GAS SALE AND PURCHASE AGREEMENT
between,
ENERGY CORPORATION OF AMERICA
and
ALLEGHENY ENERGY SERVICE CORPORATION
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS 1
ARTICLE II VOLUMES AND PRICE 3
ARTICLE III CLOSING AND CONSIDERATION 6
ARTICLE IV POINT(S) OF DELIVERY 8
ARTICLE V TERM 8
ARTICLE VI TERMINATION 8
ARTICLE VII LIMITATION OF LIABILITY/REMEDIES 10
ARTICLE VIII TAXES 11
ARTICLE IX MEASUREMENT 11
ARTICLE X QUALITY 12
ARTICLE XI DELIVERY PRESSURE 12
ARTICLE XII REFUSAL 12
ARTICLE XIII POSSESSION OF GAS AND WARRANTY OF TITLE 13
ARTICLE XIV FORCE MAJEURE 13
ARTICLE XV SUCCESSORS AND ASSIGNS 15
ARTICLE XVI WAIVER OF DEFAULT 15
ARTICLE XVII RULES AND REGULATIONS 15
ARTICLE XVIII GOVERNING LAW 16
ARTICLE XIX COMPLETE AGREEMENT 16
ARTICLE XX HEADINGS 16
ARTICLE XXI NOTICES 16
ii
GAS SALE AND PURCHASE AGREEMENT
THIS AGREEMENT, made and entered into as of the 20th
day of December, 1999, by and between Energy Corporation of
America, a West Virginia corporation, or its designated
affiliate, (hereinafter referred to as "Seller"), and Allegheny
Energy Service Corporation, a Maryland corporation, (hereinafter
referred to as "Buyer").
WHEREAS, Seller is a natural gas producer and has
available to it, either through its own production or through
contracts with other producers, natural gas in volumes adequate
to meet the volumes requested by Buyer as hereinafter specified;
and
WHEREAS, Buyer wishes to purchase gas and have it
delivered to its operations in West Virginia; and
WHEREAS, Seller is willing to sell and deliver to Buyer
and Buyer desires to purchase from Seller natural gas in the
volumes and at the Contract Price specified in this Agreement.
NOW, THEREFORE, in consideration of the covenants and
agreements herein set forth, Seller and Buyer agree as follows,
to-wit:
ARTICLE I
DEFINITIONS
1.1 The terms "Additional Prepayments" shall mean the First
Additional Prepayment and the Second Additional Prepayment
1.2 The term "Basis Quote" shall mean the quoted difference
between the price for gas at the Xxxxx Hub in Louisiana and the
price quoted for gas at locations where Columbia Gas Transmission
Corporation delivers gas to the "Connecting Party" points set
forth on Schedule "A" for a specified Month.
1.3 The term "Btu" shall mean one (1) British thermal unit.
1.4 The term "Contract Annual Volume" shall mean 3,990,180
Dth.
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1.5 The term "Contract Price" shall have the meaning
assigned in Article II.
1.6 The term "Contract Year" shall mean a period of one (1)
year commencing on the Date of First Delivery, as specified
herein, and each succeeding one (1) year period thereafter.
1.7 The term "Date of First Delivery" shall be the date on
which gas is first delivered by the Seller to the Buyer which
date shall be no earlier than July 1, 2001.
1.8 The term "day" shall mean a period of twenty-four (24)
consecutive hours, ending at 10:00 a.m., Charleston, West
Virginia Time.
1.9 The term "Dth" shall mean one MMBtu.
1.10 The term "Event of Default" shall have the meaning
ascribed to it in Article 6.5.
1.11 The term "First Additional Prepayment" shall mean
the first $10 million Prepayment for Volume B Gas provided for in
Article 3.2(i).
1.12 The term "First Delivery Notice" shall mean the
written notice specifying the Date of First Delivery which shall
be sent by the Buyer to the Seller at least sixty days before the
Date of First Delivery; provided that such notice shall not
identify a Date of First Delivery prior to July 1, 2001.
1.13 The term "Force Majeure" shall have the meaning
ascribed to it in Article XIV.
1.14 The term "gas" shall mean natural gas which
conforms to the quality specifications set forth in Article X
hereof.
1.15 The term "Initial Prepayment" shall mean the $10
million payment made by Buyer to Seller at Closing for Volume A
Gas, as described in Article 3.1.
1.16 The term "Interstate Pipeline" shall mean a
natural gas company that is subject to regulation by and has a
tariff on file with and approved by the Federal Energy Regulatory
Commission.
1.17 The term "Letters of Credit" shall mean the two or
more Letters of Credit as described in Article 3.2.
1.18 The term "Mcf" shall mean one thousand (1,000)
cubic feet of gas.
1.19 The term "MMBtu" shall mean one million
(1,000,000) Btu.
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1.20 The term "Month" shall mean the period commencing
at 10:00 a.m. Charleston, West Virginia time on the first day of
the calendar month and ending at 10:00 a.m. Charleston, West
Virginia time on the first day of the next calendar month.
1.21 The term "Nationally Recognized Natural Gas
Marketer" shall mean marketing and/or trading companies none of
whom are affiliated with either Buyer or Seller and who transport
at least 1,000,000 Dth per Day in total on Interstate Pipelines
and who certify that they transport at least 2% of their total
transported gas on Columbia Gas Transmission.
1.22 The term "Point(s) of Delivery" shall have the
meaning assigned in Article IV.
1.23 The term "Second Additional Prepayment" shall mean
the second $10 million prepayment for Volume B Gas as provided
for in Article 3.2(ii).
1.24 The term "Transporter" or "Transporting
Pipeline(s)" shall mean any third-party pipeline, gathering line
or system, or local distribution company transporting and/or
delivering gas to the Point(s) of Delivery under this Agreement.
ARTICLE II
VOLUMES AND PRICE
2.1 Commencing on the Date of First Delivery indicated in
the First Delivery Notice, Seller agrees to deliver to the Buyer
at the Point(s) of Delivery the Contract Annual Volume, as
follows: 3,644 Dth per day with respect to Volume A Gas and
7,288 Dth per day with respect to Volume B Gas unless mutually
agreed otherwise.
2.2 (a) Contract Annual Volume. The Contract Annual Volume
is comprised of the following volume designations:
(1) 1,330,060 Dth is designated as the Volume A Gas; and
(2) 2,660,120 Dth is designated as the Volume B Gas.
(b) Nominations. Except as provided in Article 2.1(c)
each day from and after the Date of First Delivery, Buyer is
permitted and Seller shall honor Buyer's nominations to Seller to
deliver (or cause to be delivered) to the Point(s) of Delivery
the gas as follows:
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(i) at a minimum, Buyer shall
nominate from Seller and Seller shall deliver
(or cause to be delivered) at the Point(s) of
Delivery no less than 2,500 MMBtu per day of
Volume A Gas;
(ii) at a maximum, Buyer may
nominate from Seller up to 3,644 MMBtu per
day of Volume A Gas and Seller shall, subject
only to Force Majeure, deliver (or cause to
be delivered) Buyer's nominated quantities at
the Point(s) of Delivery;
(iii) at a minimum, Buyer shall
nominate from Seller and Seller shall deliver
(or cause to be delivered) at the Point(s) of
Delivery no less than 5,000 MMBtu per day of
Volume B Gas; and,
(iv) at a maximum, Buyer may
nominate from Seller up to 7,288 MMBtu per
day of Volume B Gas and Seller shall, subject
only to Force Majeure, deliver (or cause to
be delivered) Buyer's nominated quantities at
the Point(s) of Delivery.
(c) Notwithstanding the minimum and maximum volumes
set forth in Article 2.1 (b) (i)-(iv) above, Buyer shall, on or
before November 1st of each Contract Year provide Seller with a
schedule identifying the minimum and maximum daily and monthly
nominations on an operating or market area basis on the Columbia
Gas Transportation Corporation system for the next ensuing months
of December, January and February ("Buyer's Schedule"). Buyer
may revise its nominations during such months, provided however
that any such revised nominations for any operating or market
area specified in Buyer's Schedule shall not be less than the
minimum nor more than the maximum for any day as set forth in
Buyer's Schedule, except as mutually agreed in writing by the
parties.
2.3 The Contract Price for gas delivered hereunder shall be
as follows:
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(1) The Contract Price for Volume
A Gas shall be at an Index monthly
variable price which shall be equal to
the settlement prices for the NYMEX Gas
futures contract for deliveries during
each Month of such Contract Year, as
quoted for each such Month in the issues
of The Wall Street Journal published on
the last trading day prior to the
beginning of such Month plus an amount
in cents per Dth equal to the arithmetic
average Basis Quote as received by Buyer
from three (3) Nationally Recognized
Natural Gas Marketers for the
differential between the NYMEX
settlement location at the Xxxxx Hub
Louisiana, and Columbia Gas Transmission
City Gates in West Virginia, which Basis
Quotes are provided to Buyer within the
last four business days prior to the
start of such Month.
(2) The Contract Price for Volume B Gas
shall be at an Index monthly variable
price which shall be equal to the
settlement prices for the NYMEX Gas
futures contract for deliveries during
each Month of such contract year, as
quoted for each such Month in the issues
of The Wall Street Journal published on
the last trading day prior to the
beginning of such Month plus an amount
in cents per Dth equal to the average
Basis Quote as received by Buyer from
three (3) Nationally Recognized Natural
Gas Marketers for the differential
between the NYMEX settlement location at
the Xxxxx Hub Louisiana, and Columbia
Gas Transmission City Gates in West
Virginia, which Basis Quotes are
provided to Buyer within the last four
business days prior to the start of such
Month minus $0.15 (fifteen cents) per
Dth.
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2.4 Volume A Gas will be invoiced and credited against the
Initial Prepayment. If Seller elects to obtain the Additional
Prepayments as provided in Article 3.2, then Volume B Gas will be
invoiced and credited against the Additional Prepayments. From
and after Seller's receipt of the Additional Prepayments, the
deliveries of Volume A Gas and Volume B Gas on each day will be
allocated for the purpose of Contract Pricing as follows: the
daily nominated quantities of Volume B Gas will be deemed to have
been delivered in their entirety prior to delivery of any Volume
A Gas quantities. Provided, however, that if there is any
shortage in total deliveries by Seller (as compared to
nominations by Buyer to Seller) the deliveries of Volume A Gas
and Volume B Gas on each day will be allocated for the purpose of
Contract Pricing as follows: the daily nominated quantities of
Volume A Gas will be deemed to have been delivered in their
entirety prior to delivery of any Volume B Gas quantities.
2.5 Unless and until Seller exercises its right to receive
the Additional Prepayments by posting the Letter(s) of Credit as
provided in Article 3.2, Seller shall have no obligation to
deliver the Volume B Gas.
2.6 Seller shall furnish Buyer a statement within fifteen
(15) days after the last day of each month in which gas is
delivered pursuant to this Agreement showing the volumes so
delivered during the preceding Calendar Month and reflecting the
Contract Price due for such deliveries and showing proper credit
of all Initial and Additional Prepayments made by Buyer.
ARTICLE III
CLOSING AND CONSIDERATION
3.1 Upon execution and delivery of this Agreement, the
Buyer shall pay to the Seller in immediately available funds the
sum of Ten Million Dollars ($10,000,000.00) as consideration for
the purchase and delivery of the Volume A Gas over the term of
this Agreement (the "Initial Prepayment").
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3.2 At Seller's sole discretion, Seller may, at any time
after execution of this Agreement, upon two (2) business days
written notice to Buyer, require Additional Prepayments from
Buyer by posting a letter or letters of credit as described below
and in a form acceptable to Buyer, and Buyer shall pay to Seller
in immediately available funds, within ten (10) business days of
the posting of such letter or Letters of Credit, the amounts so
designated as Additional Prepayments for the gas to be delivered
pursuant to this Agreement:
(1) Seller may post an irrevocable letter of credit in
the amount of Ten Million Dollars ($10,000,000.00),
at Seller's sole expense and Buyer will prepay Ten
Million Dollars ($10,000,000.00) to Seller (the
"First Additional Prepayment"). At Seller's option,
the First Additional Prepayment may be secured by
two (2) letters of credit in the amount of Five
Million Dollars ($5,000,000) each.
(2) At any time after the making of the First Additional
Prepayment, or simultaneously therewith, Seller may post
an additional Ten Million Dollars ($10,000,000.00)
irrevocable letter of credit, the reasonable cost of which
shall be reimbursed to Seller by Buyer, and Buyer will prepay
an additional Ten Million Dollars ($10,000,000.00) to Seller
(the "Second Additional Prepayment").
The letters of credit referenced in Section 3.2(i) and (ii) above
are sometimes collectively referred to herein as the "Letters of
Credit." The Letters of Credit (or any of them) shall be
proportionately reduced by an amount equal to the Contract Price
for the volumes of gas delivered by Seller to Buyer hereunder, as
such deliveries are made.
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ARTICLE IV
POINT(S) OF DELIVERY
4.1 The Point(s) of Delivery for all gas to be delivered
hereunder shall be the point(s) designated as the "Connecting
Party" points within the Columbia Gas Transmission Corporation
operating areas on Schedule A attached hereto. The Point(s) of
Delivery may be changed only by mutual agreement.
ARTICLE V
TERM
5.1 This Agreement shall be effective from the date hereof.
Deliveries of gas shall commence on or after July 1, 2001 and
shall terminate (subject to the provisions of Article VI) when
the aggregate Contract Price with respect to Volume A and Volume
B gas, if any, delivered to Buyer during the term of this
Agreement equals or exceeds the Initial Prepayment and Advance
Prepayments.
ARTICLE VI
TERMINATION
6.1 In the event that the Contract Price, calculated in
accordance with Article 2.2(i) with respect to Volume A Gas
delivered to Buyer during the term of this Agreement equals or
exceeds Ten Million Dollars ($10,000,000.00), Seller's
obligations hereunder with respect to Volume A Gas shall
automatically terminate.
6.2 In the event that the Contract Price, calculated in
accordance with Article 2.2(ii), with respect to Volume B Gas
delivered to Buyer during the term of this Agreement, equals or
exceeds, the total amount of any Additional Prepayments elected
to be received by Seller, Seller's obligations hereunder with
respect to Volume B Gas shall automatically terminate.
6.3 Seller shall have the right, at its sole discretion and
upon fifteen (15) days prior notice, to terminate this Agreement
at any time during the term hereof by paying to Buyer an amount
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equal to the difference between the Contract Price for all
volumes delivered to Buyer and credited against the Initial
Prepayment and any Additional Prepayment pursuant to this
Agreement and the original prepayments paid by Buyer to Seller.
6.4 Seller shall have the right to terminate this Agreement
upon the occurrence and continuation for thirty (30) business
days or longer of any default by Buyer in making any payment due
under this Agreement.
6.5 Buyer shall have the right to terminate this Agreement
upon the occurrence and continuation for thirty (30) days or
longer of any of the following specified Events of Default. In
addition, Buyer shall have such rights as Buyer shall have been
granted pursuant to the Letters of Credit referred to in Article
III hereof and the rights specified in Article VII. For purposes
of this Article VI, the following events shall constitute "Events
of Default" by Seller: (i) failure of the Seller to pay any
amount due hereunder within thirty (30) days after the same
becomes due, and (ii) failure of the Seller to supply natural gas
to the Buyer or pay the price of replacement gas as required in
Article VII, each in accordance with the terms of this Agreement,
when due.
6.6 Buyer shall have the right to terminate this Agreement
if Seller is unable to deliver gas in accordance with the
provisions hereof for a period of 60 days as a result of a
continuing event of force majeure.
6.7 If Buyer terminates this Agreement in accordance with
Articles 6.5 and 6.6, Seller shall pay to Buyer, no later than 15
days after the date of termination, an amount equal to the
difference between the Contract Price for all volumes delivered
to Buyer and credited against the Initial Prepayment and any
Additional Prepayment pursuant to this Agreement and the original
prepayments paid by Buyer to Seller.
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ARTICLE VII
LIMITATION OF LIABILITY/ REMEDIES
7.1 If Seller fails to deliver any quantity of gas that it
is required to deliver under this Agreement, Buyer may purchase
replacement gas. When Buyer purchases replacement gas, Buyer
will use commercially reasonable efforts to purchase for delivery
a quantity of gas not to exceed the quantity of gas which Seller
failed to deliver and Buyer shall make such purchases at fair
market prices on a spot basis. Upon such event, Buyer shall
invoice Seller and Seller shall pay Buyer on a monthly basis an
amount equal to the cost of such replacement gas plus any
discounts applicable to such gas as Volume B Gas plus all
transportation costs incurred by Buyer in connection with
purchasing such replacement gas and having it delivered to the
Point(s) of Delivery. Upon payment of the aforesaid amount, said
sums will constitute liquidated damages for Seller's failure to
perform its obligations hereunder and shall be Buyer's sole
remedy for Seller's failure to so perform. In the event Seller
fails to pay such damages within thirty days, Buyer may exercise
its rights under the Letters of Credit.
7.2 If Buyer fails to accept delivery of the Contract
Annual Volume (other than (i) as a result of an event of Force
Majeure, or (ii) as a result of a default or an Event of Default
by Seller hereunder or (iii) as permitted under Article XII),
Buyer shall reimburse Seller for the actual damages, if any,
incurred by Seller as a result of its failure to use the firm
capacity reserved by Seller for the transportation of gas
pursuant to this Agreement, and for all other costs or losses
incurred by Seller as a result of Buyer's failure to accept
delivery of such volumes.
7.3 Other than as expressly provided herein, neither Seller
nor Buyer shall be responsible or liable for any lost profits, or
special, incidental, indirect or consequential damages of any
kind, whether grounded in contract, breach of warranty, or tort
(including, but not limited to, negligence and strict liability)
or arising from any other legal theory.
7.4 THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE
EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER
STATUTORY, EXPRESS OR IMPLIED (INCLUDING WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND
WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.)
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ARTICLE VIII
TAXES
8.1 The Contract Price described in Article II hereof
includes all taxes, duties and inspection fees presently imposed
by any federal, state or local government in respect to or
measured by the gas delivered hereunder, which taxes, duties and
fees shall be paid by Seller insofar as they pertain to Seller's
operations prior to Seller's delivery of gas to Buyer at the
Point(s) of Delivery. Except for state severance taxes,
corporate income taxes, franchise taxes and ad valorem taxes
applicable to Seller, all new taxes, duties and inspection fees,
which may at any time in the future be imposed by federal, state
or local government, in respect to or measured by the gas
delivered hereunder or the delivery, receipt or usage thereof, at
or after the Point(s) of Delivery, shall be paid by Buyer. If
Buyer is entitled to purchase gas free of any tax, fee or charge,
the Buyer shall furnish to Seller proper exemption certificates
to cover such purchases.
ARTICLE IX
MEASUREMENT
9.1 As stated herein, the gas to be sold hereunder shall be
delivered to the Point(s) of Delivery and Seller shall cause the
Transporter, or its duly appointed agents, to read the meter,
furnish, place and remove any and all recording gauge charts,
calculate the deliveries and perform any other service pertaining
to the routine operation of the meter.
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ARTICLE X
QUALITY
10.1 The gas shall be sold and delivered in its natural
state, without the previous extraction of any valuable substance.
The applicable Transporter's rules, guidelines, and policies, as
may be changed from time to time, shall define the quality and
heating value of the gas to be delivered hereunder. Any quality
and heating value standards of Transporter's contracts are hereby
expressly incorporated herein by reference as if completely set
out, and shall be applicable to and binding upon Seller and upon
all natural gas sold by Seller to Buyer. The heating value in
Btus of gas at the Point(s) of Delivery shall not be less than
one thousand (1,000) Btus per standard cubic foot.
ARTICLE XI
DELIVERY PRESSURE
11.1 Seller shall cause Transporter to deliver gas to Buyer
at the varying line pressures available from time to time in
Transporter's pipeline adjoining the Point(s) of Delivery.
ARTICLE XII
REFUSAL
12.1 Buyer, at its option, may refuse to accept delivery of
any natural gas (a) not meeting the quality specifications set
out in Article X, or (b) not meeting the delivery pressure
specifications set out in Article XI. If Buyer notifies Seller
of such refusal, Seller shall promptly use its best efforts to
cause such natural gas to satisfy such specifications, and if
such specifications are not promptly (and in any event within 10
days) satisfied, Seller shall use its best efforts to locate,
purchase and transport, at Seller's expense, replacement natural
gas of a quality at least equal to the natural gas intended to be
delivered hereunder. If Seller is unable to provide replacement
gas under this Article XII, Seller's obligations to provide
replacement gas or pay under Article VII hereof shall apply.
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ARTICLE XIII
POSSESSION OF GAS AND WARRANTY OF TITLE
13.1 Control of Gas. Seller shall be deemed to be the owner
and in control and possession of the gas to be delivered
hereunder until it shall have been physically delivered to Buyer
at the Point(s) of Delivery specified in Article IV above, after
which Buyer shall be deemed to be the owner and in control and
possession thereof.
13.2 Division of Responsibility. Buyer shall have no
responsibility with respect to any gas delivered hereunder until
it is physically delivered to Buyer at the Point(s) of Delivery,
or on account of anything which may be done, happen or arise with
respect to said gas before such delivery; and Seller shall have
no responsibility with respect to said gas after such delivery to
Buyer, or on account of anything which may be done, happen, or
arise with respect to said gas after such delivery.
13.3 Warranty of Title. Seller warrants specifically the
title to the gas delivered to the Buyer hereunder against the
claims of all persons claiming by, through or under the Seller,
and the Seller further warrants the right to sell and deliver
such gas free and clear of all liens, encumbrances and claims
created by the Seller. In addition, Seller agrees that it will
indemnify Buyer and save Buyer harmless from all suits, actions,
debts, accounts, damages, costs, losses and expenses arising from
or out of (i) adverse claims of any or all persons to the gas to
be delivered hereunder, or (ii) any liens, encumbrances, or other
title defects relating to the gas to be delivered hereunder.
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ARTICLE XIV
FORCE MAJEURE
14.1 Neither Seller nor Buyer shall be deemed in breach
hereof for nonperformance hereunder (except nonperformance of any
obligation to make payment of amounts payable hereunder when due)
when such nonperformance is due to any act, omission or
circumstance occasioned by or in consequence of any acts of God,
strikes, lockouts, acts of the public enemy, war, blockades,
insurrections, riots, epidemics, landslides, lightning,
earthquakes, fires, storms, floods, washouts, arrests and
restraints of rulers and peoples, civil disturbances, explosions,
breakage or accident to machinery or lines of pipe, the binding
order of any court or governmental authority which has been
resisted in good faith by all reasonable legal means, and any
other cause, whether of the kind herein enumerated or otherwise,
in each case not reasonably within the control of the party
claiming an event of Force Majeure and which, by the exercise of
due diligence, such party is unable to prevent or overcome, in
each case with respect to the Seller, to the extent affecting the
Seller's owned or operated gas reserves or the Seller's ability
to transport its gas to the Buyer. Failure to prevent or settle
any strike or strikes shall not be considered to be a matter
within the control of the party claiming suspension.
14.2 Such causes or contingencies affecting the performance
hereunder by either Seller or Buyer, however, shall not relieve
it of liability in the event of its concurring negligence or in
the event of the failure to use best efforts by the party
claiming Force Majeure to remedy the situation and to remove the
cause in an adequate manner and with all reasonable dispatch, nor
shall causes or contingencies affecting such performance relieve
either party from its other obligations under this Agreement,
even should it cause this Agreement to be extended beyond the
termination date.
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ARTICLE XV
SUCCESSORS AND ASSIGNS
15.1 This Agreement shall extend to and be binding upon the
parties hereto, their successors and assigns. The Seller shall
not assign this Agreement or any of its rights or obligations
hereunder unless it first shall have obtained the consent thereto
in writing of the Buyer, provided, however, that Buyer shall not
unreasonably withhold such consent, and provided further that
Seller may assign its rights under this Agreement to any
affiliate of Seller without Buyer's consent and further, may
mortgage, pledge or assign for financing purposes its right to
receive payments hereunder without Buyer's consent. The Buyer
may not assign its rights hereunder without Seller's consent
which shall not be unreasonably withheld; provided, however, that
in no event shall any such assignment expand the obligations of
Seller hereunder; and provided, further, that the Buyer may
assign its rights and obligations under this Agreement to any
wholly owned subsidiary of Allegheny Energy, Inc. without the
consent of the Seller.
ARTICLE XVI
WAIVER OF DEFAULT
16.1 No waiver by either party of any one or more defaults
by the other in the performance of any provision of this
Agreement shall operate or be construed as a waiver of any future
default or defaults, whether of a like or of a different
character. No single or partial exercise of any right, remedy,
power or privilege hereunder shall in any way preclude any other
or farther exercise thereof or the exercise of any other right,
remedy, power or privilege.
ARTICLE XVII
RULES AND REGULATIONS
17.1 If any valid future laws, orders, rules or regulations
of duly constituted authorities having jurisdiction have the
effect of altering or amending the provisions of this Agreement,
the parties shall continue the performance of this Agreement as
so altered or amended; provided, however, that such alterations
15
or amendments shall not alter or change the consideration paid by
Buyer to Seller, the term of this agreement, or the volumes of
gas to be delivered hereunder.
ARTICLE XVIII
GOVERNING LAW
18.1 All questions concerning the validity or the meaning of
this Agreement or relating to the rights and obligations of the
parties with respect to performance under this Agreement shall be
construed and resolved under the laws of the State of West
Virginia, except to the extent specifically required by federal
law.
ARTICLE XIX
COMPLETE AGREEMENT
19.1 This document contains the entire agreement between the
parties and supersedes all prior or contradictory discussions or
negotiations, representations or agreements relating to the
subject matter of this Agreement. No changes to this Agreement
shall be made or be binding on either party unless made in
writing and signed by each party to this Agreement.
ARTICLE XX
HEADINGS
20.1 The captions or headings preceding the various parts of
this Agreement are inserted solely for the convenience of the
parties hereto and shall not be considered or given effect in
construing this Agreement, or in connection with the intent,
rights, duties or liabilities of the parties.
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ARTICLE XXI
NOTICES
21.1 Any notice, request, consent, waiver or other
communication required or permitted to be given hereunder shall
be effective only if in writing and shall be deemed sufficiently
given only if delivered in person or sent by facsimile or by
certified or registered mail, postage prepaid, return receipt
requested, addressed as follows:
If to Energy Corporation of America
Energy Corporation of America
Attn: Xxxx Xxxx
0000 X. Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
With copies to:
Xxxxxxx & Xxxxxxx, LLP
Attn: Xxxxxx X. Xxxxxxx
1500 Xxx Xxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
If to Allegheny:
Allegheny Energy, Inc.
Attn: Xxxxx Xxxxxx, Director
000 Xxxxx Xxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
and:
Allegheny Power
Xxx Xxxxxxxxx, General Counsel
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
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With copies to:
Xxxxx Xxxxx, LLP
Attn: Xxxxx Xxxxxxxx
One Shell Plaza
000 Xxxxxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the day and year first above written.
SELLER: ENERGY CORPORATION OF AMERICA
By: /S/ XXXX XXXX
Xxxx Xxxx
Its: President and Chief Executive
Officer
BUYER: ALLEGHENY ENERGY SERVICE CORPORATION
By: /S/ XXX XXXXX
Xxx Xxxxx
Its: Senior Vice President
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