by the terms of the Tariff of the Transporter for each such Delivery
Point.
"Business Day" means a day on which commercial banks are open for
business in New York, New York.
"Buyout Payment" means, as of the date of termination of this
Agreement under Section 16.8.3, an amount equal to the summation of (i) the
Minimum Monthly Quantity as of the date of termination, which shall be
effective for each Month remaining in the primary term of this Agreement,
multiplied by (ii) the Buyout Price for each such Month, with such Monthly
amounts discounted using an annualized rate equal to (i) the average of the
rates for the two U.S. Treasury
Gas Purchase and Sale Agreement
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Confidential Treatment Requested.
The redacted material has been
separately filed with the Commission.
Notes, day weighted, linearly interpolated with maturities closest in time
to the average life of the remaining primary term of this Agreement plus
* (ii) REDACTED basis points.
"Buyout Price" means (i) for each Month between the Effective Date and
* REDACTED, REDACTED per Mcf of gas and (ii) for each Month between
* REDACTED and REDACTED, REDACTED per Mcf of gas.
"Code" means the Internal Revenue Code of 1986, as amended.
"Cogeneration Gas" is defined in Section 2.2.10.
"Committed Area" means the contiguous 00 xxxxxx xx xxx Xxxxxx Xxxxxx xx
Xxxxxxx and the countries of Mexico and Canada, and the respective
territorial waters of the stated portion of the United States of America
and Mexico and Canada.
"Committed Gas" is defined in Section 2.1.
"Credit Enhancement" is defined in the Guaranty.
"Credit Enhancement Triggering Event" is defined in the Guaranty.
"curtail" or "curtailment" is defined in Section 2.3.1.
"Daily Availability Report" means the report prepared by Purchaser
showing the Daily Avails for all Delivery Points.
"Daily Avails" means, for any Delivery Point, Purchaser's best estimate
of the quantity of gas to be received by Purchaser from Seller on the Day
in question, as adjusted under Section 2.7.1,
Gas Purchase and Sale Agreement
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Confidential Treatment Requested.
The redacted material has been
separately filed with the Commission.
for purposes of estimating the quantity of such gas to be resold by
Purchaser to third parties. This estimate will be set out in the Daily
Availability Report prepared by Purchaser. The best estimate of the
quantity of gas, for any Delivery Point, to be received by Purchaser from
Seller on the Day in question, as adjusted by Purchaser under Section
2.7.1, shall be calculated by Purchaser in accordance with the procedure
described in Section 2.7.1.
"Day" means that period of 24 consecutive hours beginning and ending
at 8:00 a.m. Eastern prevailing time, or for any Delivery Point such other
time as may be specified in the Tariff of the Transporter for each such
Delivery Point.
"Deficiency Charge" means (a) for any Month in which a Monthly
* Deficiency Volume occurs prior to REDACTED, an amount (in $/Mcf) equal to
(i) for each Mcf of the Monthly Deficiency Volume less than an amount equal
* to REDACTED of the Minimum Monthly Quantity for such Month, REDACTED per
Mcf and (ii) for each Mcf of the Monthly Deficiency Volume greater than or
* equal to an amount equal to REDACTED of the Minimum Monthly Quantity for
* such Month, REDACTED per Mcf and (b) for any Month in which a Monthly
* Deficiency Volume occurs after REDACTED, an amount (in $/Mcf) equal to (i)
for each Mcf of the Monthly Deficiency Volume less than an amount equal to
* REDACTED of the Minimum Monthly Quantity for such Month, REDACTED per Mcf
and (ii) for each Mcf of the Monthly Deficiency Volume greater than or
* equal to an amount equal to REDACTED of the Minimum Monthly Quantity for
* such Month, REDACTED per Mcf.
"Delivery Points" means the points identified as "Delivery Points" in
Exhibit A.
"Effective Date" means 8:00 a.m. Eastern prevailing time on September
1, 1997.
"Excluded Gas" is defined in Section 2.2.
"Events of Default" is defined in Section 11.1.
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"FERC" means the Federal Energy Regulatory Commission or any successor
government authority.
"First of the Month Avails" means the Operator Control Volumes for all
Delivery Points shown on the FOM Availability Report, which amounts are
determined under Section 2.7.
"FOM Availability Report" means the report prepared under Section 2.7
showing the volumes for all Delivery Points for the first Day of the Month, as
submitted on the sixth (6th) Business Day prior to the first Day of the Month
or if no such report is timely submitted by Seller for any Delivery Point, the
quantity shown in the Operator Control Report for the sixth (6th) Business Day
prior to the first Day of the Month for such Delivery Point.
"Force Majeure" is defined in Section 9.2.
"FT Rights" is defined in Section 3.6.
"Gas Accounting Services Agreement" means that certain Gas Accounting
Services Agreement, dated of even date herewith, between Seller and Purchaser.
"Gas" or "natural gas" means methane and heavier hydrocarbons
remaining in the vapor phase of gas-well-gas or oil-well-gas when there is no
treating or processing resulting in the extraction of natural gas liquids, or
residue gas remaining after treating or processing for the extraction of
liquids of such gas-well-gas or oil-well-gas, or a combination of each.
"Gas Daily" means the Houston Edition of the publication "Gas Daily"
issued by Pasha Publications, Inc. For purposes of determining which issue of
Gas Daily reports the range of prices applicable to the Day of delivery, the
instructions published in Gas Daily in the paragraph appearing under the
heading "Daily Price Survey" will be used. If Gas Daily does not report prices
applicable
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to a Day, other than a Business Day, on which gas is delivered to Purchaser,
then the issue of Gas Daily reporting prices applicable to the closest
subsequent Business Day shall be used. If the Parties agree that Gas Daily
does not report a price for a Pricing Pool on a Business Day, then the Gas
Daily Price for that Day shall be equal to the actual price received by
Purchaser from the resale of Committed Gas at such Pricing Pool on such Day.
"Gas Daily High Price" means, for any Pricing Pool and any given Day,
the high price of the range published in the column "Common" in the issue of
Gas Daily reporting prices of gas flowing on that Day in the table titled
"Daily Price Survey" under the heading and entry applicable to the Transporter
for the Pricing Pool.
"Gas Daily Low Price" means, for any Pricing Pool and any given Day,
the low price of the range published in the column "Common" in the issue of Gas
Daily reporting prices of gas flowing on that Day in the table titled "Daily
Price Survey" under the heading and entry applicable to the Transporter for the
Pricing Pool.
"Gas Daily Midpoint Price" means, for any Pricing Pool and any given
Day, the price published in the column "Daily Midpoint" in the issue of Gas
Daily reporting prices of gas flowing on that Day in the table titled "Daily
Price Survey" under the heading and entry applicable to the Transporter for the
Pricing Pool.
"Gas Daily Monthly Price" means, for any Pricing Pool and for any
given Month, the price published in Gas Daily for each Month in the table
Monthly Contract Index in the column "Monthly Index" under the heading and
entry applicable to the Transporter for the Pricing Pool.
"Gas Daily Price" means the Gas Daily High Price, the Gas Daily
Midpoint Price, or the Gas Daily Low Price, as the case may be.
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"General Partner" means Southern Company Energy Marketing G.P.,
L.L.C., the general partner of Purchaser.
"Guaranty" means SEIH Parent Guaranty of Gas Purchase Payment
Obligations of even date herewith by Holdings for the benefit of Seller.
"Holdings" means SEI Holdings, Inc., a Delaware corporation.
"Imbalance Charges" is defined in Section 3.3.
"Index Price" means, for any Pricing Pool and for any given Month, the
price reported in Inside FERC or the Gas Daily Monthly Price, as the case may
be, in the table and under the heading and entry identified on Exhibit A as
applicable to such Pricing Pool as such price is reported in the first issue of
the designated publication published in the Month of delivery.
"Initiating Party" is defined in Section 12.1.1.
"Inside FERC" means Inside F.E.R.C.'s Gas Market Report published by
XxXxxx-Xxxx, Inc.
"Investment Grade Rating" means, for a Person, an investment rating
for that Person's long-term, unsecured, senior debt that is rated at least
equal to or above the higher of BBB- or its subsequent equivalent, in the case
of S&P, or Baa3 or its subsequent equivalent, in the case of Moody's, but if
the rated Person does not have equity securities registered under the
Securities and Exchange Act of 1934, then the investment rating must be
obtained no less than once each calendar year.
"JAMS" means the organization JAMS/ENDISPUTE, Inc. or its successor.
Gas Purchase and Sale Agreement
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"JOA" is defined in Section 2.2.3.
"Lease Use Gas" is defined in Section 2.2.3.
"LNG" is defined in Section 2.3.4.
"LNG Gas" is defined in Section 2.3.4.
"Long Term FT Sale" means a sale, assignment, or other form of
conveyance or transfer of rights to use excess capacity on firm transportation
acquired by Purchaser or Seller under Sections 3.6.1 or 3.6.2, for a period
having a duration of at least twelve (12) Months.
"Mcf" will be defined for each Delivery Point by the terms of the
Tariff of the Transporter for each such Delivery Point.
"Mid Term FT Sale" means a sale, assignment, or other form of
conveyance or transfer of rights to use excess capacity on firm transportation
acquired by Purchaser or Seller under Sections 3.6.1 or 3.6.2, for a period
having a duration of greater than one Month but less than one (1) year.
"MMBtu" means one million (1,000,000) Btu's.
"MMcf" means 1,000 Mcf's.
"Minimum Daily Quantity" means, for any Day, the greater of (i) 875
MMcf's per Day of gas or (ii) 80% of Seller's Annual Equity Volumes, divided by
the number of Days in the calendar year for which Minimum Daily Quantity is
being calculated.
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"Minimum Monthly Quantity" means, for any Month, the Minimum Daily
Quantity for that Month multiplied by the number of Days in that Month.
"Money Rates" is defined in Section 7.1.
"Month" means the period commencing at the beginning of the first Day
of a calendar month and ending at the beginning of the first Day of the
immediately following calendar month.
"Monthly Deficiency Payment" means, for any Month, the product of (i)
the Deficiency Charge (in $/Mcf) for such Month and (ii) the Monthly Deficiency
Volume (in Mcf's) for such Month.
"Monthly Deficiency Volume" means, for any Month, a volume (in Mcf's)
equal to the amount, if any, by which (i) the Minimum Monthly Quantity for such
Month exceeds (ii) the amount of Committed Gas actually made available for
delivery by Seller and any Seller Affiliate to Purchaser at the Delivery Points
in such Month (even if not taken by Purchaser). For purposes of clause (ii) of
this definition, Committed Gas actually made available shall be deemed to
include, in a Month, (a) all volumes of Committed Gas suspended or released
under Section 4.4, Section 7.8, or Section 11.3, or released by Purchaser under
Section 10.2, in each case, that would have otherwise been made available in
that Month, (b) gas marketed by Purchaser on behalf of Seller, if any, under
the Agency Agreement in that Month, (c) gas that would have otherwise been
produced and made available from a Shut-In Well in that Month, (d) gas supplied
by Seller or any Seller Affiliate under Section 2.8.3 in that Month, and (e)
gas which would have been marketed by Purchaser on behalf of Seller in that
Month under the Agency Agreement but for the termination of the Agency
Agreement by Seller pursuant to Section 1.5 of the Agency Agreement.
"Moody's" means Xxxxx'x Investors Service, Inc.
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"Non-Conventional Gas" is defined in Section 2.2.7.
"Non-Initiating Party" is defined in Section 12.2.1.
"OBA" is defined in Section 3.5.
"OFO's" is defined in Section 3.4.
"Operator Control Report" means the report submitted to Purchaser by
Seller for each Delivery Point showing the Operator Control Volumes and
submitted by Seller to Purchaser prior to the earlier of one hour prior to the
nomination deadline of the applicable Transporter or 9:00 a.m. Central
prevailing time on the Business Day before the Day on which the gas will flow,
or if no Operator Control Report is submitted by such time, the quantity as set
out on the last prior Operator Control Report covering gas at such Delivery
Points.
"Operator Control Volume" means, for any Delivery Point, Seller's best
estimate of the quantity of gas to be produced by Seller and each Seller
Affiliate and delivered at such Delivery Point on the Day in question, which
best estimate will be set out in the Operator Control Report submitted by
Seller to Purchaser.
"Other Services" is defined in Section 2.2.5.
"Other Services Gas" is defined in Section 2.2.5.
"Overdelivery" is defined in Section 3.3.
"Party" or "Parties" is defined in the preamble of this Agreement.
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"PDR" is defined in Section 12.1.
"Person" means any corporation, partnership, joint venture, limited
partnership, limited liability company, or other person or separate legal
entity.
"Post-Effective Date Commitment Gas" is defined in Section 2.2.2.
"Pre-Effective Date Commitment Gas" is defined in Section 2.2.1.
"Previous Burdens" is defined in Section 2.2.1.
"Previously Acquired Properties" is defined in Section 2.2.1.
"Pricing Pool" means the area or zone on any Transporter in which the
same index price is referenced for all gas purchased and sold in such area or
zone. The Pricing Pools agreed to by Seller and Purchaser as of the Effective
Date are listed in Exhibit A. As Pricing Pools change from time to time,
Exhibit A shall be revised to reflect any additions or deletions agreed to by
both Parties.
"Property Management Gas" is defined in Section 2.2.9.
"PTR" is defined in Section 2.3.2.
"Purchaser" is defined in the preamble of this Agreement.
"S&P" means Standard & Poor's Corporation.
"SEI" means Southern Energy, Inc., a Delaware corporation.
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"Seller" is defined in the preamble of this Agreement.
"Seller Affiliate" means, with respect to Seller, any Person 50% or
more of whose outstanding voting securities are directly or indirectly owned,
controlled, or held with the power to vote by Seller.
"Seller's Reservations" means the reservations of Seller described in
Section 2.3
"Short Term FT Sale" means a sale, assignment, or other form of
conveyance or transfer of rights to use excess capacity on firm transportation
acquired by Purchaser or Seller under Sections 3.6.1 or 3.6.2, for a period
having a duration of no more than one Month or of no more than thirty-one (31)
Days if such rights begin on a Day that is not the first Day of a Month.
"Shut-In Period" means, for a Shut-In Well, the period that begins at
the time at which Purchaser receives Seller's notice that a Shut-In Well has
ceased production, which notice shall be effective if delivered orally during
regular business hours, followed by written confirmation, and shall be deemed
to end on the earlier of (i) the resumption of production or (ii) 5:00 p.m. on
the Day Seller receives Purchaser's notice of the resumption of purchases if
such notice is received prior to 1:00 p.m. or 8:00 a.m. on the next Day if
Seller receives Purchaser's notice after 1:00 p.m on a Day.
"Shut-In Well" means a Seller-operated well or a Seller
Affiliate-operated well that does not produce or flow any quantities of gas for
a period of time because (i) Purchaser fails to take such gas, (ii) such
failure is not excused hereunder, and (iii) Seller or Seller Affiliate is
unable to either sell such gas to a third party at the Delivery Point or
arrange for the transportation of such gas beyond the Delivery Point, without
consideration of the price Seller or Seller Affiliate would receive to resell
such gas or the cost of such transportation (but without limiting Seller's
rights under Section 4.4).
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"Shut-In Well Damages" means, for a Shut-In Well, an amount equal to
the sum of (i) the product of (A) the quantity of Committed Gas that would have
been produced from such Shut-In Well (based on the volumes shown in the
Operator Control Report for the Delivery Point for such Shut-In Well) and (B)
25% of the Tiered Pool Price applicable to such Committed Gas less all
applicable Transportation Costs, plus (ii) for any Nonconventional Gas for
which Seller or Seller Affiliate would have been allowed tax credits under
Section 29 of the Code, 25% of the Tax Credit Value for each MMBtu of such gas.
"Small Non-Operated Well Gas" is defined in Section 2.2.4.
"Source of Supply" means the well, common field point, field, or
similar designation used by Seller to describe the properties and other
interests of Seller or any Seller Affiliate producing Committed Gas.
"Split Connect Committed Gas" is defined in Section 4.3.
"Subsequent Burdens" is defined in Section 2.2.2.
"Subsequently Acquired Properties" is defined in Section 2.2.2.
"Tariff" means the applicable rate schedules, terms and conditions and
other provisions filed with the FERC or other state or federal agency having
jurisdiction over services provided by the Transporter of gas sold and
purchased under this Agreement, or, if the entity providing service does not
file rate schedules or terms and conditions of service with a regulatory
agency, the contractual terms and conditions under which the Transporter
transports gas purchased under this Agreement.
"Tax Credit Value" means, for any calendar year, the dollar value per
MMBtu of the credits allowed for such calendar year for federal income tax
purposes by Section 29 of the Code.
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Confidential Treatment Requested.
The redacted material has been
separately filed with the Commission.
"Tax Law Change Gas" is defined in Section 2.2.8.
"The Southern Company" means The Southern Company, a Delaware
corporation.
"Third Party Operations Gas" is defined in Section 2.2.6.
"Tiered Pool Price" is defined in Section 4.2.2.
* "Tolerance Level" means (i) for REDACTED Pricing Pools designated in
writing by Seller to Purchaser prior to the Effective Date and at least ten
* (10) Days' prior to REDACTED (otherwise the Pricing Pools for the REDACTED
* shall be used), REDACTED MMBtu's per Day and (ii) for all other Pricing
* Pools, REDACTED MMBtu's per Day. The REDACTED initial Pricing Pools
* designated by Seller under clause (i) of this definition are REDACTED.
* "Transportation Constraint Margin" means REDACTED per MMBtu of gas.
"Transportation Costs" means, for any Delivery Point and Pricing Pool,
all actual costs to receive, transport, and redeliver Committed Gas at and
after each such Delivery Point to the Pricing Pool for each such Delivery
Point, including annual charge adjustments (ACA), fees for conditioning,
compression, dehydration, extraction, processing, gathering, separation,
sweetening, or treating, pipeline transportation charges (whether demand or
commodity charges), fuel costs, line loss allowances, line charges, and Gas
Research Institute surcharges, or if Purchaser resells Committed Gas at a
Delivery Point, all such costs that would have been incurred or paid by
Purchaser to receive, transport, and redeliver such Committed Gas to the
Pricing Pool for such Delivery Point.
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"Transporter" means the first pipeline or gatherer receiving the gas
for the account of Purchaser immediately downstream of the Delivery Point or
the Pricing Pool.
"Underdelivery" is defined in Section 3.3.
"VGM" means Vastar Gas Marketing, Inc., a Delaware corporation.
"Voting Representatives" is defined in Section 12.1.
2. COMMITMENT OF GAS AND OBLIGATION TO PURCHASE
2.1 Committed Gas. Subject to the terms and conditions of this
Agreement, Seller commits to the performance of this Agreement and shall sell
and deliver, or cause to be delivered, one hundred percent (100%) of the
Committed Gas, and Purchaser shall purchase and receive, or cause to be
received, one hundred percent (100%) of the Committed Gas made available by
Seller. "Committed Gas" is defined as all gas produced and owned or controlled
by Seller and any Seller Affiliate within the Committed Area during the term of
this Agreement, including such gas produced from xxxxx in existence on the
Effective Date, xxxxx drilled or re-completed subsequent to the Effective Date
in the Committed Area and make-up gas accruing to, and capable of being
delivered by, Seller or any Seller Affiliate after the Effective Date as a
result of production or pipeline imbalances, regardless of whether the
imbalances occurred before or after the Effective Date, in all cases, other
than Excluded Gas.
2.2 Excluded Gas. "Excluded Gas" means Pre-Effective Date
Commitment Gas, Post-Effective Date Commitment Gas, Lease Use Gas, Small
Non-Operated Well Gas, Other Services Gas, Third Party Operations Gas,
Non-Conventional Gas, Tax Law Change Gas, Property Management Gas, and
Cogeneration Gas, as each is defined in this Section 2.2.
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Confidential Treatment Requested.
The redacted material has been
separately filed with the Commission.
2.2.1 Pre-Effective Date Commitment Gas."Pre-Effective Date
Commitment Gas" means (i) gas that is produced from any well, oil, gas or
mineral lease, mineral interest, fee interest, and other right or interest
to produce gas owned or controlled by Seller or Seller Affiliate on the
Effective Date (the "Previously Acquired Properties") and that is subject
to or burdened by contracts or contractual provisions in place at the
Effective Date (the "Previous Burdens") that (a) prohibit Seller or Seller
Affiliate from selling all or a portion of the gas to Purchaser under this
Agreement or (b) penalize Seller or Seller Affiliate for selling all or a
portion of the gas to any affiliate of Seller or Seller Affiliate, until
such time as the gas may be sold and delivered to Purchaser as a result of
termination or cancellation of the term of any such Previous Burdens or
other release of the gas from any such Previous Burdens, or (ii) royalty or
overriding royalty interests reserved by or conveyed to Seller or Seller
Affiliate prior to the Effective Date which Seller or Seller Affiliate is
expressly or implicitly permitted to take in kind, but which Seller or
Seller Affiliate has chosen or shall choose not to take in kind. For all
gas described in (i) above, (except for gas subject to calls in favor of
third parties) Seller shall, to the best of its knowledge, list in Exhibit
B the Previously Acquired Property from which such gas is produced or the
Previous Burden to which such gas is subject. Exhibit B will be
supplemented to include any additional Previously Acquired Properties or
Previous Burdens that Seller discovers from time to time.
2.2.2 Post-Effective Date Commitment Gas. "Post-Effective Date
Commitment Gas" means (i) gas that is produced from well(s), oil, gas or
mineral leases, mineral interests, fee interests, and rights and interests
to produce gas acquired by Seller or any Seller Affiliate from third
* parties REDACTED
* REDACTED
* REDACTED
* REDACTED
* REDACTED
* REDACTED
* REDACTED
* REDACTED
* REDACTED
Gas Purchase and Sale Agreement
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Confidential Treatment Requested.
The redacted material has been
separately filed with the Commission.
* REDACTED
* REDACTED
* REDACTED
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2.2.3 Lease Use Gas. "Lease Use Gas" means gas produced
from xxxxx in which Seller has an interest for purposes of meeting all
requirements of the leases relating to such xxxxx or for the operation
of such xxxxx, in quantities deemed necessary by Seller or Seller
Affiliate acting as a prudent operator, including gas used, allocated
or consumed for purposes of gas lift, recycling, pressure maintenance,
separation and dehydration fuel, line loss,
Gas Purchase and Sale Agreement
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Confidential Treatment Requested.
The redacted material has been
separately filed with the Commission.
secondary or tertiary recovery, equipment fuel, delivery to a third
party for purposes of clearing a positive co-owner or joint operating
agreement ("JOA") imbalance incurred by Seller or Seller Affiliate,
satisfying in- kind royalty obligations to the extent such obligations
require Seller or Seller Affiliate to deliver royalty or overriding
royalty gas to a third party, satisfaction of free gas delivery
obligations, delivery of gas to a third party in consideration of
delivery by that third party to Seller or Seller Affiliate of
equivalent (although not always equal) quantities of gas at a
different location, and the injection of non-hydrocarbon gases which
may alter the quality and characteristics of the gas in its natural
state. Lease Use Gas used by Seller or Seller Affiliate in connection
with the operation of the well located on the lease producing such
Lease Use Gas, or a well located on a different lease in instances
where gathering or transportation downstream of the applicable
Delivery Point is not required to transport the Lease Use Gas to the
different lease, will not appear in an Operator Control Report. Lease
Use Gas used by Seller or Seller Affiliate in connection with the
operation of a well in which Seller or Seller Affiliate has an
interest located on a lease other than the lease producing such Lease
Use Gas, and requiring gathering or transportation downstream of the
applicable Delivery Point, will: (i) not constitute Committed Gas but
will appear in an Operator Control Report specifically designated as
Lease Use Gas; (ii) be purchased by Purchaser at the applicable Index
Price; (iii) be transported by Purchaser to the location designated by
Seller or Seller Affiliate; and (iv) be resold to Seller or Seller
Affiliate at the same Index Price. Purchaser shall be reimbursed for,
and indemnified by Seller against, all costs and expenses paid to
third parties to transport such Lease Use Gas, including an
* administrative fee of REDACTED per MMBtu.
2.2.4 Small Non-Operated Well Gas. "Small Non-Operated
Well Gas" means gas produced from any well operated by a third party
that produces less than 200 Mcf per Day net to Seller's or Seller
Affiliate's working interest in such well that (a) Seller or Seller
Affiliate elects to sell to the operator of such well or the marketing
affiliate of such operator or elects to have such operator or any
affiliate of such operator market on behalf of Seller or
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(b) Purchaser elects to release to Seller at any time because
Purchaser determines it would be administratively difficult to
purchase hereunder (which release shall not affect the Minimum Monthly
Quantity obligation of Seller).
2.2.5 Other Services Gas. "Other Services Gas" means gas
sold by Seller or any Seller Affiliate to third parties providing
Other Services. "Other Services" means gathering, treating,
conditioning, transporting, or other gas services provided by third
parties or their affiliates upstream of any Pricing Pool for any well
of Seller or any Seller Affiliate. Seller shall notify Purchaser when
it begins negotiation to sell gas to a third party pursuant to this
Section 2.2.5. Seller shall give Purchaser at least five (5) Business
Days advance notice before Seller sells gas under this Section 2.2.5
by entering into a contract with a third party providing Other
Services. The notice shall (i) describe all of the terms of the
proposed contracts with the third party and the third party's
affiliates, including the sales price and transportation, gathering,
treating, conditioning and other fees or costs for services to be
provided by the third party or its affiliates and (ii) quantify the
additional royalty, transportation, gathering, treating, conditioning
and other fees or costs which Seller or Seller Affiliate will incur to
purchase the same services from the same, or a different provider if
Seller or Seller's Affiliate does not sell the gas to the third party.
The gas covered by Seller's notice will remain Committed Gas if, but
only if, within five (5) Business Days after receipt of Seller's
notice, Purchaser agrees in writing that Purchaser will reimburse the
additional transportation, gathering, treating, conditioning, and
other fees or costs which Seller or Seller Affiliate will incur if it
sells the gas to Purchaser and/or adjust the price for the gas so that
the net revenues received by Seller or Seller Affiliate through sale
of the gas to Purchaser are equal to the sum of the net revenues
Purchaser would have received through the proposed sale to the third
party, in both cases, taking into account the costs incurred by Seller
or Seller Affiliate for Other Services.
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2.2.6 Third Party Operations Gas. "Third Party Operations
Gas" means Seller's or Seller Affiliates' gas production that from
time to xxxx Xxxxxx may determine can be more efficiently sold to an
operator or a marketing affiliate of an operator in the field or
offshore block from which such gas is produced or in other fields or
blocks in the vicinity thereof because of arrangements between such
operator and Seller or Seller Affiliate, which would result in reduced
cost of operations or more efficient development of Seller's
properties in the field or offshore block. Gas commitments which
Seller considers Third Party Operations Gas as of the Effective Date
are listed on Exhibit B. Seller shall give Purchaser at least five
(5) Business Days advance notice before Seller or Seller Affiliate
acts on any such determination under this Section 2.2.6 by entering
into any facilities sharing agreement, processing, gathering or
compression agreement or the like with such operator. The notice shall
(i) describe all of the terms of Seller's or Seller Affiliate's
proposed agreements with such operator or operator's affiliate and
(ii) quantify any royalty, gathering, treating, processing, or other
operating cost savings and the value to Seller or Seller Affiliate of
any efficiencies that can be achieved through the sale of gas to the
operator or operator's affiliate. The gas covered by Seller's notice
will remain Committed Gas if, but only if, within five (5) Business
Days after receipt of Seller's notice, Purchaser agrees in writing
that, for the longest term provided in any of the agreements with the
operator and/or operator's affiliate, Purchaser will reimburse
Seller's or Seller Affiliate's additional costs and/or adjust the
price for the gas so that the net revenues received by Seller or
Seller's Affiliate through sale of the gas to Purchaser are equal to
the sum of the net revenues Seller or Seller's Affiliate would have
received through the proposed sale to operator or operator's affiliate
plus the value to Seller or Seller Affiliate of the additional
efficiencies shown on Seller's notice.
2.2.7 Non-Conventional Gas. "Non-Conventional Gas" means
gas which is produced from Devonian shales, coal seams, coal beds, or
tight gas sands in each case as defined for purposes of Section 29 of
the Code, as amended ("Code") or any Code section replacing Section
29, unless and until Seller shall receive a private letter ruling from
the
Gas Purchase and Sale Agreement
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Internal Revenue Service ("IRS") or otherwise become aware of a
published IRS regulation or ruling, which, in either case, Seller
determines, in its sole judgment, permits a sale of Non-Conventional
Gas to Purchaser under this Agreement without adverse tax consequences
to Seller or any Seller Affiliate or to any parent corporation of
Seller. Notwithstanding anything to the contrary in this Section
2.2.7, Seller agrees to sell and Purchaser agrees to purchase
Non-Conventional Gas (except to the extent that any Non-Conventional
Gas is not Committed Gas pursuant to any other section of this
Agreement), beginning on the Effective Date and continuing through
December 31, 1997. If on or before December 31, 1997, Seller has not
determined in accordance with this Section 2.2.7 that Non-Conventional
Gas can be sold to Purchaser without adverse tax consequences under
the Code, then beginning on January 1, 1998, Seller agrees to allow
Purchaser to market Seller's Non-Conventional Gas as Seller's
exclusive agent under the terms of the Agency Agreement. The Agency
Agreement shall continue pursuant to its terms, but in no event longer
than the term of this Agreement, until Seller's determination, if any,
that Non-Conventional Gas can be sold to Purchaser without such
adverse tax consequences under the Code. Seller shall provide
Purchaser with written notice of such determination, if any, and
Non-Conventional Gas shall then become Committed Gas on the first Day
of the Month following expiration of thirty (30) Days after the date
of such notice. The Agency Agreement shall automatically terminate as
of that same date. Purchaser agrees not to sell or resell in its
capacity as agent or otherwise any of Seller's Non-Conventional Gas to
any Person designated in writing by Seller that would be considered
related to Seller within the meaning of Section 29(d)(7) of the Code.
2.2.8 Tax Law Change Gas. "Tax Law Change Gas" means gas
that, as a result of a change in the Code after the Effective Date,
Seller determines, in good faith, would provide tax benefits to Seller
if sold to another party. Seller shall give Purchaser no less than
sixty (60) days prior notice of any gas that Seller intends to exclude
under this Section 2.2.8. Any
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gas excluded under this Section 2.2.8 shall be marketed by Purchaser
under the Agency Agreement.
2.2.9 Property Management Gas. "Property Management Gas"
means gas produced from any Sources of Supply from and after the date
on which Seller's or Seller Affiliates' interests in any such Sources
of Supply are sold, conveyed, transferred, assigned, exchanged,
released, relinquished, abandoned, surrendered, allowed to expire,
farmed out, or otherwise diminished (to the extent of the
diminishment).
2.2.10 Cogeneration Gas. "Cogeneration Gas" means gas that
Seller elects to exclude from this Agreement to the extent such gas is
required by VGM to perform under the Cogen Contracts. "Cogen
Contracts" means the contracts attached as Exhibit A of the Natural
Gas Sales Agreement for Cogen Contracts, dated of even date herewith,
between VGM and Purchaser.
2.3 Seller's Reservations.
2.3.1 Right to Control Production and Curtailment. Seller
or Seller Affiliate reserves the right, acting as a prudent operator,
at any time to limit, curtail or shut-in production of Committed Gas
from any well or xxxxx (collectively referred to as "curtail or
curtailment"), but not to sell such production to any party other than
Purchaser, if Seller or its operator or Seller Affiliate or its
operator determines that curtailment is warranted as a result of any
mechanical, engineering, legal, title, or other field or well
condition. Seller or Seller Affiliate also reserves the right to
curtail production of Committed Gas from any well or xxxxx if Seller
or Seller Affiliate concludes such action is warranted based on
prevailing market prices for natural gas or other commodities. Seller
shall use its best efforts to give purchaser advance written notice of
curtailment for economic reasons. If Seller or Seller Affiliate deems
it prudent to curtail production of Committed Gas, Seller shall give
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Purchaser written notice in the FOM Availability Report or Operator
Control Report. Seller's notice hereunder shall set forth the
quantity of Committed Gas to be curtailed, the Delivery Point(s)
affected and the estimated duration of the curtailment.
2.3.2 Right to Process. Seller reserves the right to
process, on behalf of itself and each Seller Affiliate, all or any
portion of the Committed Gas deliverable to Purchaser under this
Agreement for the removal of all or any constituents other than
methane, except those minimum quantities of methane necessarily
removed during gas processing. Such processing rights may be
exercised for any Month either before or, if the Transporter permits,
after delivery of the Committed Gas to Purchaser by giving Purchaser
written notice no less than six (6) Business Days prior to the first
Day of each such Month. When Seller is exercising its (or Seller
Affiliate's) right to process Committed Gas, title to the liquefiable
hydrocarbons and other constituents removed and consumed during
processing (including incidental methane, plant fuel, flare and loss
across the processing plant) shall not pass to Purchaser, but shall
remain at all times in Seller or Seller Affiliate. Seller shall
reimburse Purchaser for any transportation fees and other costs
charged by the Transporter or other processor to transport or deliver
any plant thermal reduction volumes ("PTR") to the processing plant,
but Seller hereby reserves the right to enter into its own PTR
transportation agreement with the applicable Transporter. Purchaser
and Seller will cooperate to facilitate the exercise of Seller's
processing right, including taking the actions described in the
remainder of this Section 2.3.2.
2.3.2.1 PTR Nominations. Purchaser shall nominate to
Transporter the PTR in accordance with Seller's requests in the FOM
Availability Report.
2.3.2.2 Accounting and Billing Procedures. When and if
Seller elects to exercise its processing rights, Seller will establish
reasonable accounting and billing procedures so that (i) Purchaser
will pay only for the quantities of Committed Gas remaining after
processing
Gas Purchase and Sale Agreement
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and (ii) all charges of the Transporter will be equitably allocated
between Purchaser and Seller, with Seller bearing all costs
attributable to the exercise of its processing rights and Purchaser
bearing all costs attributable to transportation from and after the
applicable Pricing Pool for the Committed Gas remaining after
processing.
2.3.2.3 Offshore Condensate. Seller's or Seller Affiliate's
gas xxxxx may produce liquid hydrocarbons (condensate) along with the
Committed Gas to be delivered under this Agreement. To the extent
that any Delivery Point provided for in this Agreement is located on
or in the vicinity of a Source of Supply, and if the Transporter
allows, Seller or Seller Affiliate may inject condensate into the gas
stream delivered hereunder for transportation and redelivery to Seller
or Seller Affiliate at a separation facility located onshore. Seller
reserves the right, on behalf of itself and Seller Affiliate, to
negotiate all charges attributable to Seller's or Seller Affiliate's
injected condensate. Seller agrees to bear, or reimburse Purchaser
for, all such charges of the Transporter attributable to the
injection, transportation, and redelivery of Seller's or Seller
Affiliate's condensate.
2.3.2.4 Documentation of Charges. Purchaser shall furnish
Seller with documentation establishing the actual charges incurred by
Purchaser to be reimbursed by Seller under Sections 2.3.2.2 and
2.3.2.3. Such documentation shall reflect the method of allocation of
such charges between Purchaser and Seller. Upon agreement of the
Parties, amounts paid by Purchaser to be reimbursed under Sections
2.3.2.2 and 2.3.2.3 may be netted against amounts Purchaser is
obligated to pay Seller for Committed Gas delivered under this
Agreement.
2.3.3 Property Management. Seller reserves, on behalf of
itself and Seller Affiliate, all rights to sell, convey, transfer,
assign, exchange, release, relinquish, abandon, surrender, allow to
expire, farmout, diminish its interest in, enter into, modify, waive
or enforce rights under any lease, operating agreements, unit
agreements, pooling agreements, exploration
Gas Purchase and Sale Agreement
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agreements, areas of mutual interest, and other similar agreements, as
well as engage in any transaction it deems appropriate (other than
making sales of gas in contravention of this Agreement), in its sole
discretion, affecting any Source of Supply and the amount of gas
attributable or allocable to Seller's or Seller Affiliate's ownership
interest therein.
2.3.4 Liquefied/Converted Methane. "LNG Gas" means methane
liquefied into liquid natural gas ("LNG") or converted into synthetic
crude or synthetic hydrocarbon products. As to any methane which
Seller, on behalf of itself or Seller Affiliate, elects to liquefy or
convert into synthetic hydrocarbons, such methane shall not be
Committed Gas and title to the LNG's or synthetic hydrocarbons shall
not pass to Purchaser hereunder, but shall remain at all times with
Seller or Seller Affiliate. Seller shall give Purchaser at least one
(1) year advance notice of any election under this Section. Seller
may, in conjunction with its election, request that Purchaser market
LNG Gas on behalf of Seller or Seller Affiliate, provided that Seller
and Purchaser agree on the terms of such a marketing arrangement.
2.3.5 Processable Gas Multiple Connects. With respect to
Sources of Supply connected, directly or indirectly, to multiple
pipelines or gathering lines, and producing gas or delivering gas that
is processed or processable at one or more gas processing plants
(including separation and dehydration facilities) to which one or more
of the multiple pipelines or gathering lines may be connected, Seller
hereby reserves the right, on behalf of itself and Seller Affiliate,
to direct, in its reasonable discretion, the Committed Gas from such
Sources of Supply to the pipeline or gathering line of Seller's choice
so that the Committed Gas may be processed in the processing plant (or
separation or dehydration facilities) preferred by Seller or Seller
Affiliate. The Committed Gas shall be delivered to Purchaser at the
applicable Delivery Point or Pricing Pool, as the case may be, based
upon the pipeline or gathering system chosen by Seller. Seller shall
notify Purchaser of any change in Pricing Pool (as a result of any
direction made by Seller herein) at least six (6)
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Business Days before the first Day of the Month. If any direction
made by Seller under this Section 2.3.5 results in Purchaser being
required to resell such Committed Gas at a price less than the Tiered
Pool Price for such Pricing Pool (because of Transporter constraints
at the applicable Pricing Pool), the Parties shall communicate in the
same manner as provided in Section 4.6 and Seller shall pay Purchaser
for such Committed Gas at the price calculated under Section 4.6. Any
amount due Purchaser hereunder shall be deducted from amounts paid
Seller under Section 7.1 and 7.2. Concurrently, with the submission
of Purchaser's invoice under Section 7.1, Purchaser shall submit a
statement showing the calculation of the amount due Purchaser and the
facts demonstrating the Transporter constraint at the applicable
Pricing Pool.
2.4 Addition of New Sources of Committed Gas. If Seller or Seller
Affiliate acquires or develops new sources of Committed Gas or enhances the
productive capacity of existing Sources of Supply, Seller shall give Purchaser
notice as soon as is reasonably possible of the new Source of Supply or
increased production, including an estimate of the date of initial deliveries,
source name, avails code, meter number, transporter, county and state. The
notice shall also identify the Index Price, Gas Daily Midpoint Price, Delivery
Point, Pricing Pool, and Transportation Costs Seller believes are applicable to
the new Source of Supply. Purchaser and Seller shall work cooperatively to
identify the Index Price, Gas Daily Midpoint Price, Delivery Point, Pricing
Pool, and applicable Transportation Costs and to amend Exhibit A to provide
such information for the new Source of Supply. If Purchaser and Seller are
unable to agree upon the Index Price, Gas Daily Midpoint Price, Delivery Point,
Pricing Pool, and/or Transportation Costs for the new Source of Supply, the
disputed matter will be handled under the dispute resolution and arbitration
procedures set out in Article 12. Whenever reasonably practical, Seller shall
provide such notice to Purchaser at least sixty (60) Days in advance of the
date the gas is expected to be available to Purchaser. Purchaser shall make
whatever changes are required to its gas management system to add the new
Source of Supply and provide appropriate cross reference information. Not
later than thirty (30) Days after the new Source of Supply commences
production, Purchaser shall provide Seller the arrangement numbers
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(reference numbers of Seller for Delivery Point(s) which have the same Index
Price and Transportation Costs) for the new Source of Supply. No later than
the last Business Day preceding the Month of delivery, Purchaser shall provide
Seller a monthly variance report for Exhibit A for the Month in which
deliveries commence from the new Source of Supply that shows the new Source of
Supply with the assigned arrangement number and any changes to existing
arrangement numbers.
2.5 Gas Calls. Seller owns or controls, and Seller and Seller
Affiliates may later acquire, certain contractual rights to call and purchase
gas owned by third parties. If Seller or Seller Affiliate exercises a call on
gas, such gas shall, subject to the other provisions of this Agreement, be
considered Committed Gas for so long as Seller continues the exercise of any
such call or calls. Purchaser may request, from time to time, that Seller
exercise a call or calls on gas. If Purchaser requests Seller to exercise a
call on gas as to a well or xxxxx for which Seller does not choose to exercise
its call, Seller shall exercise the call, if, but only if, Purchaser agrees in
writing to pay Seller for any additional out-of-pocket costs or expenses which
Seller incurs, on account of exercising Seller's call.
2.6 Co-Owner Gas. Seller may have certain contractual or legal
rights to purchase or market gas owned by third parties having working or
non-operating interests in xxxxx operated by Seller. Seller hereby reserves
the right to purchase or market such gas owned by such third parties as Seller
deems proper in its reasonable discretion. If Seller elects to purchase or
market such gas owned by such third parties, such gas shall, subject to the
other provisions of this Agreement, be considered Committed Gas for so long as
Seller, in its reasonable judgment, continues purchasing or marketing such gas.
2.7 First of the Month Availability Reports. No later than the
sixth (6th) Business Day prior to the First Day of each Month, Seller shall
submit to Purchaser its FOM Availability Report setting forth Seller's best
estimate of the quantity of Committed Gas that Seller and each Seller Affiliate
will produce in such Month and deliver to Purchaser at each Delivery Point
during such
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Month. No later than the fifth (5th) Business Day prior to the first Day of
each Month, Purchaser will confirm with Seller the total quantity of Committed
Gas made available in the FOM Availability Report. The Sources of Supply and
Delivery Points for such gas are listed on Exhibit A. The content of and
amendment or notice procedures concerning Exhibit A are described in Section
4.1 below. The quantity of Committed Gas available for delivery to a Delivery
Point will be expressed as an average daily quantity, and unless the FOM
Availability Report states otherwise, it shall be presumed that such quantity
will be delivered at a constant rate of flow throughout the Month. The report
shall identify the estimated quantity of Committed Gas that will be delivered
at each Delivery Point. The quantity of Committed Gas set forth in the FOM
Availability Report in effect at 8:00 a.m., Central Time, on the sixth (6th)
Business Day before the first Day of a Month will form the basis of the
quantity of Committed Gas nominated by Purchaser for first Day of the Month for
delivery into the applicable Transporter.
2.7.1 Daily Avails Procedure. Daily Avails are prepared
and calculated using the following collaborative procedure.
2.7.1.1 Operator Control. For each Delivery Point, Seller
shall make its best estimate of the quantity of gas to be produced by
Seller and each Seller Affiliate and delivered at each such Delivery
Point on the Day in question. This best estimate is based on expected
production for the next succeeding Business Day, usually one to three
Days into the future. The management tool used by Seller for this
purpose is referred to as "Operator Control". The quantity of gas so
estimated by Seller constitutes the Operator Control Volumes. The
Operator Control Volumes for all Delivery Points shall be set out on
the Operator Control Report which is generated by the Seller. All
significant modifications to estimated quantities of gas to be
produced after the 9:00 a.m. Central prevailing time deadline will be
communicated verbally in a timely manner from the appropriate Seller
personnel to the appropriate Purchaser personnel.
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2.7.1.2 Transporter EBB. Purchaser shall monitor volume
differences between the quantity of gas actually delivered by Seller
and the quantity of gas sold by Purchaser at each Delivery Point on
each Day in question. The management tool used throughout the Month
by Purchaser for such comparisons is referred to as the "Transporter
EBB". The volume differences shown to exist by the Transporter EBB
are referred to as "Transporter EBB Volume." Transporter EBB will be
considered the best source of quantities available for managing daily
gas flow and monitoring historic volume differences.
2.7.1.3 Dealmaker. Purchaser shall integrate the Transporter
EBB Volume with the Operator Control Volume. The management tool used
by Purchaser for this integration is referred to as "Dealmaker." The
integration of these volumes by Dealmaker produces the Daily Avails.
Purchaser shall manage Dealmaker so as to keep the difference between
actual quantities of gas delivered by Seller at each Delivery Point
and actual quantities of gas sold to third parties from or beyond each
Delivery Point at or near zero to the extent reasonably practicable.
To facilitate such management of Dealmaker, both Seller and Purchaser
shall arrange for employees of each to be on call (by telephone,
telefax and pager) 24 hours a Day on each Day during the term of this
Agreement. After each Month of delivery, Purchaser and Seller shall
make any necessary adjustments pursuant to Sections 3.3, 3.3.1, 3.3.2,
and 3.3.3.
2.7.2 Operator Confirmation to Transporter. In the event
of a conflict or difference between Purchaser's nomination to the
Transporter and the operator's confirmation to the Transporter, the
operator's confirmation to the Transporter shall control, unless the
provisions of the applicable Transporter's Tariff specify a different
result, in which case the provisions of Transporter's Tariff will
control.
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2.8 Minimum Volume Commitment.
2.8.1 Minimum Monthly Quantity. Notwithstanding Seller's
Reservations or the definition in Section 2.2 of Excluded Gas, during
each Month during the term hereof, Seller shall make available,
including gas delivered by a Seller Affiliate or under the Agency
Agreement, to Purchaser at the Delivery Points a quantity of gas equal
to the Minimum Monthly Quantity for that Month. Such Minimum Monthly
Quantity shall not be subject to amendment under Section 12.6 unless
agreed to in writing by both Parties.
2.8.2 Payment of Deficiency Payment. If Seller, for any
reason other than Force Majeure or inability to deliver because of
imposition of an OFO on Purchaser or Seller, fails to make available
the Minimum Monthly Quantity as required by Section 2.8.1 in any
Month, Seller shall pay to Purchaser the Monthly Deficiency Payment
for that Month by the twenty fifth (25th) Day of the following Month,
or Purchaser may deduct the Monthly Deficiency Payment from the
amounts paid by Purchaser under Section 7.2, at Purchaser's option.
2.8.3 Supply of Third Party Gas. If Seller reasonably
believes prior to the beginning of any Month that the volume of
Committed Gas to be delivered by Seller in such Month will be less
than the Minimum Monthly Quantity for such Month, Seller may deliver
gas purchased by Seller from third parties as Committed Gas hereunder,
up to 110% of the Minimum Monthly Quantity for such Month. Such third
party gas must be nominated and shown in the FOM Availability Report
for that Month or an Operator Control Report in that Month and
otherwise follow the procedures in Section 2.7. Such third party gas
shall be delivered to Delivery Points selected by Purchaser and
Seller. If Purchaser and Seller are unable to agree upon the Delivery
Points for such Month, Seller shall deliver such third party gas to
the Pricing Pools identified in the FOM Availability Report for the
prior Month in quantities proportional to the quantities of gas
delivered in the prior Month at such Pricing Pools.
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2.8.4 Liquidated Damages. The Parties agree that Purchaser
will be tangibly damaged if Seller fails to deliver the Minimum
Monthly Quantity in any Month and the exact measure of such damages is
difficult, if not impossible, to determine, and that payment of the
Monthly Deficiency Payment is a reasonable estimate of such damages.
The Monthly Deficiency Payment represents not only Purchaser's cash
margin from the resale of Committed Gas, but also includes
reimbursement of trading losses, nonperformance charges assessed to
Purchaser because of its inability to redeliver to its buyer, loss of
Purchaser's trading liquidity and damage to Purchaser's business
reputation as a full service energy marketer, and other similar
losses.
3. TRANSPORTATION AND PENALTIES
3.1 Upstream Gathering and Transportation Agreements. Seller
shall be responsible for the costs and expenses of all transportation and
gathering charges necessary for Purchaser to deliver Committed Gas from the
Delivery Point to the Pricing Pool for that Delivery Point. Purchaser shall
arrange, manage and operate all interruptible transportation downstream of the
Delivery Point. Purchaser shall use its commercially reasonable efforts to
obtain the lowest rate obtainable on each Transporter for interruptible
transportation used by Purchaser to transport Committed Gas on such
Transporter. The FT Rights shall be acquired and managed under Section 3.6.
Any amounts paid by or charged to Purchaser by a Transporter will be deducted
from amounts Purchaser is obligated to pay Seller for Committed Gas delivered
under this Agreement, as provided in this Article 3.
3.2 Transporter's Tariff. The rules, guidelines, and policies of
the Transporter shall define and set forth the manner in which the Committed
Gas purchased and sold under this Agreement is measured and transported.
Seller and Purchaser recognize that the receipt and delivery into Transporter's
pipeline facilities of Committed Gas purchased and sold under this Agreement
shall be subject to the operational procedures of Transporter as well as the
terms of Transporter's transportation service agreement(s) with Purchaser, if
any, addressing operational procedures.
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3.3 Imbalance Charges. The terms and conditions of Transporter's
Tariff shall be used to address penalties, scheduling fees, cash-out costs or
similar charges attributable to underdeliveries or overdeliveries of gas into
the pipeline (collectively "Imbalance Charges"). Imbalance Charges under this
Agreement will be assessed on a transporter-by-transporter basis using the
applicable terms of the Transporter's Tariff and as if Seller is the shipper
and Purchaser is the transporter. In instances of Split Connect Committed Gas,
as defined in Section 4.3 below, the tariff of the pipeline downstream of the
Delivery Point associated with the Index Price selected by Seller shall be used
for purposes of this Section 3.3. If an Imbalance Charge is assessed, then
Seller shall pay to Purchaser an amount calculated in accordance with the
applicable terms of Transporter's Tariff. An "Underdelivery" is defined as an
instance where the quantity of gas actually delivered to Purchaser at a given
Delivery Point in a Month is less than the Monthly quantity of Committed Gas
designated for delivery at that Delivery Point in the FOM Availability Report
as changed throughout the Month by timely revisions of the Daily Avails in
accordance with Section 2.7.1 above. An "Overdelivery" is defined as an
instance where the Monthly quantity of gas actually delivered to Purchaser at a
given Delivery Point is greater than the monthly quantity of Committed Gas
designated for delivery at that Delivery Point in the FOM Availability Report
as changed throughout the Month by timely revisions of the Daily Avails in
accordance with Section 2.7.1 above. At the request of Seller and upon
Purchaser's agreement, Purchaser will assist Seller in balancing Committed Gas
volumes (in accordance with the procedures of each Transporter's Tariff)
actually delivered against the volumes shown in the FOM Availability Report as
changed throughout the Month by timely revisions of the Daily Avails in
accordance with Section 2.7.1 to minimize Imbalance Charges. If the applicable
Transporter requires balancing on a daily basis, the definitions of
underdelivery and overdelivery shall be modified to reflect daily balancing as
opposed to monthly balancing. Overdeliveries by Seller into a Transporter at
one Delivery Point will be netted against underdeliveries into that Transporter
at a different Delivery Point to the extent permitted under that Transporter's
Tariff. Underdeliveries by Seller on one Transporter will not be netted
against overdeliveries by the Seller to a different Transporter absent the
Parties' consent and underdeliveries or overdeliveries by Seller will not be
netted against Overdeliveries or Underdeliveries of gas by other suppliers to
Purchaser.
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3.3.1 Underdeliveries -- Cash-Out Costs. In the event of
Underdeliveries by Seller in any Month for a Transporter, Seller shall
pay Purchaser an amount equal to (i) the Underdelivered volumes
multiplied by (ii) the first tier cash-out price, calculated in
accordance with such Transporter's Tariff. Where cash-out prices are
not specified in such Transporter's Tariff, the Underdelivered volumes
will be cashed out at the applicable First of the Month Commodity
Price in the third Month following production. If actual settlement
between Purchaser and a Transporter whose Tariff does not specify
cash-out prices is substantially different than the amount paid by
Seller to Purchaser, Purchaser shall have the right to negotiate such
settlement with Seller.
3.3.2 Overdeliveries -- Cash-Out Costs. In the event of
Overdeliveries by Seller in any Month for a Transporter, Purchaser
shall pay Seller an amount equal to (i) the Overdelivered volumes
multiplied by (ii) the first tier cash-out price, calculated in
accordance with such Transporter's Tariff. Where cash-out prices are
not specified in such Transporter's Tariff, the imbalance amount will
be cashed out at the applicable First of the Month Commodity Price in
the third Month following production. If actual settlement between
Purchaser and a Transporter whose Tariff does not specify cash-out
prices is substantially different than the amount paid by Purchaser to
Seller, Purchaser shall have the right to negotiate such settlement
with Seller.
3.3.3 Imbalance Trading. In the event of net Underdeliveries
or Overdeliveries by Seller in any Month and notwithstanding the
absence of an actual net Underdelivery or Overdelivery assessed by
Transporter, Purchaser will exercise reasonable commercial efforts to
mitigate the adverse consequences of the net Underdeliveries or
Overdeliveries through imbalance trading, or equivalent opportunities
set forth in the Tariff of the applicable Transporter. Purchaser and
Seller acknowledge the net Underdeliveries or Overdeliveries by Seller
calculated in accordance with this Agreement may or may not result in
a corresponding actual net Underdelivery or Overdelivery assessed by
Transporter pursuant
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to its Tariff. Purchaser shall be responsible for Imbalance Charges
assessed by a Transporter, unless Seller's actions or inactions are
responsible for or caused such Imbalance Charges.
3.4 Operational Flow Orders. Seller and Purchaser recognize that
Transporter may be authorized to issue Operational Flow Orders ("OFO's"), or
the equivalent, under its Tariff. Seller and Purchaser also recognize that
Transporter may issue an OFO that obligates Seller or Purchaser to take action
that may be contrary to the terms of this Agreement, including, the delivery
and taking of gas in quantities contrary to those set forth in the FOM
Availability Reports as changed throughout the Month by timely revisions of the
Daily Avails in accordance with Section 2.7.1. Seller and Purchaser agree to
use their best efforts to not cause the issuance of such an OFO. If an OFO is
issued, Seller and Purchaser agree that compliance with any duly authorized OFO
will not constitute a violation of this Agreement, provided that: (i) the
Party receiving an OFO notifies the other Party as soon as possible, with
telephone and telefax confirmation, and (ii) the Parties shall minimize the
operational and economic consequences of compliance with the OFO by all
commercially reasonable means at their disposal. If an OFO can be construed as
calling for the shutting-in of Seller production, the Parties will cooperate to
take steps alternative to a shut-in.
3.5 Operational Balancing Agreements. The Parties agree to use
their best efforts to maintain operational balancing agreements, or their
equivalent ("OBA"), at each Delivery Point and at such other points the Parties
deem advisable. With respect to any point at which an OBA is not in effect,
upon Seller's written request, Purchaser will assume the responsibility for
negotiating and implementing an OBA at such point(s) on terms and conditions
acceptable to Seller and Purchaser, if offered by a Transporter.
3.6 Firm Transportation. Seller may from time to time (by written
request to Purchaser) request firm transportation (the "FT Rights") for
specified volumes of Committed Gas at a Delivery Point or a Pricing Pool to
move Committed Gas downstream of such Delivery Point or Pricing Pool.
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Such request will be made only if Seller, in good faith, determines that the FT
Rights are required for the specified volumes of Committed Gas to flow at the
Delivery Point or Pricing Pool or are required to ensure that Seller receives
fair market value for its Committed Gas (or to diversify its price risk), but
only to the closest Pricing Pool where the fair market value (on a wholesale
basis) of the Committed Gas will be received.
3.6.1. Upstream of Pricing Pool. If Seller desires FT
Rights downstream of a Delivery Point and upstream of a Pricing Pool,
it may upon written notice to Purchaser obtain such FT Rights or it
may request that Purchaser seek to obtain such FT Rights (at Seller's
expense). Regardless of whether Seller or Purchaser obtains such FT
Rights, (i) Seller shall have title to and shall own such FT Rights
unless Purchaser agrees, at Seller's request, to take title to and own
such FT Rights, (ii) Seller shall bear all costs of such FT Rights,
(iii) Purchaser shall manage and operate such FT Rights, and (iv)
Purchaser shall be entitled to use and/or sell to third parties excess
capacity on such FT Rights.
3.6.2 Downstream of Pricing Pool. If Seller desires FT
Rights downstream of a Pricing Pool, it will first request (by written
notice) that Purchaser provide or obtain such FT Rights (at Seller's
expense). If Purchaser obtains such FT Rights at the request of
Seller, then Purchaser shall have title to and shall own such FT
Rights. Such FT Rights will be assigned to the Seller upon
termination of this Agreement. If Purchaser elects not to provide or
obtain, or cannot provide or obtain, such FT Rights on behalf of
Seller, then Seller may obtain such FT Rights and shall have title to
and shall own such FT Rights. Regardless of whether Purchaser or
Seller obtains such FT Rights, (i) Seller shall bear all costs of such
FT Rights, (ii) Purchaser shall manage and operate such FT Rights, and
(iii) Purchaser shall be entitled to use and/or sell to third parties
excess capacity on such FT Rights.
3.6.3 Marketing of Excess Capacity. With respect to any FT
Rights acquired under Sections 3.6.1 or 3.6.2, (i) Short Term FT Sales
with respect to all or part of such FT Rights
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Confidential Treatment Requested.
The redacted material has been
separately filed with the Commission.
may be made only by Purchaser and may be on such terms as Purchaser
considers reasonable and appropriate; (ii) Mid Term FT Sales with
respect to all or part of such FT Rights may be made by Purchaser or
Seller and may be made only on terms approved in advance by the other
Party, which approval may be obtained orally and followed by written
confirmation; and (iii) Long Term FT Sales with respect to all or part
of such FT Rights may be made only by Seller and Seller will provide
Purchaser at least fourteen (14) Days written notice prior to entering
into any such Long Term FT Sale, which notice shall set out the terms
of such proposed Long Term FT Sale. If Seller desires to sell any FT
Rights it owns having a duration of one (1) year or more, it may
request the Purchaser to sell such FT Rights on Seller's behalf. If
Purchaser elects to undertake to make such sale of FT Rights on
Seller's behalf, then Purchaser will negotiate the terms of any such
sale with potential buyers of such FT Rights in consultation with
Seller. Purchaser may purchase such FT Rights from Seller on such
terms as Seller and Purchaser may agree.
3.6.4 Revenue Sharing. As consideration for managing the
FT Rights obtained under Sections 3.6.1 or 3.6.2, Purchaser shall
* retain REDACTED of the cash profits generated by or accruing to either
Purchaser or Seller from the transportation of third party gas using
such FT Rights or resale of the FT Rights after payment to Transporter
or reimbursement to Seller of those commodity charges other than
demand or reservation charges for such FT Rights. If such FT Rights
are used by either Purchaser or Seller to conduct transactions in
which gas is purchased from a third party at one point, transported to
another point using such FT Rights, and resold to that third party at
* a higher price, then Purchaser shall retain REDACTED of the amount by
which (i) the price at which the gas is resold exceeds (ii) the price
at which the gas was purchased increased by the amount of the commodity
charges (but not demand or reservation charges) for such FT Rights. The
balance of the cash profits from the FT Rights shall be remitted to
Seller each Month under Article 7. Seller shall pay the demand and
reservation charges associated with the FT Rights.
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3.6.5 Other Firm Transportation Rights of Purchaser.
Nothing in this Section 3.6 shall grant Seller any rights with respect
to any rights held by Purchaser to firm transportation not acquired
pursuant to the terms of this Section 3.6.
3.6.6 Management Default. If Seller believes in good faith
that Purchaser is not managing the FT Rights in the manner in which
Purchaser manages its other firm transportation rights, Seller may
give written notice to Purchaser of such matters. If Purchaser does
not cure the deficient matters within thirty (30) Days, then Seller
may begin managing such FT Rights on the first Day of the Month
following the end of such thirty (30) Day period, until such time as
Purchaser can demonstrate that it can manage such FT Rights in the
manner in which it manages its other firm transportation rights.
4. COMMODITY PRICE
4.1 Description of Exhibit A. The Sources of Supply, Delivery
Points, Index Prices, Gas Daily Midpoint Price, Transportation Costs, and
Pricing Pools effective as of the Effective Date are set forth in Exhibit A to
this Agreement. As Sources of Supply, Delivery Points, Pricing Pools, and the
related Index Prices and Gas Daily Midpoint Price change from time to time,
Exhibit A shall be revised to reflect the addition or deletion of such matters.
The addition, modification, or deletion of Sources of Supply, Delivery Points,
Pricing Pools, Index Prices, and Gas Daily Midpoint Prices on Exhibit A
requires the agreement of both Seller and Purchaser. Any new Sources of
Supply, Delivery Points, or Pricing Pools, and the associated Index Prices, Gas
Daily Midpoint Price, and Transportation Costs that Seller and Purchaser have
agreed upon shall be set forth in a notice prepared by Purchaser and furnished
to Seller. The Parties shall amend Exhibit A to reflect the information
contained in any such notices, but the failure to so expressly amend Exhibit A
shall not affect Seller's obligation to deliver, and Purchaser's obligation to
purchase, Committed Gas from the new Sources of Supply or new Delivery Points.
Although the Parties will strive to reduce to writing all agreements amending
Exhibit A, the Parties recognize that market conditions may require
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Confidential Treatment Requested.
The redacted material has been
separately filed with the Commission.
prompt action. Consequently, oral agreements (if confirmed by telefax) will be
effective notwithstanding absence of a formal written agreement. Each Party
agrees to reduce such oral agreements to writing within thirty (30) Days of
reaching agreement. If the Parties agree that Inside FERC or Gas Daily does
not report a price applicable to a Pricing Pool, the Parties shall agree upon
an alternative index price for that Pricing Pool. If the Parties fail to agree
upon an alternative index price, then the matter shall be submitted to
arbitration under Article 12.
4.2 Prices Applicable to Deliveries of Committed Gas Each Month
4.2.1 Tiered Pool Price. For Committed Gas delivered to
each Delivery Point in each Month, Purchaser shall pay the Tiered Pool
Price (as defined below) for the Pricing Pool for such Delivery Point
on that Day less the Transportation Costs for that Delivery Point
multiplied by the sum of the aggregate quantity of Committed Gas shown
in the FOM Availability Report for such Delivery Point on that Day as
adjusted by the aggregate Daily Avails for such Delivery Point.
4.2.2 Daily Avails Equal to or Greater than First of the
Month Avails. If the aggregate Daily Avails for the Delivery Points
in a Pricing Pool for any Day are equal to or greater than the
aggregate First of the Month Avails for the Delivery Points for that
Day in that Pricing Pool, then the "Tiered Pool Price" for that
Pricing Pool means the quotient of:
(A) the sum of:
(i) the product obtained by multiplying (x) the Index
Price applicable to deliveries to that Pricing Pool
by (y) the aggregate First of the Month Avails for
all Delivery Points for that Day in that Pricing
Pool; plus
(ii) the product obtained by multiplying (x) the
* applicable Gas Daily REDACTED for that Day by
(y) the amount by which the aggregate Daily Avails
for all Delivery Points for that Day in that Pricing
Pool exceed the aggregate
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Confidential Treatment Requested.
The redacted material has been
separately filed with the Commission.
First of the Month Avails for the Delivery Points for
that Day in that Pricing Pool by no more than the
Tolerance Level for that Pricing Pool; plus
(iii) the product obtained by multiplying (x) the
* difference between (A) the Gas Daily REDACTED Price
* for that Day and (B) REDACTED of the amount by which
* the Gas Daily REDACTED Price for that Day exceeds the
* Gas Daily REDACTED Price for that Day by (y) the
amount by which the aggregate Daily Avails for the
Delivery Points for that Day in that Pricing Pool
exceeds the aggregate First of the Month Avails for
the Delivery Points for that Day in that Pricing Pool
by more than the Tolerance Level for that Pricing
Pool; divided by
(B) the aggregate quantity of Committed Gas shown in the
FOM Availability Report for such Pricing Pool on that
Day as adjusted by the Daily Avails for such Pricing
Pool.
4.2.3 Daily Avails Less than First of the Month Avails. If
the aggregate Daily Avails for the Delivery Points in a Pricing Pool
for any Day are less than the aggregate First of the Month Avails for
the Delivery Point for that Day in that Pricing Pool, then the Tiered
Pool Price for that Pricing Pool means the quotient of:
(A) the difference between:
(i) the product obtained by multiplying (i) the Index
Price applicable to deliveries for that Day in that
Pricing Pool by (ii) the aggregate First of the Month
Avails for all Delivery Points in that Pricing Pool;
less
(ii) the product obtained by multiplying (x) the
* applicable Gas Daily REDACTED Price for that Day by
(y) the amount by which the aggregate First of the
Month Avails for the Delivery Points in that Pricing
Pool for that Day exceed the aggregate Daily Avails
for the Delivery Points for that Day in that Pricing
Pool by no more than the Tolerance Level for that
Pricing Pool; less
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Confidential Treatment Requested.
The redacted material has been
separately filed with the Commission.
(iii) the product obtained by multiplying (x) the sum of
* (A) the Gas Daily REDACTED Price plus (B)
* REDACTED of the amount by which the Gas Daily REDACTED
* Price for that Day exceeds (B) the Gas Daily REDACTED
Price for that Day by (y) the amount by which the
aggregate Daily Avails for the Delivery Points for
that Day in that Pricing Pool exceeds the aggregate
First of the Month Avails for the Delivery Points for
that Day in that Pricing Pool by more than the
Tolerance Level for that Pricing Pool; divided by
(B) the aggregate quantity of Committed Gas shown in the
FOM Availability Report for such Pricing Pool as
adjusted by the Daily Avails for such Pricing Pool.
For purposes of calculating the total amount due in any Month, a decrease in
the Daily Avails for any given Day shall not be netted against an increase in
the Daily Avails for a different Day.
4.3 Split Connect Committed Gas. If Committed Gas produced from a
Source of Supply is capable of being delivered into pipeline systems connected
to more than one Pricing Pool ("Split Connect Committed Gas"), Seller shall
select the Index Price (less applicable Transportation Costs) applicable to
such Split Connect Committed Gas. Seller will make its selection, as
above-specified, no later than the sixth (6th) Business Day prior to the first
Day of the Month in which deliveries will be made. If the Seller fails to make
its selection by such date, the then current selection will apply. Purchaser
may request Seller to revise its selection, but Seller shall have no obligation
to agree to any such request unless Purchaser can show to the reasonable
satisfaction of Seller that the requested revision will not adversely affect
Seller, or Purchaser can substantiate to the reasonable satisfaction of Seller
that a Transporter constraint (volume of inlet supply exceeds Transporter's
ability to take) exists on the pipeline system selected by Seller.
4.4 Purchaser's Failure to Purchase Committed Gas. If Purchaser
fails in any Month to purchase the quantity of Committed Gas made available by
Seller and Seller Affiliates from each
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Delivery Point, to the extent that such failure is not the result of Force
Majeure, the imposition of an OFO on Purchaser or Seller, or Seller's failure
to make Committed Gas available, the quantity not purchased shall be the
Deficiency Volume. Seller may provide written notice to Purchaser that, during
the duration of Purchaser's failure to purchase said quantity of Committed Gas,
the Deficiency Volume shall be released from this Agreement to the extent
necessary to permit Seller, without violation of Seller's obligations under
this Agreement, to sell and deliver such quantities of Committed Gas to another
purchaser or to an alternative market. Seller shall exercise all commercially
reasonable efforts to sell such released gas at the best available price. If
Seller sells the released gas at a price which is lower than the Tiered Pool
Price which otherwise would have been paid by Purchaser had such quantities of
Committed Gas been purchased by Purchaser, Purchaser shall pay to Seller, as
liquidated damages, an amount equal to the product of (i) the Deficiency Volume
and (ii) the difference between (A) the Tiered Pool Price less the
Transportation Costs applicable to the Delivery Point at which the deficiency
occurred and (B) the actual price received by Seller at the Delivery Point for
the Deficiency Volume.
4.5 Hub Services. At any Delivery Point at which Split Connect
Committed Gas is delivered, Seller shall perform all physical operations
necessary to facilitate Purchaser's requests for Seller to make deliveries into
alternative pipeline systems, as often as requested by Purchaser, but without
undue burden on Seller or reduction in the volumes of Committed Gas that
otherwise would have been taken by Purchaser.
4.6 Interruption of Committed Gas. If Purchaser is unable to
deliver Committed Gas beyond any Delivery Point or Pooling Point because of a
constraint on a Transporter, Purchaser shall receive Committed Gas at least pro
rata with Purchaser's other sellers of firm gas at such Delivery Point (without
adverse discrimination based on price or volume), and where circumstances
permit using its commercially reasonable efforts, shall give priority to
Committed Gas over third party gas that is purchased by Purchaser at such
Delivery Point or Pooling Point (i) for a term of less than one Month or (ii)
without firm obligation to take and transport such gas. If any such
requirement to take
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Committed Gas at any such Delivery Point or Pooling Point results in Purchaser
being required to resell the Committed Gas at a price less than the Tiered Pool
Price for such Delivery Point, the Purchaser shall notify Seller of such
interruption of Committed Gas and the price at which Purchaser expects to
resell such Committed Gas. Purchaser shall collaborate with Seller, if
necessary, to develop a strategy and implement an action plan to sell such
Committed Gas. For Sources of Supply located in the San Xxxx Basin, the
portion of the Daily Avails affected by a constraint on a Transporter shall be
renominated by Purchaser and sold on an intra-day basis. For all other Sources
of Supply Purchaser shall exercise its commercially reasonable efforts to
resell such Committed Gas to parties with access to firm transportation rights
beyond the Delivery Point or Pooling Point. Purchaser shall deduct from
amounts paid Seller under Section 7.1 and 7.2 the difference between the Tiered
Pool Price and the price actually received by Purchaser for such Committed Gas
less applicable Transportation Costs and, in addition, the Transportation
Constraint Margin for Committed Gas sold by Purchaser either on an intra-day
basis for Sources of Supply in the San Xxxx Basin or to such parties with
access to firm transportation for other Sources of Supply. In such cases,
Purchaser shall use commercially reasonable efforts to resell such Committed
Gas at the best available price.
4.7 Shut-In Well Damages Payment. If, during a Month, there is a
Shut-In Well for which Shut-In Well Damages during a Shut-In Period accrue,
Seller shall provide written notice to Purchaser identifying the Shut-In
Well(s), the Shut-In Period(s) and the quantity of Committed Gas that would
have been produced from such Shut-In Xxxxx(s) (based on the volume shown in the
Operator Control Report for the Delivery Point for such Shut-In Xxxxx(s)).
Such notice shall be included on the Seller's Statement provided in Section
7.1.2. The notice shall also contain the then cumulative quantity of Committed
Gas that would have been produced from all Shut-In Xxxxx (based on the volume
shown in Operator Control Reports for the Delivery Points for such Shut-In
Xxxxx) for the preceding twelve (12) consecutive Month period (including the
Month of delivery for which such notice is provided). Seller shall also
provide on such notice the Tax Credit Value for each MMBtu of Nonconventional
Gas, if any, which would have been produced from Nonconventional
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Gas Shut-In Well(s) (based on the volume shown in the Operator Control Report
for the Delivery Point for such Shut-In Well(s)). Purchaser shall calculate
the Shut-In Well Damages for such Month of delivery and pay Seller such Shut-In
Well Damages in accordance with Section 7.2.
4.8 Shut-In Well Quantity Notices. In addition to the written
notice included on the Seller's Statement as set forth in Section 4.7, Seller
shall provide Purchaser with written notice on or in conjunction with the
Operator Control Report identifying any well qualifying as a Shut-In Well on
the Day preceding the Day on which the Operator Control Report is submitted.
The notice shall also contain the quantity of Committed Gas that would have
been produced from each such Shut-In Well on such preceding Day, calculated as
described in Section 4.7. Additionally, Seller shall send notice to the Chief
Financial Officer of Purchaser on the Day following the Day on which a well
qualifies as a Shut-In Well with the name of such well and the quantities of
Committed Gas not taken from such Shut-In Well. Any notice of default
submitted by Seller to Purchaser under Section 11.1 shall be based on the
written notices required under this Section 4.8.
5. TITLE AND RESPONSIBILITY
5.1 Seller Responsibility. Title to, and responsibility and risk
of loss for, Committed Gas delivered by Seller or Seller Affiliate to Purchaser
shall pass from Seller or Seller Affiliate to Purchaser at the Delivery Points.
The price for Committed Gas delivered under this Agreement is inclusive of all
production, severance, ad valorem, or similar taxes levied on the production or
transportation of the Committed Gas prior to its delivery to or for the account
of Purchaser at the Delivery Point(s). As between the Parties, all charges,
royalties, lease burdens, expenses, fees, taxes, damages, injuries, and other
costs incurred in or attributable to production and transfer, transportation
(except as otherwise agreed by the Parties), and handling of Committed Gas
delivered in accordance with this Agreement prior to delivery to Purchaser at
the Delivery Point shall be the exclusive responsibility of Seller (even if
paid by Purchaser). Seller shall indemnify, defend, and hold harmless
Purchaser from all such charges, royalties, expenses, fees, taxes, damages,
injuries,
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and other costs. In the event Purchaser is required by law to collect or pay
any such taxes, and Seller claims an exemption from such taxes, Seller shall,
upon Purchaser's written request, furnish Purchaser with a copy of Seller's
exemption certificate.
5.2 Purchaser's Responsibility. As between the Parties, all
charges, expenses, fees, taxes (other than income and franchise taxes imposed
on Seller), damages, injuries, and other costs incurred in or attributable to
the purchase and transfer, transportation, and handling of the Committed Gas
delivered in accordance with this Agreement at and after delivery to each
Delivery Point shall be the exclusive responsibility of Purchaser. Purchaser
shall indemnify, defend, and hold harmless Seller from all such charges,
expenses, fees, taxes, damages, injuries, and other costs. In the event Seller
is required by law to collect any such taxes, and Purchaser claims an exemption
from the taxes, Purchaser shall, upon Seller's written request, furnish Seller
with a copy of Purchaser's exemption certificate.
5.3 Determination of Responsibility for Taxes. If any
governmental authority assesses or imposes a new tax on Committed Gas at any
Delivery Point, Purchaser and Seller shall attempt to determine which Party
shall be responsible for paying such new tax. If the Parties are unable to
agree on the matter it shall be resolved under Article 12. The Parties intend
that Seller shall be responsible for any such new tax that is typically paid by
gas production companies and that Purchaser shall be responsible for any such
new tax that is typically paid by gas marketing companies.
6. QUALITY, MEASUREMENT AND TESTS
6.1 Quality Specifications. Purchaser agrees to purchase
Committed Gas delivered by Seller or Seller Affiliate to the Delivery Point(s)
meeting the quality and pressure specifications set forth in the Transporter's
Tariff. If Committed Gas delivered by Seller or Seller Affiliate to the
Delivery Point(s) is rejected by Transporter for failure to meet its quality or
pressure specifications,
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Purchaser shall be relieved of the obligation to purchase such Committed Gas
and it shall be deemed for all other purposes of this Agreement that the
quantity so rejected by Transporter was never delivered by Seller or on behalf
of Seller. Except to the extent otherwise specified in the Transporter's
Tariff, to the extent that Transporter accepts Committed Gas tendered by Seller
or Seller Affiliate for Purchaser's account at the Delivery Point(s), Seller
shall be deemed to have complied with the quality and pressure specifications
of this Agreement.
6.2 Volume and Heating Value. Purchaser and Seller agree that the
volume and heating value of Committed Gas sold and delivered under this
Agreement will be measured and tested at or near the Delivery Point(s) by
Transporter, using equipment owned or controlled by Transporter or Seller or
Seller Affiliate, and measuring procedures employed by Transporter and
contained in the Transporter's Tariff. The measurements and tests made by
Transporter shall be accepted by Purchaser and Seller (subject to adjustment if
prior measurements are determined to be inaccurate or incomplete); provided,
however, the measuring and testing equipment and procedures used must conform
to Transporter's Tariff and to generally recognized industry standards.
6.3 Test Data and Charts. Seller and Purchaser shall preserve all
original test data, charts and other similar records in a Party's possession
for a period of at least ten years or longer on the written request of either
Party to the other Party given during the term of this Agreement. Each Party
shall provide access to any other pertinent records (such as those of
Transporter) to the extent it has the contractual right to do so and/or the
third party consents.
7. ACCOUNTING, BILLING, AND PAYMENT
7.1 Statements.
7.1.1 Purchaser Statements. On or before the twenty fifth
(25th) Day of the Month following each Month of delivery, Purchaser
will furnish Seller the following information
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in reasonable detail concerning the Month of delivery and any
adjustments for prior Months for each Delivery Point: Exhibit A
report; the quantity of Committed Gas actually delivered under this
Agreement at each Delivery Point and Pricing Pool, if available; the
First of the Month Avails and Daily Avails for each Delivery Point and
Pricing Pool; Dealmaker/ Operator Control variance report;
reconciliations of the prior Month's deliveries at the Tiered Pool
Prices; Index Prices, Gas Daily Prices and Tiered Pool Prices, for
each Delivery Point and Pricing Pool; Transportation Costs and
documentation for each Delivery Point; PTR and Condensate
Transportation Costs and documentation for each Delivery Point;
Monthly Deficiency Payments; Imbalance Charges; Seller's share of the
cash profits and supporting documents received by Purchaser for the FT
Rights; prices, volumes and supporting data necessary to calculate the
deductions, including the Transportation Constraint Margin, if
applicable, taken or to be taken by the Purchaser under Section 4.6;
and the total amounts payable by Purchaser and Seller. If the actual
total volumes of gas delivered under this Agreement or the applicable
pricing information are not available by the date of the statement,
the First of the Month Avails and Daily Avails and estimated prices
shall be used and adjustments shall be made for the production Month
on a Delivery Point-by-Delivery Point Basis, on the following Month's
statement, or as soon thereafter as such information becomes
available. The total amount of any Monthly Deficiency Payments and
Imbalance Charges payable by Seller to Purchaser shall be deducted
from the amount payable by Purchaser to Seller for Committed Gas
delivered during the Month. If the accuracy of any statement or the
sufficiency of any payment made by Purchaser is questioned by Seller,
Seller shall provide written notice of same to Purchaser. Subject to
Section 7.4, if, as a result of Seller's question or otherwise, it is
subsequently determined that Purchaser underpaid Seller or Purchaser
overpaid Seller, Purchaser or Seller, as the case may be, shall pay
the principal amount due plus interest on such underpaid or overpaid
amounts, as the case may be, from the date of underpayment or
overpayment, as the case may be, computed at a rate equal to the
lesser of the highest interest rate allowed by law or the
then-effective prime rate of interest published under "Money Rates" by
The Wall Street Journal, plus two percent per
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annum until the date of payment. Purchaser will make reasonable
efforts to provide Seller, and Seller will make reasonable efforts to
receive, the information electronically.
7.1.2 Seller's Statement. On or before the fifteenth
(15th) Day of the third Month following each Month of delivery, Seller
will furnish Purchaser a statement for the amounts due for the Month
of delivery and any out of period adjustments. Seller will furnish
Purchaser the following information in reasonable detail for each
Delivery Point: the quantity of Committed Gas actually delivered under
this Agreement at each Delivery Point and Pricing Pool, if available;
First of the Month Avails, Operator Control Volumes, and Daily Avails
for each Delivery Point and Pricing Pool; Index Price, Gas Daily
Price, and Tiered Pool Price for each Delivery Point and Pricing Pool;
Transportation Costs for each Delivery Point; PTR and Condensate
Transportation Costs for each Delivery Point; Monthly Deficiency
Payment; Seller's share of the cash profits received for the FT
Rights; Imbalance Charges; the information required under Section 4.7
for Shut-In Xxxxx; Shut-In Well Damages, if any; Deficiency Volumes
and amounts owing under Section 4.4 or 11.3, if any; and the total
amounts payable by Purchaser and Seller. If the total volumes of
Committed Gas actually delivered under this Agreement or the
applicable pricing information are not available by the date of this
statement, the First of the Month Avails and Daily Avails; or
estimated prices shall be used and adjustments shall be made for the
Month of delivery on a Delivery Point by Delivery Point basis as soon
thereafter as such information becomes available. The total amount of
any Monthly Deficiency Payment payable by Seller may be deducted from
the amount payable by Purchaser to Seller for Committed Gas delivered
during the Month. If the accuracy of any statement is questioned by
Purchaser, Purchaser shall provide written notice of same to Seller.
Subject to Section 7.4, if, as a result of Purchaser's question or
otherwise, it is subsequently determined that Purchaser underpaid
Seller or Purchaser overpaid Seller, Purchaser or Seller, as the case
may be, shall pay the principal amount due plus interest on such
underpaid or overpaid amounts, as the case may be, from the date of
underpayment or overpayment, as the case may be, computed at a rate
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equal to the lesser of the highest interest rate allowed by law or the
then-effective prime rate of interest published under "Money Rates" by
The Wall Street Journal, plus two percent per annum until the date of
payment. Seller will make reasonable efforts to provide Purchaser,
and Purchaser will make reasonable efforts to receive, the information
electronically.
7.2 Payment. No later than the twenty-fifth (25th) Day of each
calendar Month, Purchaser shall pay Seller by wire or electronic transfer of
funds into an account designated in writing by Seller, the amount as shown in
Purchaser's statement for gas delivered during the previous Month (less any
amounts disputed in good faith by Purchaser) and any other amounts or
adjustments associated with any prior periods, including any adjustments shown
in Seller's Statement.
7.2.1 Unavailable Information. If the actual volumes of
gas delivered under this Agreement or the applicable pricing
information are not available by the payment date in Section 7.2,
estimated volumes or prices shall be used and adjustments shall be
made on the next Month's payment or as soon thereafter as such
information becomes available.
7.2.2 Revisions. If the payment made pursuant to Section
7.2 is different than amounts reflected on Purchaser's Statement
submitted pursuant to Section 7.1.1, Purchaser will furnish a revised
Purchaser Statement reflecting the calculation of such payment.
7.3 Failure to Pay. If Purchaser fails to make timely payment of
amounts reflected on Purchaser's Statement, Seller's Statement or otherwise
determined to be due and owing under this Agreement, Purchaser shall pay Seller
interest on all amounts past due computed from the date the payment was due to
the date payment is received by Seller at the rate set forth in Section 7.1
above. Interest shall be paid on disputed amounts that are construed against a
Party from the date the disputed amount was first due until the date payment is
made at the rate set forth in Section 7.1 above.
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7.4 Two Year Limit on Adjustments. No retroactive adjustments may
be made for any overcharge or undercharge after a period ending twenty-four
(24) Months from the end of the calendar year in which the gas forming the
basis of the overcharge or undercharge was delivered or not delivered
hereunder, as the case may be, unless extended by notice timely delivered by
one Party to the other Party under Section 7.5 within such twenty-four (24)
Month period.
7.5 Audit. Each Party shall have the right to audit the books and
records of the other Party at any time during that Party's normal business
hours during the term of this Agreement and for a period of two (2) years after
its termination to the extent necessary to determine compliance by the other
Party with the terms of this Agreement, but such audit rights shall be limited
to auditing such books and records for the then current and four (4) preceding
calendar years. The audited Party shall make its books and records available
to the auditing Party upon no less than twenty (20) Days prior written notice
to other Party. Notwithstanding the foregoing, in the event a governmental or
Indian agency asserts a claim, or conducts an audit against a Party arising
from the purchase or sale of Committed Gas and that Party determines in its
reasonable judgment that its response to such claim requires or would benefit
from an audit of books and records of the other Party, such audit may be
conducted at any time during a period upon no less than ten (10) Days prior
written notice ending on the tenth (10th) anniversary of the event or payment
forming the basis of the third party claim, unless extended by notice timely
delivered by one Party to another. To accommodate such third party audits,
Seller and Purchaser will maintain the appropriate books and records for a
period not less than ten (10) years. Each Party shall also have access to the
books and records of the other Party for purposes of responding to claims, or
requests for audits, asserted by a non-governmental third party and arising
from the purchase or sale of Committed Gas.
7.6 Accounting Information. Seller and Purchaser will exercise
reasonable efforts to provide each other with data required by their respective
accounting departments to close out books for each Month as soon as reasonably
possible. Seller and Purchaser will exercise reasonable efforts
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to provide such data no later than the third (3rd) to the last Business Day of
the Month being closed out.
7.7 Guarantee of Purchaser Performance. Purchaser shall furnish
to Seller prior to the Effective Date an executed and irrevocable guarantee of
full and faithful performance by Purchaser of a portion of its payment
obligations hereunder (the "Guaranty"). The Guaranty will be issued by
Holdings and the part of the obligations of Purchaser under this Agreement to
be guaranteed will be that portion equal to the percentage ownership interest
(directly or indirectly) in the Purchaser as of the Effective Date of Holdings
and its affiliates and will be adjusted from time to time as such ownership
interest changes.
7.8 Guarantor's Credit Support. The Guaranty contains certain
Credit Enhancement Triggering Events and Credit Enhancement obligations. If
Guarantor does not provide the Credit Enhancement pursuant to and when required
under the Guaranty, Seller may suspend deliveries of Committed Gas under this
Agreement. During any period of suspension of Committed Gas hereunder, Seller
shall have the right, but not the obligation, to treat suspended production as
released gas and sell all or a portion of such gas to third parties.
8. DISCLAIMER AND WARRANTY
8.1 Warranty. Seller hereby warrants title to all gas sold by
Seller under this Agreement and the right to sell the same free from adverse
claims of third parties, and except as provided in Section 8.2, Seller agrees
to hold Purchaser harmless from such claims, as provided in Section 5.1.
8.2 Disclaimer. EXCEPT AS PROVIDED IN SECTION 8.1, SELLER MAKES
NO EXPRESS OR IMPLIED WARRANTY TO PURCHASER UNDER THE UNIFORM
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COMMERCIAL CODE OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
9. FORCE MAJEURE
9.1 Suspension of Obligations. If either Seller or Purchaser is
rendered unable, by reason of an event of Force Majeure, to perform, wholly or
in part, any obligation or commitment set forth in this Agreement, except for
the obligation to make payment of monies owed, then the obligations of the
affected Party under this Agreement shall be suspended, except for the
obligation to pay amounts owed, or which become due under this Agreement, but
only to the extent affected by, and for the period of, such event of Force
Majeure.
9.2 Force Majeure Defined. The term "Force Majeure" means an
event that (i) was not within the control of the Party claiming its occurrence;
and (ii) could not have been prevented or avoided by such Party through the
exercise of due diligence. Events of Force Majeure include, without
limitation, by enumeration, acts of God; lightning, hurricanes or storms,
hurricane or storm warnings which in Seller's judgment require and result in
the precautionary shut-down or evaluation of production facilities;
earthquakes, epidemics, fires, floods, landslides, washouts, freezing of xxxxx
or lines of pipe used to supply Committed Gas under this Agreement and other
similar severe natural calamities; acts of public enemy; wars; blockades;
insurrections; riots; civil disturbances and arrests; strikes, lockouts or
other industrial disturbances; explosions, breakage, accidents to xxxxx,
equipment, facilities or lines of pipe used to enable Seller to deliver or
Purchaser to receive Committed Gas under this Agreement; events of force
majeure declared by transporting pipelines; imposition by a regulatory agency,
court or other governmental authority having jurisdiction of binding laws,
conditions, limitations, orders, rules or regulations that prevent or prohibit
either Party from performing, providing such governmental action has been
resisted in good faith by all reasonable legal means; or any other cause. The
Parties recognize that Purchaser is not required by
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this Agreement to use firm transportation to receive Committed Gas from Seller
at each Delivery Point and Pricing Pool, but it is the intent of both Parties
that transportation or sales arrangements downstream of the Delivery Points and
Pricing Pool be made by Purchaser in such a manner that the possibility of a
curtailment of Committed Gas due to curtailment of interruptible transportation
or recall of acquired transportation be minimized. In addition to the
foregoing events of Force Majeure, the loss, interruption or curtailment of
transportation downstream of a Delivery Point and Pricing Pool shall constitute
an event of Force Majeure provided that Purchaser exercises reasonable efforts
to arrange alternative transportation, or the resumption of the curtailed
transportation arrangements, as soon as possible following its discovery of the
curtailment of downstream transportation. In that event, Purchaser will
consult with Seller and endeavor to agree upon a plan of action to avoid
further curtailment of Committed Gas from that Delivery Point or Pricing Pool.
9.3 Notice of Force Majeure Event. The Party affected by a Force
Majeure event shall give notice as soon as reasonably possible to the other
Party of the Force Majeure event, the extent to which such Party is affected,
and the expected duration of the Force Majeure event.
9.4 Remedy of Force Majeure Event. The Party affected by a Force
Majeure event will use its reasonable efforts to remedy each Force Majeure
event and resume performance under this Agreement as soon as reasonably
possible.
10. TERM
10.1 Term. This Agreement shall be effective as of the Effective
Date and, unless sooner terminated as provided herein, shall remain in full
force and effect for a primary term ending on December 31, 2007 and shall
continue for consecutive secondary terms of twenty-four (24) Months each unless
written notice of termination is given by one Party to the other Party at least
one (1) year prior to the end of the primary term or any secondary term.
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Confidential Treatment Requested.
The redacted material has been
separately filed with the Commission.
10.2 Release of Committed Gas. For any Month beginning after
* REDACTED, and with at least six (6) Business Days advance notice prior to
the first Day of such Month, either Party may obtain the release during
* such Month of up to REDACTED of the volumes (in Mcf's) of the gas which
would then have been Committed Gas for such Month ("Released Gas"). The
total quantity of Released Gas from Delivery Points on the same Transporter
* in the same Pricing Pool shall not exceed REDACTED of the total volumes of
gas which would have been Committed Gas for such Month. Notice of release
may be given no more frequently than once in a Month, and any release
obtained hereunder by Seller shall not reduce the Minimum Monthly Quantity
for such Month.
10.3 Release of Committed Royalty Gas.
10.3.1 Royalty Adjustment. If any regulatory action,
pending litigation or other occurrence in Seller's good faith opinion
indicates that a change is about to take place in the standards by
which royalty is determined, valued, or calculated for any Committed
Gas, Seller shall have the right to require Purchaser to account to
Seller for the royalty portion of such gas sold and purchased
hereunder at the price Seller determines will satisfy the changed
royalty standards, subject to each Party's right to release gas
pursuant to Section 10.3.2.
10.3.2 Release of Royalty Gas. If (a) Purchaser receives a
request from Seller for price adjustment pursuant to Section 10.3.1,
or (b) Seller becomes aware of any regulatory action, pending
litigation or other occurrence which in Seller's good faith opinion
indicates that a change is about to take place in the standards by
which royalty is assessed, valued, or calculated pertinent to gas
covered hereunder, then, in the case of (a) above, Purchaser shall
have the right and, in the case of (b) above, Seller shall have the
right, at any time thereafter to release gas that is the subject of
the changed royalty standard or price adjustment claim and that would
otherwise be Committed Gas.
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11. EVENTS OF DEFAULT AND REMEDIES
11.1 Event of Default. An "Event of Default" shall mean with
respect to a Party alleged to have taken any of the actions set forth below in
this Section 11.1 (the "Defaulting Party"):
(a) the Defaulting Party shall fail to make, when due,
any payment required under this Agreement within five
(5) Business Days after the due date if such failure
is not remedied within twenty (20) Days after written
notice of such failure is given to the Defaulting
Party by the other Party ("Non-Defaulting Party") and
provided that the payment is not the subject of a
good faith dispute by the Defaulting Party; or
(b) the Defaulting Party shall:
(i) make an assignment or any general arrangement
for the benefit of creditors; or
(ii) file a petition or otherwise commence,
authorize, or acquiesce in the commencement
of a proceeding or cause of action under any
bankruptcy or similar law for the protection
of creditors, or have such petition filed
against it and such petition is not withdrawn
or dismissed for thirty (30) days after such
filing; or
(iii) otherwise become bankrupt or insolvent
(however evidenced); or
(iv) be unable to pay its debts as they fall due;
or
(c) in the case of the Purchaser, the Gas Accounting
Services Agreement has been properly terminated under
Section 10 of the Gas Accounting Services Agreement;
or
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(d) in the case of Purchaser, Purchaser shall fail to
receive and purchase in any twelve (12) consecutive
Months (and such failure is not excused hereunder) a
quantity of Committed Gas, if made available by
Seller, from Shut-In Xxxxx during Shut-In Periods
equal to 4,000 MMcf and Seller has properly notified
Purchaser of such Shut-In Xxxxx under Section 4.8; or
(e) Purchaser, for any twelve (12) consecutive Month
period beginning on or after July 1, 2000, fails to
purchase and receive at least fifty percent (50%) or
more of the aggregate quantity of Committed Gas made
available by Purchaser in such twelve (12) Month
period; or
(f) in the case of Purchaser, a Credit Enhancement
Triggering Event has occurred and has not been cured
for eleven (11) consecutive Months and Holdings has
not provided the Credit Enhancement during such
period.
11.2 Remedies. If an Event of Default described in Section 11.1(b)
or 11.1(c) or 11.1(d) or 11.1(e) occurs with respect to a Defaulting Party,
this Agreement may be terminated immediately by written notice to the
Defaulting Party. If an Event of Default described in Section 11.1(a) occurs
with respect to a Defaulting Party at any time during the term hereof, the
Non-Defaulting Party may give written notice to the Chief Financial Officer of
the Defaulting Party of the amount of such nonpayment. If the Defaulting Party
does not pay such amount plus applicable interest within ten (10) Days of the
date of such notice, the Non-Defaulting Party may immediately terminate this
Agreement by written notice to the Defaulting Party. If an Event of Default
described in Section 11.1(f) occurs with respect to Purchaser, Seller may give
thirty (30) Days prior written notice of termination of this Agreement to
Purchaser. If Holdings fails to provide the Credit Enhancement or the Credit
Enhancement Triggering Event has not been cured within such thirty (30) Day
period, this Agreement shall terminate at the end of such thirty (30) Day
period.
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11.3 Suspension. If Purchaser fails to pay any amount (other than
amounts disputed in good faith by Purchaser) due Seller under this Agreement
within five (5) Business Days after the due date, Seller shall have the right
upon written notice to Purchaser to suspend any or all further deliveries of
Committed Gas until all undisputed amounts due have been paid with interest at
the rate specified in Section 7.1. During the period of any such suspension of
deliveries, and until all payment defaults are cured as provided above, Seller
shall have the right, but not the obligation, to treat its available production
as released gas and sell all or any portion of the Committed Gas to third
parties and be paid as liquidated damages the amounts shown in Section 4.4.
12. RENEGOTIATION, PRICE AND DELIVERY POINT REDETERMINATION AND ARBITRATION
12.1 Dispute Resolution -- Panel of Designated Representatives. All
disputes arising under or out of this Agreement which are not resolved by
agreement within thirty (30) Days after a Party gives the other Party written
notice that the dispute exists shall be referred, at the request of either
Party, to a Panel of Designated Representatives ("PDR"). The PDR shall consist
of an employee of Seller serving on the Board of Directors of the General
Partner and an employee of SEI or its affiliates (other than Purchaser),
serving on the Board of Directors of the General Partner, (the "Voting
Representatives") and a senior officer of the Purchaser, who is not otherwise
employed by Seller or SEI or an affiliate of either (the "Advisory
Representative"). The Voting Representatives, with the advice of the Advisory
Representative, shall have the authority to negotiate and agree upon terms and
conditions for resolution of any such dispute. However, both Voting
Representatives must agree upon any such resolution. If the PDR does not
resolve the dispute within thirty (30) Days after the dispute has been
submitted to them, then either Party may elect to have the issue resolved by
binding arbitration pursuant to Section 12.2. The provisions of Section 12.1
shall not apply when an employee of Seller is not then serving on the Board of
Directors of the General Partner.
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12.2 General Arbitration. All unresolved disputes between the
Parties arising under this Agreement shall be submitted to binding arbitration
in accordance with this Article 12. Arbitration shall be governed by the
Federal Arbitration Act, 9 U.S.C. Section 1, et seq., and will not be governed
by the arbitration acts, statutes or rules of any other jurisdiction.
12.2.1 General Arbitration Procedure. Except to the extent
provided in Sections 12.3, 12.4, 12.5, and 12.6, if the PDR fails to
reach a unanimous agreement within thirty (30) Days after a dispute is
submitted to them, either Party may request arbitration of such
dispute by submitting a written notice to the other Party. The Party
giving notice that a dispute exists is referred to herein as the
"Initiating Party" and the other Party is referred to as the
"Non-initiating Party." The notice shall name the noticing Party's
arbitrator and shall contain a statement of the issue(s) presented for
arbitration. Within fifteen (15) Days of receipt of a notice of
arbitration, the Non-Initiating Party shall name its arbitrator by
written notice. If the Non-Initiating Party fails to timely appoint
the second arbitrator, the Initiating Party shall have the exclusive
right to make such appointment. The two named arbitrators shall
select the third arbitrator within fifteen (15) Days after the date on
which the second arbitrator was named. Should the two arbitrators
fail to agree on the selection of a third arbitrator within such
fifteen (15) Day period the Parties, within five (5) Days thereafter,
may apply to the Dallas, Texas office of JAMS for a list of three
persons qualified, under both the standards established by JAMS and by
this Section 12.2.1, to act as the third arbitrator (the "List"). If
the Parties fail to make joint application to JAMS within such five
(5) Day period, either Party may make such application individually.
Any application to JAMS shall request that the List be provided within
fifteen (15) Days of receipt of the application. By the tenth (10th)
Day following the Business Day on which JAMS provides the List, the
Initiating Party shall submit to JAMS and the Non-Initiating Party the
name of one person that the Initiating Party wishes to strike from the
List. On the first Business Day following the Day on which the
Initiating Party submits the name of the Person it wishes to strike to
the Non-Initiating Party, the Non-Initiating Party shall submit to
JAMS and to the Initiating Party the name of
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one person that the Non-Initiating Party wishes to strike from the
List. The person remaining on the List shall be the third arbitrator.
All arbitrators appointed by the parties or by the two named
arbitrators shall be qualified by education and experience within both
the production and marketing segments of the natural gas industry to
decide the issues presented for arbitration. The potential
arbitrators included on the JAMS list shall have at least 10 years
experience resolving commercial disputes (including experience in
cases involving the natural gas industry). No arbitrator shall be a
current or former director, officer or employee of either Party, or of
any entity affiliated with either Party. In addition to the above,
the third arbitrator shall not own any of the common or preferred
stock of either Party or its affiliates, and shall not have, or have
had within the preceding three (3) years any business dealings with
either Party, or its affiliates.
12.2.2 Arbitration Hearings. The three arbitrators shall
commence the arbitration hearing within twenty-five (25) Days
following the appointment of the third arbitrator. The proceeding
shall be held in Memphis, Tennessee. The arbitrators shall have the
authority, by majority vote, to establish rules and procedures
governing the arbitration hearing. Each Party shall have the
opportunity to present its evidence at the hearing. The arbitrators
may call for the submission of pre-hearing statements of position and
legal authority, but no post-hearing briefs shall be submitted.
Within five (5) Days after the presentation of the evidence has
concluded, each Party shall submit to the arbitration panel a final
offer of its proposed resolution of the dispute. The arbitration
panel may select the proposal of one of the Parties or may agree upon
its own resolution. The arbitration panel shall not have the
authority to award punitive, exemplary, consequential or incidental
damages. The arbitration panel's decision shall be rendered within
thirty (30) Days following the conclusion of the hearing or submission
of evidence. From and after the selection of the third arbitrator,
there shall be no ex-parte communication with the third arbitrator
until the arbitration panel's decision has been rendered.
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12.2.3 Arbitration Decision. The decision of the
arbitration panel or a majority thereof shall be in writing and shall
be final and binding upon the Parties as to the issue(s) submitted
(and shall contain a statement of reasons and the conclusion). Any
Party may, if necessary, seek enforcement of the arbitration panel's
decision in a court of competent jurisdiction. The Party seeking
enforcement shall be entitled to an award of all costs, fees and
expenses, including reasonable attorneys' fees, to be paid by the
Party against which enforcement is ordered.
12.3 Pricing Pool Redetermination. If a Party believes in good
faith that a designated Pricing Pool no longer optimizes the fair market value
of the gas sold hereunder in that Pricing Pool, and if the Parties are unable
to mutually agree on a new or different Pricing Pool, that Party may seek a
Pricing Pool redetermination in accordance with the following procedure.
12.3.1 Pricing Pool Redetermination Procedure.
12.3.1.1 Notice. If Seller or Purchaser seeks a
Pricing Pool redetermination pursuant to this Section 12.3, the
Initiating Party may notify the Non-Initiating Party in writing,
specifying a proposed new or replacement Pricing Pool.
12.3.1.2 Redetermination by Agreement. If the
Non-Initiating Party agrees with the new or replacement Pricing Pool,
Exhibit A shall be amended to reflect the new Pricing Pool.
12.3.1.3 Redetermination by PDR. If the
Non-Initiating Party does not agree with the new or replacement
Pricing Pool within thirty (30) Days after delivery of the Initiating
Party's initial notice, then the matter shall be referred to the PDR
pursuant to Section 12.1.
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12.3.1.4 Redetermination by Arbitration. If the PDR
has not reached agreement within thirty (30) Days after the dispute
was submitted to the PDR, then the Initiating Party may elect to have
the issue resolved by binding arbitration. Arbitration shall be in
accordance with Section 12.2, with the exception that each Party shall
submit a proposed new or replacement Pricing Pool and the arbitration
panel must adopt, without modification or alteration, the proposal
submitted by one Party or the other and may not adopt its own
resolution of the dispute.
12.3.1.5 Amendment to Reflect Redetermination. If a
new or replacement Pricing Pool is established, either by agreement of
the Parties or by the PDR or through arbitration, such new or
replacement Pricing Pool shall be reflected in an appropriate
amendment to Exhibit A.
12.3.1.6 Effective Date. The effective date of any
replacement Pricing Pool selected by arbitration shall be the first
Day of the Month following the Month in which the arbitrators rendered
their decision.
12.4 Substitution of Index Prices or Gas Daily Index Prices.
12.4.1 Substitution for Inadequate Index Price. At any time
during the term of this Agreement, if a Party (i) believes in good
faith that a Index Price or Gas Daily Price does not reflect the fair
market value of spot gas at the applicable Pricing Pool (the "Existing
Index Price") and (ii) also believes in good faith that a different
index price in the same commercial publication or in a different
commercial publication does reflect such fair market value (the
"Substitute Index Price"), the Party may seek a Substitute Index Price
as set forth in Section 12.4.3. If a Substitute Index Price for a
particular Pricing Pool is determined by arbitration, then during a
period of twelve (12) full Months following the date of the
arbitration award, neither Party shall be entitled to invoke
arbitration under this Section 12.4.1 for the purpose
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of selecting a Substitute Index Price at that Pricing Pool. Any
arbitration decision providing a Substitute Index Price under this
Section 12.4.1 shall be effective prospectively, beginning on the
first Day of the Month following the Month in which the arbitrators
rendered their decision.
12.4.2 Substitution for Discontinued Index Price. If at any
time during the term of this Agreement an Index Price or a Gas Daily
Price is no longer published, a Party may seek a replacement index
price (the "Substitute Index Price") as set forth in Section 12.4.3.
There shall be no limit on the number of times a Party may invoke
arbitration under this Section 12.4.2. The effective date of the
replacement Index Price or Gas Daily Price shall be the Day after the
previous index price became unavailable and the arbitrators shall make
their award retroactive to such date. During the pendency of the
Parties' attempt to agree on a replacement Index Price or Gas Daily
Price and the subsequent arbitration proceeding, the price of the
Committed Gas affected by the unavailability of the index price shall
be based on an interim Index Price or Gas Daily Price agreed to by the
Parties or if no agreement, the last available Index Price or Gas
Daily Price. The amounts paid by Purchaser to Seller during such
period shall be adjusted to reflect the retroactive implementation of
the replacement for the index price.
12.4.3 Substitute Index Price Procedure.
12.4.3.1 Notice. If a Party seeks a Substitute Index
Price pursuant to this Section 12.4, the Initiating Party may notify
the Non-Initiating Party in writing, specifying a proposed Substitute
Index Price.
12.4.3.2 Redetermination by Agreement. If the Parties
agree upon a Substitute Index Price, Exhibit A shall be amended to
reflect the Substitute Index Price.
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12.4.3.3 Redetermination by PDR. If the Parties do
not agree upon a Substitute Price Index within thirty (30) Days after
delivery of the Initiating Party's initial notice, then the matter
shall be referred to the PDR pursuant to Section 12.1.
12.4.3.4 Redetermination by Arbitration. If the PDR
has not reached agreement within thirty (30) Days after the dispute
was submitted to the PDR, then the Initiating Party may elect to have
the issue resolved by binding arbitration. Arbitration shall be in
accordance with Section 12.2 above, with the exception that each Party
shall submit a proposed Substitute Index Price (or in the case of
Section 12.4.1, a proposal to retain the Existing Index Price) and the
arbitration panel must adopt, without modification or alteration, the
proposal submitted by one Party or the other and may not adopt its own
resolution of the dispute.
12.4.3.5 Amendment to Reflect Redetermination. If a
Substitute Index Price is established through arbitration, such
Substitute Index Price shall be reflected in an appropriate amendment
to Exhibit A effective as of the first Day of the Month following the
Month in which the arbitrators rendered their decision, except as
otherwise stated in Section 12.4.2.
12.5 Other Price Redetermination. If the Parties are unable to
agree on any factor required to calculate the commodity price of Committed Gas
or the Transportation Costs applicable to Committed Gas that will be produced
from a new Source of Supply, the issue shall be eligible for arbitration in
accordance with Section 12.2. Any arbitration award under this Section 12.5
shall be effective beginning on the date selected by the arbitrators.
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12.6 Arbitration Concerning Special Tenets of the Agreement.
12.6.1 Right to Arbitrate. Commencing on July 1, 2001, but
not more frequently than once in any twelve (12) consecutive Month
period, if a Party believes in good faith that, despite compliance
with or proper enforcement of the terms of the Agreement, the
Agreement fails to cause the attainment of one or more of the special
tenets of the Agreement set forth below, then that Party may request
that the Agreement be amended to cause the attainment of such tenets.
If the Parties are unable on their own or through the PDR, pursuant to
Section 12.1, to reach agreement on the appropriate amendment, then
either Party may submit the dispute to arbitration pursuant to Section
12.2, except as set forth in Section 12.6.2.
(a) The terms of this Agreement cause the delivery by
Seller and receipt by Purchaser of all volumes of
Committed Gas designated in Operator Control Reports
unless the failure to deliver or receive all or a
portion of such volume is specifically permitted or
excused by the provisions of this Agreement,
including conditions of Force Majeure, other than the
enactment of a new, or a revision to any existing,
law, rule, or regulation.
(b) The terms of this Agreement cause Purchaser to pay
and Seller to receive the fair market value of spot
gas (such gas being defined as firm, monthly gas
being delivered to and aggregated in a single Pricing
Pool, but not on an aggregate basis for all Committed
Gas) consistent with what a sophisticated producer
and wholesale marketer of gas could receive if
permitted to freely market its gas on such basis.
(c) The terms of this Agreement cause Purchaser to
receive Committed Gas at least pro rata with third
party firm gas at a Delivery Point (without adverse
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discrimination based on price or volume), and where
circumstances permit using its commercially
reasonable efforts, cause Purchaser to give priority
treatment to Committed Gas over third party gas if
such third party gas is purchased (i) for a term of
less than one Month or (ii) without a firm obligation
to take and transport such gas.
12.6.2 Procedures. Notwithstanding any provision of Section
12.2 to the contrary, when a dispute is submitted to arbitration under
this Section 12.6, each Party shall submit its requested amendment to
the arbitration panel. If the position of one of the Parties is that
no amendment is necessary under Section 12.6, then such Party shall
submit to the arbitration panel a statement to that effect. By
majority vote the arbitration panel must adopt the proposal submitted
by one Party or the other, without amendment or alteration, and may
not adopt its own resolution of the dispute. Without the written
agreement by both Parties, no proposal submitted to the arbitration
panel shall (i) change or modify the definition of Committed Gas, (ii)
result in any Committed Gas being released from the Agreement, (iii)
change or modify any aspect of the term of the Agreement, as set forth
in Article 10, or (iv) decrease the Minimum Monthly Quantity or
Seller's obligations in respect thereof. The arbitration panel shall
be given the following instructions:
(i) Purchaser and Seller selected various
published indices as representative of the
fair market value of firm, monthly spot gas
volumes on the Effective Date.
(ii) If published indices continue to reflect fair
market value of Committed Gas at the Pricing
Pools, the Parties desire to use published
indices to reflect fair market value of
Committed Gas at the Pricing Pools.
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(iii) During the term of the Agreement, Purchaser
shall be the Seller's sole purchaser of
Committed Gas volumes, except as this
Agreement otherwise expressly provides.
12.6.3 Substitution of Non-Index Price. Commencing on July
1, 2001, if a Party (i) believes in good faith that a Published Index
Price or Gas Daily Index Price does not reflect the fair market value
of spot gas at the applicable location and (ii) also believes in good
faith that no other index price in the same or other commercial
publication reflects such fair market value, the Party may seek an
alternative form of pricing under this Section 12.6.
12.6.4 Effective Date. Any arbitration award under this
Section 12.6 shall be effective prospectively, beginning on the first
Day of the Month following the Month in which the arbitrators rendered
their decision.
12.7 Other Arbitration Provisions. Each Party will pay all costs
associated with the arbitrator they select under Section 12.2.1. Both Parties
will share equally in the cost of the third arbitrator and the other costs of
the arbitration.
12.8 Release of Gas. Nothing in this Article 12 shall be construed
to limit Seller's right to suspend deliveries or to market gas released or
deemed released by Purchaser pursuant to Sections 4.4, 7.8, or 11.3.
13. GOVERNMENTAL REGULATIONS AND AUTHORIZATIONS
13.1 Application of Law and Regulation. Except as provided in
Section 13.3 below, this Agreement shall be subject to all valid and applicable
laws of the United States and to the applicable valid rules, regulations or
orders of any regulatory agency or governmental or Indian authority having
jurisdiction, and the Parties shall be entitled to regard all applicable laws,
rules and
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regulations (federal, state or local) as valid and may act in accordance with
them until such time as they may be declared invalid by final judgment of a
court of competent jurisdiction and such judgment is not subject to appeal.
13.2 Authorization and Regulatory Filings. Upon execution of this
Agreement, each Party agrees to seek such government certificates, permits,
licenses and authorizations which, in its sole discretion, it deems necessary
to perform its obligations under this Agreement. During the term of this
Agreement, each Party shall make all filings required by any regulatory bodies
having jurisdiction over the activities covered by this Agreement and upon
request of the other Party shall promptly provide copies of such to the other
Party.
13.3 Compliance with Mexican and Canadian Law. If Seller or Seller
Affiliate acquires Sources of Supply located within Mexico or Canada or their
respective territorial waters, the Parties recognize the need for and agree to
make, those amendments and only those amendments to the Agreement which shall
be necessary to accomplish the purposes set forth in Section 12.6 consistent
with the laws, regulations, and gas marketing practices which then exist in
Mexico or Canada. If the Parties fail to agree upon such amendments to this
Agreement, the disputed amendments shall be submitted to arbitration under
Article 12.
14. NOTICES
14.1 Procedure. Except as provided in this Agreement, all notices,
requests, demands, statements, and other communications under this Agreement
shall be in writing and shall be deemed given on the date thereof if delivered
personally, or by telecopy. If mailed by certified or registered mail, postage
prepaid, return receipt requested, such notice shall be deemed given three (3)
Days after the date of mailing. All notices of payment defaults under this
Agreement must be delivered by hand delivery and telecopy. All notices shall
be delivered or transmitted to the Parties, their
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successors in interest or their assignees, at the following addresses, or at
such other addresses as the Parties may designate by written notice in the
manner aforesaid:
SELLER: PURCHASER:
Notices and Correspondence: Notices and Correspondence:
Vastar Resources, Inc. Southern Company Energy
15375 Memorial Drive Marketing L.P.
Xxxxxxx, Xxxxx 00000 000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx: Manager, Gas Supply Xxxxxxx, Xxxxxxx 00000-0000
Telephone: (000) 000-0000 Attn: Vice President Cash Trading
Fax: (000) 000-0000 Telephone: (000) 000-0000
Fax: (000) 000-0000
Invoices and Statements: Invoices and Statements:
Vastar Resources, Inc. Southern Company Energy Marketing, L.P.
00000 Xxxxxxxx Xxxxx 000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000 Xxxxxxx, Xxxxxxx 00000-0000
Attn: Manager, Accounting Attn: Xxx Xxxxxxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Payments: Payment Defaults:
Citibank N.A. Southern Company Energy Marketing L.P.
New York, NY 000 Xxxxxxx Xxxxxxx, Xxxxx 000
Account #00000000 Xxxxxxx, Xxxxxxx 00000-0000
ABA# 000000000 Attn: Chief Financial Officer
Vastar Gas Marketing, Inc.
24 Hour Notice: 24 Hour Notice:
Manager, Gas Supply Director of Operations
Xxxxxx Xxx Xxx XxXxxxxxxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Pager: (000) 000-0000 Fax: (000) 000-0000
Pager: (000) 000-0000
Residence: (000) 000-0000
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Either Party shall have the right to designate new addresses and
recipients for purposes of this Agreement by so notifying the other
Party in writing. Any such change shall be effective ten (10) Days
after receipt.
15. ASSIGNABILITY
15.1 Assignability. Neither Party may assign any of its rights or
delegate any of its obligations under this Agreement to another Person, without
the prior written consent of the other Party, which consent may be withheld in
such other Party's sole discretion for any reason. Notwithstanding the
preceding sentence, this Agreement may be assigned to wholly-owned subsidiaries
or affiliates without written consent of the other Party, in which case the
assignor shall not be relieved of responsibility for any of its obligations
under this Agreement. Except as provided above, this Agreement shall be
binding upon and inure to benefit of the Parties hereto and their successors
and assigns.
16. OTHER PROVISIONS
16.1 Waiver. No waiver by either Seller or Purchaser of any
default of the other under this Agreement shall operate as a waiver of any
future default, whether of like or different character or nature.
16.2 Entire Agreement. This Agreement was entered into in
connection with the transactions described in the Formation Agreement, dated
August 8, 1997, between certain affiliates of Seller and certain affiliates of
Holdings, and constitutes the entire agreement of the Parties as to the subject
matter hereof. Except as otherwise provided in this Agreement, this Agreement
shall not be modified or amended except by a written instrument executed by the
Parties.
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16.3 Choice of Law. THIS AGREEMENT SHALL BE SUBJECT TO, AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, OTHER THAN LAWS
THAT MIGHT REQUIRE OR PERMIT THE APPLICATION OF THE LAW OF ANOTHER STATE.
16.4 LIMITATION OF DAMAGES. IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY FOR PUNITIVE, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR
INCIDENTAL DAMAGES ARISING FROM ANY BREACH OR DEFAULT UNDER THIS AGREEMENT,
INDEMNIFICATION UNDER THIS AGREEMENT, OR FROM ANY ACT OR OMISSION UNDER OR IN
CONNECTION WITH THIS AGREEMENT, EVEN IF CAUSED BY THE SOLE, JOINT, AND/OR
CONCURRENT NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT OF EITHER PARTY.
16.5 Severability. If any provision of this Agreement is
determined to be invalid, illegal or otherwise unenforceable for any reason by
a court of competent jurisdiction, the remaining terms and conditions of this
Agreement shall remain in full force and effect to the fullest extent permitted
by law. In such an event, the Parties agree to make a good faith effort to
replace the affected provisions.
16.6 No Third-Party Beneficiary. There is no third-party
beneficiary to this Agreement.
16.7 Authority to Execute Agreement. Each Party to this Agreement
represents and warrants that it has full and complete authority to enter into
and perform this Agreement. Each person who executes this Agreement on behalf
of either Party represents and warrants that the Party for which such person
executes this Agreement has full and complete authority to do so and that such
Party will be bound thereby and hereby.
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16.8 Consolidation or Restructuring of Seller
16.8.1 Consolidation with ARCO. If Seller merges or
consolidates with or otherwise becomes a wholly- owned part of or
otherwise integrated with Atlantic Richfield Company or any of its
affiliates (collectively "ARCO"), through a stock buyback, merger,
consolidation, asset transfer, or otherwise (an "ARCO Consolidation"),
this Agreement shall remain in full force and effect, except that
effective upon the completion of an ARCO Consolidation this Agreement
shall be amended as follows:
(i) The term "Sources of Supply" shall mean the Sources
of Supply delivering gas hereunder immediately prior
to the effective date of the ARCO Consolidation and
thereafter that may be produced from Seller's or
Seller's Affiliate interest in any non-producing
properties, undeveloped oil, gas, or mineral leases
or other rights or interests to produce gas owned by
Seller or Seller Affiliate in the Committed Area
immediately prior to the effective date of the ARCO
Consolidation.
(ii) The term "Annual Equity Volumes" shall be redefined
to mean a fixed amount equal to the Annual Equity
Volumes for the calendar year prior to the calendar
year in which the ARCO Consolidation occurs.
16.8.2 Consolidation with Third Party. If Seller merges or
otherwise consolidates with a Person other than ARCO or its affiliates
("Acquiree") and retains its separate corporate identity upon
completion of such merger or other consolidation, this Agreement shall
remain in full force and effect and cover, in addition to Seller's
Committed Gas, all gas produced and owned or controlled by the
Acquiree in the Committed Area immediately prior to such merger or
consolidation which qualifies as Committed Gas, except that Purchaser
and Seller shall negotiate in good faith to adjust the portion of
Minimum Daily Quantity that relates to the Acquiree's gas to
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account for all of Acquiree's gas which would be considered Excluded
Gas hereunder or included in Seller's Reservations immediately prior
to the date of such merger or other consolidation.
16.8.3 Consolidation or Sale of Assets. If Seller (i)
merges or otherwise consolidates with a Person other than ARCO or its
affiliates and does not retain its separate corporate identity, (ii)
sells all or substantially all of its assets to a Person other than
ARCO or its affiliates or (iii) sells some of its assets to a Person
other than ARCO or its affiliates and such sale of assets would cause
Committed Gas volumes to average less than 500 MMcf per Day (each, a
"Third Party Consolidation"), then Seller shall provide written notice
to Purchaser at least thirty (30) Days prior to the closing date of
such merger, consolidation, or asset sale. Such notice shall include
a general description of the proposed transaction and identify the
proposed acquiring party (the "Acquiror"). If the Acquiror does not
have an Investment Grade Rating, Purchaser may immediately terminate
this Agreement and within five (5) Business Days of such termination,
Seller shall pay the Buyout Payment to Purchaser by wire transfer of
immediately available funds. If the Acquiror has an Investment Grade
Rating, then Seller may, at its option, either terminate the Agreement
as of the closing date of such merger, consolidation, or asset sale
and pay the Buyout Payment to Purchaser by wire transfer of
immediately available funds or transfer the Agreement to Acquiror and
the Acquiror shall assume in writing all of the obligations of Seller
under this Agreement (in a form reasonably satisfactory to Purchaser),
except that the Agreement would be amended as follows:
(i) The term "Sources of Supply" shall mean the Sources
of Supply delivering gas hereunder immediately prior
to the effective date of the Third Party
Consolidation and thereafter that may be produced
from Seller's or Seller Affiliate interest in any
undeveloped oil, gas, or mineral leases or other
rights or interests to produce gas owned by Seller or
Seller Affiliate in the Committed Area immediately
prior to the effective date of the Third Party
Consolidation.
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(ii) The term "Annual Equity Volumes" shall be redefined
to mean a fixed amount equal to the Annual Equity
Volumes for the calendar year prior to the calendar
year in which the Third Party Consolidation occurs.
If Seller transfers the Agreement to the Acquiror, Purchaser shall
have the right for a period of one (1) year after the date of such merger,
consolidation or asset sale to terminate this Agreement by written notice to
Seller and the Seller and Acquiror would immediately pay the Buyout Payment to
Purchaser by wire transfer of immediately available funds.
16.9 Seller Employees. Seller shall have the right from time to
time to maintain up to two (2) Seller employees in the offices of Purchaser to
perform the following functions: (i) communicate the Operator Control Volumes
from Seller to Purchaser; and (ii) participate in planning for constrained
delivery of Committed Gas at Delivery Points. Purchaser shall have the right
to reject any Seller employee working in Purchaser's offices. Seller shall
reimburse Purchaser for all of its costs to maintain such Seller employees in
Purchaser's offices. In addition, before commencing work in Purchaser's
offices, such employees shall execute and deliver to Purchaser a
confidentiality, indemnity, and release agreement in a form satisfactory to
Purchaser.
16.10 Limitation of Remedies, Liability, and Damages. THE PARTIES
CONFIRM THAT THE EXPRESS REMEDIES AND MEASURES OF DAMAGES PROVIDED IN THIS
AGREEMENT SATISFY THE ESSENTIAL PURPOSES HEREOF. FOR BREACH OF ANY PROVISION
FOR WHICH AN EXPRESS REMEDY OR MEASURE OF DAMAGES IS HEREIN PROVIDED, SUCH
EXPRESS REMEDY OR MEASURE OF DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY,
THE OBLIGOR'S LIABILITY 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 HEREIN PROVIDED, THE OBLIGOR'S LIABILITY SHALL
BE LIMITED TO DIRECT ACTUAL DAMAGES ONLY, SUCH
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DIRECT ACTUAL DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY AND ALL OTHER
REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED.
16.11 Seller Affiliate Arrangement. If Seller owns, operates,
explores for, or develops Sources of Supply through a partnership, joint
venture or other similar legal entity to which it has contributed such Sources
of Supply with a Person other than ARCO or its affiliates and in which Seller
owns or controls (either directly or indirectly through a Seller Affiliate) at
least 50% or more of the voting interests of such partnership or joint venture
or other similar legal entity, then gas produced from such Sources of Supply
shall be subject to this Agreement but only to the extent of Seller's ownership
interest in such partnership or joint venture or other similar legal entity.
Seller will use its commercially reasonable efforts to cause the other parties
in the partnership or joint venture to market or sell such other parties' share
of gas production from such Sources of Supply through or to the Purchaser.
16.12 Construction of Agreement. In construing this Agreement, the
following principles shall be followed:
(a) no consideration shall be given to the captions of
the articles, sections, subsections, or clauses,
which are inserted for convenience in locating the
provisions of this Agreement and not as an aid in its
construction;
(b) no consideration shall be given to the fact or
presumption that one Party had a greater or lesser
hand in drafting this Agreement;
(c) examples shall not be construed to limit, expressly
or by implication, the matter they illustrate;
(d) the word "includes" and its syntactical variants mean
"includes, but is not limited to" and corresponding
syntactical variant expressions;
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(e) a defined term has its defined meaning throughout
this Agreement, regardless of whether it appears
before or after the place in this Agreement where it
is defined;
(f) the plural shall be deemed to include the singular,
and vice versa;
(g) each gender shall be deemed to include the other
genders; and
(h) each exhibit, attachment, and schedule to this
Agreement is a part of this Agreement, but if there
is any conflict or inconsistency between the main
body of this Agreement and any exhibit, attachment,
or schedule, the provisions of the main body of this
Agreement shall prevail.
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IN WITNESS WHEREOF, this Agreement is executed on the 28th day of
August, 1997, but effective for all purposes as of the Effective Date.
Seller:
VASTAR RESOURCES, INC.
By: /s/ XXXXXX X. XXXXXXX
----------------------------------
Print Name: Xxxxxx X. Xxxxxxx
--------------------------
Title: Sr. Vice President and Chief
Financial Officer
-------------------------------
Purchaser:
SOUTHERN COMPANY ENERGY MARKETING L.P.,
a Delaware limited partnership
By: Southern Company Energy Marketing
G.P., L.L.C. its general partner
By: /s/ S. XXXXX XXXXXX
----------------------------------
Print Name: S. Xxxxx Xxxxxx
--------------------------
Title: Chief Executive Officer
-------------------------------
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List of Exhibits
1. Exhibit A - Sources of Supply
2. Exhibit B - Previous Burdens
3. Exhibit C - Agency Gas Agreement
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EXHIBIT A
SOURCES OF SUPPLY
78
EXHIBIT B
PREVIOUS BURDENS
79
EXHIBIT C
AGENCY GAS AGREEMENT
