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EXHIBIT 10.16
GAS PURCHASE AND SALES AGREEMENT
Between
CMS NOMECO EG LTD.
SAMEDAN OF NORTH AFRICA, INC.
WALTER & WESTPORT INTERNATIONAL LLC
GLOBEX INTERNATIONAL, INC.
SELLERS
and
ATLANTIC METHANOL PRODUCTION COMPANY LLC
BUYER
Dated: February 11, 1999
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TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS............................................................2
ARTICLE II
SELLERS................................................................4
ARTICLE III
COMMISSIONING..........................................................5
ARTICLE IV
QUANTITY...............................................................6
ARTICLE V
NATURE OF SALE; DEFAULT; DAMAGES.......................................8
ARTICLE VI
FORECASTS AND NOMINATIONS.............................................10
ARTICLE VII
PRESSURE AND DELIVERY POINT...........................................11
ARTICLE VIII
PERIOD OF AGREEMENT...................................................11
ARTICLE IX
QUALITY...............................................................12
ARTICLE X
MEASUREMENT...........................................................13
ARTICLE XI
PRICE.................................................................15
ARTICLE XII
BILLING AND PAYMENT...................................................15
ARTICLE XIII
INDEMNITY.............................................................16
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ARTICLE XIV
TAXES.................................................................17
ARTICLE XV
ASSIGNMENT............................................................17
ARTICLE XVI
FORCE MAJEURE.........................................................18
ARTICLE XVII
TITLE AND RISK OF LOSS................................................19
ARTICLE XVIII
REGULATORY BODIES.....................................................19
ARTICLE XIX
EXPERT................................................................19
ARTICLE XX
CONFLICT RESOLUTION...................................................21
ARTICLE XXI
NOTICES...............................................................22
ARTICLE XXII
RESERVES..............................................................23
ARTICLE XXIII
MISCELLANEOUS.........................................................26
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
EXHIBIT E
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GAS PURCHASE AND SALES AGREEMENT
THIS AGREEMENT, made and entered into this 11th day of February, 1999, by and
between
THE ENTITIES LISTED AS "SELLERS" ON THE SIGNATURE PAGE(S) HEREOF,
hereinafter referred to individually as "Seller" or collectively as
"Sellers,"
and
ATLANTIC METHANOL PRODUCTION COMPANY LLC, an exempted limited liability
company limited by shares organized and existing under the laws of the
Cayman Islands, hereinafter referred to as "Buyer."
Sellers and Buyer are sometimes hereinafter referred to collectively as
"Parties" or singularly as "Party," it being understood that Sellers, as a
group, are sometimes herein referred to for convenience in the singular as
"Party" and sometimes in the plural as "Parties," according to context.
WITNESSETH:
WHEREAS, Sellers have supplies of natural gas in the Alba Field, offshore
Equatorial Guinea, which are available for sale and delivery to Buyer on and
subject to the terms and conditions hereinafter set forth; and
WHEREAS, Buyer desires to purchase and receive natural gas on a constant,
non-interruptible, priority basis from Sellers, and Sellers desire to sell and
deliver natural gas to Buyer, on a constant, non-interruptible, priority basis
and subject to the terms and conditions hereinafter set forth; and
WHEREAS, the gas will be used by Buyer in a plant to be constructed by Buyer in
the Republic of Equatorial Guinea as feedstock to produce methanol (and/or other
products if and as such plant may be modified in the future to be capable of
producing such other products), as well as to generate energy to operate said
plant; and
WHEREAS, Buyer and Sellers hereby state that they have negotiated this Agreement
at arms-length with each other;
NOW, THEREFORE, Sellers and Buyer, in consideration of the premises and mutual
covenants hereinafter set forth, do hereby agree as follows:
ARTICLE I
DEFINITIONS
In addition to other capitalized terms which are defined elsewhere in this
Agreement, the following terms shall, as used in this Agreement, have the
following indicated meanings unless their usage in
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context is specifically to the contrary:
1.1 "Agreement" shall mean this Gas Purchase and Sales Agreement, as it may
be amended by mutual agreement of the Parties from time to time.
1.2 "Alba Field" shall mean the Alba Field as identified in that certain
Production Sharing Agreement dated April 10, 1990 between the Republic
of Equatorial Guinea and Walter International Equatorial Guinea, Inc.,
the boundaries of said Alba Field being more fully defined in Exhibit
A, attached hereto.
1.3 "BTU" shall mean one (1) British Thermal Unit, and is defined as the
amount of heat required to raise the temperature of one (1) pound of
water from fifty-nine degrees (59(degree)) Fahrenheit to sixty degrees
(60(degree)) Fahrenheit at a constant pressure of fourteen and
sixty-five hundredths (14.65) psia.
1.4 "Buyer's Plant" shall mean the facilities to be constructed by Buyer on
the Island of Bioko, near the city of Malabo, Republic of Equatorial
Guinea, for or relating to the conversion of Gas into methanol, and/or
into other product(s) if and as Buyer's Plant may be modified in the
future to be capable of producing such other products, and the storage
and transportation of such methanol and/or other products as aforesaid.
1.5 "Contract Year" shall mean a period of time commencing at 7:00 A.M.
local Equatorial Guinea time on the First Supply Date and ending Three
Hundred Sixty-Five (365) Days (or Three Hundred Sixty-Six (366) Days in
the case of a leap year) later at 7:00 A.M. local Equatorial Guinea
time; and each succeeding period of Three Hundred Sixty-Five (365) Days
(or Three Hundred Sixty-Six (366) Days in the case of a leap year)
beginning at 7:00 A.M. on the first Day of such period and ending at
7:00 A.M. on the last day of such period thereafter during the Contract
Period (as defined in Article VIII hereof).
1.6 "Cubic Foot," in reference to Gas shall mean an amount of Gas which
will occupy a volume of one (1) cubic foot when held at a base
temperature of sixty degrees (60(degree)) Fahrenheit and at a pressure
of fourteen and sixty-five hundredths (14.65) psia.
1.7 "Daily Nomination" shall mean the quantity of Gas which Buyer desires
to purchase from Sellers on any given Day, as designated (or deemed
designated) by Buyer pursuant to Section 6.3 hereof.
1.8 "Day" shall mean a period of time consisting of twenty-four (24)
consecutive hours beginning 7:00 A.M. local Equatorial Guinea time. The
plural use of Day shall mean consecutive twenty-four (24) hour periods.
1.9 "Delivery Point" shall mean the location where Sellers will make
delivery of Gas to Buyer, such location being a Meter Station (as
defined in Section 7.2 hereof) to be installed by
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Buyer at the location identified in Exhibit B, attached hereto.
1.10 "EPC Contract" shall mean that certain "Turnkey Agreement" between
Buyer and United Engineers International, Inc. ("United"), dated May
18, 1998, under which United is to design, engineer, procure,
construct, start-up, test and commission Buyer's Plant.
1.11 "First Supply Date" shall mean the date on which Buyer's Plant has
achieved "First Industrial Production," as that term is defined in the
EPC Contract, as set forth in Exhibit C, attached hereto.
1.12 "Full Start Date" shall mean the date, after the Partial Start Date,
beginning with which Sellers shall deliver and Buyer shall be entitled
to receive Gas in quantities up to one hundred percent (100%) of the
Maximum Daily Contract Quantity, for the purpose of testing and
commissioning Buyer's Plant. The Full Start Date shall be October 1,
2000, unless mutually agreed otherwise by the Parties.
1.13 "Gas" shall mean natural gas, whether produced from wells classified as
gas wells or oil wells by any governmental authority having
jurisdiction thereof, and residue gas resulting from processing natural
gas, petroleum refinery gas and gases from other manufacturing
processes, or any combination thereof, consisting principally of
methane.
1.14 "Gross Heating Value" shall mean a quantity of heat in BTU's produced
by the complete combustion of a Cubic Foot of Gas under standard
conditions, at constant pressure, with air of the same temperature and
pressure as the Gas, where the products of combustion are cooled to the
initial temperature of the Gas and air, and where water formed by the
combustion is condensed to a liquid state. "Standard conditions" for
the Gas shall be sixty degrees (60(degree)) Fahrenheit, fourteen and
sixty-five hundredths (14.65) psia and saturated with water vapor.
1.15 "Maximum Daily Contract Quantity" (or "MDCQ") shall mean the maximum
quantity of Gas that Sellers, subject to the terms and conditions of
this Agreement, are required and obligated to deliver to Buyer each Day
from and after the Full Start Date, which quantity, expressed in MMBtu,
shall be one hundred twenty-six thousand five hundred (126,500) MMBtu
on a Gross Heating Value basis.
1.16 "Minimum Annual Contract Quantity" (or "MACQ") shall mean the minimum
quantity of Gas that Buyer, subject to the terms and conditions of this
Agreement, is obligated to purchase from Sellers each Contract Year,
and is further defined in Article 4.3 hereof.
1.17 "MMBtu" shall mean one million (1,000,000) British Thermal Units.
1.18 "Month" shall mean a period of time beginning at 7:00 A.M. local
Equatorial Guinea time on the first Day of a calendar month and ending
at 7:00 A.M. local Equatorial Guinea time
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on the first Day of the following calendar month. The plural use of
Month shall mean consecutive monthly periods.
1.19 "psia" shall mean pounds per square inch absolute.
1.20 "psig" shall mean pounds per square inch gauge.
1.21 "Partial Start Date" shall mean the date beginning with which Sellers
shall deliver and Buyer will be entitled to receive Gas in quantities
up to fifty percent (50%) of the Maximum Daily Contract Quantity, for
the purpose of the beginning stages of testing and commissioning
Buyer's Plant. The Partial Start Date shall be July 1, 2000 unless
mutually agreed otherwise by the Parties.
1.22 "Scheduled Outage" shall mean a period of time that (i) Buyer's Plant
is out of service for scheduled maintenance, or (ii) Sellers' Alba
Field Facilities are out of service for scheduled maintenance.
1.23 "Sellers' Alba Field Facilities" shall mean Sellers' facilities in the
Alba Field and processing facilities on the Island of Bioko, through
which the Gas to be delivered hereunder will be produced, processed and
transported.
ARTICLE II
SELLERS
2.1 Each of the companies or entities constituting Sellers shall be severally
(and not jointly) liable for the supply of the Gas delivered or to be delivered
hereunder and otherwise for the obligations and liabilities of Sellers under
this Agreement in accordance with the percentage specified for such individual
Seller in Exhibit D attached hereto.
It is further understood that the assets of each of the companies or entities
constituting Sellers that may be attached, taken or recovered from such Seller
to satisfy that particular Seller's liability for breach of this Contract shall
be limited to all right, title, interest or benefit that, directly or indirectly
(including without limitation through one or more affiliates or other
intermediaries), may now (or hereafter where specifically indicated below) be
owned, held or claimed by, or accrue or be attributable to or be conferred upon,
that Seller in property (real or personal, tangible or intangible) located in,
or relating to or arising from operations in the Republic of Equatorial Guinea.
The foregoing assets shall include, but are not necessarily limited to, all
right, title, interest or benefit, direct or indirect as aforesaid, of each such
Seller in, to or under (i) the Production Sharing Contract referred to in
Section 1.2 above, or any agreement that in any manner is a successor agreement
thereto; (ii) shares in the entity known as Alba Associates LLC, and such
entity's shares in and ownership of Alba Plant LLC; (iii) the Processing and
Marketing Agreement dated January 22, 1996 between the Republic of Equatorial
Guinea and Alba Plant LLC, or any agreement that in any manner is a successor
agreement thereto; (iv) the "Alba LPG Plant" located near Punta Europa,
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Equatorial Guinea; (v) the "Condensate Plant" located adjacent to the Alba LPG
Plant, near Punta Europa, Equatorial Guinea; (vi) any products (Gas, LPG's,
condensate, or otherwise) produced under the Production Sharing Contract, or at
the Alba LPG Plant, or at the Condensate Plant; (vii) any contracts now existing
or hereafter entered into for sale of products produced at the Alba LPG Plant or
the Condensate Plant, and proceeds of the sales of products thereunder; (viii)
this Agreement, and any other sales contracts now existing or hereafter entered
into for products produced under the Production Sharing Contract, and proceeds
of the sale of Gas hereunder and of sales under any such other contracts; (ix)
any other agreements now existing or hereafter entered into in any manner
relating to any of the foregoing; and (x) any licenses, authorizations or
permits now held or hereafter acquired relating in any manner to any of the
foregoing.
It is further understood that in the event any Seller at any time sells or
otherwise divests itself of any of the assets covered by the immediately
preceding paragraph or of any direct or indirect interest in any of said assets,
then unless such sale or divestiture is limited to Gas, LPGs or Condensates sold
in the ordinary course of business, or of proceeds of said sales of Gas, LPGs or
Condensates in the ordinary course of business, the Seller in question shall
require the purchasing or acquiring entity to assume and bind itself to all of
said Seller's liabilities hereunder. The foregoing sentence shall not relieve
such Seller of any obligation to obtain Buyer's consent to an assignment of this
Agreement as provided in Article XV hereof.
2.2 Sellers hereby appoint the operator of the Alba Field, from which the Gas
delivered hereunder is intended to be produced, currently being CMS NOMECO EG
Ltd., as their representative for all purposes under this Agreement except as
otherwise provided in Section 21.2 hereof ("Sellers' Representative"). Such
Sellers' Representative shall represent Sellers and Buyer may rely on
information, approvals and communications made by or received from said Sellers'
Representative on all ordinary operating matters arising under this Agreement.
It is expressly understood, however, that while negotiations regarding same may
be conducted by Sellers' Representative, in the case of any change, modification
or other amendment to this Agreement or any provisions hereof, or any consent to
an assignment of this Agreement, Sellers' Representative shall not have the
power or authority to commit or bind any Seller other than itself.
ARTICLE III
COMMISSIONING
3.1 Sellers recognize that Buyer will require certain quantities of Gas for the
commissioning and testing Buyer's Plant. In order to facilitate such
commissioning and testing of Buyer's Plant, there shall be a period of time (the
"Commissioning Period") which shall precede the First Supply Date, during which
Sellers shall supply Gas for such purposes. The Commissioning Period shall
commence on the Partial Start Date and shall continue until the First Supply
Date.
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It is understood that, prior to the Partial Start Date, as well as during the
period between the Partial Start Date and the Full Start Date, Sellers will
perform certain work with respect to Sellers' Alba Field Facilities necessary
for Sellers to be able to produce and deliver Gas to Buyer hereunder. During the
same time, Buyer will construct, test and commission Buyer's Plant. Buyer and
Sellers shall use their reasonable best efforts to coordinate the performance of
said activities as necessary for the Parties to be able to meet the scheduled
Partial Start Date and Full Start Date. Buyer and Sellers shall designate
appropriate personnel to carry out such coordination.
3.2 Sellers shall:
(a) each Day during that part of the Commissioning Period commencing on the
Partial Start Date and continuing until the Full Start Date, deliver to
Buyer such quantities of Gas up to fifty percent (50%) of the Maximum
Daily Contract Quantity, as Buyer may need for the testing and
commissioning of Buyer's Plant; and
(b) each Day during that part of the Commissioning Period commencing on the
Full Start Date and continuing until the First Supply Date, deliver to
Buyer such quantities of Gas up to one hundred percent (100%) of the
Maximum Daily Contract Quantity, as Buyer may need for the testing and
commissioning of Buyer's Plant;
any such quantities to be scheduled by Buyer by Daily Nominations pursuant to
Section 6.3 hereof.
Buyer shall have no minimum purchase obligations during the Commissioning
Period.
ARTICLE IV
QUANTITY
4.1 It is the intent of the Parties that Gas purchased and sold hereunder on and
after the First Supply Date shall, subject to the terms and conditions hereof,
be delivered by Sellers and utilized by Buyer during the course of a Day at as
close to uniform volumes as reasonably practicable. The Parties acknowledge,
however, that Gas purchase volume changes may occur during re-starts or shut
downs of Buyer's Plant or other anticipated, planned, and/or unplanned events
affecting operation of Buyer's Plant.
4.2 Subject to the terms and conditions of this Agreement, Sellers agree to sell
and deliver to Buyer, and Buyer agrees to purchase and take from Sellers, each
Day from and after the First Supply Date for the duration of the Contract Period
(as defined in Article VIII hereof), such quantity of Gas, not to exceed the
amount of the Maximum Daily Contract Quantity (MDCQ), as may be nominated or
deemed nominated by Buyer in Daily Nominations pursuant to Section 6.3 hereof.
4.3 Buyer agrees to purchase from Sellers during the course of each Contract
Year a Minimum Annual Contract Quantity of Gas, expressed in MMBtu, equal to
twenty-eight million (28,000,000) MMBtu on a Gross Heating Value basis, less all
of the following:
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(a) the sum of any quantities of Gas that Sellers fail or are unable to
deliver under this Agreement for any reason during that Contract Year,
including but not limited to Force Majeure affecting Sellers and
Scheduled Outages of Sellers' Alba Field Facilities;
(b) the sum of any quantities of Gas during that Contract Year of which
Buyer refuses delivery due to quality problems as provided in Article
IX hereof;
(c) the sum of any quantities of Gas during that Contract Year of which
Buyer was unable to take delivery due to Force Majeure affecting Buyer;
(d) the sum of any quantities of Gas during that Contract Year which Buyer
does not take due to Scheduled Outage(s) of Buyer's Plant;
said quantities covered by the aforesaid items (a) through (d) shall be computed
as follows:
(i) in MMBtu's on a Gross Heating Value basis;
(ii) the deduction attributable to any Day for which there is (or
is deemed to be) a Daily Nomination under Section 6.3 below
shall be the shortfall in actual delivery below said Daily
Nomination, provided, that if Buyer has intentionally set its
Daily Nomination at a lower level than it otherwise would
because of any factor as set forth in items (a) through (d)
above, then the amount by which Buyer calculates that it so
reduced its Daily Nomination shall (or shall also) be the
deduction for such Day; and
(iii) the deduction attributable to any Day for which no Daily
Nomination was made or deemed made under Section 6.3 shall be
the shortfall in actual delivery below the average of the last
thirty (30) Daily Nominations that were made or deemed made
under Section 6.3 hereof. In identifying said last thirty (30)
Daily Nominations, Daily Nominations for any Day on which
there was a Scheduled Outage of Buyer's Plant or Sellers' Alba
Field Facilities, an event of Force Majeure, or any other
cause of non-delivery or restricted delivery, shall be
excluded.
For any Contract Year in which the MACQ, calculated as set forth above, exceeds
the actual total quantities of Gas taken by Buyer hereunder, Buyer will pay
Sellers, at the Contract Price set forth in Section 11.2, for the quantity by
which the MACQ exceeds the actual quantities taken (the "Annual Underlift
Quantity"). Invoicing and payment of the Annual Underlift Quantity, if any, for
each Contract Year will be as provided in Article XII of this Agreement. Payment
by Buyer for Annual Underlift Quantity as set forth herein is Buyer's sole and
exclusive liability and Sellers' sole and exclusive remedy for any failure of
Buyer to take the Minimum Annual Contract Quantity in any Contract Year.
In the event that Buyer, during a Contract Year, pays for any Daily Underlift
Quantities pursuant to Section 4.5 below, the quantities so paid for by Buyer
pursuant to said Section 4.5 shall, in the
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computations described above in this Section 4.3, be counted as Gas actually
delivered to and taken by Buyer during said Contract Year.
In the case of a Contract Year in which Buyer terminates this Agreement pursuant
to Section 5.3, 9.3 or 22.3, or in which either Buyer or Sellers terminate this
Agreement pursuant to Section 16.3, there shall be no Minimum Annual Contract
Quantity and the provisions of this Section 4.3 shall not apply.
4.4 Sellers shall not be obligated to deliver Gas to Buyer hereunder during
Scheduled Outages of Sellers' Alba Field Facilities that may occur during the
Contract Period, provided that (i) said Scheduled Outages of Sellers' Alba Field
Facilities, for which Sellers are so excused from their delivery obligations
hereunder, shall not exceed, in the aggregate, ten (10) Days (whether or not
consecutive) in any Contract Year additional to Days during the applicable
Contract Year on which Buyer's Plant is not operating because of Scheduled
Outages thereof; and (ii) Sellers shall give Buyer as much advance notice as
possible, and in all events at least thirty (30) Days' advance notice, of any
upcoming Scheduled Outages of Sellers' Alba Field Facilities and shall at all
times use their best efforts to cause all Scheduled Outages of Sellers' Alba
Field Facilities to coincide with Scheduled Outages of Buyer's Plant.
4.5 The Parties understand that operational changes in the rate of Gas usage may
occur from time to time over the course of a Day, and that, due to the
operational impact on the system requirements, there may be minor variations in
the quantity of Gas that Buyer actually takes in a Day from the amount
specified, or deemed specified, for that Day in Buyer's Daily Nomination
pursuant to Section 6.3. Such variation shall be permissible provided that any
such variations attributable to Buyer shall not, except for reasons due to Force
Majeure or as provided below in this Section 4.5, be more than five percent (5%)
higher or lower than the amount of Buyer's Daily Nomination for the Day in
question. If Buyer, for reasons attributable to Buyer other than Force Majeure,
takes a quantity of Gas in a Day which is less than ninety-five percent (95%) of
the applicable Daily Nomination quantity, the amount of the shortfall below
ninety-five percent (95%) of said Daily Nomination quantity shall be treated as
a "Daily Underlift Quantity." Buyer will pay Sellers, at the Contract Price set
forth in Section 11.2, for such Daily Underlift Quantities. Invoicing and
payment of the Daily Underlift Quantities, if any, for each Month will be as
provided in Article XII of this Agreement. Payment by Buyer for Daily Underlift
Quantities as set forth above is Buyer's sole and exclusive liability and
Sellers' sole and exclusive remedy for any failure of Buyer to take the amount
of Buyer's Daily Nomination in any Day.
The Parties understand that during the commissioning and testing of Buyers'
Plant, Daily Nominations may be inaccurate and Buyer will have no liability to
pay for any Daily Underlift Quantities pursuant to this Section 4.5 based on any
shortfall in the amount of Gas taken by Buyer below its Daily Nomination during
the Commissioning Period. It is also expressly understood that even after the
end of the Commissioning Period, Buyer's Daily Nominations may be inaccurate
during periods of start-ups and shut-downs of Buyer's Plant and Buyer will have
no liability to pay for any Daily Underlift Quantities pursuant to this Section
4.5 based on any shortfall in the amount
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of Gas taken by Buyer below its Daily Nomination on any Day during which Buyer's
Plant is being started up or shut down.
4.6 It is also understood that Sellers may not be able to accurately fulfill
Buyer's Daily Nomination during periods of start-ups and shut-downs of Sellers'
Alba Field Facilities, and Sellers shall not be liable to Buyer pursuant to
Article V below for failure of Sellers to deliver at least ninety-five percent
(95%) of Buyer's Daily Nomination on a Day on which Sellers' Alba Field
Facilities are being started up or shut down. It is further understood and
agreed, however, that any such start-up or shut-down Days for which Sellers are
so excused under this Section 4.6 shall, except where Sellers' failure to
deliver is otherwise excused by the Force Majeure provisions of this Agreement,
be in conjunction with Scheduled Outages allowed to Sellers pursuant to the
provisions of Section 4.4 above and shall count toward the maximum ten (10) Days
(whether consecutive or not) per Contract Year of Scheduled Outages allowed to
Sellers under Section 4.4 hereof.
ARTICLE V
NATURE OF SALE; DEFAULT; DAMAGES
5.1 The Parties agree that the purchase and sale of Gas between the Parties
pursuant to the terms of this Agreement is to be made of a constant,
non-interruptible priority basis. It is expressly understood that Buyer will
suffer substantial damages by reason of non-delivery or shortfall in delivery of
Gas by Sellers; the amount of which damages are, however, difficult to compute.
It is further understood that, due to the location of Buyer's Plant, Buyer
cannot easily or without significant cost and delay obtain alternate supplies of
Gas. The Parties, in entering into this Agreement, fully anticipate and
contemplate that Sellers have sufficient Gas to supply to Buyer's Plant. For
purposes of the balance of this Article V, Sellers' "refusal" (or similar words,
such as "refuse") to deliver Gas, as referred to in Sections 5.2 and 5.3 hereof,
shall indicate a failure by Sellers to deliver Gas to Buyer hereunder by reason
of Sellers' sale of the Gas to another purchaser or purchasers in violation of
this Agreement or failure to deliver due to any other cause, reason or
circumstance that is not excused by Force Majeure or by another applicable
provision of this Agreement.
5.2 If, on any Day, Sellers refuse to deliver Gas in the amount of at least
ninety-five percent (95%) of Buyer's Daily Nomination, then Sellers shall pay to
Buyer, as liquidated damages, the amount of U.S. twenty-five cents ($0.25) per
MMBtu for all quantities by which Gas deliveries hereunder fell short of meeting
ninety-five percent (95%) of Buyer's Daily Nomination for such Day.
5.3 If:
(a) on any forty five (45) Days (whether or not consecutive) within any
twelve (12) Month period, Sellers refuse to deliver at least
seventy-five percent (75%) of the amount of Gas specified in the
applicable Daily Nominations of Buyer, or
(b) on any ninety (90) Days (whether or not consecutive) within any twelve
(12) Month period,
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Sellers refuse to deliver at least ninety-five percent (95%) of the
amount of Gas specified in the applicable Daily Nominations of Buyer,
then Buyer shall have the further right, at its option, to declare Sellers in
material breach of this Agreement by written notice to Sellers. It is hereby
acknowledged that Buyer does not have other reasonably available sources of Gas
supply, and in view of Buyer's dependency upon Sellers' supply of Gas and the
uniqueness of the circumstances, it is agreed that Buyer, upon declaring Sellers
to be in material breach of this Agreement as aforesaid, shall be entitled to a
remedy of specific performance, being an order from the arbitration tribunal
pursuant to Article XX hereof, that Sellers specifically perform their
obligations to deliver Gas to Buyer under this Agreement. It is agreed that the
arbitration tribunal shall have the authority to make such an order of specific
performance, which order shall be enforceable in any court having jurisdiction.
It is also agreed that if Buyer declares Sellers to be in material breach of
this Agreement due solely to Sellers' refusal to deliver Gas as described in
clause (a) or (b) above, but the aforesaid provisions for a remedy of specific
performance are held to be wholly or partially unenforceable for any reason, or
if Buyer in its good faith judgment otherwise believes for any reason that it
will be unable to fully avail itself of and enforce such remedy within a
reasonable time, Buyer shall thereupon have the right, at its option, to
terminate this Agreement upon written notice to Sellers. Should Buyer so
terminate this Agreement, Buyer shall have the right to recover from Sellers
liquidated damages in an amount computed by multiplying U.S. sixty-five cents
($0.65) per MMBtu by the MDCQ, and then multiplying the product thereof by the
number of Days then remaining (at the time of such termination) in the Contract
Period less such number of Days in said then-remaining Contract Period as Buyer
in its sole judgement estimates that Buyer's Plant would have been out of
service for Scheduled Outages.
It is further agreed, however, that, in order to exercise its right to declare
Sellers in material breach of this Agreement and be entitled to any remedy
provided for in this Section 5.3, Buyer must, on or prior to the thirtieth
(30th) Day during a twelve (12) Month period on which Sellers refuse to deliver
at least ninety-five percent (95%) of the amount of Buyer's Daily Nomination,
give Sellers written notice that Buyer intends to exercise its rights set forth
in this Section 5.3 if Sellers' refusal to perform continues to the point where
the conditions set forth in either clause (a) or (b) of this Section 5.3 are
met.
5.4 It is expressly understood that Buyer will suffer substantial damages by
reason of non-delivery or shortfall in delivery of Gas by Sellers; the amount of
which damages are, however, difficult to compute. It is further understood that,
due to the location of Buyer's Plant, Buyer cannot easily or without significant
cost and delay obtain any other or alternate supplies. The Parties stipulate and
agree that the sums to be paid by Sellers to Buyer as a result of failure to
deliver or material breach of contract as set forth in Sections 5.2 and 5.3
above represent a reasonable approximation of Buyer's damages and are not a
penalty.
It is expressly recognized, with respect to the difference between the amounts
to be paid by Sellers
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to Buyer pursuant to Section 5.2 and Section 5.3 above, that the damages
suffered by Buyer in the case of material breach by Sellers as described in
Section 5.3 would be more severe than in the case of a failure or shortfall in
delivery simply on an individual Day as described in Section 5.2, that the
respective amounts to be paid by Sellers to Buyer under Sections 5.2 and 5.3
have been determined by the Parties to represent a reasonable approximation of
Buyer's damages in each set of circumstances, and neither of such amounts is a
penalty.
5.5 If Sellers default in complying with the Gas specifications set forth in
Article IX, Buyer shall have the remedies set forth in that Article.
5.6 If Buyer fails to pay within fifteen (15) Days after the date same was due
in accordance with Section 12.1 hereof, any amount which is not in dispute for
Gas delivered hereunder, Sellers have the right to suspend deliveries until such
time that Buyer pays all amounts due hereunder.
5.7 Except for defaults for which a remedy of liquidated damages is specifically
provided for herein, or for which a stated remedy is otherwise expressly stated
to be exclusive, the remedies of Buyer or Sellers set forth in this Agreement
are in addition to and do not limit any other remedies available to the injured
Party at law or in equity.
ARTICLE VI
FORECASTS AND NOMINATIONS
6.1 Sixty (60) Days prior to the First Supply Date and at least thirty (30) Days
prior to the first Day of each subsequent Contract Year during the Contract
Period, Buyer shall provide Sellers with a written estimate ("Annual Estimate")
of Buyer's anticipated Monthly Estimates for the upcoming Contract Year. Such
estimate is for planning purposes only and is not binding upon Buyer in any
respect.
6.2 Buyer shall provide to Sellers, not later than eight (8) Days prior to the
first Day of each Month during the Contract Period, a written estimate ("Monthly
Estimate") of the average daily quantity of Gas, expressed in MMBtu, it
anticipates it will desire to receive from Sellers hereunder during (i) the
upcoming Month, and (ii) the upcoming three (3) Months. Such estimates are,
except as provided in Section 6.3 below, for planning purposes only and are not
binding upon Buyer in any respect.
6.3 Prior to 12:00 P.M. (noon) local Equatorial Guinea time on each Day, Buyer
may notify Sellers of the quantity of Gas, expressed in MMBtu, that Buyer
desires to receive hereunder on the immediately following Day (the "Daily
Nomination"). If Buyer does not provide such a Daily Nomination to Sellers by
the aforesaid time, then the daily quantity that Buyer had specified in its
Monthly Estimate delivered to Sellers under Section 6.2 above, shall be deemed
to be the Daily Nomination.
6.4 Both Sellers and Buyer shall have agents or employees reasonably available
at all times to
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give and receive and act upon any changes in the rate of Gas deliveries, as may
be required from time to time. Buyer shall contact Sellers' Gas control agent to
nominate Buyer's Daily Nominated quantity. Buyer and Sellers shall provide each
other in writing, prior to the Partial State Date, the names of their respective
personnel located in Equatorial Guinea who may be contacted in any emergency.
ARTICLE VII
PRESSURE AND DELIVERY POINT
7.1 Sellers shall deliver Gas at the Delivery Point within the pressure
limitations set forth on Exhibit E, attached hereto. Buyer shall not be required
to install compression to effect the receipt of Gas hereunder.
7.2 Sellers shall make delivery of all Gas hereunder at a new meter and
regulating station consisting of one or more meters (collectively, the "Meter
Station") to be built and owned by Buyer at the Delivery Point as shown on
Exhibit B hereto. Buyer and Sellers shall each have certain responsibilities for
the piping (and associated facilities) necessary to bring the Gas to the
Delivery Point as described in said Exhibit B.
ARTICLE VIII
PERIOD OF AGREEMENT
8.1 Subject to other provisions hereof, this Agreement shall become effective on
the date it is signed by the Parties hereto, and shall remain in effect until
the expiration of a period of twenty (20) years from and after the First Supply
Date. The twenty (20) year period which begins on the First Supply Date, and any
extension of such period that may be mutually agreed upon by the Parties
pursuant to Section 8.3 below, is herein referred to as the "Contract Period."
8.2 Expiration or termination of this Agreement shall not effect any rights or
obligations that may have occurred prior to the date of expiration or
termination.
8.3 Twelve (12) months prior to the end of the Contract Period, Buyer and
Sellers shall meet to discuss the possible extension of the Contract Period for
such additional period as may be mutually agreeable. This Agreement shall
terminate at the end of the Contract Period if the Parties do not agree in
writing on such an extension.
ARTICLE IX
QUALITY
9.1 All Gas delivered hereunder, shall, at the Delivery Point, conform to the
specifications set forth in Exhibit E hereto.
9.2 Buyer shall install equipment to monitor the quality of the Gas being
delivered at the
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Delivery Point on a continuous basis. Buyer shall provide Sellers with an
electronic output that will allow Sellers access to the same information. In the
event either Party discovers that any of the Gas delivered hereunder fails to
meet the quality specifications in Exhibit E, such Party shall notify the other
Party of same as soon as is reasonably practicable.
9.3 As to Gas which fails to meet any one or more of the specifications set out
in Exhibit E, Buyer shall have the rights, at Buyer's option, to the remedies
set forth in either or both of the following clauses (a) and (b):
(a) Either accept or refuse delivery of any or all of such non-conforming
Gas, as Buyer sees fit. It is expressly understood that any quantities
of non-conforming Gas of which Buyer so refuses delivery will be
considered under Section 5.2 hereof to be Gas that Sellers refused to
deliver and for which Sellers shall pay Buyer liquidated damages as
provided in said Section 5.2. Any such non-conforming Gas for which
Buyer refuses delivery will also be considered, as applicable under the
provisions of Section 5.3, to be Gas that Sellers refused to deliver.
(b) Demand in writing that Sellers rectify the problem and if Sellers,
within one hundred twenty (120) Days after the giving of such written
demand to them by Buyer, have not corrected the situation or provided
to Buyer a plan satisfactory to and approved by Buyer for correcting
the problem, within a time period acceptable to Buyer, then at Buyer's
option:
(i) Buyer may install equipment at Buyer's Plant to correct the
quality deficiency(ies) and Sellers shall reimburse Buyer for
all costs of obtaining and installing such equipment and of
maintaining, repairing and replacing same as necessary from
time to time; and this Agreement shall otherwise remain in
effect; or
(ii) if, in Buyer's sole opinion, the course(s) of action described
in the immediately preceding clause (i) is for any reason not
reasonable or practical, Buyer may terminate this Agreement by
a further written notice to Sellers at the end of such one
hundred twenty (120) Days or at any time thereafter so long as
Sellers still have not corrected the problem or Buyer has not
elected the remedy set forth in clause (i) above; and in the
event of such termination, Buyer shall have the further right
to recover from Sellers liquidated damages in an amount
computed in the same manner as is set forth in Section 5.3
hereof.
If, as mentioned above, Sellers provide a plan, satisfactory to and
approved by Buyer, for correcting the problem in a period of more than
one hundred twenty (120) Days, and Sellers fail to correct the problem
in accordance with said plan and within the time period mentioned in
said plan, then, except as modifications or extensions thereto may be
approved in writing by Buyer, Buyer may avail itself of the remedies
set forth in the foregoing clauses (i) or (ii).
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ARTICLE X
MEASUREMENT
10.1 Buyer shall measure all Gas deliveries made to Buyer at the Meter Station.
Such Meter Station shall be equipped with equipment commonly accepted in the
industry to accomplish accurate measurement of Gas on a Btu basis. Buyer shall
submit the selection of the equipment to Sellers for their reasonable approval
prior to installing it.
10.2 At least once each Month, Buyer shall calibrate the flow meters and
appurtenant instruments, all in the presence of personnel of Sellers'
Representative. The Parties shall jointly observe any adjustment(s) made. Buyer
shall give Sellers' Representative notice of the time of all tests of the flow
meters and appurtenant instruments sufficiently in advance of the holding of
such test(s) so that Sellers' Representative may conveniently have its personnel
present. However, if Buyer has given such notice to Sellers' Representative and
Sellers' Representative is not present at the time specified, then Buyer may
proceed with the tests as though Sellers' Representative was present, and the
result therefrom shall be deemed correct and accurate to insure meter accuracy
of, or correction of meter accuracy to within, one half percent (0.5%) tolerance
level.
10.3 Buyer shall provide to Sellers, at no expense to Sellers, access to its
telemetry readings so Sellers may endeavor to remain within the volume tolerance
parameters set forth in Article IV of this Agreement.
10.4 Sellers may, at their option, install check measuring equipment at their
own cost and expense upstream of the Delivery Point, provided the installation
does not interfere with the operation of Buyer's Meter Station. Any measurement
equipment of Sellers shall be for check purposes only and except as expressly
provided in this Agreement, shall not be used in the measurement for billing
purposes under this Agreement. Sellers shall grant access to Buyer at all
reasonable times to any check metering equipment of Sellers.
10.5 If at any time any of the Meter Station equipment is found to be out of
service or registering inaccurately, it shall be adjusted at once to read
accurately. If such equipment is out of service or inaccurate by an amount
exceeding one half of one percent (0.5%) at a reading corresponding to the
average rate of flow for the period since the last preceding test, the previous
readings of such equipment shall be disregarded for any period known or agreed
upon, or if not so known or agreed upon, for a period of thirty (30) Days or
one-half of the elapsed time since the last test, whichever is shorter. The
volumes of Gas delivered during such period shall be estimated by one of the
following methods, given here in order of priority:
(a) by using the data recorded by any check measuring equipment of Sellers
if installed and accurately registering (i.e., to within one half of
one percent (0.5%)); or
(b) if no such check measuring equipment of Sellers is installed or if same
is installed but is not registering accurately (i.e., to within one
half of one percent (0.5%)), then by correcting the
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error if the percentage of error is ascertainable by calibration, test
or mathematical calculation; or
(c) if method (a) above does not apply and method (b) above is not
feasible, then by estimating the quantity or quality delivered, based
upon deliveries under similar conditions during a period when the Meter
Station equipment was registering accurately.
10.6 No correction shall be made for recorded inaccuracies of one half of one
percent (0.5%) or less.
10.7 Sellers expressly notify Buyer that, unless otherwise required by
governmental rule or regulation, said Gas delivered at the Delivery Point will
not be odorized. Accordingly, Buyer acknowledges that Sellers assume no
liability for personal injury or property damage claims based on said lack of
odorization of the Gas at the time delivered by Sellers to Buyer at the Delivery
Point pursuant hereto. Buyer, at its sole cost, risk and expense shall take any
precautions required by law regarding the odorization of the Gas after its
delivery. Further, Buyer shall provide whatever notice and warning is necessary
and required by law to all employees, agents, or representatives of Buyer, as
well as to all third persons who may reasonably be expected to incur harm from
any accidents involving the use of the Gas by Buyer.
10.8 The Meter Station shall be furnished, installed, owned, maintained and
operated by Buyer, at Buyer's own expense. Buyer agrees to complete construction
of the Meter Station, ready for use, not later than fifteen (15) Days prior to
the Partial Start Date.
10.9 If the Parties disagree over the measurement of the Gas and cannot resolve
the dispute between themselves within thirty (30) Days, the issue shall be
submitted to an Expert as provided in Article XIX.
ARTICLE XI
PRICE
11.1 Buyer shall pay for all Gas delivered hereunder on an MMBtu basis as
measured by the Meter Station at the Delivery Point.
11.2 The price to be paid for all volumes of Gas delivered at all times under
this Agreement shall be U.S. twenty-five cents ($0.25) per MMBtu (the "Contract
Price"). It is expressly acknowledged that the Contract Price is not subject to
any escalation or to any reduction over the life of this Agreement. The Contract
Price shall be deemed to include all costs of any nature upstream of the
Delivery Point, and all applicable taxes payable by Sellers.
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ARTICLE XII
BILLING AND PAYMENT
12.1 On or before the forty-fifth (45th) Day after the end of each Month, Buyer
shall deliver to Sellers a statement showing the amount due Sellers for (a) the
aggregate MMBtu's delivered during the Month in question, and (b) Daily
Underlift Quantities, if any, occurring during said Month as provided in Section
4.5. Further, all statements covering the last Month of a Contract Year during
the Contract Period will also show the amount, if any, owing by Buyer to Sellers
for any Annual Underlift Quantity occurring during such Contract Year as
provided in Section 4.3 hereof.
All statements will show calculations and adjustments used to arrive at the
stated amount due. With each statement, Buyer shall pay to Sellers the amount
due to Sellers as shown thereon. It is expressly understood that Buyer shall
have the right, subject to Section 12.5 below, to deduct, as a setoff, in any of
its payments to Sellers hereunder any liquidated damages or other amounts that
may be owed by Sellers to Buyer.
All payments by Buyer will be rendered to Sellers' Representative by wire
transfer to a bank account specified by Sellers' Representative to Buyer in
writing. Sellers' Representative shall be responsible for distributing all
amounts thereof due to the other Sellers. Any payment by Buyer to Sellers'
Representative shall discharge Buyer from liability to all Sellers with respect
to the amount so paid. All Sellers other than Sellers' Representative shall look
solely to Sellers' Representative for payment of their applicable shares of any
amounts paid to Sellers' Representative by Buyer.
12.2 Should Buyer fail to pay any uncontested amount due, then interest thereof
shall accrue at the prime rate per annum in effect from time to time at the
Chase Manhattan Bank, New York, NY, plus five percent (5%) per annum from the
due date until the date payment is made.
12.3 In the event of a disagreement concerning any invoice, Buyer shall pay all
amounts that are not in dispute in a timely manner as outlined above and
immediately notify Sellers of the amount of and reasons for the dispute. Buyer
and Sellers agree to enter into good faith negotiations to resolve the dispute.
If the dispute is not resolved within thirty (30) Days after the date the
payment which is the subject of the dispute would have been due pursuant to
Section 12.1 above, the matter shall be submitted to arbitration as provided in
Article XX.
12.4 Absent fraud, payment statements, credit and debit notes may be corrected
or modified only if, within seven hundred thirty (730) Days after receipt
thereof, the Party that disputes the payment statement, credit, or debit note
serves written notice of such dispute on the other Party. If no such notice is
served on the other Party in such time frame, the payment statement, credits or
debit notes shall, absent fraud, be deemed correct and accepted by the other
Party.
12.5 If Buyer withholds payment of a disputed amount, and if it is ultimately
determined through negotiations of the Parties or through arbitration, that
Buyer owes Sellers some or all of such withheld amount, Buyer shall pay to
Sellers, together with the amount so found to be owing, interest
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thereon at the same rate as provided in Section 12.2 from the date same would
have been due if not placed into dispute until the date actually paid; provided,
that if Buyer's withholding of the amount in question was due to a good-faith
mistake or dispute, then such interest rate shall be the Chase Manhattan Bank
prime rate per annum in effect from time to time without the five percent (5%)
addition thereto provided for in Section 12.2.
Similarly, if it is ever determined by negotiations of the Parties or through
arbitration, that Buyer has overpaid any amounts to Sellers, Sellers shall pay
to Buyer, together with a refund of the amount so found to be overpaid, interest
thereon at the same rate as provided in Section 12.2 from the date the
overpayment was made by Buyer until the date actually refunded to Buyer by
Sellers; provided, that if Buyer's overpayment was due to a good-faith mistake
or dispute, then such interest rate shall be the Chase Manhattan Bank prime rate
per annum in effect from time to time without the five percent (5%) addition
thereto provided for in Section 12.2.
ARTICLE XIII
INDEMNITY
13.1 Sellers shall be deemed to be in exclusive control and possession of all
Gas available for delivery hereunder until delivered to or for the account of
Buyer at the Delivery Point, after which Buyer shall be deemed to be in
exclusive control and possession thereof. Sellers shall indemnify, defend, and
hold Buyer harmless from and against any losses, claims, suits, judgments,
demands, actions, liabilities costs and expenses, including court costs and
reasonable attorney's fees, for death of or injury to persons or damage to
property arising out of Sellers' operation of equipment and other facilities of
Sellers or otherwise arising out of the use, handling, possession or disposition
of the Gas while the Gas is in Sellers' possession. Buyer shall indemnify,
defend and hold Sellers harmless from and against any losses, claims, suits,
judgments, demands, actions, liabilities costs and expenses, including court
costs and reasonable attorney's fees, for death of or injury to persons or
damage to property arising out of Buyer's operation of equipment and other
facilities of Buyer or otherwise arising out of the use, handling, possession or
disposition of the Gas while the Gas is in Buyer's possession.
ARTICLE XIV
TAXES
14.1 Sellers shall be responsible for the payment of any sales, use, and excise
taxes or any other tax, fee or charge due and levied on the Gas prior to or at
the Delivery Point and for any taxes, fees or charges due as a result of Sellers
processing the Gas prior to the delivery to Buyer hereunder. Sellers shall
indemnify, defend and hold Buyer harmless from any liability against such taxes.
Buyer shall be responsible for the payment of taxes, fees or charges applicable
to the Gas sold hereunder downstream of the Delivery Point and applicable to any
products produced or manufactured in Buyer's Plant from the use of the Gas and
shall indemnify, defend and hold Sellers harmless from any liability against
such taxes, fees or charges.
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ARTICLE XV
ASSIGNMENT
15.1 All of the stipulations, terms and conditions of this Agreement shall
extend to and be binding upon the respective successors and assigns of the
Parties hereto. It is understood and agreed that no assignment of this
Agreement, in whole or as to any part hereof or interest herein, by any Party to
a non-affiliate of such Party shall be binding on the other Parties until the
other Parties have been furnished with an authentic copy of the assignment and
the other Parties have consented in writing to such assignment. Such consent
shall not be unreasonably withheld.
15.2 Notwithstanding the foregoing, Sellers' consent shall not be required for
the full or partial assignment of this Agreement by Buyer for purposes of or in
connection with obtaining financing for the construction of Buyer's Plant.
15.3 Assignments by any Party to an Affiliate of such Party are permitted
without consent of the other Parties. "Affiliate," as used in this Agreement,
shall mean a corporation, partnership or other entity that controls, is
controlled by, or is under common control with, the Party in question.
ARTICLE XVI
FORCE MAJEURE
16.1 In the event of either Buyer or Sellers being rendered unable, wholly or in
part, by Force Majeure to carry out its obligations under this Agreement, other
than to make payments due hereunder, it is agreed that on such Party's giving
written notice and full particulars of such Force Majeure in writing to the
other Party as soon as possible after commencement of the occurrence of the
cause relied on, then the obligations of the Party giving such notice, so far as
they are affected by such Force Majeure, shall be suspended during the
continuance of any inability so caused but for no longer period, and such cause
shall, as far as possible, be remedied with all reasonable dispatch.
The term "Force Majeure" as employed herein shall include, to the extent that it
is beyond the reasonable control of the Party affected:
- - acts of God, epidemics, landslides, lightning, earthquakes, washouts,
fires, storms, floods, explosions,
- - strikes, lockouts or other industrial disturbances,
- - delay in obtaining necessary governmental authorizations,
- - wars, acts of the public enemy, insurrections, civil disturbances,
riots, blockades,
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- - regulations, restraint or other action of government,
- - unavoidable delay in obtaining right-of-way, materials, machinery, or
equipment,
- - breakage or malfunction of, or accidents to machinery, well facilities,
or lines of pipe,
- - to the extent and under the circumstances provided for in Section 22.3
(and not to any other extent or under any other circumstances),
depletion of Gas reserves or insufficiency of wells and related
facilities for the production and delivery of Gas,
or any other cause beyond the reasonable control of the Party affected.
It is understood that, except only as expressly provided otherwise in Section
22.3 hereof, lack of or shortfall in Gas reserves on the part of Sellers, or
inability of Sellers to produce and deliver Gas because Sellers' wells and
related facilities are insufficient for such purpose, shall not constitute Force
Majeure hereunder, regardless of what reserves Sellers may, on whatever basis,
have believed or assumed in good faith to exist or what wells and related
facilities Sellers may, on whatever, basis, have believed or assumed in good
faith to be sufficient to produce and deliver Gas hereunder, at the time this
Agreement was entered into. Inability of Sellers to, through the Contract Price
to be paid by Buyer as set forth herein, cover their costs of producing and
delivering Gas in accordance with the Agreement, shall not constitute Force
Majeure hereunder, regardless of what assumptions Sellers may have, on whatever
basis, made in connection therewith at the time this Agreement was entered into.
16.2 It is understood that the settlement of strikes or lockouts shall be
entirely within the discretion of the Party having the difficulty, and the above
requirements that any Force Majeure shall be remedied with all reasonable
dispatch shall not require the settlement of strikes or lockouts by acceding to
the demands of the opposing party when such course is not in the best interest
of the Party having the difficulty.
16.3 In the event that either Buyer or Sellers is unable to perform its
obligations hereunder due to Force Majeure affecting it, and provided that such
Force Majeure is not overcome to the extent that the Parties are able to at
least substantially perform their obligations hereunder (meaning, in Sellers'
case, the ability to deliver at least seventy percent (70%) of the MDCQ) within
one hundred eighty (180) Days after the date of the commencement of the Force
Majeure, the non-affected Party may at its option, at any time thereafter,
terminate this Agreement by written notice to the other Party. In the event of
such termination, neither Buyer nor Sellers shall have any obligation to the
other hereunder with respect to any periods following such termination.
ARTICLE XVII
TITLE AND RISK OF LOSS
17.1 Title to and risk of loss of all Gas delivered hereunder shall pass to
Buyer upon delivery to Buyer at the Delivery Point.
17.2 Sellers warrant that they are conveying to Buyer good title to all Gas
delivered to Buyer
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hereunder, that Sellers have the right to sell such Gas, that none of the Gas is
subject to any prior dedication that has not been legally and lawfully
abandoned, and that such Gas is free from liens, encumbrances and adverse claims
of every kind.
ARTICLE XVIII
REGULATORY BODIES
18.1 This Agreement shall be subject to all rules, regulations and orders of any
duly constituted regulatory body or court having jurisdiction herein.
ARTICLE XIX
EXPERT
19.1 This Article shall govern all disputes arising under Article X hereof and
any other disputes which the Parties otherwise agree to refer to an expert.
19.2 The procedure for the appointment of an expert (the "Expert") shall be as
follows:
(a) The Party wishing to retain an Expert shall give notice in writing to
that effect to the other Party. The notice shall contain the Party's
nomination for Expert as well as the details of the matter to be
resolved by the Expert.
(b) The Parties shall meet in an endeavor to agree upon a single Expert to
whom the matter in dispute shall be referred for determination.
(c) If within twenty-one (21) Days after the service of said notice, the
Parties have either failed to meet or failed to agree upon the
designation of an Expert, then the matter shall be referred by the
Party wishing the appointment to the President of the International
Chamber of Commerce ("the President"), who, or whose deputy if the
President desires to refer such matter to a deputy, shall be requested
to make the appointment of the Expert within thirty (30) Days. Each
Party may submit to the President a list of three (3) proposed Experts,
ranked in order of that Party's preference, and the President, or his
deputy as aforesaid, shall select as the Expert the person nominated by
one Party or the other who is best qualified by education, experience
and neutrality to decide the matter in dispute, in the opinion of the
President or his deputy.
(d) After the Expert has been selected, the Parties shall immediately
notify the Expert of the selection and shall request that the Expert
accept or reject the appointment within fourteen (14) Days.
(e) If the Expert rejects or fails to accept the appointment within such
fourteen (14) Day period, then the Parties shall use their best efforts
to agree upon the appointment of another Expert. If the Parties are
unable to do so, either Party may again refer the matter to the
President,
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who, or whose deputy as aforesaid, shall appoint an Expert under the
procedure set forth in item (c) above. This process shall be repeated
until an Expert is found who accepts appointment.
(f) If the President is unable or unwilling for any reason to perform the
duties herein specified, or to appoint a deputy to perform such duties,
then the Parties shall agree on another person or organization that
will be asked to make the appointment on the same terms as provided
above.
19.3 Qualifications
(a) No person shall be appointed to act as the Expert unless he or she
shall be qualified by education, experience and training to determine
the matter in dispute.
(b) No person shall be appointed an Expert who at the time of appointment
is an employee of any Party or of any company which is an Affiliate of
a Party, or who has some interest or duty that conflicts or may
conflict with his function under such appointment. Any Party may object
to any appointment on the grounds set forth in the preceding sentence
of this clause (b), and upon such objection, the Expert's appointment
shall be nullified if, in the opinion of such Party, the disclosure of
confidential information to the proposed Expert may be injurious to its
interests.
19.4 Decision
(a) The Expert appointed shall decide the matter in dispute using data,
information and submissions by the Parties not later than thirty (30)
Days after his acceptance of appointment. The Expert shall disregard
data, information and submissions provided after thirty (30) Days
unless furnished in response to a specific request from the Expert.
(b) If within a reasonable period and no later than sixty (60) Days after
the acceptance by an Expert of the appointment, the Expert has not yet
rendered a decision then, at the request of either party, a new Expert
shall be appointed under the provisions of this Article. Upon the
acceptance of appointment by the new Expert, the appointment of the
previous Expert shall cease, provided that if the previous Expert
renders a decision prior to the date upon which the new Expert accepts
his appointment then such decision shall be binding upon the Parties,
and the instructions to the new Expert shall be withdrawn.
(c) The Expert is not to be an arbitrator, but shall render all decisions
as an Expert, and the provisions of law relating to arbitration shall
not apply to the Expert or the procedure by which the Expert reached a
determination.
(d) The determination of the Expert shall be final and binding upon the
Parties, save in the event of fraud, mistake or failure by the Expert
to disclose any relevant conflicts of interest.
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(e) Each Party shall bear the costs and expenses of all counsel, witnesses
and employees retained by it, but the cost and expenses of the Expert
shall be apportioned equally between the Parties.
ARTICLE XX
CONFLICT RESOLUTION
20.1 Except as may be otherwise provided herein (i.e., with respect to matters
to be referred to an Expert as provided above), all controversies between the
Parties which arise from the interpretation and/or application of this
Agreement, shall be resolved in the following manner:
(a) By agreement between the Parties through direct, good faith
negotiations that shall be carried out for a period of thirty (30) Days
from the time one of the Parties informs the other of a dispute. Said
period may be extended if agreed to by the Parties.
(b) If the controversy cannot be resolved within the time period prescribed
above, it shall be submitted to binding arbitration in accordance with
the provisions set forth below:
(i) The Party desiring arbitration shall notify the other Parties
that it wishes to submit the controversy to arbitration and
has appointed an arbitrator. The notified Party(ies) shall,
within fifteen (15) Days from receipt of the notification,
designate its own arbitrator. [Note: Sellers may collectively
designate only one arbitrator on behalf of all of themselves.]
(ii) Within ten (10) Days of the appointment of the second
arbitrator, the two appointed arbitrators will appoint, by
mutual agreement, a third arbitrator who shall act as
President of the arbitration tribunal.
(iii) None of the arbitrators can be a public officer or a civil
servant, nor have any conflict of interest in the matters
submitted for arbitration, nor have directly or indirectly
given advice (via organizations or professional associations
or otherwise) to any of the Parties or their Affiliates in the
three (3) years immediately prior to the formation of the
arbitration tribunal.
(iv) Unless otherwise agreed by the Parties in writing, the
proceeding will be subject to the following rules:
- It will be held in Houston, Texas and in the English
language;
- The procedures shall be those established by the American
Arbitration Association.
(v) The arbitration tribunal, by a simple majority of votes, will
declare its ruling. The ruling of the arbitrators shall be
final and binding on the Parties. Judgment upon any award may
be entered in any court having jurisdiction.
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ARTICLE XXI
NOTICES
21.1 Except as otherwise provided herein, any notice, request, statement, or
correspondence provided for in this Agreement, shall be given in writing,
delivered in person, by fax, or by registered or certified mail, to the Parties
hereto at the addresses shown below or at such other addresses as may be
hereafter furnished to the other Party in writing:
Sellers: CMS NOMECO EG Ltd.
1021 Main Street, Suite 2800
Houston, Texas 77002-6502
Fax: (713) 651-0611
Attention: International Contracts Manager
Buyer: Atlantic Methanol Production Company LLC
12600 Northborough, Suite 150
Houston, Texas 77067
Fax: (281) 872-1084
Attention: General Manger
21.2 Delivery by Buyer of a notice to Sellers in accordance with provisions of
Section 21.1 shall be sufficient with respect to notices involving any ordinary
operating matter under this Agreement. In the case of a notice from Buyer to
Sellers involving other than ordinary operating matters arising under this
Agreement, Buyer shall also send a copy of such notice, either by delivery in
person, by fax, or by registered or certified mail, to each of the following
(which following addresses may be changed by notice to Buyer as herein
provided):
Samedan of North Africa, Inc.
350 Glenborough, Suite 300
Houston, Texas 77067-3299
Fax: (281) 876-6153
Attention: Vice President - International
Walter & Westport International LLC
1100 Louisiana, Suite 380
Houston, Texas 77002
Fax: (713) 756-1122
Attention: CEO
Globex International, Inc.
Memorial City Plaza II
820 Gessner, Suite 1600
Houston, Texas 77024
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Fax: (713) 463-7722
Attention: President
ARTICLE XXII
RESERVES
22.1 By February 28, 1999, Sellers shall provide to Buyer a report prepared by a
third party engineer acceptable to Buyer ("Reserves Report") which shows:
(a) that Sellers have Proven Reserves within the Alba Field sufficient in
quantity to cover one hundred twenty percent (120%) of the maximum
quantities that Sellers may be required to deliver to Buyer under this
Agreement during the Contract Period (i.e., the Maximum Daily Contract
Quantity times the number of days in the Contract Period);
(b) a detailed schedule of capital expenditures to be expended by Sellers
on the Alba Field prior to the Partial Start Date and between the
Partial Start Date and the Full Start Date, which capital expenditures
shall include an additional platform and the drilling of two additional
development wells; and
(c) a schedule of Sellers' then anticipated capital expenditures on the
Alba Field during the life of this Agreement.
For the purposes of calculating maximum quantities that Sellers may be required
to deliver to Buyer under this Agreement during the Contract Period, such amount
shall be determined by multiplying the Maximum Daily Contract Quantity times the
number of Days remaining in the Contract Period.
Not later than the Full Start Date, Sellers shall provide to Buyer a supplement
to the aforesaid Reserves Report, prepared by a third party engineer acceptable
to Buyer, to also show that Sellers have Proven Developed Reserves within the
Alba Field sufficient in quantity such that Sellers could, if same was required,
on each and every day during a period of five (5) years from and after the Full
Start Date, deliver to Buyer hereunder an amount of Gas equal to one hundred two
percent (102%) of the Maximum Daily Contract Quantity.
22.2 By February 28 of the first full calendar year following the First Supply
Date and by February 28 of each calendar year thereafter during the life of this
Agreement, Sellers shall provide to Buyer a report, prepared by a third party
engineer acceptable to Buyer ("Annual Reserves Report") showing that Sellers
have:
(a) Proven Reserves within the Alba Field sufficient in quantity to cover
one hundred twenty percent (120%) of the maximum quantities that
Sellers may be required to deliver to Buyer under this Agreement over
the entire then remaining duration of the Contract Period; and
(b) Proven Developed Reserves within the Alba Field sufficient in quantity
such that Sellers
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could, if same was required, on each and every day during a period of
five (5) years from and after the particular February 28 date for which
the Annual Reserves Report is being submitted, deliver to Buyer
hereunder an amount of Gas equal to one hundred two percent (102%) of
the Maximum Daily Contract Quantity.
22.3 If any such Annual Reserves Report indicates that Sellers are unable to
comply with either or both of clauses (a) and (b) of Section 22.2 above, then
Sellers shall promptly provide to Buyer, and shall proceed to execute, a capital
expenditure program that will bring Sellers into compliance with both of said
clauses (a) and (b) of Section 22.2 within two hundred seventy (270) Days from
the date of such non-complying Annual Reserves Report. It is understood,
however, that Sellers' maximum obligation to restore compliance with, or to
remain in compliance with, both of said clauses (a) and (b) of Section 22.2,
during the life of this Agreement, shall be limited to drilling two (2) wells in
addition to those existing upon completion of the capital expenditures described
in and required under clause (b) of Section 22.1 above and constructing all
facilities and infrastructure necessary to deliver the Gas from said two (2)
additional wells to the Delivery Point. It is specifically understood that, to
fulfill said maximum obligation, said two (2) additional wells, together with
said necessary facilities and infrastructure, may have been completed by Sellers
at any time following completion of said capital expenditures described in said
clause (b) of Section 22.1 above; and also, that the two (2) additional wells
referred to herein are in any event above and beyond the two (2) wells referred
to in said clause (b) of Section 22.1. Alternatively; Sellers may dedicate to
this Agreement other Gas from nearby locations outside of the Alba Field or
substitute other appropriate capital expenditures approved by Buyer and
demonstrated to Buyer's reasonable satisfaction to be of equivalent value to the
foregoing.
If Sellers fulfill said maximum obligation and are still unable to show
compliance with both of clauses (a) and (b) of Section 22.2, then:
(i) Buyer may, at its option, at any time after Sellers have
fulfilled said maximum obligation, terminate this Agreement
upon ninety (90) Days' written notice to Sellers in which case
neither Party shall have any obligation to the other hereunder
with respect to any periods following such termination, and
(ii) assuming that Buyer has not theretofore terminated this
Agreement pursuant to the foregoing clause (i), Sellers will
have the right, at such time as, and to the extent that, they
are unable to deliver Gas in the quantities required hereunder
because depletion of reserves, or insufficiency of Sellers'
wells and associated facilities, no longer enables Sellers to
produce and deliver the necessary Gas from the Alba Field, to
claim Force Majeure pursuant to Section 16.1 hereof, and
Sellers shall not be required to make additional capital
expenditures to overcome such Force Majeure. Any such claim by
Sellers of Force Majeure shall not, however, arise from or
excuse Sellers' performance to the extent of any violation by
Sellers of Section 22.4 below. As referred to herein,
"insufficiency" of Sellers' wells and associated facilities
means that such wells and associated facilities have proven to
be inherently inadequate to
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handle the necessary production and delivery of Gas hereunder,
and references to such term herein are specifically not
intended to refer to an inability of Sellers to produce or
deliver Gas due to breakage or malfunction of or accidents to
wells or associated facilities that if fully and properly
operating would not be so inadequate.
Notwithstanding the foregoing provisions of this clause (ii),
if Sellers would be entitled to claim Force Majeure as
provided in the foregoing provisions of this clause (ii), but
Buyer is willing, at its own sole cost and expense, to fund
capital expenditures to overcome such Force Majeure, then
Buyer shall have the right at its option (but in no case any
obligation) to so fund such additional capital expenditures.
In the event that Buyer is so willing to fund such capital
expenditures, then Buyer and Sellers shall negotiate suitable
measures, reasonably acceptable to both Parties, to carry out
the applicable work; and Sellers shall not have the right to
claim Force Majeure to the extent that Sellers' inability to
deliver Gas in the quantities required hereunder can be
overcome by said measures funded by Buyer. Buyer understands,
however, that except as (and until such time as) such measures
may in fact prove successful in overcoming such Force Majeure,
the risk of such measures proving unsuccessful in overcoming
such Force Majeure shall be borne by Buyer.
The termination rights of Buyer under the foregoing clause (i) in this Section
22.3 are in addition to and neither limit nor are limited by any termination
rights pursuant to Section 16.3.
22.4 Sellers shall dedicate Proven Reserves from the Alba Field sufficient to
cover the reserve obligations set forth in Sections 22.1 and 22.2 above, for
purposes of meeting their delivery obligations under this Agreement. Sellers
agree: (i) not to enter into other contracts for sale of Gas from the Alba Field
which would reduce or impair Sellers' ability to maintain said reserves as set
forth in Sections 22.1 and 22.2 hereof; and (ii) to include in any such contract
entered into for sale of Gas from the Alba Field provisions expressly
subordinating the right of the buyer(s) to receive Gas thereunder to Sellers'
obligations to deliver Gas to Buyer under and in accordance with this Agreement.
Sellers agree to execute and deliver such documents as may be reasonably
requested from time to time by Buyer's financial institutions to confirm the
undertakings made by Sellers in this Section 22.4.
22.5 As used herein: (i) "Proven Reserves" means Gas that is still in the ground
but which has been located and determined with reasonable certainty to be
economically extractable or producible using current technology and under
current operating conditions, and includes both Proven Developed Reserves and
Proven Undeveloped Reserves; (ii) "Proven Developed Reserves" means Proven
Reserves believed to be recoverable through existing wells with existing
equipment and operating methods; and (iii) "Proven Undeveloped Reserves" means
Proven Reserves recoverable from wells to be drilled in the future. Further, for
purposes hereof, that Sellers "have" reserves means that Sellers have all
necessary right, authority and interest to extract and/or produce and sell and
deliver the Gas in question.
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ARTICLE XXIII
MISCELLANEOUS
23.1 The terms and conditions of this Agreement may be amended, modified,
supplemented or superseded only in writing, signed by the Parties hereto.
23.2 No waiver by either Party hereto of any one or more defaults by the other
in the performance of any of the provisions of this Agreement shall operate or
be construed as a waiver of any future default(s), whether of a like or
different character.
23.3 This Agreement contains the entire agreement between the Parties hereto on
the date hereof, respecting the subject matter hereof, and there are no prior or
contemporaneous agreement or representations affecting such subject matter other
than those herein expressed.
23.4 As to all matters of construction and interpretation, this Agreement shall
be governed by and construed in accordance with the law of the State of New
York, United States of America, without REGARD TO CONFLICTS OF LAW PROVISIONS.
23.5 BUYER AND SELLERS SHALL EACH HAVE THE RIGHT TO EXAMINE THE BOOKS, RECORDS,
NOMINATIONS, DISPATCHES, AND CHARTS OF THE OTHER PARTY, UPON REASONABLE ADVANCE
WRITTEN NOTICE TO SUCH OTHER PARTY, BUT ONLY TO THE EXTENT THE ABOVE PERTAINS TO
CONFIRMING COMPLIANCE WITH THE PROVISIONS CONTAINED WITHIN THIS AGREEMENT, AND
TO THE EXTENT NECESSARY TO VERIFY THE ACCURACY OF ANY STATEMENT, CHARGE, OR
CREDIT, OR COMPUTATION MADE PURSUANT TO THE PROVISIONS OF THIS AGREEMENT. AN
AUDIT BY EITHER PARTY SHALL BE LIMITED TO BOOKS, RECORDS, NOMINATIONS,
DISPATCHES AND CHARTS RELATING TO A PERIOD OF TWO (2) YEARS IMMEDIATELY
PRECEDING THE DATE OF THE AUDIT REQUEST.
23.6 THIS AGREEMENT MAY BE EXECUTED BY THE PARTIES HERETO IN TWO OR MORE
COUNTERPARTS, ALL OF WHICH TOGETHER SHALL CONSTITUTE BUT ONE AGREEMENT.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT IN
DUPLICATE, EFFECTIVE AS OF THE DAY AND YEAR FIRST WRITTEN ABOVE.
SELLERS:
CMS NOMECO EG LTD.
BY /s/ T. Rodney Dykes
------------------------------
SAMEDAN OF NORTH AFRICA, INC.
BY /s/ Alan R. Bullington
------------------------------
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WALTER & WESTPORT INTERNATIONAL LLC
BY /s/ Robert Birdsong
------------------------------
GLOBEX INTERNATIONAL, INC.
BY /s/ L.P. Gene Kornegay
------------------------------
BUYER:
ATLANTIC METHANOL PRODUCTION COMPANY LLC
BY /s/ James W. Cook
------------------------------
Chairman
BY /s/ Rodney D. Cook
------------------------------
Vice Chairman
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