[Dominion letterhead]
September 9, 2001
Xxxxx Xxxxxxx Natural Gas Corp.
00000 Xxxxx Xxxxxxx Xxxxxxx,
Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Gentlemen:
Xxxxx Xxxxxxx Natural Gas Corp. ("Seller") and Dominion Exploration &
Production, Inc. ("Buyer"), collectively referred to herein as the "Parties",
are, contemporaneously with the execution hereof, entering into a GISB
Contract or the Purchase and Sale of Natural Gas dated September 9, 2001 (the
"Contract"). The Contract, which includes the Transaction Confirmations
attached thereto and entails firm obligations, calls for Buyer to purchase
specified volumes of gas from Seller at specific delivery points for fixed
prices to be determined as provided herein.
Following execution of this letter agreement (the "Agreement") by both
parties, Xxxxx will enter into certain financial transactions with
counterparties on or before the close of business on the second (2nd) business
day following the date Seller executes this Agreement, as such execution date
is shown in the Seller's signature block below, (the "Hedge Termination Date")
to financially hedge Buyer's resale risk with respect to the physical gas
volumes Buyer will purchase from Seller pursuant to the Contract. The price
components of the Schedules, as set forth in the third column thereof,
accompanying the Transaction Confirmations forms attached to the Contract
("Transaction Confirmation Prices") will be filled in to reflect the "market
price" shown as a line item in the confirmation(s) generated by the counter
party, as approved by Buyer. The Transaction Confirmation Prices will also be
inclusive of such adjustments for basis and other adjustments as may be
referenced in the applicable Schedule. Buyer shall use commercially
reasonable best efforts to achieve in such financial transactions the best
"market price" available during the period ending on the Hedge Termination
Date. Buyer shall also use commercially reasonable best efforts to achieve the
best prices available in connection with resales of the physical gas volumes
purchased from Seller.
It is intended that the proceeds Buyer receives from the resale of the
physical gas volumes purchased from Seller, as adjusted for the settlements
related to the financial transactions referenced above, be equivalent to the
proceeds that Buyer will pay Seller for such physical gas volumes. Xxxxx and
Xxxxxx agree to reimburse each other for any differences via wire transfer
within one business day following Xxxxxx's receipt of Xxxxx's invoice or
credit memo. Seller shall reimburse Buyer in the event the price Buyer
receives for the resale of the physical gas volumes, as adjusted for the
settlements related to the financial transactions referenced above, is less
than the fixed price paid by Buyer to Seller pursuant to the Contract. Buyer
shall reimburse Seller in the event the price Buyer receives for the resale of
the physical gas volumes, as adjusted for the settlements related to the
financial transactions referenced above, is greater than the fixed price paid
by Buyer to Seller pursuant to the Contract.
It is also intended that both Buyer and Seller be kept financially whole for
the above-referenced financial settlements, margin calls, interest and any
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other expenses related to such financial transactions. Accordingly, Xxxxx and
Seller agree to reimburse each other for any expenses associated with the
financial transactions via wire transfer within one business day following
Xxxxxx's receipt of Xxxxx's invoice or credit memo.
Please indicate your concurrence in the space below.
Very truly yours,
DOMINION EXPLORATION & PRODUCTION, INC.
By: /s/ Xxxxx Xxxxxx
-----------------------------------
AGREED TO
This 9th day of September 2001:
--------
XXXXX XXXXXXX NATURAL GAS CORP.
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
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BASE CONTRACT FOR SHORT-TERM
SALE AND PURCHASE OF NATURAL GAS
This Base Contract is entered into as of the following date: September 9, 2001.
The parties to this Base Contract are the following:
DOMINION EXPLORATION & PRODUCTION, INC. AND XXXXX XXXXXXX NATURAL GAS CORP.
Four Greenspoint Plaza, 00000 Xxxxxxxxxx Xx. Xxxxx 0000 00000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000 Xxxxxxxx Xxxx, Xxxxxxxx 00000
Duns # 00-000-0000 Duns #
Contract # Contract #
Attn: Xxxxxx X. Xxxxxx Attn: Xxxxxx Xxxxxx
Phone: (000) 000-0000 Fax: (000) 000-0000 Phone: 000-000-0000 Fax:
Federal Tax ID Number: 00-0000000 Federal Tax ID Number: 00-0000000
Invoices and Payments:
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000-0000
Attn: Xxx Xxxxxxx, Director, Revenue Accounting Attn:
Phone: (000) 000-0000 Fax: (000) 000-0000 Phone: Fax:
Wire Transfer or ACH Nos. (if applicable) Wire Transfer or ACH Nos.
(if applicable)
Chase Manhattan Bank New York, NY
ABA # 000-000-000, Account # 000-0-000000
This Base Contract incorporates by reference for all purposes the General Terms and Conditions
for Short-Term Sale and Purchase of Natural Gas published by the Gas Industry Standards Board.
The parties hereby agree to the following provisions offered in said General Terms and Conditions
(select only one from each box, but see "Note" relating to Section 2.24.):
Section 1.2 Oral
Transaction Procedure X Written
Section 2.4 X 2 Business Days after receipt (default)
Confirm Deadline Business Days after receipt
Section 2.5 Seller
Confirming Party Buyer
X Buyer & Seller to execute
Confirmations prepared by Xxxxx
Section 3.2 X Cover Standard
Performance Obl. Spot Price Standard
Note: The following Spot Price Publication applies to both of the
immediately preceding Standards and must be filled in after a
Standard is selected.
Section 2.24
Spot Price Publication: Gas Daily Midpoint
Section 6. X Buyer Pays At and After Delivery Point
Taxes Seller Pays Before and At Delivery Point
Section 7.2 25th date of Month following Month
Payment Date of delivery
Section 7.2 X Wire Transfer (WT)
Method of Automated Clearinghouse (ACH)
Payment Check
X Special Provisions: Number of sheets attached: ONE(1)
IN WITNESS WHEREOF, the parties hereto have executed this Base Contract in duplicate.
DOMINION EXPLORATION & PRODUCTION, INC. XXXXX XXXXXXX NATURAL GAS CORPORATION
(Party Name) (Party Name)
By /s/ Xxxxx Xxxxxx By /s/ Xxxx X. Xxxxxx
Title President and CEO Title President and CEO
DISCLAIMER: The purposes of this Contract are to facilitate trade, avoid misunderstandings and
make more definite the terms of contracts of purchase and sale of natural gas. This Contract is
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intended for Interruptible transactions or Firm transactions of one month or less and may not be
suitable for Firm transactions of longer than one month. Further, GISB does not mandate the use
of this Contract by any party. GISB DISCLAIMS AND EXCLUDES, AND ANY USER OF THIS CONTRACT
ACKNOWLEDGES AND AGREES TO GISB'S DISCLAIMER OF, ANY AND ALL WARRANTIES, CONDITIONS OR
REPRESENTATIONS, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THIS CONTRACT OR ANY PART
THEREOF, INCLUDING ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NON- INFRINGEMENT,
MERCHANTABILITY, OR FITNESS OR SUITABILITY FOR ANY PARTICULAR PURPOSE (WHETHER OR NOT GISB KNOWS,
HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER
ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, OR BY COURSE OF DEALING.
EACH USER OF THIS CONTRACT ALSO AGREES THAT UNDER NO CIRCUMSTANCES WILL GISB BE LIABLE FOR ANY
DIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF ANY USE
OF THIS CONTRACT.
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GENERAL TERMS AND CONDITIONS
BASE CONTRACT FOR SHORT-TERM
SALE AND PURCHASE OF NATURAL GAS
SECTION 1. PURPOSE AND PROCEDURES
1.1. These General Terms and Conditions are intended to facilitate purchase and sale
transactions of Gas on a Firm or Interruptible basis. "Buyer" refers to the party
receiving Gas and "Seller" refers to the party delivering Gas.
The parties have selected either the "Oral" version or the "Written" version of transaction
procedures as indicated on the Base Contract.
Oral Transaction Procedure:
1.2 The parties will use the following Transaction Confirmation procedure. Any Gas purchase
and sale transaction may be effectuated in an EDI transmission or telephone conversation with the
offer and acceptance constituting the agreement of the parties. The parties shall be legally
bound from the time they so agree to transaction terms and may each rely thereon. Any such
transaction shall be considered a "writing" and to have been "signed". Notwithstanding the
foregoing sentence, the parties agree that Confirming Party shall, and the other party may,
confirm a telephonic transaction by sending the other party a Transaction Confirmation by
facsimile. XXX or mutually agreeable electronic means. Confirming Party adopts its confirming
letterhead, or the like, as its signature on any Transaction Confirmation as the identification
and authentication of Confirming Party.
Written Transaction Procedure:
1.2 The parties will use the following Transaction Confirmation procedure. Should the
parties come to an agreement regarding a Gas purchase and sale transaction for a particular
Delivery Period, the Confirming Party shall, and the other party may, record that agreement on a
Transaction Confirmation and communicate such Transaction Confirmation by facsimile, XXX or
mutually agreeable electronic means, to the other party by the close of the Business Day
following the date of agreement. The parties acknowledge that their agreement will not be
binding until the exchange of non-conflicting Transaction Confirmation or the passage of the
Confirm Deadline without objection from the receiving party, as provided in Section 1.3.
1.3. If a sending party's Transaction Confirmation is materially different from the
receiving party's understanding of the agreement referred to in Section 1.2., such
receiving party shall notify the sending party via facsimile by the Confirm Deadline,
unless such receiving party has previously sent a Transaction Confirmation to the sending
party. The failure of the receiving party to so notify the sending party in writing by
the Confirm Deadline constitutes the receiving party's agreement to the terms of the
transaction described in the sending party's Transaction Confirmation. If there are any
material differences between timely sent Transaction Confirmations governing the same
transaction, then neither Transaction Confirmation shall be binding until or unless such
differences are resolved including the use of any evidence that clearly resolves the
differences in the Transaction Confirmations. The entire agreement between the parties
shall be those provisions contained in both the Base Contract and any effective
Transaction Confirmation. In the event of a conflict among the terms of (i) a
Transaction Confirmation, (ii) the Base Contract, and (iii) these General Terms and
Conditions, the terms of the documents shall govern in the priority listed in this
sentence.
SECTION 2 DEFINITIONS
2.1. "Base Contract" shall mean a contract executed by the parties that incorporates
these General Terms and Conditions by reference; that specifies the agreed selections of
provisions contained herein; and that sets forth other information required herein.
2.2. "British thermal unit" or "Btu" shall have the meaning ascribed to it by the
Receiving Transporter.
2.3. "Business Day" shall mean any day except Saturday, Sunday or Federal Reserve
Bank holidays.
2.4. "Confirm Deadline" shall mean 5:00 p.m. in the receiving party's time zone on
the second Business Day following the Day a Transaction Confirmation is received, or if
applicable, on the Business Day agreed to by the parties in the Base Contract; provided,
if the Transaction Confirmation is time stamped after 5:00 p.m. in the receiving party's
time zone, it shall be deemed received at the opening of the next Business Day.
2.5. "Confirming Party" shall mean the party designated in the Base Contract to
prepare and forward Transaction Confirmations to the other party.
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2.6. "Contract" shall mean the legally binding relationship established by (i) the
Base Contract and (ii) the provisions contained in any effective Transaction
Confirmation.
2.7. "Contract Price" shall mean the amount expressed in U.S. Dollars per MMBtu, as
evidenced by the Contract Price on the Transaction Confirmation.
2.8. "Contract Quantity" shall mean the quantity of Gas to be delivered and taken as
set forth in the Transaction Confirmation.
2.9. "Cover Standard", if applicable, shall mean that if there is an unexcused
failure to take or deliver any quantity of Gas pursuant to this Contract, then the
non-defaulting party shall use commercially reasonable efforts to obtain Gas or alternate
fuels, or sell Gas, at a price reasonable for the delivery or production area, as
applicable, consistent with: the amount of notice provided by the defaulting party; the
immediacy of the Buyer's Gas consumption needs or Seller's Gas sales requirements, as
applicable; the quantities involved; and the anticipated length of failure by the
defaulting party.
2.10. "Day" shall mean a period of 24 consecutive hours, coextensive with a "day" as
defined by the Receiving Transporter in a particular transaction.
2.11. "Delivery Period" shall be the period during which deliveries are to be made as
set forth in the Transaction Confirmation.
2.12. "Delivery Point(s)" shall mean such point(s) as are mutually agreed upon
between Seller and Buyer as set forth in the Transaction Confirmation.
2.13. "EDI" shall mean an electronic data interchange pursuant to an agreement
entered into by the parties, specifically relating to the communication of Transaction
Confirmations under this Contract.
2.14. "EFP" shall mean the purchase, sale or exchange of natural Gas as the
"physical" side of an exchange for physical transaction involving gas futures contracts.
EFP shall incorporate the meaning and remedies of "Firm".
2.15. "Firm" shall mean that either party may interrupt its performance without
liability only to the extent that such performance is prevented for reasons of Force
Majeure; provided, however, that during Force Majeure interruptions, the party invoking
Force Majeure may be responsible for any Imbalance Charges as set forth in Section 4.3.
related to its interruption after the nomination is made to the Transporter and until the
change in deliveries and/or receipts is confirmed by the Transporter.
2.16. "Gas" shall mean any mixture of hydrocarbons and non-combustible gases in a
gaseous state consisting primarily of methane.
2.17. "Imbalance Charges" shall mean any fees, penalties, costs or charges (in cash
or in kind) assessed by a Transporter for failure to satisfy the Transporter's balance
and/or nomination requirements.
2.18. "Interruptible" shall mean that either party may interrupt its performance at
any time for any reason, whether or not caused by an event of Force Majeure, with no
liability, except such interrupting party may be responsible for any Imbalance Charges as
set forth in Section 4.3. related to its interruption after the nomination is made
to the Transporter and until the change in deliveries and/or receipts is confirmed by
Transporter.
2.19. "MMBtu" shall mean one million British thermal units which is equivalent to one
dekatherm.
2.20. "Month" shall mean the period beginning on the first Day of the calendar month
and ending immediately prior to the commencement of the first Day of the next calendar
month.
2.21. "Payment Date" shall mean a date, selected by the parties in the Base Contract,
on or before which payment is due Seller for Gas received by Buyer in the previous Month.
2.22. "Receiving Transporter" shall mean the Transporter receiving Gas at a Delivery
Point, or absent such receiving Transporter, the Transporter delivering Gas at a Delivery
Point.
2.23. "Scheduled Gas" shall mean the quantity of Gas confirmed by Transporter(s) for
movement, transportation or management.
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2.24 "Spot Price" as referred in Section 3.2 shall mean the price listed in the
publication specified by the parties in the Base Contract, under the listing applicable
to the geographic location closest in proximity to the Delivery Point(s) for the relevant
Day; provided, if there is no single price published for such location for such Day, but
there is published a range of prices, then the Spot Price shall be the average of such
high and low prices. If no price or range of prices is published for such Day, then the
Spot Price shall be the average of the following: (i) the price (determined as stated
above) for the first Day for which a price or range of prices is published that next
precedes the relevant Day; and (ii) the price (determined as stated above) for the first
Day for which a price or range of prices is published that next follows the relevant Day.
2.25. "Transaction Confirmation" shall mean the document, substantially in the form
of Exhibit A, setting forth the terms of a purchase and sale transaction formed pursuant
to Section 1. for a particular Delivery Period.
2.26. "Transporter(s)" shall mean all Gas gathering or pipeline companies, or local
distribution companies, acting in the capacity of a transporter, transporting Gas for
Seller or Buyer upstream or downstream, respectively, of the Delivery Point pursuant to a
particular Transaction Confirmation.
SECTION 3 PERFORMANCE OBLIGATIONS
3.1. Xxxxxx agrees to sell and deliver, and Xxxxx agrees to receive and purchase, the
Contract Quantity for a particular transaction in accordance with the terms of the
Contract. Sales and purchases will be on a Firm or Interruptible basis, as specified in
the Transaction Confirmation.
The parties have selected the "Cover Standard" version or the "Spot Price Standard" version as
indicated on the Base Contract.
Cover Standard:
3.2 In addition to any liability for Imbalance Charges, which shall not be recovered twice by
the following remedy, the exclusive and sole remedy of the parties in the event of a breach of a
Firm obligation shall be recovery of the following: (i) in the event of a breach by Seller on any
Day(s), payment by Seller to Buyer in an amount equal to the positive difference, if any, between
the purchase price paid by Buyer utilizing the Cover Standard for replacement Gas or alternative
fuels and the Contract Price, adjusted for commercially reasonable differences in transportation
costs to or from the Delivery Point(s), multiplied by the difference between the Contract
Quantity and the quantity actually delivered by Seller for such Day(s); or (ii) in the event of a
breach by Buyer on any Day(s), payment by Buyer to Seller in the amount equal to the positive
difference, if any, between the Contract Price and the price received by Seller utilizing the
Cover Standard for the resale of such Gas, adjusted for commercially reasonable differences in
transportation costs to or from the Delivery Point(s), multiplied by the difference between the
Contract Quantity and the quantity actually taken by Buyer for such Day(s); or (iii) in the event
that Buyer has used commercially reasonable efforts to replace the Gas or Seller has used
commercially reasonable efforts to sell the Gas to a third party, and no such replacement or sale
is available, then the exclusive and sole remedy of the non-breaching party shall be any
unfavorable difference between the Contract Price and the Spot Price, adjusted for such
transportation to the applicable Delivery Point, multiplied by the difference between the
Contract Quantity and the quantity actually delivered by Seller and received by Buyer for such
Day(s).
Spot Price Standard:
3.2 In addition to any liability for Imbalance Charges, which shall not be recovered twice by
the following remedy, the exclusive and sole remedy of the parties in the event of a breach of a
Firm obligation shall be recovery of the following: (i) in the event of a breach by Seller on any
Day(s), payment by Seller to Buyer in an amount equal to the difference between the Contract
Quantity and the actual quantity delivered by Seller and received by Buyer for such Day(s),
multiplied by the positive difference, if any, obtained by subtracting the Contract Price from
the Spot Price; (ii) in the event of a breach by Buyer on any Day(s), payment by Buyer to Seller
in an amount equal to the difference between the Contract Quantity and the actual quantity
delivered by Seller and received by Buyer for such Day(s), multiplied by the positive difference,
if any, obtained by subtracting the applicable Spot Price from the Contract Price.
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, IN NO EVENT WILL EITHER PARTY BE
LIABLE UNDER THIS CONTRACT, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE AND STRICT
LIABILITY), OR OTHERWISE, FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES.
SECTION 4. TRANSPORTATION, NOMINATIONS AND IMBALANCES
4.1. Seller shall have the sole responsibility for transporting the Gas to the
Delivery Point(s) and for delivering such Gas at a pressure sufficient to effect such
delivery but not to exceed the maximum operating pressure of the Receiving Transporter.
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Buyer shall have the sole responsibility for transporting the Gas from the Delivery
Point(s).
4.2. The parties shall coordinate their nomination activities, giving sufficient time
to meet the deadlines of the affected Transporter(s). Each party shall give the other
party timely prior notice, sufficient to meet the requirements of all Transporter(s)
involved in the transaction, of the quantities of Gas to be delivered and purchased each
Day. Should either party become aware that actual deliveries at the Delivery Point(s)
are greater or lesser than the Scheduled Gas, such party shall promptly notify the other
party.
4.3. The parties shall use commercially reasonable efforts to avoid imposition of any
Imbalance Charges. If Buyer or Seller receives an invoice from a Transporter that
includes Imbalance Charges, the parties shall determine the validity as well as the cause
of such Imbalance Charges. If the Imbalance Charges were incurred as a result of Xxxxx's
actions or inactions (which shall include, but shall not be limited to, Buyer's failure
to accept quantities of Gas equal to the Scheduled Gas), then Buyer shall pay for such
Imbalance Charges, or reimburse Seller for such Imbalance Charges paid by Seller to the
Transporter. If the Imbalance Charges were incurred as a result of Seller's actions or
inactions (which shall include, but shall not be limited to, Seller's failure to deliver
quantities of Gas equal to the Scheduled Gas), then Seller shall pay for such Imbalance
Charges, or reimburse Buyer for such Imbalance Charges paid by Buyer to the Transporter.
SECTION 5. QUALITY AND MEASUREMENT
All Gas delivered by Seller shall meet the quality and heat content requirements of the
Receiving Transporter. The unit of quantity measurement for purposes of this Contract
shall be one MMBtu dry. Measurement of Gas quantities hereunder shall be in accordance
with the established procedures of the Receiving Transporter.
SECTION 6. TAXES
The parties have selected either the "Buyer Pays At and After Delivery Point" version or the
"Seller Pays Before and At Delivery Point" version as indicated on the Base Contract.
Buyer Pays At and After Delivery Point:
Seller shall pay or cause to be paid all taxes, fees, levies, penalties, licenses or charges
imposed by any government authority ("Taxes") on or with respect to the Gas prior to the Delivery
Point(s). Buyer shall pay or cause to be paid all Taxes on or with respect to the Gas at the
Delivery Point(s) and all Taxes after the Delivery Point(s). If a party is required to remit or
pay Taxes that are the other party's responsibility hereunder, the party responsible for such
Taxes shall promptly reimburse the other party for such Taxes. Any party entitled to an
exemption from any such Taxes or charges shall furnish the other party any necessary
documentation thereof.
Seller Pays Before and At Delivery Point:Seller shall pay or cause to be paid all taxes, fees,
levies, penalties, licenses or charges imposed by any government authority ("Taxes") on or with
respect to he Gas prior to the Delivery Point(s) and all Taxes at the Delivery Point(s). Buyer
shall pay or cause to be paid all Taxes on or with respect to the Gas after the Delivery
Point(s). If a party is required to remit or pay Taxes which are the other party's
responsibility hereunder, the party responsible for such Taxes shall promptly reimburse the other
party for such Taxes. Any party entitled to an exemption from any such Taxes or charges shall
furnish the other party any necessary documentation thereof.
SECTION 7. BILLING, PAYMENT AND AUDIT
7.1. Seller shall invoice Buyer for Gas delivered and received in the preceding Month
and for any other applicable charges, providing supporting documentation acceptable in
industry practice to support the amount charged. If the actual quantity delivered is not
known by the billing date, billing will be prepared based on the quantity of Scheduled
Gas. The invoiced quantity will then be adjusted to the actual quantity on the following
Month's billing or as soon thereafter as actual delivery information is available.
7.2. Buyer shall remit the amount due in the manner specified in the Base Contract,
in immediately available funds, on or before the later of the Payment Date or 10 days
after receipt of the invoice by Buyer; provided that if the Payment Date is not a
Business Day, payment is due on the next Business Day following that date. If
Buyer fails to remit the full amount payable by it when due, interest on the unpaid
portion shall accrue at a rate equal to the lower of (i) the then-effective prime rate of
interest published under "Money Rates" by The Wall Street Journal, plus two percent per
annum from the date due until the date of payment; or (ii) the maximum applicable lawful
interest rate. If Buyer, in good faith, disputes the amount of any such statement or any
part thereof, Buyer will pay to Seller such amount as it concedes to be correct;
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provided, however, if Buyer disputes the amount due, Buyer must provide supporting
documentation acceptable in industry practice to support the amount paid or disputed.
7.3. In the event any payments are due Buyer hereunder, payment to Buyer shall be
made in accordance with Section 7.2. above.
7.4. A party shall have the right, at its own expense, upon reasonable notice and at
reasonable times, to examine the books and records of the other party only to the extent
reasonably necessary to verify the accuracy of any statement, charge, payment, or
computation made under the Contract. This examination right shall not be available with
respect to proprietary information not directly relevant to transactions under this
Contract. All invoices and xxxxxxxx shall be conclusively presumed final and accurate
unless objected to in writing, with adequate explanation and/or
documentation, within two years after the Month of Gas delivery. All retroactive
adjustments under Section 7, shall be paid in full by the party owing payment within 30
days of notice and substantiation of such inaccuracy.
7.5 If, at the time the parties enter into a Gas purchase and sale transaction under
which one party is to sell Gas to the other, one or more other Gas purchase and sale
transactions are outstanding under which such other party is to sell Gas to such first
party for delivery during the same Delivery Period and at the same Delivery Point for
payment on the same Payment Date, then (subject to paragraph 10) all such offsetting
transactions shall be netted into a single transaction under which (a) the party required
to deliver the larger amount of Gas shall deliver to the other party the difference
between the amount of Gas it is to deliver and the amount it is to receive
under such offsetting transactions, and (b) the party owing the greater purchase price
under such offsetting Gas purchase and sale transaction shall pay to the other party the
difference between the amount it owes and the amount owed to it under such offsetting
transactions. The single resulting transaction shall be deemed entered into
automatically and, once entered into, outstanding obligations under the offsetting
transactions shall terminate. Such netting shall not affect that transaction's status as
a Forward Contract based on the date it was originally entered into."
SECTION 8. TITLE, WARRANTY AND INDEMNITY
8.1. Unless otherwise specifically agreed, title to the Gas shall pass from Seller to
Buyer at the Delivery Point(s). Seller shall have responsibility for and assume any
liability with respect to the Gas prior to its delivery to Buyer at the specified
Delivery Point(s). Buyer shall have responsibility for and assume any liability with
respect to said Gas after its delivery to Buyer at the Delivery Point(s).
8.2. Seller warrants that it will have the right to convey and will transfer good and
merchantable title to all Gas sold hereunder and delivered by it to Buyer, free and clear
of all liens, encumbrances, and claims.
8.3. Xxxxxx agrees to indemnify Buyer and save it harmless from all losses,
liabilities or claims including attorneys' fees and costs of court ("Claims"), from any
and all persons, arising from or out of claims of title, personal injury or property
damage from said Gas or other charges thereon which attach before title passes to Buyer.
Xxxxx agrees to indemnify Seller and save it harmless from all Claims, from any and all
persons, arising from or out of claims regarding payment, personal injury or property
damage from said Gas or other charges thereon which attach after title passes to Buyer.
8.4. Notwithstanding the other provisions of this Section 8., as between Seller and
Buyer, Seller will be liable for all Claims to the extent that such arise from the
failure of Gas delivered by Seller to meet the quality requirements of Section 5.
SECTION 9. NOTICES
9.1. All Transaction Confirmations, invoices, payments and other communications made
pursuant to the Base Contract ("Notices") shall be made to the addresses specified in
writing by the respective parties from time to time.
9.2. All Notices required hereunder may be sent by facsimile or mutually acceptable
electronic means, a nationally recognized overnight courier service, first class mail or
hand delivered.
9.3. Notice shall be given when received on a Business Day by the addressee. In the
absence of proof of the actual receipt date, the following presumptions will apply.
Notices sent by facsimile shall be deemed to have been received upon the sending party's
receipt of its facsimile machine's confirmation of successful transmission, if
the day on which such facsimile is received is not a Business Day or is after five p.m.
on a Business Day, then such facsimile shall be deemed to have been received on the next
following Business Day. Notice by overnight mail or courier shall be deemed to have been
10
received on the next Business Day after it was sent or the receiving party confirms such
earlier time as. Notice via first class mail shall be considered delivered two Business
Days after mailing.
SECTION 10. FINANCIAL RESPONSIBILITY
10.1. When reasonable grounds for insecurity of payment or performance or title to
the Gas arise, either party may demand adequate assurance of performance. Adequate
assurance shall mean sufficient security in the form and for the term reasonably
specified by the party demanding assurance, including, but not limited to, a
standby irrevocable letter of credit, a prepayment, a security interest in an asset
acceptable to the demanding party or a performance bond or guarantee by a creditworthy
entity. In the event (each "a default") either party shall (i) make an assignment or any
general arrangement for the benefit of creditors; (ii) default in the payment obligation
to the other party; (iii) file a petition or otherwise commence, authorize,
or acquiesce in the commencement of a proceeding or cause under any bankruptcy or similar
law for the protection of creditors or have such petition filed or proceeding commenced
against it; (iv) otherwise become bankrupt or insolvent (however evidenced); (v) be
unable to pay its debts as they fall due; then the other party shall have the right to
either withhold and/or suspend deliveries or payment, and upon notice or upon having
taken reasonable efforts to provide notice, to terminate and liquidate any and all
Forward Contracts, as defined below (including any portion of a Forward Contract not yet
delivered) then outstanding at any time or from time to time thereafter and to determine
the Market Damages, as defined below, for each such Forward Contract and the net Market
Damages due from one party to the other, in addition to any and all other remedies
available hereunder by operation of law otherwise. Seller may immediately suspend
deliveries to Buyer hereunder in the event Xxxxx has not paid any amount due Seller
hereunder on or before the second day following the date such payment is due or (vi) fail
to provide adequate assurance within 48 hours (but at least one Business Day) of demand
therefore.
10.2 If an event in Section 10.1 occurs with respect to a party (the "Defaulting
Party"), the other party (the "Performing Party") may (at its election) from time to time
set off any or all amounts which the Defaulting Party owes to it (whether under this
Agreement, any Forward Contract or otherwise and whether or not then due) against any or
all amounts which the Performing Party owes to the Defaulting Party (whether under this
Agreement, any Forward Contract or otherwise and whether or not then due), provided that
any amount not then due which is included in such setoff shall be discounted to present
value as at the time of setoff (to take account of the period between the date
of setoff and the date on which such amount would have otherwise been due). After a
default, the Defaulting Party shall be responsible for all costs and expenses incurred by
the Performing Party as a result of a default (including, without limitation,
reasonable attorneys' fees and disbursements), and any amount which is not paid by the
Defaulting Party when due shall bear interest until paid at the rate set forth in Section
7.2.
10.3 For purposes of this Agreement, (a) "Forward Contract" means a contract for the
purchase and sale of Gas under this Agreement between the parties with a maturity date
more than two days after such contract is entered into, and (b) "Market Damage"
shall be calculated as the difference between the Contract Price for that Gas (and
provided that if the Contract Price is not in U.S. Dollars, it shall be converted to U.S.
Dollars at the then current open market exchange rate as of the relevant Payment Date),
and the replacement or resale price, as the case may be, multiplied by
the relevant quantity of Gas not delivered or received as a result of the early
liquidation, except that any such damages determined for a term in excess of a month
shall be discounted to a present value as of the date of payment utilizing a rate of
interest determined by the Performing Party in a commercially reasonable manner.
SECTION 11. FORCE MAJEURE
11.1. Except with regard to a party's obligation to make payment due under Section 7.
and Imbalance Charges under Section 4, neither party shall be liable to the other for
failure to perform a Firm obligation, to the extent such failure was caused by Force
Majeure. The term "Force Majeure" as employed herein means any cause not
reasonably within the control of the party claiming suspension, as further defined in
Section 11.2.
11.2. Force Majeure shall include but not be limited to the following: (i) physical
events such as acts of God, landslides, lightning, earthquakes, fires, storms or storm
warnings, such as hurricanes, which result in evacuation of the affected area, floods,
washouts, explosions, breakage or accident or necessity of repairs to machinery or
equipment or lines of pipe; (ii) weather related events affecting an entire geographic
region, such as low temperatures which cause freezing or failure of xxxxx or lines of
pipe; (iii) interruption of firm transportation and/or storage by Transporters; (iv) acts
11
of others such as strikes, lockouts or other industrial disturbances, riots, sabotage,
insurrections or wars; and (v) governmental actions such as necessity for compliance with
any court order, law, statute, ordinance, or regulation promulgated by a governmental
authority having jurisdiction. Seller and Buyer shall make reasonable efforts to avoid
the adverse impacts of a Force Majeure and to resolve the event or occurrence once it has
occurred in order to resume performance.
11.3. Neither party shall be entitled to the benefit of the provisions of Force
Majeure to the extent performance is affected by any or all of the following
circumstances: (i) the curtailment of interruptible or secondary firm transportation
unless primary, in-path, firm transportation is also curtailed; (ii) the party claiming
excuse failed to remedy the condition and to resume the performance of such covenants or
obligations with reasonable dispatch; or (iii) economic hardship. The party claiming
Force Majeure shall not be excused from its responsibility for Imbalance Charges.
11.4. Notwithstanding anything to the contrary herein, the parties agree that the
settlement of strikes, lockouts or other industrial disturbances shall be entirely within
the sole discretion of the party experiencing such disturbance.
11.5. The party whose performance is prevented by Force Majeure must provide notice
to the other party. Initial notice may be given orally; however, written notification
with reasonably full particulars of the event or occurrence is required as soon as
reasonably possible. Upon providing written notification of Force Majeure to the other
party, the affected party will be relieved of its obligation to make or accept delivery
of Gas as applicable to the extent and for the duration of Force Majeure, and neither
party shall be deemed to have failed in such obligations to the other during such
occurrence or event.
SECTION 12. TERM
This Contract may be terminated on 30 days' written notice, but shall remain in effect
until the expiration of the latest Delivery Period of any Transaction Confirmation(s).
The rights of either party pursuant to Section 7.4., the obligations to make payment
hereunder, and the obligation of either party to indemnify the other, pursuant hereto
shall survive the termination of the Base Contract or any Transaction Confirmation.
SECTION 13. MISCELLANEOUS
13.1. This Contract shall be binding upon and inure to the benefit of the successors,
assigns, personal representatives, and heirs of the respective parties hereto, and the
covenants, conditions, rights and obligations of this Contract shall run for the full
term of this Contract. No assignment of this Contract, in whole or in part, will
be made without the prior written consent of the non-assigning party, which consent will
not be unreasonably withheld or delayed; provided, either party may transfer its interest
to any parent or affiliate by assignment, merger or otherwise without the prior
approval of the other party. Upon any transfer and assumption, the transferor shall not
be relieved of or discharged from any obligations hereunder.
13.2. If any provision in this Contract is determined to be invalid, void or
unenforceable by any court having jurisdiction, such determination shall not invalidate,
void, or make unenforceable any other provision, agreement or covenant of this Contract.
13.3. No waiver of any breach of this Contract shall be held to be a waiver of any
other or subsequent breach. 13.4. This Contract sets forth all understandings between
the parties respecting each transaction subject hereto, and any prior contracts,
understandings and representations, whether oral or written, relating to such
transactions are merged into and superseded by this Contract and any effective
Transaction Confirmation(s). This Contract may be amended only by a writing executed by
both parties.
13.5. The interpretation and performance of this Contract shall be governed by the
laws of the state specified by the parties in the Base Contract, excluding, however, any
conflict of laws rule which would apply the law of another jurisdiction.
13.6. This Contract and all provisions herein will be subject to all applicable and
valid statutes, rules, orders and regulations of any Federal, State, or local
governmental authority having jurisdiction over the parties, their facilities, or Gas
supply, this Contract or Transaction Confirmation or any provisions thereof.
13.7. There is no third party beneficiary to this Contract.
12
13.8. Each party to this Contract represents and warrants that it has full and
complete authority to enter into and perform this Contract. Each person who executes
this Contract on behalf of either party represents and warrants that it has full and
complete authority to do so and that such party will be bound thereby.
13
BASE CONTRACT FOR SHORT-TERM
SALE AND PURCHASE OF NATURAL GAS
SPECIAL PROVISIONS
1. Informal Dispute Resolution. In the event of a dispute or disagreement between the
parties, including any dispute regarding interpretation of this Contract or performance
hereunder or there under by either party, each party will appoint a representative
authorized to act on behalf of its senior management to meet, on or before fifteen (15)
days after notice of such dispute is given, for the purpose of endeavoring to resolve
such dispute. If the parties fail to agree regarding the resolution of the disagreement
or dispute on or before fifteen (15) days after the initial date of such meeting, or if
either or both parties fail to schedule or to attend such meeting, then either party may
initiate arbitration in accordance with Section 2 below.
2. Arbitration. All claims, disputes and other matters in question arising out of this
Contract shall be settled by arbitration by a single arbitrator appointed by agreement of
the parties, or failing such agreement, by the American Arbitration Association ("AAA")
and administered by the AAA in accordance with the AAA's Commercial Arbitration Rules in
effect from time to time. The arbitration shall be held in Houston, Texas. The award
rendered by the arbitrator shall be in writing and shall be final, and judgment may be
entered upon it in accordance with the applicable law in any court having jurisdiction
thereof. The parties shall continue to perform under this Contract during any
arbitration proceeding. Each party shall pay its costs and expenses of the arbitration,
including its attorney's fees, and one half of the costs and expenses of the arbitration.
3. Delete paragraph 11.3, substitute with the following:
"Neither Party shall be entitled to the benefit of the provisions of Force Majeure to the
extent performance is affected from any or all of the following circumstances: (i) the
sole or contributory negligence of the Party claiming excuse; (ii) the Party claiming
excuse failed to remedy the condition and to resume the performance of such covenants or
obligations with reasonable dispatch; (iii) economic hardship; and (iv) failure of
interruptible transportation (except to the extent volumes would not have been delivered
if scheduled under a firm transportation agreement using primary points). Force Majeure
shall not excuse responsibility for Imbalance Charges by the Party claiming the Force
Majeure. In addition to the foregoing limitations, Seller's obligation to deliver gas,
and Xxxxx's obligation to take delivery of gas under this Contract, shall be measured by
Seller's ability to deliver gas to the Delivery Point, or Buyer's ability to take
delivery of gas at the Delivery Point. Consequently, in the case of Seller, an event of
Force Majeure occurring upstream of the Delivery Point excuses Seller's performance only
to the extent that such event of Force Majeure prevents Seller from delivering gas to the
Delivery Point. In the case of the Buyer, an event of Force Majeure occurring downstream
of the Delivery Point excuses Buyer's performance only to the extent such event of
Force Majeure prevents Buyer from taking delivery of gas at the Delivery Point."
4. Each day during an event of Force Majeure should the difference between the applicable
Transaction Confirmation contract price and the applicable monthly Inside FERC index
price be positive, Buyer will pay Seller an amount equal to that difference times the
volume shortfall. Each day during an event of Force Majeure should the difference between
the applicable Transaction Confirmation contract price and the applicable Inside FERC
index price be negative, Seller will pay Buyer an amount equal to that difference times
the volume shortfall.
14
Date:
Transaction Confirmation #: 00-
This Transaction Confirmation is subject to the Base Contract between Seller and Buyer dated
-----
---------------. The terms of this Transaction Confirmation are binding unless disputed in
writing within 2 Business Days of receipt unless otherwise specified in the Base Contract.
BUYER: SELLER:
DOMINION EXPLORATION & PRODUCTION, INC. XXXXX XXXXXXX NATURAL GAS CORP.
Four Greenspoint Plaza, 00000 Xxxxxxxxxx Xx., Xxxxx 0000 0000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000 Xxxxxxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx Attn: Xxxxxx Xxxxxx
Phone: (000) 000-0000 Phone: 000-000-0000 Fax:
Fax: (000) 000-0000 Base Contract No.
Base Contract No. Transporter:
Transporter: Transporter Contract Number:
Transporter Contract Number:
Contract Price: See attached Schedule / MMBtu
Delivery Period: Begin: January 1, 2002 End: December 31, 2002
Performance Obligation and Contract Quantity: (Select One)
Firm (Fixed Quantity): Firm (Variable Quantity): Interruptible:
See Attached Schedule MMBtus/day Minimum Up to _ MMBtus/day
EFP MMBtus/day Maximum
X FIRM subject to Section 4.2 at
election of
Buyer or Seller
Delivery Point(s): ANR - OKLAHOMA POOL
(If a pooling point is used, list a specific geographic and pipeline location):
Special Conditions:
Buyer: DOMINION EXPLORATION & PRODUCTION, INC. Seller: XXXXX XXXXXXX NATURAL GAS CORP.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxx X. Xxxxxx
------------------------------------- -------------------------------
Title: President and CEO Title: President and CEO
------------------------------------- -------------------------------
Date: 9/9/01 Date: 9/9/01
15
SCHEDULE GISB TRANSACTION CONFIRMATION
FOR
Delivery Point: ANR - OKLAHOMA POOL
Delivery Period: January 1 - December 31, 2002
Performance Obligation: Firm
Month Daily Volume (Mmbtu) Price *
January 20,000
February 20,000
March 20,000
April 20,000
May 20,000
June 20,000
July 20,000
August 20,000
September 20,000
October 20,000
November 20,000
December 20,000
* Price will be filled in as provided in letter agreement dated September 9, 2001 between
Xxxxx and Seller. Such price shall be inclusive of basis swap and a further adjustment
of -$0.01.
16
Date:
Transaction Confirmation #: 00-
This Transaction Confirmation is subject to the Base Contract between Seller and Buyer dated
_______________________. The terms of this Transaction Confirmation are binding unless disputed
in writing within 2 Business Days of receipt unless otherwise specified in the Base Contract.
BUYER: SELLER:
DOMINION EXPLORATION & PRODUCTION, INC. XXXXX XXXXXXX NATURAL GAS CORP.
Four Greenspoint Plaza, 00000 Xxxxxxxxxx Xx., Xxxxx 0000 00000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000 Xxxxxxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx Attn: Xxxxxx Xxxxxx
Phone: (000) 000-0000 Phone: 000-000-0000 Fax:
Fax: (000) 000-0000 Base Contract No.
Base Contract No. Transporter:
Transporter: Transporter Contract Number:
Transporter Contract Number:
Contract Price: See attached Schedule / MMBtu
Delivery Period: Begin: January 1, 2002 End: December 31, 2002
Performance Obligation and Contract Quantity: (Select One)
Firm (Fixed Quantity): Firm (Variable Quantity): Interruptible:
See Attached Schedule MMBtus/day MMBtus/day Minimum Up to _ MMBtus/day
EFP MMBtus/day Maximum
X FIRM subject to Section 4.2.
at election of
Buyer or Seller
Delivery Point(s): EL PASO - PERMIAN POOL
(If a pooling point is used, list a specific geographic and pipeline location):
Special Conditions:
Buyer: DOMINION EXPLORATION & PRODUCTION, INC. Seller: XXXXX XXXXXXX NATURAL GAS CORP.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxx X. Xxxxxx
----------------------------------- --------------------------------
Title: President and CEO Title: President and CEO
----------------------------------- --------------------------------
Date: 9/9/01 Date: 9/9/01
17
SCHEDULE GISB TRANSACTION CONFIRMATION
FOR
Delivery Point: EL PASO - PERMIAN POOL
Delivery Period: January 1 - December 31, 2002
Performance Obligation: Firm
Month Daily Volume (Mmbtu) Price *
January 10,000
February 10,000
March 10,000
April 10,000
May 10,000
June 10,000
July 10,000
August 10,000
September 10,000
October 10,000
November 10,000
December 10,000
* Price will be filled in as provided in letter agreement dated September 9, 2001 between Xxxxx
and Seller. Such price shall be inclusive of basis swap.
18
Date:
Transaction Confirmation #: 00-
This Transaction Confirmation is subject to the Base Contract between Seller and Buyer dated
______________________. The terms of this Transaction Confirmation are binding unless disputed
in writing within 2 Business Days of receipt unless otherwise specified in the Base Contract.
BUYER: SELLER:
DOMINION EXPLORATION & PRODUCTION, INC. XXXXX XXXXXXX NATURAL GAS CORP.
Four Greenspoint Plaza, 00000 Xxxxxxxxxx Xx., Xxxxx 0000 00000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000 Xxxxxxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx Attn: Xxxxxx Xxxxxx
Phone: (000) 000-0000 Phone: 000-000-0000 Fax:
Fax: (000) 000-0000 Base Contract No.
Base Contract No. Transporter:
Transporter: Transporter Contract Number:
Transporter Contract Number:
Contract Price: See attached Schedule / MMBtu
Delivery Period: Begin: January 1, 2002 End: December 31, 2002
Performance Obligation and Contract Quantity: (Select One)
Firm (Fixed Quantity): Firm (Variable Quantity): Interruptible:
See Attached Schedule MMBtus/day MMBtus/day Minimum Up to MMBtus/day
EFP MMBtus/day Maximum
X FIRM subject to Section 4.2.
at election of
Buyer or Seller
Delivery Point(s): BUYER'S CHOICE OF OUTLET PIPES AT THE WGR KATY HEADER
(If a pooling point is used, list a specific geographic and pipeline location):
Special Conditions:
Buyer: DOMINION EXPLORATION & PRODUCTION, INC. Seller: XXXXX XXXXXXX NATURAL GAS CORP.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxx X. Xxxxxx
-------------------------------------- -------------------------------
Title: President and CEO Title: President and CEO
-------------------------------------- -------------------------------
Date: 9/9/01 Date: 9/9/01
19
SCHEDULE GISB TRANSACTION CONFIRMATION
FOR
Delivery Point: WGR XXXX HEADER OUTLET
Delivery Period: January 1 - December 31, 2002
Performance Obligation: Firm
Month Daily Volume (Mmbtu) Price *
January 80,000
February 80,000
March 80,000
April 80,000
May 80,000
June 80,000
July 80,000
August 80,000
September 80,000
October 86,000
November 86,000
December 86,000
* Price will be filled in as provided in letter agreement dated September 9, 2001
between Xxxxx and Seller. Such price shall be inclusive of basis swap and a further
adjustment of -$0.035
NOTE: For the purposes of Paragraph 4 Special Provisions the index price is deemed to
be Inside FERC / FOM / Houston Ship Channel Large Packages for gas at the WGR
KATY HEADER.
20
This Transaction Confirmation is subject to the Base Contract between Seller and Buyer dated
______________________. The terms of this Transaction Confirmation are binding unless disputed
in writing within 2 Business Days of receipt unless otherwise specified in the Base Contract.
BUYER: SELLER:
DOMINION EXPLORATION & PRODUCTION, INC. XXXXX XXXXXXX NATURAL GAS CORP.
Four Greenspoint Plaza, 00000 Xxxxxxxxxx Xx., Xxxxx 0000 00000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000 Xxxxxxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx Attn: Xxxxxx Xxxxxx
Phone: (000) 000-0000 Phone: 000-000-0000 Fax:
Fax: (000) 000-0000 Base Contract No.
Base Contract No. Transporter:
Transporter: Transporter Contact Number:
Transporter Contract Number:
Contract Price: See attached Schedule / MMBtu
Delivery Period: Begin: January 1, 2002 End: December 31, 2002
Performance Obligation and Contract Quantity: (Select One)
Firm (Fixed Quantity): Firm (Variable Quantity): Interruptible:
See Attached Schedule MMBtus/day MMBtus/day Minimum Up to _ MMBtus/day
EFP MMBtus/day Maximum
X FIRM subject to Section 4.2.
at election of
Buyer or Seller
Delivery Point(s): PANHANDLE EASTERN - OK POOL
(If a pooling point is used, list a specific geographic and pipeline location):
Special Conditions:
Buyer: DOMINION EXPLORATION & PRODUCTION, INC. Seller: XXXXX XXXXXXX NATURAL GAS CORP.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxx X. Xxxxxx
-------------------------------------- --------------------------------
Title: President and CEO Title: President and CEO
-------------------------------------- --------------------------------
Date: 9/9/01 Date: 9/9/01
21
SCHEDULE GISB TRANSACTION CONFIRMATION
FOR
Delivery Point: PANHANDLE EASTERN - OKLAHOMA POOL
Delivery Period: January 1 - December 31, 2002
Performance Obligation: Firm
Month Daily Volume (Mmbtu) Price *
January 20,000
February 20,000
March 20,000
April 20,000
May 20,000
June 20,000
July 20,000
August 20,000
September 20,000
October 20,000
November 20,000
December 20,000
* Price will be filled in as provided in letter agreement dated September 9, 2001
between Xxxxx and Seller. Such price shall be inclusive of basis swap and a further
adjustment of -$0.01
