EXHIBIT 10.25
MASTER
SERVICES AGREEMENT
NBP ENERGY PIPELINES, L.L.C.
(PROVIDER)
AND
ENRON NORTH AMERICA CORP.
(CUSTOMER)
EFFECTIVE AS OF SEPTEMBER 21, 2000
MASTER SERVICES AGREEMENT
This MASTER SERVICES Agreement (together with any schedules and
exhibits attached and made a part hereof, this "Agreement") is entered into as
of September 21, 2000 (the "Effective Date") between NBP Energy Pipelines,
L.L.C., a Delaware limited liability company ("Provider") and Enron North
America Corp., a Delaware corporation ("Customer"), each a "Party" and together
the "Parties."
Whereas, Customer desires to contract with Provider for Services, as
defined below; and
Whereas, Provider desires to provide such Services on the terms and
conditions set forth herein.
NOW THEREFORE, the Parties hereto acknowledge and agree as follows:
1. DEFINITIONS
1.1 Definitions. Except as otherwise indicated by the context all
capitalized terms used in this Agreement have the meanings set forth below:
"2001 Option" shall have the meaning as set forth in Section 8.2.
"Administrative Services" shall have the meaning as set forth in
the Service Operating Schedule.
"Affiliate" shall mean, with respect to a person, any other person
which directly or indirectly through one or more intermediaries
controls, is controlled by, or is under common control with, such
person. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of a person, whether through the ownership of
voting stock, by contract, or otherwise.
"Business Day" shall mean any Monday, Tuesday, Wednesday, Thursday
and Friday, excluding Federal bank holidays.
"British Thermal Unit" shall mean the amount of heat required to
raise the temperature of one pound of water from 59 degrees Fahrenheit
to 60 degrees Fahrenheit.
"Claims" shall have the meaning set forth in Section 14.1 below.
"Customer" shall mean Enron North America Corp.
"Customer Default" shall mean (a) the failure by Customer to pay
an amount due under this Agreement, which failure continues for a
period of ten
Schedule I
Business Days after the receipt of notice thereof from Provider, (b)
Customer's failure to comply with any material terms of this Agreement,
or (c) Customer dissolves or becomes insolvent or files a petition or
otherwise commences, authorizes or acquiesces in the commencement of a
proceeding or cause of action under any bankruptcy or similar law for
the protection of creditors, or has such petition filed against it and
such petition is not withdrawn or dismissed for 30 Days after such
filing, makes an assignment for the benefit of creditors, suspends the
transaction of its usual business or consents to the appointment of a
trustee or receiver, or a trustee or a receiver is appointed therefor
or for a substantial part of its property, or reorganization,
insolvency, or similar proceedings shall be instituted by or against
Customer.
"Daily Fee" shall mean a fee of $ 45,000 per Day for the period
commencing October 1, 2000 and continuing through December 31, 2000,
and a fee of $ 21,600 per Day for the period commencing January 1, 2001
and continuing through December 31, 2001. Provided, however if Customer
exercises the 2001 Option, then the Daily Fee for the period commencing
January 1, 2001 and continuing through December 31, 2001 shall be
$45,000 per Day.
"Day" shall mean a period beginning and ending at nine o'clock
a.m. Central Clock Time.
"Delivery Point" shall have the meaning set forth in the Service
Operating Schedule
"Effective Date" shall have the meaning set forth in the
introductory paragraph of this Agreement.
"Fees" shall collectively refer to the Fixed Fee and the Variable
Services Fee, together with any other amounts that may be payable by
Customer to Provider pursuant to the terms of this Agreement.
"Fixed Fee" shall have the meaning set forth in Section 4.2 below.
"Force Majeure" shall mean any act that (a) renders it impossible
for a Party to perform its obligations under this Agreement or receive
Services hereunder, (b) is beyond its reasonable control, (c) is not
due to its fault or negligence and (d) cannot be avoided by the
exercise of due diligence, including the expenditure of any reasonable
sum of money. Subject to the satisfaction of the conditions set forth
in (a) through (d) above, Force Majeure shall consist of the following
types of events: (i) natural phenomena, such as storms, floods,
lightening, earthquakes, hurricanes, tornadoes and fires; (ii) wars,
civil disturbances and sabotage; and (iii) actions or omissions of a
Governing Body that were not voluntarily induced by Provider, such as
the adoption or passage of new or differing laws, statutes, regulations
and the like, or changes thereof or in the
Schedule I
interpretation thereof by or at the instance of a Governing Body. In
no event shall Force Majeure include economic hardship or changes in
market conditions.
"Gas Services" shall have the meaning set in the Service Operating
Schedule and any currently effective Service Schedule.
"Initial Term" shall have the meaning set forth in Section 3
below.
"Maximum Quantity" shall mean shall mean 250,000 MMBtu of gas per
Day for the period commencing October 1, 2000 and continuing through
December 31, 2000, and 120,000 MMBtu of gas per Day for the period
commencing January 1, 2001 and continuing through December 31, 2001.
Provided, however if Customer exercises the 2001 Option, then the
Maximum Quantity for the period commencing January 1, 2001 and
continuing through December 31, 2001 shall be 250,000 MMBtu of gas per
Day.
"Month" shall mean the period beginning on the first Day of a
calendar month and on the first Day of the next succeeding calendar
month.
"MMBtu" shall mean one million British Thermal Units.
"Parties" shall mean Customer and Provider and either of their
permitted successors or assigns.
"Permitted Services Suspensions" shall mean the failure of
Provider to deliver the Services due to any combination of Force
Majeure, Customer Default or Customer's failure to comply with
provisions of the Service Schedules.
"Provider" shall mean NBP Energy Pipelines, L.L.C.
"Provider Default" shall have the meaning set forth in Section
13.2.
"Provider's Deficiency Quantity" shall have the meaning set forth
in Section 13.2.
"Receipt Point" shall have the meaning set forth in Schedule I.
"Replacement Price Differential" means the positive difference, if
any, obtained by subtracting the applicable Variable Services Fee from
the cost to Customer to replace the Gas Services for Provider's
Deficiency Quantity.
"Scheduled Volume" shall have the meaning set forth in Section 2.2
of the Service Operating Schedule.
"Service Schedule" shall mean all such Service Schedules as may be
entered into by Provider and Customer from time to time for Gas
Services, the form of which is attached as Exhibit B.
Schedule I
"Services" shall mean the provision by Provider of Gas Services
and Administrative Services.
"Service Operating Schedule" shall mean the document attached to
this Agreement as Schedule I, which is incorporated herein for all
purposes.
"System" shall mean any gas gathering, transportation, processing
and treating system utilized in performing the Gas Services hereunder.
"Term" shall have the meaning set forth in Section 3 below.
"Variable Quantity" shall mean the total Scheduled Volume for
Customer's account on a given day hereunder.
"Variable Services Fee" shall have the meaning set forth in
Section 4.3 below.
1.2 Divisions, Headings and Index. The division of this Agreement into
articles, sections and subsections, and the insertion of headings and any table
of contents or index, if any, are for convenience of reference only, and shall
not affect the construction or interpretation hereof.
1.3 Industry Usage. Words, phrases or expressions which are not defined
herein and which, in the usage or custom of the business of the gathering,
storage, distribution or sale of natural gas have an accepted meaning, shall
have that meaning.
1.4 Extended Meaning. Unless the context otherwise requires, words
implying the singular include the plural and vice versa, and words implying
gender include all genders. The words "herein", and "hereunder" and words of a
similar nature refer to the entirety of this Agreement, including any exhibits,
if any, and schedules incorporated into this Agreement, and not only to the
Section in which such use occurs.
2. GENERAL MASTER AGREEMENT
Subject to and on the terms and conditions herein set forth, Provider
hereby agrees to provide for and on behalf of Customer, the Services and
Customer hereby agrees to contract for the Services, all as further set forth
herein and in the Service Operating Schedule. It is acknowledged that the
Parties are relying upon the fact that all Service Schedules, together with this
Agreement and the Service Operating Schedule, will form a single integrated
agreement and that the Parties would not otherwise enter into any Service
Schedules. Each Service Schedule shall be construed as one with this Agreement
and the Service Operating Schedule and any discrepancy between this Agreement,
the Service Operating Schedule and a Service Schedule shall be resolved in favor
of the Service Schedule.
Schedule I
3. TERM
The Services shall be provided pursuant to this Agreement in accordance
with the following:
3.1 Services. The Services shall commence on the Effective Date and
shall continue thereafter through December 31, 2001 (the "Initial Term") and
Month to Month thereafter unless terminated by either Party upon 30 Days written
notice, provided however that all Service Schedules shall remain in full force
and effect for the term specified therein (the "Term").
3.2 Renewal and Extension. Upon expiration of the Term of this
Agreement, any monies or other charges due and owing either Party shall be paid
and any corrections or adjustments to payments previously made shall be
determined and paid within 60 Days. Notwithstanding the foregoing, all
confidentiality rights and obligations hereunder shall survive for two (2) years
thereafter. The Parties' obligations set forth in this Agreement shall remain in
effect for the purpose of complying herewith.
4. FEES
4.1 Fees In General. In consideration of the provision of the Services
by Provider for the benefit of and on behalf of Customer, Customer shall pay
Provider the Fixed Fee and the Variable Services Fee in the manner set forth in
this Section 4. The Fixed Fee shall be comprised of the amount set forth in
Section 4.2 below and the Variable Services Fee shall consist of and be computed
in the manner set forth in Section 4.3, with each such amount payable in
accordance with the requirements of Section 5 below.
4.2 Fixed Fee. Commencing on October 1, 2000, Customer shall pay
Provider the Daily Fee multiplied by the number of Days in the Month, for each
Monthly period during the Initial Term (the "Fixed Fee"), and Customer shall be
entitled to demand the Administrative Services and the Gas Services on a firm
basis for Receipt Points and Delivery Points that are interconnects to Systems
that are header and/or mainline transportation as set forth in the Service
Operating Schedule. The Fixed Fee shall be due and payable by Customer whether
or not Customer utilizes all or any portion of the Services for any reason other
than the occurrence of a Provider Default, in which event Customer shall be
entitled to the remedies set for in Section 13.2 below. The Fixed Fee shall
terminate at the end of the Initial Term.
4.3 Variable Services Fee. Customer shall pay Provider a Variable
Services Fee as specified in a currently effective Service Schedule for all
Variable Quantity Gas (the "Variable Services Fee").
4.3 Option Fee. Customer shall pay Provider $ 373,750 for the 2001
Option.
Schedule I
5. PAYMENT TERMS AND PAST DUE AMOUNTS
5.1 Fixed Fees and Option Payment. On or before the 1st Day of each
Month, or the next Business Day occurring thereafter, during the Initial Term,
Customer shall pay the Fixed Fee for the previous Month (to the extent then
payable), regardless of whether Provider shall have issued an invoice or other
manner of billing documentation with respect to same. Customer shall pay the
2001 Option fee as specified in Section 4.3 upon execution of this Agreement.
5.2 Variable Services Fee. On or before the 10th Day of each Month
occurring during the Term, Provider shall provide Customer with a written
statement setting forth Provider's calculation of the Variable Services Fee for
the immediately preceding Month. Customer shall remit any undisputed amounts set
forth on such statement no later than the later to occur of the twenty-fifth Day
of the Month in which Provider's statement was received by Customer or ten Days
after actual receipt of Provider's statement. If the due date for any payment to
be made under this Agreement is not a Business Day, the due date for such
payment shall be the following Business Day. Disputed amounts that are later
determined to be correct shall be assessed past due interest, as specified in
Section 5.4, from the original date due until the date paid.
5.3 Payment of Amount Due by Provider to Customer. Any amounts due by
Provider to Customer under the provisions of this Agreement shall be payable
within 15 Days of Customer's invoice therefor.
5.4 Past Due Interest. If either Party fails to pay any payment or
other sum when due, such Party shall also pay to the other Party interest
thereon from the due date thereof to the date of payment at a rate equal to the
lesser of (a) the prime rate as published in the Wall Street Journal under
"Money Rates" plus 2% or (b) the maximum rate permitted by applicable law.
5.5 Wire Transfer Instructions. All payments to be made by Customer to
Provider hereunder shall be payable by wire transfer to Provider at such place
or account as Provider from time to time may designate in writing.
5.6 Netting. In the event that Customer and Provider are each required
to pay an amount in the same Month hereunder, then such amounts with respect to
each Party may be aggregated and the Parties may discharge their obligations to
pay through netting, in which case the Party, if any, owing the greater
aggregate amount may pay to the other Party the difference between the amounts
owed.
6. TAXES
The Fees include full reimbursement for, and Provider is liable for and
shall pay, or cause to be paid, or reimburse Customer if Customer has paid, all
taxes applicable to the Services. In the event Customer is required to remit
such tax, the amount thereof
Schedule I
shall be deducted from any sums becoming due to Provider hereunder. Provider
shall indemnify, defend and hold harmless Customer from any claims for such
Taxes.
7. NOTICES
All notices and communications made pursuant to this Agreement shall be
made as specified below. Notices required to be in writing shall be delivered in
written form by letter, facsimile or other documentary form. Notice by facsimile
or hand delivery shall be deemed to have been received by the close of the Day
on which it was transmitted or hand delivered (unless transmitted or hand
delivered after close of a Business Day in which case it shall be deemed
received at the close of the next Business Day) or such earlier time confirmed
by the receiving Party. Notice by overnight mail or courier shall be deemed to
have been received two Business Days after it was sent or such earlier time
confirmed by the receiving Party. Any Party may change its addresses by
providing notice of same in accordance herewith.
To Customer:
Enron North America Corp.
0000 00xx Xxxxxx
Xxxxxx Xxxxxxxx 00000
Att: Xxxx Xxxxx
Phone 000-000-0000
To Provider:
NBP Energy Pipelines, LLC
0000 Xxxxx 000xx Xxxxxx
Xxxxx, XX 00000
Attn: Mr. Xxxxxx Xxxx
Phone: 000-000-0000
8. SERVICES AND 2001 OPTION
8.1 Services. Provider shall provide or procure the Services hereunder
on a 24 hour per Day continuous basis in accordance with the provisions of this
Agreement, the Service Operating Schedule, any currently effective Services
Schedule and industry standards, applicable laws, rules and regulations.
8.2 2001 Option. Customer shall have the option to be exercised, by a
notice given to Provider in writing, no later than December 15, 2000, to
increase the Maximum Quantity for the period commencing January 1, 2001 through
December 31, 2001 from 120,000 MMBtu per day to 250,000 MMBtu per day (the "2001
Option"). If Customer exercises the 2001 Option, then the Daily Fee shall be
revised as specified in the
Schedule I
definition of such term.
9. LIMITATION OF LIABILITY
EXCEPT AS MAY BE EXPRESSLY SET FORTH IN THIS AGREEMENT, IN NO EVENT
SHALL EITHER PARTY, ITS AGENTS OR EMPLOYEES (FOR PURPOSES OF THIS SECTION 9,
SUCH PERSONS SHALL COLLECTIVELY BE REFERRED TO AS A PARTY) BE LIABLE TO THE
OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL
DAMAGES RELATED TO OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT
LIMITATION, ANY INJURY, LOSS OR DAMAGE TO ANY PROPERTY, ANY LOSS OF PROFITS OR
BUSINESS OPPORTUNITY, LOSS OF REVENUE, REGARDLESS OF THE REASON OR CAUSE OF SUCH
DAMAGES, WHETHER ANY OF SUCH DAMAGES OCCUR DURING OR AFTER THE TERM, OR THAT THE
CLAIM FOR SUCH DAMAGES IS BASED ON WARRANTY, CONTRACT, TORT OR OTHER THEORY OF
ANY NATURE WHATSOEVER.
10. REPRESENTATIONS AND WARRANTIES
10.1 Provider Representations and Warranties. Provider represents and
warrants to Customer as follows:
(a) Provider is duly authorized and empowered to enter into this
Agreement and to consummate the transactions contemplated hereby and is
duly formed, validly existing, and is in good standing in the State of
Delaware.
10.2 Customer Representations and Warranties. Customer represents and
warrants to Provider as follows:
(a) Customer is duly authorized and empowered to enter into this
Agreement and to consummate the transactions contemplated hereby,
Customer is duly incorporated, validly existing, and is in good
standing in the State of Delaware.
11. LICENSES, PERMITS AND COMPLIANCE
Each Party, at its sole expense, shall comply with all applicable,
laws, rules and regulations of any Federal, state, local or other regulatory
agency relating to the performance of its obligations hereunder and shall obtain
and maintain throughout the Term any and all licenses and permits required of it
as a result of this Agreement.
12. FORCE MAJEURE
Schedule I
In the event either Party is rendered unable, wholly or in part, by
Force Majeure to carry out its obligations under this Agreement, other than the
payment of money, it is agreed that upon its giving notice and full particulars
of such Force Majeure event to the other Party as soon as reasonably possible
(such notice to be confirmed in writing), the obligations of the other Party, to
the extent they are affected by such event, shall be suspended from the
inception and during the continuance of the Force Majeure. The Party claiming
Force Majeure shall be obligated to cause same to be remedied with all
reasonable diligence and dispatch.
13. CERTAIN REMEDIES AVAILABLE FOR DEFAULT
13.1 Remedies for Customer Default. Upon the occurrence of a Customer
Default, in addition to any other remedies available to Provider at law or in
equity, Provider may take one or more of the following actions:
(a) Provider may suspend the provision of further Services until
Customer shall have (i) fully remedied the Customer Default and (ii)
provided Provider with such further assurances as Provider may
determine to ensure that Customer will thereafter promptly pay the Fees
owed hereunder in accordance with the terms hereof;
(b) Where the Customer Default involves its unjustified failure to
pay all or any part of the Fees, and such failure continues for more
than ten (10) Business Days following the due date thereof, Provider
shall have the right to terminate this Agreement by the delivery of 5
Days prior written notice to Customer; and
(c) Proceed by appropriate court action or actions either at law
or in equity to enforce performance of the applicable covenants of this
Agreement or to recover damages for the breach of this Agreement to the
extent permitted under the provisions hereof.
13.2 Remedies for Provider Default. Upon the occurrence of a Provider
Default, in addition to any other remedies available to Customer at law or in
equity, Customer shall be entitled to the following:
(a) If on any Day Provider fails to perform Gas Services in
accordance with a currently effective Service Schedule, then such
occurrence shall constitute a "Provider Default" and "Provider's
Deficiency Quantity" shall be the numerical difference between the
volume of gas tendered for delivery under the Service Schedule, and the
quantity of Gas for which Gas Services were actually provided for such
Day. In the event of a Provider Default, Provider shall pay Customer an
amount equal to the product of Provider's Deficiency
Schedule I
Quantity multiplied by the Replacement Price Differential. Payment to
Customer shall be made in accordance Section 5.3 of this Agreement.
(b) Proceed by appropriate court action or actions either at law or in
equity to enforce performance of the applicable covenants of this
Agreement or to recover damages for the breach of this Agreement to the
extent permitted under the provisions hereof.
13.3 Right to Self Help. During any cure periods allowed under this
Agreement and prior to cure by the defaulting Party, if the defaulting Party is
failing to diligently pursue steps to cure the default, the non-defaulting Party
shall have the right to take all reasonable actions necessary to remedy the
default, and the defaulting Party shall be liable for the expenses associated
therewith and reimburse the non-defaulting Party therefor within three Days of
receipt of an invoice for such expenses.
13.4 Legal Fees and Expenses. In addition to any other cost, fees, or
remedies occasioned by a Party's default, the defaulting Party shall be liable
for all legal fees and other costs and expenses resulting from a default by such
Party and the exercise of the remedies herein provided by the nondefaulting
Party.
13.5 Remedies Not Exclusive. In no event shall the enumeration of the
specific remedies set forth in this Agreement preclude a Party from seeking
other or alternate remedies to those described herein, nor shall any single or
partial exercise of any right or remedy hereunder preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law, by
agreement or otherwise.
13.6 Effect of Termination. In the event that Provider terminates this
Agreement as a result of the election permitted in Section 13.1(b) above,
Provider's remaining obligations hereunder shall cease.
14. ARBITRATION
14.1 Agreement to Arbitrate. Any claim, counterclaim, demand, cause of
action, dispute, and controversy arising out of or relating to this Agreement or
the relationship established by this Agreement, any provision hereof, the
alleged breach thereof, or in any way relating to the subject matter of this
Agreement, involving the Parties and/or their respective representatives
(collectively the "Claims"), even though some or all of such Claims allegedly
are extra-contractual in nature, whether such Claims sound in contract, tort, or
otherwise, at law or in equity, under State or federal law, whether provided by
statute or the common law, for damages or any other relief, shall be resolved by
binding arbitration.
Schedule I
14.2 Conduct of the Arbitration, Authority of the Arbitrators, and
Choice of Law. Arbitration shall be conducted in accordance with the rules of
arbitration of the Federal Arbitration Act and, to the extent an issue is not
addressed by the federal law on arbitration, by the Commercial Arbitration Rules
of the American Arbitration Association. The validity, construction, and
interpretation of this agreement to arbitrate, and all procedural aspects of the
arbitration conducted pursuant hereto shall be decided by the arbitrators. In
deciding the substance of the Parties' Claims, the arbitrators shall refer to
the laws of the State of Texas as required by Section 15.8 hereof. It is agreed
that the arbitrators shall have no authority to award treble, exemplary or
punitive damages of any type under any circumstances whether or not such damages
may be available under state, or federal law, or under the Federal Arbitration
Act, or under the Commercial Arbitration Rules of the American Arbitration
Association, the Parties hereby waiving their right, if any, to recover any such
damages.
14.3 Forum for the Arbitration and Selection of Arbitrators. The
arbitration proceeding shall be conducted in Houston, Texas. Within thirty (30)
Days of the notice of initiation of the arbitration procedure, each Party shall
select one arbitrator. The two arbitrators shall select a third arbitrator. The
third arbitrator shall be a person who has over eight (8) years professional
experience in the intrastate natural gas pipeline industry and who has not
previously been employed by either Party and does not have a direct or indirect
interest in either Party or the subject matter of the arbitration. While the
third arbitrator shall be neutral, the two Party-appointed arbitrators are not
required to be neutral, and it shall not be grounds for removal of either of the
two Party-appointed arbitrators or for vacating the arbitrators' award that
either of such arbitrators has past or present minimal relationships with the
Party that appointed such arbitrator.
14.4 Confidentiality. To the fullest extent permitted by law, any
arbitration proceeding and the arbitrators award shall be maintained in
confidence by the Parties.
15. MISCELLANEOUS CLAUSES
15.1 Transfer. This Agreement shall inure to and bind the permitted
successors and assigns of the Parties; provided, except as permitted herein,
neither Party shall transfer this Agreement without the prior written approval
of the other Party; provided further, either Party may transfer its interest to
an Affiliate by assignment, merger or otherwise without the prior approval of
the other Party, but no such transfer shall operate to relieve the assigning
Party of its obligations hereunder; provided further, if Provider assigns all or
any part of the Fee due Provider hereunder to a third party (which Customer
agrees it shall have the right so to do without Customer's prior consent),
Customer, upon receiving written notice of any such assignment, shall make all
payments hereunder as it may be therein directed. Any Party's transfer in
violation hereof shall be void.
15.2 Warranties. EXCEPT AS MAY BE EXPRESSLY PROVIDED HEREIN OR AS
OTHERWISE MUTUALLY AGREED IN WRITING BY THE PARTIES,
Schedule I
THERE ARE NO EXPRESS, STATUTORY OR IMPLIED WARRANTIES WITH RESPECT TO THIS
AGREEMENT.
15.3 Enforceability and Irrevocability. If any part of this Agreement
is contrary to, prohibited by or deemed invalid under applicable laws or
regulations of any jurisdiction, such provision shall be inapplicable and deemed
omitted but shall not invalidate the remaining provisions hereof. Each Party
admits the receipt of a counterpart of this Agreement.
15.4 Confidentiality and Public Statement. Each Party shall not
disclose the terms of this Agreement, or any information concerning gas
throughput or the operations of either Party it receives or has knowledge of
incident to the performance of the obligations hereunder, to a third party
(other than its Affiliates' employees, lenders, direct and indirect owners,
shareholders, partners, and/or investors, and each of such person's respective
counsel, accountants and investment advisors and other advisors who have agreed
to keep such terms confidential) except in order to comply with any applicable
law, order, regulation or exchange rule; provided, each Party shall notify the
other Party of any proceeding of which it is aware which may result in
disclosure and use reasonable efforts to prevent or limit the disclosure.
Notwithstanding the foregoing, the Parties, upon mutual written approval of both
form and content, may release public communications concerning the transaction
contemplated by this Agreement.
15.5 Modification and Waiver. No covenant or condition of this
Agreement may be modified by either Party except by the written consent of both
Parties. Forbearance or indulgence by either Party in any regard whatsoever
shall not constitute a waiver or change of the covenant or condition to be
performed by the other Party to which the same may apply, and, until the
complete performance of said covenant or condition has occurred. Each Party
shall be entitled to invoke any remedy at law or in equity available to it under
the provisions of this Agreement despite said forbearance or indulgence. Waiver
of any defaults shall not waive any other default.
15.6 Entirety and Relationship. This Agreement constitutes the entire
agreement of the Parties related to the provision of the Services by Provider to
Customer. There are no prior or contemporaneous agreements or representations
(whether oral or written) involving the subject matter of this Agreement other
than those herein expressed. This Agreement is not intended to create, and shall
not be construed to create, a relationship of partnership, joint venturers, or
an association for profit or any kind of real property or leasing relationship
between the Parties.
15.7 Control. As between the parties hereto, Customer shall be in
control and in possession of the Gas delivered hereunder and responsible for any
damages or injuries caused thereby until the same shall have been delivered to
Provider at the Receipt Points and after it has been redelivered for Customer's
account at the Delivery Points. After such delivery of Gas, Provider shall be
deemed to be in exclusive control and possession
Schedule I
thereof and responsible for any injuries or damages caused thereby until the
same shall have been redelivered for the account of Customer at the Delivery
Points.
15.8 Law. This Agreement shall be construed under and in accordance
with the laws of the State of Texas and Federal law as set forth in Section
14.2.
15.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and need not be
signed by more than one of the Parties and all of which shall constitute one and
the same agreement.
15.10 Other. The headings used herein are for convenience and reference
purposes only. The Parties agree that the original executed version of this
Agreement, Service Operating Schedule, Exhibit or any Services Schedule may be
photocopied and stored on computer tapes and disks, with the Parties
specifically agreeing that if such items, if introduced as evidence on paper (or
if computer records, then introduced into evidence in printed format), in any
judicial, arbitration, mediation or administrative proceedings, will be
admissible as between the Parties to the same extent and under the same
conditions as other business records originated and maintained in documentary
form. Neither Party shall object to the admissibility of the foregoing items (or
photocopies of the foregoing items) on the basis that such were not originated
or maintained in documentary form under either the hearsay rule, the best
evidence rule or other rule of evidence.
Schedule I
This Agreement is executed by each Party effective as of this 21st Day
of September 2000.
PROVIDER CUSTOMER
NBP ENERGY PIPELINES, L.L.C ENRON NORTH AMERICA CORP.
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx Xxxxxx
-------------------------------- -------------------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxx Xxxxxxx
Title: Vice President Title: Managing Director
Schedule I
SCHEDULE I
SERVICE OPERATING SCHEDULE
The Services described below are subject to the terms and conditions of
that certain Master Services Agreement between NBP Energy Pipelines, L.L.C.
("Provider") and Enron North America Corp. ("Customer"), dated as of September
__, 2000 (the "Agreement"), and this Schedule I is expressly incorporated into
and made a part of the Agreement.
I. GAS SERVICES
1.1 GENERAL DESCRIPTION.
(a) General Description of Gas Services. Subject to Section 1.1(b)
below, Provider agrees to receive, transport, treat, process, and deliver those
volumes of gas that are the thermal equivalent of gas tendered by Customer at a
given Receipt Point (hereafter defined) in accordance with the terms and
provisions of a currently effective Service Schedule on each Day ("Gas
Services")
(b) System Specifications and Procedures. The Services shall be in
accordance with and subject to the specifications and procedures of the
System(s) or as otherwise specified in a currently effective Service Schedule.
1.2 QUANTITY
Provider shall receive quantities of gas from or for the account of
Customer on any Day at the Receipt Point(s) and redeliver to a Delivery Point in
accordance with all currently effective Service Schedules, on a firm basis for
Receipt Points and Delivery Points that are interconnects to Systems that are
header and/or mainline transportation systems for a total quantity of gas not to
exceed the Maximum Quantity and on an interruptible basis for quantities of gas
at all other Receipt Points and Delivery Points and for quantities of gas in
excess of the Maximum Quantity.
1.3 RECEIPT POINTS & DELIVERY POINTS
(a) Receipt Points and Delivery Points. The receipt point(s) ("Receipt
Point(s)") and delivery points ("Delivery Point(s)") for gas received and
delivered or caused to be received and delivered between Customer and Provider
hereunder shall be as specified on Exhibit A as the same may be modified from
time to time in a currently effective Service Schedule.
(b) Point Flexibility. Customer shall have Receipt Point and Delivery
Point flexibility and shall not be required to request Gas Services that
physically path gas on any one System or interconnected network of Systems.
Schedule I
(c) System Flexibility. Provider shall have System flexibility and
shall not be required to utilize any particular System in providing the Gas
Services.
1.4 MEASUREMENT
Provider shall provide or contract for measurement services in
accordance with industry standards for each Receipt Point and Delivery Point.
1.5 AUDIT RIGHTS
Customer shall have the right at all reasonable times to audit the
measurement records of the measuring party's custody transfer or check
measurement. If any such audits reveal any inaccuracy in any billing or payment
therefore made, the necessary adjustments in such billing and payment shall be
made within thirty (30) Days after final determination thereof; provided, that
no adjustments for any billing or payment shall be made for any inaccuracy
claimed after the lapse of twelve (12) Months from the rendition of the
invoice(s) relating thereto.
II. ADMINISTRATIVE SERVICES
2.1 GENERAL DESCRIPTION
Provider agrees to perform nomination, scheduling, allocation,
balancing services and to provide gas services and forecasting information all
as more fully described below ("Administrative Services") in connection with the
Gas Services provided hereunder.
2.2 NOMINATION AND SCHEDULING SERVICES
Provider shall coordinate with Customer and/or any other party
designated by Customer to determine the quantities to be delivered or received
hereunder at each Receipt Point and Delivery Point during the period scheduled
(the "Scheduled Volume"). Provider shall properly nominate and schedule gas in
accordance with the nomination and scheduling procedures for each System and
shall maintain records of such activities for Customer. Provider shall be
responsible for coordinating with Customer to adjust the Scheduled Volume on a
Daily basis to minimize imbalances.
2.3 BALANCING SERVICES
Provider shall continuously monitor the gas volumes actually received
and redelivered each month and shall notify Customer of any discrepancy between
actual deliveries and Schedule Volumes. Provider shall actively work with
Customer to manage and minimize imbalances. Any imbalance resulting from the
failure of Provider to provide the Services hereunder shall be resolved by
Provider at Provider's expense. Any imbalance resulting from the failure of
Customer to properly schedule take away capacity
Schedule I
at a Delivery Point shall be resolved by Customer at Customer's expense.
2.4 ALLOCATIONS
At Customer's request, Provider shall furnish or cause to be furnished
to Customer such information as Customer shall reasonably consider to be
necessary to allocate volumes received at the Receipt Points and/or delivered at
the Delivery Points among the various customers of Customer.
2.5 GAS SERVICES INFORMATION
(a) Customer's Gas. Provider shall furnish Customer with Monthly
statements detailing the quantity of gas received at each Receipt Point and
redelivered at each Delivery Point (in Mcf and MMBtu), together with related
fuel and lost and unaccounted for gas volumes.
(b) Total Volumes. At Customer's request Provider shall furnish
Customer with all scheduled and metered volumes and pressure information for the
Receipt Points and the Delivery Points. If such service is available at the
applicable Receipt Points and/or Delivery Points, Provider shall furnish to
Customer, access to real time total gas flow information. This information shall
be provided whether or not Customer is utilizing Gas Services hereunder.
2.6 FORECASTING INFORMATION
Provider shall furnish Monthly production forecasting information and
projections for the natural gas producing basins that might reasonably be
expected to be capable of delivering gas to the Receipt Points.
Schedule I
EXHIBIT A
RECEIPT AND DELIVERY POINTS
RECEIPT POINTS:
1. All Points in the Madden Field, Fremont County Wyoming.
2. All Points in the Powder River Basin, Xxxxxxxx, Converse and Sheridan
Counties, Wyoming.
DELIVERY POINTS:
1. Interconnects with the Wyoming Interstate Company's Pipeline in
Sweetwater, Carbon and Converse Counties, Wyoming.
2. Interconnects with Colorado Interstate Gas Company's Pipeline in
Sweetwater, Carbon and Converse Counties, Wyoming.
3. Interconnects with Xxxxxx Xxxxxx Interstate in Sweetwater, Carbon and
Converse Counties, Wyoming.
Exhibit A
EXHIBIT B
FORM OF
SERVICE SCHEDULE
[DATE]
Enron North America Corp.
RE: MASTER SERVICES AGREEMENT
DATED [____________]
SERVICE SCHEDULE "[___, SEQUENTIAL LETTER OR NUMBER USED TO SEPARATELY
IDENTIFY SERVICE SCHEDULES]"
Ladies & Gentlemen:
With reference to the above-described Master Service Agreement between NBP
Energy Pipelines, L.L.C. ("Provider") and Enron North America Corp. ("Customer")
(herein referred to as the "Agreement"), The parties hereby agree to this
Service Schedule "[____]" (this "Service Schedule") as follows:
--------------------------------------------------------------------------------
TERM: [COMMENCEMENT DATE OF SERVICE SCHEDULE
THROUGH TERMINATION DATE].
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RECEIPT POINTS:
--------------------------------------------------------------------------------
DELIVERY POINTS:
--------------------------------------------------------------------------------
VARIABLE SERVICES FEE $0.__per MMBtu.
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QUANTITY: MMBtu per day.
--------------------------------------------------------------------------------
FUEL & L&U
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OTHER PROVISIONS:
--------------------------------------------------------------------------------
This Service Schedule shall govern Gas Services during the Term as specified
above and from the Receipt Points to the Delivery Points listed above.
If the foregoing represents your understanding of our agreement, please so
indicate in the space provided below and return two (2) fully executed copies
for our records.
Very truly yours,
NBP ENERGY PIPELINES, L.L.C.
By:
------------------------------------
Title:
ACCEPTED AND AGREED TO this
____ day of ______________, 0000
XXXXX XXXXX XXXXXXX CORP.
By:
----------------------------------
Name:
-------------------------------
Title:
-------------------------------
Exhibit B
