EXHIBIT 10(c)
GAS PURCHASE AGREEMENT DATED MARCH 31, 0000
XXXXXXX XXXXXXXXX XXXX GAS MARKETING, INC., AND ATLAS
ENERGY GROUP, INC., ATLAS RESOURCES, INC., AND RESOURCE ENERGY, INC.
GAS PURCHASE AGREEMENT
This Agreement made and entered into as of this 31st day of March,
1999, by and between Northeast Ohio Gas Marketing, Inc., an Ohio corporation
("Buyer") of P. O. Xxx 000, Xxxxxxxxx, Xxxx 00000-0000 and Atlas Energy Group,
Inc., an Ohio corporation, Atlas Resources, Inc., a Pennsylvania corporation and
Resource Energy, Inc., a Delaware corporation (collectively "Seller" of 000
Xxxxxx Xxxx, X.X. Xxx 000, Xxxxxxxxxx, Xxxxxxxxxxxx 00000.
RECITALS
WHEREAS, Buyer utilizes volumes of natural gas, hereinafter referred to
as "gas", for its customers situated in Ohio and Pennsylvania; and
WHEREAS, Seller is in the business of developing and producing a supply
of gas from gas and/or on xxxxx situated in Ohio and Pennsylvania; and
WHEREAS, Seller is the owner of such gas or is the authorized agent for
the owner or owners of such gas and therefore has the authority to contract for
the sale of such gas; and
WHEREAS, Seller desires to sell and to agree to sell for itself and
those owners for which it is the authorized agent, all of the gas produced from
the xxxxx, and Buyer desires to purchase such gas; and
WHEREAS, as of the date hereof, FirstEnergy Trading and Power
Marketing, Inc., an affiliate of Buyer, and AIC, Inc., an affiliate of Seller,
are entering into an agreement (the "Stock Purchase Agreement') relating to the
purchase of all of the common stock of Atlas Gas Marketing, Inc.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby expressly acknowledged, the parties do hereby agree as follows:
1. AGREEMENT: Subject to the terms of this Agreement, Seller does
hereby agree to sell to Buyer on a firm basis and Buyer does hereby agree to
purchase on a firm basis, during the continuing term of this Agreement, those
quantities of natural gas described in. this Agreement.
2. TERM OF AGREEMENT: The term of this Agreement shall be effective for
a primary term of ten (10) years commencing March 31, 1999 and terminating March
31, 2009. This Agreement shall automatically renew for successive annual terms
unless either party, within one hundred twenty (120) days prior to the end of
the primary term or any successive annual term, notifies the other party, in
writing, of its intent to terminate this Agreement at the end of such term. The
primary term and successive annual terms shall be considered the "term" of this
Agreement. The price for gas for the first one (1) or two (2) years of the term
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of this Agreement shall be set forth on Schedule I attached hereto. The price
for gas for subsequent annual periods shall be agreed to between Buyer and
Seller by November 30th of each subsequent year for the next succeeding annual
period, which period shall commence on April 1st.
Should the Buyer and Seller be unable to reach agreement as to the
purchase price at any Point of Delivery, after the initial one or two year term,
as applicable, or for any subsequent annual period, the Seller may solicit
offers to purchase such gas from other third parties. In the event Seller should
receive a bona fide offer to purchase all of Seller's gas, which is subject to
this Agreement, at a specific Point of Delivery, it shall give notice (the
"Notice") of the Point of Delivery, the name of prospective purchaser, the term
of the proposed agreement and the purchase price to Buyer. If Buyer refuses to
match such offer within five (5) business days of receipt of the Notice from
Seller, then Seller shall be free to sell such gas to a party other than Buyer
on the terms set forth in the Notice. Buyer's future rights to purchase such gas
shall be restored at the completion of the term set forth in the Notice, subject
to the provisions of this Paragraph.
3. DELIVERY POINT AND TRANSPORTATION: Subject to further provisions of
this Agreement, and during the term hereof, any gas purchased hereunder shall be
sold and delivered by Seller to Buyer at the interstate pipeline or local
distribution company facilities of Tennessee Gas Pipeline Company, East Ohio Gas
Company, National Fuel Gas Distribution, National Fuel Gas Supply, Peoples
Natural Gas Company and Columbia Gas Transmission Corp., hereinafter be referred
to as the "Points of Delivery". Additional Points of Delivery may be added by
mutual agreement of Buyer and Seller. Title to the gas delivered hereunder shall
vest to Buyer upon delivery by Seller to the Points of Delivery. Seller shall be
responsible and pay for all gas transportation costs and retainage imposed by
upstream pipelines to the Points of Delivery. As between the parties hereto,
Seller shall be responsible for any damage or injury caused by the gas until the
same shall have been delivered to the Points of Delivery after which delivery
Buyer shall be in exclusive control and possession thereof and responsible for
any damage or injury caused thereby.
4. QUANTITY: Seller shall exclusively make available to Buyer and Buyer
agrees to purchase from Seller, during the term of this Agreement a quantity
equal to 100% of the current and future production into the Points of Delivery.
Except as otherwise provided in this Section, Seller shall deliver all gas it
develops and produces into the Points of Delivery. Unless agreed to by Buyer
Seller shall not sell any gas to any other party. It is currently estimated that
Atlas Energy Group, Inc. and Atlas Resources, Inc. will collectively deliver
approximately 27,000 Mcf per day and Resource Energy. Inc. will deliver
approximately 7,000 Mcf per day at the Points of Delivery. Buyer and Seller
agree to mutually cooperate and regularly meet to establish production schedules
of gas into the Points of Delivery.
Seller shall nominate, by the 25th calendar day of the preceding month,
the daily volumes to be delivered during the following month to the Points of
Delivery. Seller's daily deliveries shall be no greater than one hundred and ten
percent (110%) or no less than ninety percent (90%) of Seller's daily nominated
volume as long as Seller's deliveries at each Point of Delivery are at least 500
Mcf per day, with the exception of the Wheatland Dehydration Meter, for which
the minimum volume is 300 Mcf per day. If Seller's daily volume delivery is less
than ninety percent (90%) of Seller's daily nominated volume, then Seller's
shall pay Buyer one hundred and two percent (102%) of the Buyer's replacement
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cost, less the price set forth on Schedule I, for the volume of gas which is the
difference between Seller's daily volume delivery and ninety percent (90%) of
Seller's daily nominated volume. If Seller's daily volume delivery is more than
one hundred and ten percent (110%) of Seller's daily nominated volume, then,
regardless of other pricing provisions contained in this Agreement, Buyer shall
pay Seller ninety eight percent (98%) of the daily market price of each Point of
Delivery, as set forth on Schedule I, for the volume of gas which is the
difference between Seller's daily volume delivery and one hundred and ten
percent (110%) of Seller's daily nominated volume.
Notwithstanding the first paragraph of this Section 4, it is understood
and agreed to by the parties that Seller shall continue to supply gas to its
three (3) direct delivery customers, Wheatland Tube Company, CSC Industries and
Xxxxxx Consolidated for the life of those agreements, including any extensions
or renewals. Buyer and Seller agree that Buyer will provide all billing services
for the above three (3) customers. Buyer agrees that it will not utilize
Seller's local production, or any other source of supply, as source of sales to
the above three (3) customers of Seller to the extent Buyer's offer would
supplant or in any manner displace the existing amount of Seller's direct
delivery agreements throughout the term of Seller's agreements with the above
three (3) customers, including any extensions or renewals. Seller currently
delivers 2,600 Mcf per day to the Wheatland Tube Company, 3,400 Mcf per day to
CSC Industries and 325 Mcf per day to Xxxxxx Consolidated. Seller agrees that
Buyer may sell any amount, in excess of Seller's current volumes (so long as
Seller continues to have a contact with the above three (3) customers) to such
customers. Buyer shall not be restricted in selling to any of the above three
(3) customers if Seller no longer has a contract with such customer.
Seller's commitment to deliver all of the gas it produces to Buyer is
subject to the right of investors, including limited partnerships where Seller
is acting as the General Partner, in xxxxx operated by Seller, to take their gas
in kind. In the event a party wishes to take its gas in kind, Seller shall
promptly notify Buyer. Seller further agrees to indemnify Buyer for full losses
attributable to gas which has been taken in kind by investors in xxxxx operated
by Seller, to the extent Buyer has incurred a loss on such gas because of a
prior commitment by Buyer.
5. PURCHASE PRICE: The price to be paid by Buyer to Seller for gas
delivered to Buyer at the Point(s) of Delivery shall be as set forth on Schedule
I attached hereto.
6. BILLING AND PAYMENT: Invoices shall be rendered to Buyer by the 14th
calendar day of the month for gas delivered the preceding monthly period and
payment shall be made monthly to Seller not later than the 28th calendar day of
the month. Payment shall be made at the following address, or other address that
may be designated by Seller from time to time: 000 Xxxxxx Xxxx, X.X. Xxx 000,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000. Invoices shall be delivered to Buyer at: X.X.
Xxx 000, Xxxxxxxxx, Xxxx 00000-0000. The quantities invoiced by Seller will be
based on the quantities delivered by Seller at the Point(s) of Delivery. In the
event the actual quantity delivered to the Point(s) of Delivery is unavailable,
the estimated volumes of gas tendered for delivery by Seller to the Point(s) of
Delivery shall be invoiced to Buyer. Any appropriate adjustment shall be made in
the following billing period. Payment not received by the twenty-eighth (28th)
calendar day of the month shall bear interest at PNC Bank, NA's then current
prime lending rate minus two percent (2%).
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7. QUALITY AND MEASUREMENT: Seller warrants that gas delivered under
this Agreement shall meet the quality and measurement standards established by
interstate pipeline and/or local distribution companies receiving gas from
Seller for Buyer's account at the Point(s) of Delivery.
8. WARRANTY OF TITLE AND TAXES. Seller warrants title to all gas
delivered by it and warrants that such gas is free from all liens and adverse
claims. Seller shall indemnify and save Buyer harmless against all suits, debts,
damages, costs and expenses arising from adverse claims to the gas delivered by
it or taxes, payments or other charges thereon applicable before such gas is
delivered to the Point(s) of Delivery. All present and future production,
severance, gross proceeds or assessments of a similar nature imposed or levied
by any state or other governmental agency or duly constituted authority upon the
gas sold and delivered hereunder and the components thereof and the royalty,
overriding royalty, production payment and other lease burden owners, as the
case may be, shall be borne and paid by Seller. In the event Buyer is required
to pay any of such taxes and assessments, Buyer may deduct same from the
payments to be made by it hereunder and may make a reasonable charge for such
service. Buyer shall be responsible for all taxes, liens and adverse claims
which may be imposed on such gas after the Point(s) of Delivery.
9. REGULATORY BODIES. This Agreement and Buyer's and Seller's
obligation hereunder shall be subject to all valid applicable State and Federal
laws, and orders, directives, rules and regulations of any government body or
official having jurisdiction hereunder.
10. NOTICES: Whenever under the terms of this Agreement, any notice is
required or permitted to be given by one party to the other, it shall be given
in writing and shall be deemed to have been sufficiently given for all purposes
hereof if sent by telegram or mailed, postage prepaid, to the parties at the
address set forth below:
Seller: Atlas Energy Group. Inc.
Atlas Resources, Inc.
Resource Energy, Inc.
Attn: Contract Administrator
000 Xxxxxx Xxxx
X.X. Xxx 000
Xxxxxxxxxx. Xxxxxxxxxxxx 00000
Buyer: Northeast Ohio Gas Marketing. Inc.
Attn: Contract Administrator
P. O. Xxx 000
Xxxxxxxxx, Xxxx 00000-0000
11. GOVERNING LAW: The interpretation and performance of this Agreement
shall be in accordance with the laws of the State of Ohio.
12. FORCE MAJEURE: If either Buyer or Seller is rendered unable, wholly
or in part, by force majeure to perform its obligations under this Agreement,
other than the obligation to make payments then or thereafter due, it is agreed
that performance of the respective obligations of the parties hereto to deliver
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and receive gas, so far as they are affected by such force majeure, shall be
suspended from the inception of any such inability until it is corrected, but
for no longer period. The party claiming such inability shall give notice
thereof to the other party as soon as practicable after the occurrence of the
force majeure. If such notice is first given by telephone communications, it
shall be confirmed promptly in writing giving full particulars. The party
claiming such inability shall promptly correct such inability to the extent it
may be corrected through the exercise of reasonable diligence. Force majeure as
used herein shall mean acts of God, vandalism, war, civil disturbance,
rebellion, blockade, strike or other labor dispute, lightning, fire, flood,
explosion, hurricane, freezing of xxxxx or pipelines which result in the failure
of third party pipelines to transport gas hereunder, permanent plant closing of
either the Carbide Graphite plant or the Duferco Xxxxxxx Corporation plant
(during the term of the existing agreement with such party, excluding any
extensions or renewals) and other causes not within the control of the party
claiming a force majeure situation.
13. ASSIGNMENT: Neither party may assign any of its rights under this
Agreement without the prior written consent of the other party, which will not
be unnecessarily withheld, except that Buyer may assign any of its rights under
this Agreement to any affiliate of Buyer, provided that Buyer remains
responsible for all financial obligations hereunder. Subject to the preceding
sentence, this Agreement will apply to, be binding in all respects upon, and
inure to the benefit of the successors and permitted assigns of the parties.
14. SURVIVAL OBLIGATIONS: The obligation of Buyer to make payment
hereunder shall survive the termination or cancellation of this Agreement. The
obligations of Seller to indemnify Buyer pursuant to the provisions set forth
under Section 8 shall survive the termination or cancellation of this Agreement.
If any provision in this Agreement is determined to be invalid, void, or made
unenforceable by any court having jurisdiction, then such determination shall
not invalidate, void or make unenforceable any other provision, agreement or
covenant in this Agreement. No waiver of any breach of this Agreement shall be
held to be a waiver of any other or subsequent breach. All remedies afforded in
this Agreement shall be taken and construed as cumulative, that is, in addition
to every other remedy provided therein or by law.
15. COMPLETE AGREEMENT: This Agreement, and the Stock Purchase
Agreement, represent the complete and entire understanding between the parties
and their affiliates respecting the subject matter of this transaction. The
parties hereto declare that there are no promises, representations, conditions,
warranties or other agreements, express or implied, oral or written, made or
relied upon by either party, except those contained herein or in the Stock
Purchase Agreement.
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IN WITNESS WHEREOF, the parties. or their authorized agent, hereto have
caused this Agreement to be executed on this the 31st day of March, 1999.
Witnesses: Seller: Atlas Energy Group, Inc.
_______________________________ By: _______________________________
_______________________________ Title: ____________________________
Witnesses: Seller: Atlas Resources, Inc.
_______________________________ By: _______________________________
_______________________________ Title: ____________________________
Witnesses: Seller: Resource Energy, Inc.
_______________________________ By: _______________________________
_______________________________ Title: ____________________________
Witnesses: Buyer: Northeast Ohio Gas Marketing, Inc.
_______________________________ By: _______________________________
_______________________________ Title: ____________________________
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AMENDMENT TO GAS PURCHASE AGREEMENT
THIS AMENDMENT, dated as of February 1, 2001, by and between Atlas
Resources, Inc., a Pennsylvania corporation, Atlas Energy Group, Inc., an Ohio
corporation, and Resource Energy, Inc., a Delaware corporation (hereinafter
collectively referred to as "Seller"), and FirstEnergy Services Corp., an assign
of Northeast Ohio Gas Marketing, Inc. ("Buyer").
WHEREAS, Buyer and Seller are parties to an Agreement dated March 31,
1999 (the "Agreement"), concerning the sale and purchase of natural gas; and
WHEREAS, Viking Resources Corporation ("Viking"), is in the business of
developing and producing natural gas from xxxxx in Ohio and Pennsylvania, and
recently became an affiliate of Seller; and
WHEREAS, Viking is the owner of such natural gas or is the authorized
agent for the owner of such natural gas and therefore has the authority to
contract for the sale of such natural gas; and
WHEREAS, as an inducement for Buyer to establish a Guaranty to Seller
from Buyer's parent, FirstEnergy Corp., Viking has offered to sell for itself
and those owners for which it is the authorized agent all of the gas produced at
the meters identified on Exhibit A attached hereto, and Buyer offered to
purchase such natural gas from Viking;
NOW, THEREFORE, in consideration of the mutual covenants herein, and
other good and valuable consideration, the Seller and Buyer do hereby agree to
amend the Agreement to include the purchase and sale of Viking's natural gas
production at the meters identified on Exhibit A.
This Amendment shall become effective upon execution by the parties.
All other terms and conditions of the Agreement shall remain in full
force and effect.
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IN WITNESS WHEREOF, the parties have hereunto set their corporate
signatures by their duly authorized officers as of the day and year first above
written.
WITNESS: SELLERS: ATLAS RESOURCES, INC.
ATLAS ENERGY GROUP, INC.
RESOURCE ENERGY, INC.
VIKING RESOURCES
CORPORATION
__________________________ ___________________________
By:
WITNESS: BUYER: FIRSTENERGY SERVICES CORP.
__________________________ ___________________________
By:
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SECOND AMENDMENT TO BASE GAS PURCHASE AGREEMENT
Dated July 16, 2003
Between FirstEnergy Solutions Corp. and Atlas Energy Group, Inc.,
Atlas Resources, Inc. and Resource Energy, Inc.
The criteria for the Amendment are as follows:
WHEREAS, Atlas Energy Group, Inc., Atlas Resources, Inc. and Resource
Energy, Inc. (Seller) and FirstEnergy Solutions Corp. (Buyer) have entered into
a Gas Purchase Agreement dated March 31, 1999 (Agreement), and whereas the
parties desire to implement certain amendments to the Base Agreement as set
forth herein;
WHEREAS, Seller represents that it is the owner of the Gas or is the
authorized agent for the owner or owners of the Gas and therefore has the
authority to contract for the delivery and sale of the Gas, and
WHEREAS, Buyer and Seller are parties to an Amendment to the Agreement
dated February 1, 2001, concerning the purchase and sale of Viking Resource
Corporation's natural gas production;
Now, therefore, in consideration of the mutual covenants and promises
set forth below, the parties hereto, intending to be legally bound, hereby
covenant, promise and agree as follows:
1. In exchange for a corporate guaranty or other credit assurance
reasonably acceptable in form and substance to the Buyer, Seller may, at any
time prior to Noon on the day of the applicable NYMEX Contract closing day,
notify an authorized representative of Buyer by telephone to execute financial
hedging instruments at a mutually agreed price ("Hedge Price") then-currently
traded for that month ("Hedge Month") on a specified volume ("Hedge Volume"). If
Buyer agrees to exercises the Hedge described in the previous sentence, Buyer
will send a written notice to the Seller to confirm the Hedge Price and Hedge
Volume for the respective Hedge Month. Thereafter, the Hedge Price shall serve
in lieu of any Floating Contract Price specified in the Transaction Confirmation
for Gas delivered in the Hedge Month up to the Contract Hedge Volume. Contract
Hedge Volume shall be defined as any portion (in 10,000 Dth increments) of the
volume that the Seller is obligated to deliver pursuant to a specified
Transaction Confirmation. If Seller delivers less than One Hundred (100) Percent
of the Contract Hedge Volume for a given Hedge Month and the Contract Hedge
Price is lower than the NYMEX Contract Settlement Price (as determined on the
last day of trading allowed by NYMEX for the respective contract month), Seller
shall be assessed a Market Differential Cost equal to (the NYMEX Contract
Settlement Price minus Contract Hedge Price), multiplied by the undelivered
Contract Hedge Volume. The Market Differential Cost shall apply to the
underproduction of Seller's Contract Hedge Volume, but shall not apply to the
underproduction of Seller's daily nominated gas volumes. In the event of
Seller's underproduction of daily nominated gas volumes, Seller shall be
assessed the replacement costs set forth in paragraph 4 of the Agreement
2. Seller shall deposit with Buyer a commercial letter of credit in the
aggregate amount of $1,000,000, which letter of credit shall be in the form
attached hereto as Exhibit A and issued by a commercial bank acceptable to
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Buyer, payable on presentation by Buyer to such bank of one or more sight drafts
in form acceptable to Buyer. The letter of credit to be deposited and maintained
with Buyer shall be held by Buyer as security for the full faith and performance
and observance by Seller of each and every term, covenant, and condition of the
Agreement as amended.
Concurrent with the delivery of the above referenced letter of credit
by the Seller to the Buyer, Buyer shall deliver to Seller a parental corporate
guaranty reasonably acceptable in form and substance to the Seller, guaranteeing
the payment in the amount fifteen million dollars ($15,000,000) in the event of
non-payment by Buyer of any amounts due and owing Seller under the Agreement
and/or the Second Amendment to the Agreement. The term of Buyer's parental
guaranty shall be for the identical term of the letter of credit Seller deposits
with Buyer. This guaranty shall supercede any existing parental guaranty that
Buyer has delivered to Seller.
3. This Letter of Credit may be drawn upon if an Event of Default
occurs. Event of Default shall mean the Applicant (the "Defaulting Party") or
its guarantor fails to perform any obligation under the Gas Purchase Agreement
dated March 31, 1999, including Seller's failure to pay Buyer, within forty five
(45) days upon receipt of an invoice, for any assessed Market Differential Costs
for Seller's underproduction of natural gas resulting in a net negative impact
to Buyer.
IN WITNESS WHEREOF, the parties have hereunto set their signatures by
their officers hereunto duly authorized the day and year first above written.
FirstEnergy Solutions Corp. Atlas Energy Group, Inc.
Atlas Resources, Inc.
Resource Energy, Inc.
_______________________________ By: _________________________
Dated: ________________________ Dated: July 16, 2003
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Exhibit A
(Proposed form of Letter of Credit)
Beneficiary Applicant
FirstEnergy Solutions Corp.
________________________________
000 Xxxxx Xxxx
________________________________
Xxxxx, XX 00000
________________________________
Attn:
1. We hereby issue our irrevocable Letter of Credit (this "Letter of
Credit") No. __________ in your favor for $_____________________ U.S. Dollars
available for payment at sight in immediately available funds.
This Letter of Credit is issued at the request of the Applicant, and we hereby
irrevocably authorize you to draw on us, in accordance with the terms and
conditions hereof, up to the maximum amount of this Letter of Credit. This
Letter of Credit may be drawn upon an Event of Default under the Second
Amendment to Base Gas Purchase Agreement dated July ___, 2003 between
FirstEnergy Solutions Corp. and Atlas Energy Group, Inc., Atlas Resources, Inc.
and Resource Energy, Inc.
2. A partial or full drawing hereunder may be made by you on any
Business Day prior to the expiration of this Letter of Credit by delivering, by
no later than 11:00 A.M. (New York, NY) on such Business Day to Bank
_____________________, _________________________ (address), (i) a notice
executed by you in the form of Annex 1 hereto, appropriately completed and duly
signed by your Authorized Officer and (ii) your draft in the form of Annex 2
hereto, appropriately completed and duly signed by your Authorized Officer.
Authorized Officer shall mean President, Treasurer, any Vice President or any
Assistant Treasurer.
3. This Letter of Credit expires at the counters of _____________ on
______________ (which date as may be extended in the manner provided herein is
referred to as the "termination date"). The termination date shall be deemed
automatically extended without amendments for one year from the initial
termination date and thereafter for one year from each anniversary of the
initial termination date unless at least ninety (90) days prior to the then
applicable termination date we notify you in writing by certified mail return
receipt requested that we are not going to extend the termination date. During
said ninety (90) day period, this Letter of Credit shall remain in full force
and effect.
4. We hereby agree with the beneficiary drawers, endorsers, and bona
fide holders of drafts and documents drawn under and in compliance with the
terms and conditions of this Letter of Credit that same will be duly honored by
us upon presentation to ourselves as specified, by payment in accordance with
the beneficiary's payment instructions. If requested by the beneficiary, payment
under this Letter of Credit will be made by wire transfer of immediately
available funds to the beneficiary's account at any financial institution
located in the Continental United States. All payments under this Letter of
Credit will be made in our own funds.
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5. This Letter of Credit is subject to the ICC Uniform Customs and
Practice for Documentary Credits (1993 Revision) International Chamber of
Commerce Publication Number 500, or any revisions thereto.
6. We will send via facsimile a copy of this Letter of Credit to the
beneficiary at the following facsimile number: _____________, attention:
__________________, and we will send via overnight courier the original of this
Letter of Credit to the beneficiary at the above address, attention of:
_______________________.
7. All bank charges are for the account of _____________________.
8. This letter of credit is transferable and assignable in whole or in
part by beneficiary.
(Signed)
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Annex 1 to Letter of Credit
DRAWING UNDER LETTER OF CREDIT NO. ________________
______________________, 200__
To: (Bank)
(Address)
Attention: Standby Letter of Credit Unit
Ladies and Gentlemen:
The undersigned is making a drawing under the above-referenced Letter
of Credit in the amount specified below and herby certifies to you as follows:
1. Capitalized terms used herein are defined herein shall have the
meanings ascribed thereto in the Letter of Credit.
2. Pursuant to Paragraph 2 of the Letter of Credit No. _____________,
dated _____________, 200__, the undersigned is entitled to make a drawing under
the Letter of Credit in the amount of $________________, inasmuch as there is an
Event of Default under the Second Amendment to Base Gas Purchase Agreement dated
July ___, 2003 between the Applicant and us.
3. We acknowledge that, upon your honoring the drawing herein
requested, the amount of the Letter of Credit available for drawing shall be
automatically decreased by an amount equal to this drawing.
Very truly yours,
FirstEnergy Solutions Corp.
By: _________________________
Name:
Title:
Date:
Cc: ____________________- (Applicant)
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Annex 2 to Letter of Credit
DRAWING UNDER LETTER OF CREDIT NO. ___________
___________________, 200__
ON [Business Day immediately succeeding date of presentation]
PAY TO: FirstEnergy Solutions Corp.
Attn:
$________________________
For credit in the amount of $____________________________.
FOR VALUE RECEIVED AND CHARGE TO ACCOUNT OF LETTER OF CREDIT NO. ___________ OF
(Bank)
(Address)
FirstEnergy Solutions Corp.
By: ___________________________
Name:
Title:
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