Exhibit 10(h)
BASE CONTRACT FOR SALE AND PURCHASE OF NATURAL GAS
DATED NOVEMBER 13, 2002 BETWEEN UGI ENERGY SERVICES, INC.
AND VIKING RESOURCES CORP.
Exhibit 10(h)
ORIGINAL FILE COPY
Base Contract for Sale and Purchase of Natural Gas
This XXX of the following date, November 13, 2002. The parties for base
contract are the following.
Viking Resources Corp. and UGI Energy Services, Inc. d/b/a GASMARK
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XXX 10500 1188 XXX Blvd., Suite 385, XXX
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Duns Number Duns Number 88-350-4581
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Contract Number: Contract Number:
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U.S. Federal Tax ID Number: U.S. Federal Tax ID Number: 23-2800541
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Notices:
Viking Resources Corp. UGI Energy Services Inc. d/b/a GASMARK
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Attn: Michael Brecko Attn: Robert Meder
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Phone: (412) 262-2830 x126 Fax: (412) 262-3927 Phone: (610) 373 7999 Fax: (610) 374 4288
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Confirmations:
Viking Resources Corp. UGI Energy Services Inc. d/b/a GASMARK
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Attn: Michael Brecko Attn: Robert Meder
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Phone: (412) 262-2830 x126 Fax: (412) 262-3927 Phone: (610) 373 7999 Fax: (610) 374 4288
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Invoices and Payments
XXX XXX
Attn: Attn: Joseph Hart
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Payments: Same Payments: Same
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Phone: Fax: Phone: (610) 373 7999 Fax: (610) 374 4288
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Wire Transfer or ACH Numbers (if applicable)
BANK: Koybank, Cleveland Ohio BANK: PNC Bank NA-Philadelphia
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ABA: D4100103XXX ABA: D3100003
ACCT: 428190700 ACCT: 8606074240
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Other details: Account is with Resource Energy Other Details:
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This Base Contract incoporates by reference for all purposes the General Terms and Conditions for Sale and Purchase of Natural Gas
published by the North American Energy Services Board. XXX General Terms and Conditions in the event the parties fail to check XXX
the specified default provision shall apply XXX only one XXX from each section.
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Section 1.2 |_| Oral (default) Section 7.2 25th Day of Month following
Month of delivery (default)
Transaction |_| Written Payment Date 10 Days following receipt of
Procedure |_| meter statements
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Section 3 Business Days XXX Section XXX |_| XXX
XXX |_| _____ Business Days after Method of |_| Automated Clearinghouse
receipt Credit (ACH)
XXX Payment |_| Other
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Section 2.XXX |_| Seller (default) Section 7.7 |_| Nothing applies (default)
Confirming |_| Buyer Nothing |_| Nothing does not apply
Party |_| BOTH PARTIES
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Section 3.2 |_| Cover Standard (default) Section 10.3.1 |_| Early Termination Damages
Apply (default)
Performance |_| Spot Price Standard Early Termination Damages |_| Early Termination Damages Do
Obligation Not Apply
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Note: The following Spot Price Publication applies to both Section 10.3.2 |_| Other Agreement XXXX Apply
of the immediately preceding. (default)
Other Agreements XXX |_| Other Agreements XXX Do Not
Apply
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Section 2.28 |_| Gas Daily Midpoint Section 14.5
(default)
Spot Price |_| ___________________ Choice of Law Pennsylvania
Publication
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Section XXX |_| Buyer Pays At and After Section 14.10 |_| Confidentiality applies
Delivery Point (default)
(default) Confidentiality |_| Confidentiality does not
apply
Taxes |_| Seller Pays Before and At
Delivery Point
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|_| Special Provisions Number of sheets attached: 2
|_| Addendum(s): None
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IN WITNESS WHEREOF, the parties hereto have executed this Base Contract in duplicate.
Viking Resources Corp. UGI Energy Services Inc. d/b/a GASMARK
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Party Name Party Name
By: /s/ XXX Simmons By: /s/ Robert Meder
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Name: XXX Simmons Name: Robert Meder
Title: Vice President Title: Vice President, Gas Supply & Risk Management
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Copyright(C)2002 North American Energy Standards Board, Inc. NAESB Standard 6.3.1
All Rights Reserved April 19, 2002
GENERAL TERMS AND CONDITIONS
BASE CONTRACT FOR 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
entire agreement between the parties shall be the Contract as defined in
Section 2.7.
THE PARTIES HAVE SELECTED EITHER THE "ORAL TRANSACTION PROCEDURE" OR THE
"WRITTEN TRANSACTION PROCEDURE" AS INDICATED ON THE BASE CONTRACT.
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ORAL TRANSACTION PROCEDURE:
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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, EDI or
mutually agreeable electronic means within three Business Days of a
transaction covered by this Section 1.2 (Oral Transaction Procedure) provided
that the failure to send a Transaction Confirmation shall not invalidate the
oral agreement of the parties, Confirming Party adopts its confirming
letterhead, or the like, as its signature on any Transaction Confirmation as
the identification and authentication of Confirming Party. If the Transaction
Confirmation contains any provisions other than those relating to the
commercial terms of the transaction (i.e., price, quantity, performance
obligation, delivery point, period of delivery and/or transportation
conditions), which modify or supplement the Base Contract or General Terms and
Conditions of this Contract (e.g., arbitration or additional representations
and warranties), such provisions shall not be deemed to be accepted pursuant
to Section 1.3 but must be expressly agreed to by both parties; provided that
the foregoing shall not invalidate any transaction agreed to by the parties.
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WRITTEN TRANSACTION PROCEDURE:
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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, EDI 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 Confirmations of 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, EDI or
mutually agreeable electronic means, 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 XXX XXX the difference in the
Transaction Confirmation. In the event of a conflict among the terms of (i) a
binding Transaction Confirmation pursuant to Section 1.2, (ii) the oral
agreement of the parties which may be evidenced by a recorded conversation,
where the parties have selected the Oral Transaction Procedure of the Base
Contract, (iii) the Base Contract, and (iv) these General Terms and
Conditions, the terms of the documents shall govern in the priority listed in
this sentence.
1.4 The parties agree that each party may electronically record all telephone
conversations with respect to this Contract between their respective
employees, without any special or further notice to the other party. Each
party shall obtain any necessary consent of its agents and employees to such
recording. Where the parties have selected the Oral Transaction Procedure in
Section 1.2 of the Base Contract, the parties agree not to contest the
validity or enforceability of telephonic recording entered into in accordance
with the requirements of this Base Contract. However, nothing herein shall be
construed as a waiver of any objection to the admissibility of such evidence.
SECTION 2. DEFINITIONS
The terms set forth below shall have the meaning ascribed to them below. Other
terms are also defined elsewhere in the Contract and shall have the meanings
ascribed to them herein:
2.1. "Alternative Damages" shall mean such damages, expressed in dollars or
dollars per MMBtu, as the parties shall agree upon in the Transaction
Confirmation, in the event either Seller or Buyer fails to perform a Firm
obligation to deliver Gas in the case of Seller or to receive Gas in the case
of Buyer.
2.2 "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 and any Special Provisions and addendum(s)
as identified on page one.
2.3 "British thermal unit" or "Btu" shall mean the International BTU, which is
also called Btu (IT).
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Copyright(C)2002 North American Energy Standards Board, Inc.NAESB Standard 6.3.1
All Rights Reserved Page 2 of 10 April 19, 2002
2.4. "Business Day" shall mean any day except Saturday, Sunday or Federal
Reserve Bank holidays.
2.5. "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.
2.6. "Confirming Party" shall mean the party designated in the Base Contract to
prepare and forward Transaction Confirmations to the other party.
2.7. "Contract" shall mean the legally-binding relationship established by (i)
the Base Contract, (ii) any and all binding Transaction Confirmations and
(iii) where the parties have selected the Oral Transaction Procedure in
Section 1.2 of the Base Contract, any and all transactions that the parties
have entered into through an EDI transmission or by telephone, but that have
not been confirmed in a binding Transaction Confirmation.
2.8. "Contract Price" shall mean the amount expressed in U.S. Dollars per MMBtu
to be paid by Buyer to Seller for the purchase of Gas as agreed to by the
parties in a transaction.
2.9. "Contract Quantity" shall mean the quantity of Gas to be delivered and
taken as agreed to by the parties in a transaction.
2.10. "Cover Standard", as referred to in Section 3.2, shall mean that if there
is an unexcused failure to take or deliver any quantity of Gas pursuant to this
Contract, then the performing party shall use commercially reasonable efforts to
(i) if Buyer is the performing party, obtain Gas, (or an alternate fuel if
elected by Buyer and replacement Gas is not available), or (ii) if Seller is the
performing party, sell Gas. In either case, at a price reasonable for the
delivery or production area, as applicable, consistent with: the amount of
notice provided by the nonperforming 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 nonperforming
party.
2.11. "Credit Support Obligation(s)" shall mean any obligation(s) to provide or
establish credit support for or on behalf of, a party to this Contract such as
an irrevocable stand-by letter of credit, a margin agreement, a prepayment, a
security interest in an asset, a performance bond, guaranty, or other bond and
sufficient security of a continuing nature.
2.12. "Day" shall mean a period of 24 consecutive hours, coextensive with a
"day" as defined by the Receiving Transporter in a particular transaction.
2.13. "Delivery Period" shall be the period during which deliveries are to be
made as agreed to by the parties in a transaction.
2.14. "Delivery Points" shall mean such point(s) as are agreed to by the parties
in a transaction.
2.15. "ED" 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.
2.16. "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", provided
that a party's excuse for nonperformance of its obligations to deliver or
receive Gas will be governed by the rules of the relevant futures exchange
regulated under the Commodity Exchange Act.
2.17. "Firms" 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.
2.18. "Gas" shall mean any mixture of hydrocarbons and noncombustible gases in a
gaseous state consisting primarily of methane.
2.19. "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.
2.20. "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.
2.21. "MMBtu" shall mean one million British thermal units, which is equivalent
to one dekatherm.
2.22. "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.
2.23. "Payment Date" shall mean a date, as indicated on the Base Contract, on or
before which payment is due Seller for Gas received by Buyer in the previous
Month.
2.24. "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.
2.25. "Scheduled Gas" shall mean the quantity of Gas confirmed by Transporter(s)
for movement, transportation or management.
2.26. "Spot Price" as referred to in Section 3.2 shall mean the price listed in
the publication indicated on 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
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Copyright(C)2002 North American Energy Standards Board, Inc.NAESB Standard 6.3.1
All Rights Reserved Page 3 of 10 April 19, 2002
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.
2.27. "Transaction Confirmation" shall mean a document, similar to the form of
Exhibit A, setting forth the terms of a transaction formed pursuant to Section
1 for a particular Delivery Period.
2.28. "Termination Option" shall mean the option of either party to terminate
a transaction in the event that the other party fails to perform a Firm
obligation to deliver Gas in the case of Seller or to receive Gas in the case
of Buyer for a designated number of days during a period as specified on the
applicable Transaction Confirmation.
2.29. "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.
SECTION 3. PERFORMANCE OBLIGATION
3.1. Seller agrees to sell and deliver, and Buyer 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 agreed to by the parties in a transaction.
The parties have selected either the "Cover Standard" or the "Spot Price
Standard" as indicated on the Base Contract.
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Cover Standard:
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3.2. The sole and exclusive remedy of the parties in the event of a breach of
a Firm obligation to deliver or receive Gas 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 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 sole and exclusive remedy
of the performing 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). Imbalance Charges shall not be recovered under this Section
3.2, but Seller and/or Buyer shall be responsible for Imbalance Charges, if
any, as provided in Section 4.3. The amount of such unfavorable difference
shall be payable five Business Days after presentation of the performing
party's invoice which shall set forth the basis upon which such amount was
calculated.
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Spot Price Standard:
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3.2. The sole and exclusive remedy of the parties in the event of a breach of
a Firm obligation to deliver or receive Gas 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 Sport Price; or (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. Imbalance Charges shall not be recovered under this
Section 3.2, but Seller and/or Buyer shall be responsible for Imbalance
Charges, if any, as provided in Section 4.3. The amount of such unfavorable
difference shall be payable five Business Days after presentation of the
performing party's invoice, which shall set forth the basis upon which such
amount was calculated.
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3.3. Notwithstanding Section 3.2, the parties may agree to Alternative Damages
in a Transaction Confirmation executed in writing by both parties.
3.4. In addition to Sections 3.2 and 3.3, the parties may provide for a
Termination Option in a Transaction Confirmation executed in writing by both
parties. The Transaction Confirmation containing the Termination Option will
designate the length of nonperformance triggering the Termination Option and
the procedures for exercise thereof, how damages for nonperformance will be
compensated, and how liquidation costs will be calculated.
SECTION 4. TRANSPORTATION, NOMINATIONS, AND IMBALANCES
4.1. Seller shall have the sole responsibility for transporting the Gas to the
Delivery Point(s). 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.
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Copyright(C)2002 North American Energy Standards Board, Inc.NAESB Standard 6.3.1
All Rights Reserved Page 4 of 10 April 19, 2002
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 Buyer's receipt of quantities of Gas
greater than or less than the Scheduled Gas, then Buyer shall pay for such
Imbalance Charges or reimburse Seller for such Imbalance Charges paid by
Seller. If the Imbalance Charges were incurred as a result of Seller's
delivery of quantities of Gas greater than or less than the Scheduled Gas,
then Seller shall pay for such Imbalance Charges or reimburse Buyer for such
Imbalance Charges paid by Buyer.
SECTION 5. QUALITY AND MEASUREMENT
All Gas delivered by Seller shall meet the pressure, 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 "Buyer Pays At and After Delivery Point" or
"Seller Pays Before and At Delivery Point" as indicated on the Base Contract.
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Buyer Pays At and After Delivery Point:
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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.
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Seller Pays Before and At Delivery Point:
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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) 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 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.
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SECTION 7. BILLING, PAYMENT, AND AUDIT
7.1. Seller shall invoice Buyer for Gas delivered and received in the
preceeding 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 name the amount due under Section 7.1. 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 due on
the next Business Day following that date, in the event any payments are due
Buyer hereunder, payment to Buyer shall be made in accordance with the Section
7.2.
7.3. In the event payments become due pursuant to Sections 3.2 or 3.3, the
performing party may submit an invoice to the nonperforming party for an
accelerated payment setting forth the basis upon which the invoiced amount was
calculated. Payment from the nonperforming party will be due five Business
Days after receipt of invoice.
7.4. If the invoiced party, in good faith, disputes the amount of any such
invoice or any part thereof, such invoiced party will pay such amount as it
concedes to be correct, provided, however, if the invoiced party disputes the
amount due, it must provide supporting documentation acceptable in industry
practice to support the amount paid or disputed. In the event the parties are
unable to resolve such dispute, either party may pursue any remedy available
at law or in equity to enforce its rights pursuant to this Section.
7.5. If the invoiced party fails to remit the full amount payable when due,
interest on the unpaid portion shall accrue from the date due until the date
of payment 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; or (ii) the maximum applicable lawful interest rate.
7.6. A party shall have the right, at its own expense, upon reasonable Notice
and at reasonable times, to examine and audit and to obtain copies of the
relevant portion of the books, records, and telephone recordings 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 right
to examine, audit, and to obtain copies shall not be available with respect to
proprietary information not directly relevant to transactions under this
Contract. All invoices and billings shall be conclusively presumed final and
accurate and all associated claims for under- or overpayments shall be deemed
waived unless such invoices or billings are 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.
7.7. Unless the parties have elected on the Base Contract not to make this
Section 7.7 applicable to this Contract, the parties shall net all undisputed
amounts due and owing, and/or past due, arising under the Contract such that
the party owing the greater amount shall make a single payment of the net
amount to the other party in accordance with Section 7; provided that no
payment required to be made pursuant to the terms of any Credit Support
Obligation or pursuant to Section 7.3 shall be subject to netting under this
Section. If the parties have executed a separate netting agreement, the terms
and conditions therein shall prevail to the extent inconsistent herewith.
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Copyright(C)2002 North American Energy Standards Board, Inc.NAESB Standard 6.3.1
All Rights Reserved Page 5 of 10 April 19, 2002
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 an liability with respect to the Gas prior to its delivery to Buyer
at the specified Delivery Points(s). Buyer shall have responsibility for and
any liability with respect to said Gas after its delivery to Buyer at the
Delivery Points(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. EXCEPT AS PROVIDED
IN THIS SECTION 8.2 AND IN SECTION 14.8, ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR ANY
PARTICULAR PURPOSE ARE DISCLAIMED.
8.3. Seller agrees to indemnify Buyer and save it harmless from all losses,
liabilities or claims including reasonable 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. Buyer 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 the 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 requirement of
Section 5.
SECTION 9. NOTICES
9.1. At 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 or 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 received on
the next Business Day after if was sent or such earlier time as is confirmed
by the receiving party. Notice via first class mail shall be considered
delivered five Business Days after mailing.
SECTION 10. FINANCIAL RESPONSIBILITY
10.1. If either party ("X") has reasonable grounds for insecurity regarding the
performance of any obligation under this Contract (whether or not then XXX) by
the other party ("Y") (including, without limitation, the occurrence of a
material change in the creditworthiness of Y), X may demand Adequate Assurance
of Performance "Adequate Assurance of Performance" shall mean sufficient
security in the form, amount and for the term reasonably acceptable to X
including, but not limited to, a standby irrevocable letter of credit, a
prepayment, a security interest in an asset or a performance bond or guaranty
(including the issuer of any such security).
10.2. In the event [each an "Event of Default") either party (the "Defaulting
Party") or its guarantor shall (i) make an assignment or any general arrangement
for the benefit of creditors; (ii) XXX a petition or otherwise commence,
authorize, or acquiesce in the commencement of a proceeding or case under any
bankruptcy or similar law for the protection of creditors have such petition
filed or preceding commenced against it; (iii) otherwise become bankrupt or
insolvent (however evidenced); (iv) be unable to pay its debts as they fall due;
(v) have a receiver, provisional liquidator, observator, custodian, trustee or
other similar official appointed with respect to it or substantially all of its
assets; (vi) fail to perform any obligation to the other party with respect to
any Credit Support Obligations relating to the Contract; (vii) fail to give
Adequate Assurance of Performance under Section 10.3 within 48 hours but at
least one Business Day of a written request by the other party; or (viii) not
have paid any amount due the other party hereunder on or before the second
Business Day following written Notice that such payment is due; then the other
party (the "Non-Defaulting Party") shall have the right, at its sole election,
to immediately withhold and/or suspend deliveries or payments upon Notice and/or
to terminate and liquidate the transactions under the Contract, in the manner
provided in Section 10.3, in addition to any and all other remedies available
hereunder.
10.3. If an Event of Default has occurred and is continuing, the Non-Defaulting
Party shall have the right, by notice to the Defaulting Party, to designate a
Day, no earlier than the Day such Notice is given and not later than 20 Days
after such Notice is given, as an early termination date (the "Early Termination
Date") for the liquidation and termination pursuant to Section 10.3.1 of all
transactions under the Contract, each a "Terminated Transaction". On the Early
Termination Date, all transactions will terminate, other than those
transactions, if any, that may not be liquidated and terminated under applicable
law or that are, in the reasonable opinion of the Non-Defaulting Party,
commercially impracticable to liquidate and terminate ("Excluded Transactions"),
which Excluded Transactions must be liquidated and terminated as seen thereafter
as is reasonable practicable, and upon termination shall be a Terminated
Transaction and be valued consistent with Section 10.3.1 below. With respect to
each Excluded Transaction, its actual termination date shall be the Early
Termination Date for the purposes of Section 10.3.1.
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Copyright(C)2002 North American Energy Standards Board, Inc.NAESB Standard 6.3.1
All Rights Reserved Page 6 of 10 April 19, 2002
THE PARTIES HAVE SELECTED EITHER "EARLY TERMINATION DAMAGES APPLY" OR "EARLY
TERMINATION DAMAGES DO NOT APPLY" AS INDICATED ON THE BASE CONTRACT.
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EARLY TERMINATION DAMAGES APPLY:
- -------------------------------------------------------------------------------
10.3.1. As of the Early Termination Date, the Non-Defaulting Party shall
determine, in good faith and in a commercially reasonable manner, (i) the
amount owed (whether or not then due) by each party with respect to all Gas
delivered and received between the parties under Terminated Transactions and
Excluded Transactions on and before the Early Termination Date and all other
applicable charges relating to such deliveries and receipts (including without
limitation any amounts owed under Section 3.2), for which payment has not yet
been made by the party that owes such payment under this Contract and (ii) the
Market Value, as defined below, of each Terminated Transaction. The Non-
Defaulting Party shall (x) liquidate and accelerate each Terminated
Transaction at its Market Value, so that each amount equal to the difference
between such market Value and the Contract Value, as defined below, of such
Terminated Transaction(s) shall be due to the Buyer under the Terminated
Transaction(s) if such Market Value exceeds the Contract Value and to the
Seller if the opposite is the case; and (y) where appropriate, discount each
amount then due under clause (x) above to present value in a commercially
reasonable manner as of the Early Termination Date (to take account of the
period between the date of liquidation and the date on which such amount would
have otherwise been due pursuant to the relevant Terminated Transactions).
For purposes of this Section 10.3.1. "Contract Value" means the amount of Gas
remaining to be delivered or purchased under a transaction multiplied by the
Contract Price, and "Market Value" means the amount of Gas remaining to be
delivered or purchased under a transaction multiplied by the market price for
a similar transaction at the Delivery Point determined by the Non-Defaulting
Party in a commercially reasonable manner. To ascertain the Market Value, the
Non-Defaulting Party may consider, among other valuations, any or all of the
settlement prices of NYMEX Gas futures contracts, quotations from leading
dealers in energy swap contracts or physical gas trading markets, similar
sales or purchases and any other bona fide third-party offers, all adjusted
for the length of the term and differences in transportation costs. A party
shall not be required to enter into a replacement transaction(s) in order to
determine the Market Value. Any extension(s) of the term of a transaction to
which parties are not bound as of the Early Termination Date (including but
not limited to "evergreen provisions") shall not be considered in determining
Contract Values and Market Values. For the avoidance of doubt, any option
pursuant to which one party has the right to o the terms of a transaction
shall be considered in determining Contract Values and Market Values. The rate
of interest used in calculating net present value shall be determined by the
Non-Defaulting Party in a commercially reasonable manner.
- -------------------------------------------------------------------------------
EARLY TERMINATION DAMAGES DO NOT APPLY:
- -------------------------------------------------------------------------------
10.3.1. As of the Early Termination Date, the Non-Defaulting Party shall
determine, in good faith and in a commercially reasonable manner, the amount
owed (whether or not then due) by each party with respect to all Gas delivered
and received between the parties under Terminated Transactions and Excluded
Transactions on and before the Early Termination Date and all other applicable
charges relating to such deliveries and receipts (including without limitation
any amount owed under Section 3.2), for which payment has not yet been made by
the party that owes such payment under the Contract.
- -------------------------------------------------------------------------------
THE PARTIES HAVE SELECTED EITHER "OTHER AGREEMENT SETOFFS APPLY" OR "OTHER
AGREEMENT SETOFFS DO NOT APPLY" AS INDICATED ON THE BASE CONTRACT.
- -------------------------------------------------------------------------------
OTHER AGREEMENT SETOFFS APPLY:
- -------------------------------------------------------------------------------
10.3.2. The Non-Defaulting Party shall net or aggregate, as appropriate,
any and all amounts owing between the parties under Section 10.3.1. so that
all such amounts are netted or aggregated to a single liquidated amount
payable by one party to the other (the "Net Settlement Amount"). At its sole
option and without prior Notice to the Defaulting Party, the Non-Defaulting
Party may setoff (i) any Net Settlement Amount owed to the Non-Defaulting
Party against any margin or other collateral held by it in connection with any
Credit Support Obligation relating to the Contract; or (ii) any Net Settlement
Amount payable to the Defaulting Party against any amount(s) payable by the
Defaulting Party to the Non-Defaulting Party under any other agreement or
arrangement between the parties.
- -------------------------------------------------------------------------------
OTHERS AGREEMENT SETOFFS DO NOT APPLY:
- -------------------------------------------------------------------------------
10.3.2. The Non-Defaulting Party shall net or aggregate, as appropriate,
any and all amounts owing between the parties under Section 10.3.1. so that
all such amounts are netted or aggregated to a single liquidated amount
payable by one party to the other (the "Net Settlement Amount"). At its sole
option and without prior Notice to the Defaulting Party, the Non-Defaulting
Party may setoff any Net Settlement Amount owed to the Non-Defaulting Party
against any margin or other collateral held by it in connection with any
Credit Support Obligation relating to the Contract.
10.3.3. If any obligation that is to be included in any netting,
aggregation or setoff pursuant to Section 10.3.2 is unascertained, the Non-
Defaulting Party may in good faith estimate that obligation and net, aggregate
or setoff, as applicable, in respect of the estimate, subject to the Non-
Defaulting Party accounting to the Defaulting Party when the obligation is
ascertained. Any amount not then due which is included in any netting,
aggregation or setoff pursuant to Section 10.3.2 shall be discounted to net
present value in a commercially reaonable manner determined by the Non-
Defaulting Party.
10.4. As soon as practicable after a liquidation, Notice shall be given by the
Non-Defaulting Party to the Defaulting Party of the Net Settlement Amount, and
whether the Net Settlement Amount is due to or due from the Non-Defaulting
Party. The Notice shall include a written statement explaining in reasonable
detail the calculation of such amount, provided that failure to give such
Notice shall not affect the validity or enforceability of the liquidation or
give rise to any claim by the Defaulting Party against the Non-Defaulting
Party. The Net Settlement Amount shall be paid by the close of business on the
second Business Day following such Notice, which date shall not be earlier
than the Early Termination Date. Interest on any unpaid portion of the Net
Settlement Amount shall accrue from the date due until the
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Copyright(C)2002 North American Energy Standards Board, Inc.NAESB Standard 6.3.1
All Rights Reserved Page 7 of 10 April 19, 2002
date of payment at a rate equal to the lower of (i) the then-effective prime
rate of interest published under "Money Rates" by the The Wall Street Journal,
plus two percent per annum, or (ii) the maximum applicable lawful interest
rate.
10.5. The parties agree that the transactions hereunder constitute a "forward
contract" within the meaning of the United States Bankruptcy Code and that
Buyer and Seller are each "forward contract merchants" within the meaning of
the United States Bankruptcy Code.
10.6. The Non-Defaulting Party's remedies under this Section 10 are the sole
and exclusive remedies of the Non-Defaulting Party with respect to the
occurrence of any Early Termination Date. Each party reserves to itself all
other rights, setoffs, counterclaims and other defenses that it is or may be
entitled to arising from the Contract.
10.7. With respect to this Section 10, if the parties have executed a separate
netting agreement with close-out netting provisions, the terms and conditions
therein shall prevail to the extent inconsistent herewith.
SECTION 11. FORCE MAJEURE
11.1. Except with regard to a party's obligation to make payment(s) due under
Section 7, Section 10.4, 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 wells of lines of pipe; (iii)
interruption and/or curtailment of Firm transportation and/or storage by
Transporters; (iv) acts of others such as strikes, lockouts or other
industrial disturbances, riots, sabotage, insurrections or wars; and (v)
governmental actions such as necessary for compliance with any court order,
law statute, ordinance, regulation or policy having the effect of law
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 occurrences: (i) the curtailment of interruptible or secondary Firm
transportation unless primarily 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, to include without limitation, Seller's
ability to sell Gas at a higher or more advantageous price than the Contract
Price, Buyer's ability to purchase Gas at a lower or more advantageous price
than the Contract Price or a regulatory agency disallowing, in whole or in
part, the pass through of costs resulting from the Agreement, (iv) the loss of
Buyer's market(s) or Buyer's inability to use or resell Gas purchased
hereunder, except, in the either case, as provided in Section 11.2; (v) the
loss or failure of Sellers gas supply or depletion of reserves, except in
either case, as provided in Section 11.2. 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
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 only, however, written
Notices with reasonably full particulars of the event or occurrence is
required as soon as reasonably possible. Upon providing written Notice of
Force Majeure to the other party, the affected party will be relieved of its
obligation, from the onset of the Force Majeure event 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.
11.6. Notwithstanding Sections 11.2 and 11.3, the parties may agree to
alternative Force Majeure provisions in a Transaction Confirmation executed in
writing by both parties.
SECTION 12. TERM
The 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(s). The rights of either party pursuant to Section 7.6 and Section
10, 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.
SECTION 13. LIMITATIONS
FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS REMEDY OR MEASURE OF DAMAGES
IS PROVIDED, SUCH EXPRESS REMEDY OR MEASURE OF DAMAGES SHALL BE THE SOLE AND
EXCLUSIVE REMEDY. A PARTY'S LIABILITY HEREUNDER SHALL BE LIMITED AS SET FORTH
IN SUCH PROVISION, AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE
WAIVED. IF NO REMEDY OR MEASURE OF DAMAGES IS EXPRESSLY PROVIDED HEREIN OR IN
A TRANSACTION, A PARTY'S LIABILITY SHALL BE LIMITED TO DIRECT ACTUAL DAMAGES
ONLY. SUCH DIRECT ACTUAL DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY, AND
ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. UNLESS EXPRESSLY
HEREIN PROVIDED, NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL,
PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS OR OTHER BUSINESS
INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR CONTRACT, UNDER ANY INDEMNITY
PROVISION OR OTHERWISE. IT IS THE INTENT OF THE PARTIES THAT THE LIMITATIONS
HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE
CAUSE OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY PARTY,
WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE.
- -------------------------------------------------------------------------------
Copyright(C)2002 North American Energy Standards Board, Inc.NAESB Standard 6.3.1
All Rights Reserved Page 8 of 10 April 19, 2002
TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE LIQUIDATED, THE
PARTIES ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE,
OR OTHERWISE OBTAINING AN ADEQUATE REMEDY IS INCONVENIENT AND THE DAMAGES
CALCULATED HEREUNDER CONSTITUTE A REASONABLE APPROXIMATION OF THE HARM OR
LOSS.
SECTION 14. MISCELLANEOUS
14.1. 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 (and shall not relieve the assigning party from
liability hereunder), which consent will not be unreasonably withheld or
delayed; provided, either party may (i) transfer, sell, pledge, encumber, or
assign this Contract or the accounts, revenues, or proceeds hereof in connection
with any financing or other financial arrangements, or (ii) transfer its
interest to any parent or affiliate by assignment, merger or otherwise without
the prior approval of the other party. Upon any such assignment, transfer and
assumption, the transferor shall remain principally liable for and shall not be
relieved of or discharged from any obligations hereunder.
14.2. 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.
14.3. No waiver of any breach of this Contract shall be held to be a waiver of
any other or subsequent breach.
14.4. 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(s).
This Contract may be amended only by a writing executed by both parties.
14.5. The interpretation and performance of this Contract shall be governed by
the laws of the jurisdiction as indicated on the Base Contract, excluding,
however, any conflict of laws rule which would apply the law of another
jurisdiction.
14.6. This Contract and all provisions herein will be subject to all applicable
and valid statutes, rules, orders and regulations of any governmental authority
having jurisdiction over the parties, their facilities, or Gas supply, this
Contract or transaction or any provisions thereof.
14.7. There is no third party beneficiary to this Contract.
14.8. 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.
14.9. The headings and subheadings contained in this Contract are used solely
for convenience and do not constitute a part of this Contract between the
parties and shall not be used to construe or interpret the provisions of this
Contract.
14.10. Unless the parties have elected on the Base Contract not to make this
Section 14.10 applicable to this Contract, neither party shall disclose directly
or indirectly without the prior written consent of the other party the terms of
any transaction to a third party (other than the employees, lenders, royalty
owners, counsel, accountants and other agents of the party, or prospective
purchasers of all or substantially all of a party's assets or of any rights
under this Contract, provided such persons shall have agreed to keep such terms
confidential except (i) in order to comply with any applicable law, order,
regulation, or exchange rule, (ii) to the extent necessary, for the enforcement
of this Contract, (iii) to the extent necessary to implement any transaction, or
(iv) to the extent such information is delivered to such third party for the
sole purpose of calculating a published index. Each party shall notify the other
party of any proceeding of which it is aware which may result in disclosure of
the terms of any transaction (other than as permitted hereunder) and use
reasonable efforts, to prevent or limit the disclosure. The existence of this
Contract is not subject to this confidentiality obligation. Subject to Section
13, the parties shall be entitled to all remedies available at law or in equity
to enforce, or seek relief in connection with this confidentiality obligation.
The terms of any transaction hereunder shall be kept confidential by the parties
hereto for one year from the expiration of the transaction.
In the event that disclosure is required by a governmental body or applicable
law, the party subject to such requirement may disclose the material terms of
this Contract to the extent so required, but shall promptly notify the other
party, prior to disclosure, and shall cooperate (consistent with the
disclosing party's legal obligations) with the other party's efforts to obtain
protective orders or similar restraints with respect to such disclosure at the
expense of the other party.
14.11 The parties may agree to dispute resolution procedures in Special
Provisions attached to the Base Contract or in a Transaction Confirmation
executed in writing by both parties.
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. Further, NAESB does not mandate the use of this
Contract by any party. NAESB DISCLAIMS AND EXCLUDES, AND ANY USER OF THIS
CONTRACT ACKNOWLEDGES AND AGREES TO NAESB'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 NAESB 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 NAESB BE LIABLE FOR ANY
DIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES
ARISING OUT OF ANY USE OF THIS CONTRACT.
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Copyright(C)2002 North American Energy Standards Board, Inc.NAESB Standard 6.3.1
All Rights Reserved Page 9 of 10 April 19, 2002
EXHIBIT A
TRANSACTION CONFIRMATION
FOR IMMEDIATE DELIVERY
Viking Resources Corp Date: November 13, 2002
Transaction Confirmation #: ________________
This Transaction Confirmation is subject to the Base Contract between Seller
and Buyer dated November 13, 2002
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.
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SELLER: BUYER
-------------------------------------------------------- -----------------------------------------------------------------------
Viking Resources Corp. UGI Energy Services, inc. d/p/a GASMARK
-------------------------------------------------------- -----------------------------------------------------------------------
311 Rouser Corp. 1100 Berkshire Blvd., Suite 305
-------------------------------------------------------- -----------------------------------------------------------------------
Wyomissing PA 19810
-------------------------------------------------------- -----------------------------------------------------------------------
Moon Two, PA 15108 Attn: Robert Meder
-------------------------------------------------------- -----------------------------------------------------------------------
Attn: Michael Brecko Phone: 610-373-7999
-------------------------------------------------------- -----------------------------------------------------------------------
Phone: 412-282-2830-126 Fax: 610-374-4288
-------------------------------------------------------- -----------------------------------------------------------------------
Fax: 412-282-3927 Base Contract No.
-------------------------------------------------------- -----------------------------------------------------------------------
Base Contract No. Transporter:
-------------------------------------------------------- -----------------------------------------------------------------------
Transporter: Transporter Contract Number:
-------------------------------------------------------- -----------------------------------------------------------------------
Transporter Contract Number:
--------------------------------------------------------
- -------------------------------------------------------------------------------
Contract Price: $___________/MMBtu or NYMEX LDS plus $.30 oer Dth
____________________________
- -------------------------------------------------------------------------------
Delivery Period: Begin April 1, 2003 End: March 31, 2004
- -------------------------------------------------------------------------------
Performance Obligation and Contract Quantity: (Select One)
Firm (Fixed Quantity): Firm (Variable Quantity): Interruptible:
__________________ MMBtus/day 9,000 MMBtus/day Minimum Up to _____________ MMBtus/day
EFR 9,000 MMBtus/day Maximum
subject to Section 4.2. at election of
|_| Buyer or |_| Seller
- -------------------------------------------------------------------------------
Delivery Point(s): Texas Eastern Meter Number 73133 Station Name of Prah in
Market areas M2
(If a o
- -------------------------------------------------------------------------------
Special Conditions: Additional wells may be added upon mutual consent of the
parties. All gas produced under this agreement shall be produced from wells
located within the Commonwealth of Pennsylvania. Viking shall have trigger
rights to lock its prices.
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Seller: Viking Resources Corp. Buyer: UGI Energy Services Inc., d/b/s GASMARK
-------------------------------------------------------- ------------------------------------------------------------------------
By: By:
-------------------------------------------------------- ------------------------------------------------------------------------
Title: Vice President Title: Vice President, Gas Supply & Risk Management
-------------------------------------------------------- ------------------------------------------------------------------------
Date: 1/21/03 Date: 12/17/02
-------------------------------------------------------- ------------------------------------------------------------------------
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Copyright(C)2002 North American Energy Standards Board, Inc.NAESB Standard 6.3.1
All Rights Reserved Page 10 of 10 April 19, 2002
SPECIAL PROVISIONS
To Base Contract for Sale and Purchase of Natural Gas
Between UGI Energy Services, Inc. and Viking Resources Corp.
Dated November 13, 2002
THE FOLLOWING SENTENCE REPLACES SECTION 1.4 IN ITS ENTIRETY:
The parties hereby consent to the electronic recording of their Oral
Transactions and related telephone discussions. Each party waives any further
notice of such recording, and agrees to notify its officers and employees of
such recording and to obtain any necessary consent of such officers and
employees. Failure by the Confirming Party to send, or the other party to
return, an executed Transaction Confirmation shall not invalidate any Gas
purchase and sale transaction (each a "Transaction" and collectively
"Transactions") agreed to by the parties in a recorded telephone conversation.
In the absence of a written Transaction Confirmation, any such recording will
be deemed a "writing" by the parties for purposes of Section 2-201(1) of the
Uniform Commercial Code. A true and complete copy of a recording made by
either party will be provided to the other party upon request, if it
reasonably appears that such recording may be utilized to resolve a dispute
between the parities. Such recording may be submitted by either party as
evidence of the existence or terms of a Transaction, subject to any applicable
statute, rule or judicial precedent which limits the admissibility of parol or
extrinsic evidence, and subject to any arguments which either party may make
regarding the interpretation or significance of such recording. In the event
of conflict between the terms and provisions of the written Transaction
Confirmation and a recorded telephone conversation, the terms and provisions
of the written Transaction Confirmation shall control to the extent of any
such conflict.
THE FOLLOWING REPLACES PARAGRAPH (i) IN SECTION 2.7:
(i) the Base Contract, including the Special Provisions and any Addendums
thereto,
THE FOLLOWING REPLACES SECTION 2.20 IN ITS ENTIRETY:
"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, or Section 4.4,
related to the failure to provide timely notice of interruption.
THE FOLLOWING PARAGRAPH IS ADDED AS SECTION 4.4:
In the event that performance is interrupted, the interrupting party shall
provide no less than 24 hours notice of its intent to interrupt. In the event
the interrupting party fails to provide timely notice of its intent to
interrupt its performance, the interrupting party shall be responsible for
damages calculated using the standards set forth in Section 3.2.
THE FOLLOWING IS ADDED AS THE FIRST SENTENCE IN SECTION 8.2:
Seller warrants that it is fully capable of assuming and willing to assume,
financially and otherwise, all of the duties and obligations of this Contract.
THE FOLLOWING REPLACES SECTION 8.3 IN ITS ENTIRETY:
Seller agrees to indemnify Buyer its successors and assigns, officers,
directors and employees, and save them harmless from all losses, liabilities
for claims, including but not limited to claims of title, personal injury,
property damage, commercial damages and attorney's fees and costs of court
("Claims") arising from or out of or caused by Seller's possession or control
of Gas sold hereunder. Buyer agrees to indemnify Seller its successors and
assigns, officers, directors and employees, and save them harmless from all
losses, liabilities for claims, including but not limited to claims of title,
personal injury, property damage, commercial damages and attorney's fees and
cost of court ("Claims") arising from or out of or caused by, Buyer's
possession or control of Gas sold hereunder.
THE FOLLOWING IS ADDED AT THE END OF SECTION 10.2:
The Parties specifically agree that this Contract and all Transactions
pursuant hereto are "Forward Contracts" as such term is defined in the United
States Bankruptcy Code, 11 U.S.C., Section 101(25). If either Party becomes
subject to Bankruptcy Code proceedings, it is understood and agreed that the
other Party shall be entitled to exercise its right to liquidate this Contract
as a "Forward Contract Merchant" under Section 556 of the U.S. Bankruptcy
Code.
THE FOLLOWING IS ADDED AT THE END OF THE SECOND PARAGRAPH IN SECTION 10.3.1
(EARLY TERMINATION DAMAGES APPLY):
In addition to the other Early Termination Damages defined in this Section,
the Non-Defaulting Party shall be entitled to recover the Costs resulting from
the Event of Default. "Costs" shall mean brokerage fees, commissions and other
similar transaction costs and expenses reasonably incurred by the Non-
Defaulting Party either in terminating any arrangement by which it has hedged
its obligations pursuant to a terminated EFP or Firm transaction or in
entering into new arrangements which replace a terminated EFP or Firm
transaction, and reasonable attorneys' fees, if any, incurred in connection
with enforcing its rights hereunder.
Accepted and Approved: Accepted and Approved:
UGI Energy Services, Inc. Viking Resources Corp.
d/b/a GASMARK
By: XXX By XXX
- ---------------------------------- ----------------------------------
Title Title Vice President
- ---------------------------------- ----------------------------------
Date 12/17/02 Date 1/21/03
- ---------------------------------- ----------------------------------