GAS SALE AND PURCHASE AGREEMENT
between,
ENERGY CORPORATION OF AMERICA
and
ALLEGHENY ENERGY SERVICE CORPORATION
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<TABLE>
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TABLE OF CONTENTS
Page
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<S> <C> <C>
ARTICLE I DEFINITIONS 1
ARTICLE II VOLUMES AND PRICE 3
ARTICLE III CLOSING AND CONSIDERATION 6
ARTICLE IV POINT(S) OF DELIVERY 8
ARTICLE V TERM 8
ARTICLE VI TERMINATION 8
ARTICLE VII LIMITATION OF LIABILITY/ REMEDIES 10
ARTICLE VIII. TAXES 11
ARTICLE IX MEASUREMENT 11
ARTICLE X QUALITY 12
ARTICLE XI DELIVERY PRESSURE 12
ARTICLE XII REFUSAL 12
ARTICLE XIII. POSSESSION OF GAS AND WARRANTY OF TITLE 13
ARTICLE XIV . FORCE MAJEURE 13
ARTICLE XV SUCCESSORS AND ASSIGNS 15
ARTICLE XVI . WAIVER OF DEFAULT 15
ARTICLE XVII. RULES AND REGULATIONS 15
ARTICLE XVIII GOVERNING LAW 16
ARTICLE XIX . COMPLETE AGREEMENT 16
ARTICLE XX HEADINGS 16
ARTICLE XXI . NOTICES 16
</TABLE>
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GAS SALE AND PURCHASE AGREEMENT
THIS AGREEMENT, made and entered into as of the 20th day of December,
1999, by and between Energy Corporation of America, a West Virginia corporation,
or its designated affiliate, (hereinafter referred to as "Seller"), and
Allegheny Energy Service Corporation, a Maryland corporation, (hereinafter
referred to as "Buyer").
WHEREAS, Seller is a natural gas producer and has available to it,
either through its own production or through contracts with other producers,
natural gas in volumes adequate to meet the volumes requested by Buyer as
hereinafter specified; and
WHEREAS, Buyer wishes to purchase gas and have it delivered to its
operations in West Virginia; and
WHEREAS, Seller is willing to sell and deliver to Buyer and Buyer
desires to purchase from Seller natural gas in the volumes and at the Contract
Price specified in this Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements
herein set forth, Seller and Buyer agree as follows, to-wit:
ARTICLE I
DEFINITIONS
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1.1 The terms "Additional Prepayments" shall mean the First Additional
Prepayment and the Second Additional Prepayment
1.2 The term "Basis Quote" shall mean the quoted difference between the
price for gas at the Henry Hub in Louisiana and the price quoted for gas at
locations where Columbia Gas Transmission Corporation delivers gas to the
"Connecting Party" points set forth on Schedule "A" for a specified Month.
1.3 The term "Btu" shall mean one (1) British thermal unit.
1.4 The term "Contract Annual Volume" shall mean 3,990,180 Dth.
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1.5 The term "Contract Price" shall have the meaning assigned in Article II.
1.6 The term "Contract Year" shall mean a period of one (1) year commencing
on the Date of First Delivery, as specified herein, and each succeeding one (1)
year period thereafter.
1.7 The term "Date of First Delivery" shall be the date on which gas is
first delivered by the Seller to the Buyer which date shall be no earlier than
July 1, 2001.
1.8 The term "day" shall mean a period of twenty-four (24) consecutive
hours, ending at 10:00 a.m., Charleston, West Virginia Time.
1.9 The term "Dth" shall mean one MMBtu.
1.10 The term "Event of Default" shall have the meaning ascribed to it in
Article 6.5.
1.11 The term "First Additional Prepayment" shall mean the first $10 million
Prepayment for Volume B Gas provided for in Article 3.2(i).
1.12 The term "First Delivery Notice" shall mean the written notice
specifying the Date of First Delivery which shall be sent by the Buyer to the
Seller at least sixty days before the Date of First Delivery; provided that such
notice shall not identify a Date of First Delivery prior to July 1, 2001.
1.13 The term "Force Majeure" shall have the meaning ascribed to it in
Article XIV.
1.14 The term "gas" shall mean natural gas which conforms to the quality
specifications set forth in Article X hereof.
1.15 The term "Initial Prepayment" shall mean the $10 million payment made
by Buyer to Seller at Closing for Volume A Gas, as described in Article 3.1.
1.16 The term "Interstate Pipeline" shall mean a natural gas company that is
subject to regulation by and has a tariff on file with and approved by the
Federal Energy Regulatory Commission.
1.17 The term "Letters of Credit" shall mean the two or more Letters of
Credit as described in Article 3.2.
1.18 The term "Mcf" shall mean one thousand (1,000) cubic feet of gas.
1.19 The term "MMBtu" shall mean one million (1,000,000) Btu.
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1.20 The term "Month" shall mean the period commencing at 10:00 a.m.
Charleston, West Virginia time on the first day of the calendar month and ending
at 10:00 a.m. Charleston, West Virginia time on the first day of the next
calendar month.
1.21 The term "Nationally Recognized Natural Gas Marketer" shall mean
marketing and/or trading companies none of whom are affiliated with either Buyer
or Seller and who transport at least 1,000,000 Dth per Day in total on
Interstate Pipelines and who certify that they transport at least 2% of their
total transported gas on Columbia Gas Transmission.
1.22 The term "Point(s) of Delivery" shall have the meaning assigned in
Article IV.
1.23 The term "Second Additional Prepayment" shall mean the second $10
million prepayment for Volume B Gas as provided for in Article 3.2(ii).
1.24 The term "Transporter" or "Transporting Pipeline(s)" shall mean any
third-party pipeline, gathering line or system, or local distribution company
transporting and/or delivering gas to the Point(s) of Delivery under this
Agreement.
ARTICLE II
VOLUMES AND PRICE
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2.1 Commencing on the Date of First Delivery indicated in the First
Delivery Notice, Seller agrees to deliver to the Buyer at the Point(s) of
Delivery the Contract Annual Volume, as follows: 3,644 Dth per day with respect
to Volume A Gas and 7,288 Dth per day with respect to Volume B Gas unless
mutually agreed otherwise.
2.2 (a) Contract Annual Volume. The Contract Annual Volume is
comprised of the following volume designations:
(1) 1,330,060 Dth is designated as the Volume A Gas; and
(2) 2,660,120 Dth is designated as the Volume B Gas.
(b) Nominations. Except as provided in Article 2.1(c) each day from
and after the Date of First Delivery, Buyer is permitted and Seller shall honor
Buyer's nominations to Seller to deliver (or cause to be delivered) to the
Point(s) of Delivery the gas as follows:
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(i) at a minimum, Buyer shall nominate from Seller and Seller
shall deliver (or cause to be delivered) at the Point(s) of Delivery no less
than 2,500 MMBtu per day of Volume A Gas;
(ii) at a maximum, Buyer may nominate from Seller up to 3,644
MMBtu per day of Volume A Gas and Seller shall, subject only to Force Majeure,
deliver (or cause to be delivered) Buyer's nominated quantities at the Point(s)
of Delivery;
(iii) at a minimum, Buyer shall nominate from Seller and
Seller shall deliver (or cause to be delivered) at the Point(s) of Delivery no
less than 5,000 MMBtu per day of Volume B Gas; and,
(iv) at a maximum, Buyer may nominate from Seller up to 7,288
MMBtu per day of Volume B Gas and Seller shall, subject only to Force Majeure,
deliver (or cause to be delivered) Buyer's nominated quantities at the Point(s)
of Delivery.
(c) Notwithstanding the minimum and maximum volumes set forth in
Article 2.1 (b) (i)-(iv) above, Buyer shall, on or before November 1st of each
Contract Year provide Seller with a schedule identifying the minimum and maximum
daily and monthly nominations on an operating or market area basis on the
Columbia Gas Transportation Corporation system for the next ensuing months of
December, January and February ("Buyer's Schedule"). Buyer may revise its
nominations during such months, provided however that any such revised
nominations for any operating or market area specified in Buyer's Schedule shall
not be less than the minimum nor more than the maximum for any day as set forth
in Buyer's Schedule, except as mutually agreed in writing by the parties.
2.3 The Contract Price for gas delivered hereunder shall be as follows:
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(1) The Contract Price for Volume A Gas shall be at an Index
monthly variable price which shall be equal to the settlement prices for the
NYMEX Gas futures contract for deliveries during each Month of such Contract
Year, as quoted for each such Month in the issues of The Wall Street Journal
published on the last trading day prior to the beginning of such Month plus an
amount in cents per Dth equal to the arithmetic average Basis Quote as received
by Buyer from three (3) Nationally Recognized Natural Gas Marketers for the
differential between the NYMEX settlement location at the Henry Hub Louisiana,
and Columbia Gas Transmission City Gates in West Virginia, which Basis Quotes
are provided to Buyer within the last four business days prior to the start of
such Month.
(2) The Contract Price for Volume B Gas shall be at an Index monthly
variable price which shall be equal to the settlement prices for the NYMEX Gas
futures contract for deliveries during each Month of such contract year, as
quoted for each such Month in the issues of The Wall Street Journal published on
the last trading day prior to the beginning of such Month plus an amount in
cents per Dth equal to the average Basis Quote as received by Buyer from three
(3) Nationally Recognized Natural Gas Marketers for the differential between the
NYMEX settlement location at the Henry Hub Louisiana, and Columbia Gas
Transmission City Gates in West Virginia, which Basis Quotes are provided to
Buyer within the last four business days prior to the start of such Month minus
$0.15 (fifteen cents) per Dth.
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2.4 Volume A Gas will be invoiced and credited against the Initial
Prepayment. If Seller elects to obtain the Additional Prepayments as provided
in Article 3.2, then Volume B Gas will be invoiced and credited against the
Additional Prepayments. From and after Seller's receipt of the Additional
Prepayments, the deliveries of Volume A Gas and Volume B Gas on each day will be
allocated for the purpose of Contract Pricing as follows: the daily nominated
quantities of Volume B Gas will be deemed to have been delivered in their
entirety prior to delivery of any Volume A Gas quantities. Provided, however,
that if there is any shortage in total deliveries by Seller (as compared to
nominations by Buyer to Seller) the deliveries of Volume A Gas and Volume B Gas
on each day will be allocated for the purpose of Contract Pricing as follows:
the daily nominated quantities of Volume A Gas will be deemed to have been
delivered in their entirety prior to delivery of any Volume B Gas quantities.
2.5 Unless and until Seller exercises its right to receive the Additional
Prepayments by posting the Letter(s) of Credit as provided in Article 3.2,
Seller shall have no obligation to deliver the Volume B Gas.
2.6 Seller shall furnish Buyer a statement within fifteen (15) days after
the last day of each month in which gas is delivered pursuant to this Agreement
showing the volumes so delivered during the preceding Calendar Month and
reflecting the Contract Price due for such deliveries and showing proper credit
of all Initial and Additional Prepayments made by Buyer.
ARTICLE III
CLOSING AND CONSIDERATION
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3.1 Upon execution and delivery of this Agreement, the Buyer shall pay
to the Seller in immediately available funds the sum of Ten Million Dollars
($10,000,000.00) as consideration for the purchase and delivery of the Volume A
Gas over the term of this Agreement (the "Initial Prepayment").
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3.2 At Seller's sole discretion, Seller may, at any time after
execution of this Agreement, upon two (2) business days written notice to Buyer,
require Additional Prepayments from Buyer by posting a letter or letters of
credit as described below and in a form acceptable to Buyer, and Buyer shall pay
to Seller in immediately available funds, within ten (10) business days of the
posting of such letter or Letters of Credit, the amounts so designated as
Additional Prepayments for the gas to be delivered pursuant to this Agreement:
(1) Seller may post an irrevocable letter of credit in the amount of Ten
Million Dollars ($10,000,000.00), at Seller's sole expense and Buyer will prepay
Ten Million Dollars ($10,000,000.00) to Seller (the "First Additional
Prepayment"). At Seller's option, the First Additional Prepayment may be
secured by two (2) letters of credit in the amount of Five Million Dollars
($5,000,000) each.
(2) At any time after the making of the First Additional Prepayment, or
simultaneously therewith, Seller may post an additional Ten Million Dollars
($10,000,000.00) irrevocable letter of credit, the reasonable cost of which
shall be reimbursed to Seller by Buyer, and Buyer will prepay an additional Ten
Million Dollars ($10,000,000.00) to Seller (the "Second Additional Prepayment").
The letters of credit referenced in Section 3.2(i) and (ii) above are sometimes
collectively referred to herein as the "Letters of Credit." The Letters of
Credit (or any of them) shall be proportionately reduced by an amount equal to
the Contract Price for the volumes of gas delivered by Seller to Buyer
hereunder, as such deliveries are made.
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ARTICLE IV
POINT(S) OF DELIVERY
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4.1 The Point(s) of Delivery for all gas to be delivered hereunder
shall be the point(s) designated as the "Connecting Party" points within the
Columbia Gas Transmission Corporation operating areas on Schedule A attached
hereto. The Point(s) of Delivery may be changed only by mutual agreement.
ARTICLE V
TERM
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5.1 This Agreement shall be effective from the date hereof. Deliveries
of gas shall commence on or after July 1, 2001 and shall terminate (subject to
the provisions of Article VI) when the aggregate Contract Price with respect to
Volume A and Volume B gas, if any, delivered to Buyer during the term of this
Agreement equals or exceeds the Initial Prepayment and Advance Prepayments.
ARTICLE VI
TERMINATION
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6.1 In the event that the Contract Price, calculated in accordance with
Article 2.2(i) with respect to Volume A Gas delivered to Buyer during the term
of this Agreement equals or exceeds Ten Million Dollars ($10,000,000.00),
Seller's obligations hereunder with respect to Volume A Gas shall automatically
terminate.
6.2 In the event that the Contract Price, calculated in accordance with
Article 2.2(ii), with respect to Volume B Gas delivered to Buyer during the term
of this Agreement, equals or exceeds, the total amount of any Additional
Prepayments elected to be received by Seller, Seller's obligations hereunder
with respect to Volume B Gas shall automatically terminate.
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6.3 Seller shall have the right, at its sole discretion and upon fifteen
(15) days prior notice, to terminate this Agreement at any time during the term
hereof by paying to Buyer an amount equal to the difference between the Contract
Price for all volumes delivered to Buyer and credited against the Initial
Prepayment and any Additional Prepayment pursuant to this Agreement and the
original prepayments paid by Buyer to Seller.
6.4 Seller shall have the right to terminate this Agreement upon the
occurrence and continuation for thirty (30) business days or longer of any
default by Buyer in making any payment due under this Agreement.
6.5 Buyer shall have the right to terminate this Agreement upon the
occurrence and continuation for thirty (30) days or longer of any of the
following specified Events of Default. In addition, Buyer shall have such
rights as Buyer shall have been granted pursuant to the Letters of Credit
referred to in Article III hereof and the rights specified in Article VII. For
purposes of this Article VI, the following events shall constitute "Events of
Default" by Seller: (i) failure of the Seller to pay any amount due hereunder
within thirty (30) days after the same becomes due, and (ii) failure of the
Seller to supply natural gas to the Buyer or pay the price of replacement gas as
required in Article VII, each in accordance with the terms of this Agreement,
when due.
6.6 Buyer shall have the right to terminate this Agreement if Seller is
unable to deliver gas in accordance with the provisions hereof for a period of
60 days as a result of a continuing event of force majeure.
6.7 If Buyer terminates this Agreement in accordance with Articles 6.5 and
6.6, Seller shall pay to Buyer, no later than 15 days after the date of
termination, an amount equal to the difference between the Contract Price for
all volumes delivered to Buyer and credited against the Initial Prepayment and
any Additional Prepayment pursuant to this Agreement and the original
prepayments paid by Buyer to Seller.
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ARTICLE VII
LIMITATION OF LIABILITY/ REMEDIES
---------------------------------
7.1 If Seller fails to deliver any quantity of gas that it is required
to deliver under this Agreement, Buyer may purchase replacement gas. When Buyer
purchases replacement gas, Buyer will use commercially reasonable efforts to
purchase for delivery a quantity of gas not to exceed the quantity of gas which
Seller failed to deliver and Buyer shall make such purchases at fair market
prices on a spot basis. Upon such event, Buyer shall invoice Seller and Seller
shall pay Buyer on a monthly basis an amount equal to the cost of such
replacement gas plus any discounts applicable to such gas as Volume B Gas plus
all transportation costs incurred by Buyer in connection with purchasing such
replacement gas and having it delivered to the Point(s) of Delivery. Upon
payment of the aforesaid amount, said sums will constitute liquidated damages
for Seller's failure to perform its obligations hereunder and shall be Buyer's
sole remedy for Seller's failure to so perform. In the event Seller fails to
pay such damages within thirty days, Buyer may exercise its rights under the
Letters of Credit.
7.2 If Buyer fails to accept delivery of the Contract Annual Volume (other
than (i) as a result of an event of Force Majeure, or (ii) as a result of a
default or an Event of Default by Seller hereunder or (iii) as permitted under
Article XII), Buyer shall reimburse Seller for the actual damages, if any,
incurred by Seller as a result of its failure to use the firm capacity reserved
by Seller for the transportation of gas pursuant to this Agreement, and for all
other costs or losses incurred by Seller as a result of Buyer's failure to
accept delivery of such volumes.
7.3 Other than as expressly provided herein, neither Seller nor Buyer shall
be responsible or liable for any lost profits, or special, incidental, indirect
or consequential damages of any kind, whether grounded in contract, breach of
warranty, or tort (including, but not limited to, negligence and strict
liability) or arising from any other legal theory.
7.4 THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND ARE IN LIEU
OF ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED (INCLUDING
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND
WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.)
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ARTICLE VIII
TAXESARTICLE
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5 TAXES
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8.1 The Contract Price described in Article II hereof includes all
taxes, duties and inspection fees presently imposed by any federal, state or
local government in respect to or measured by the gas delivered hereunder, which
taxes, duties and fees shall be paid by Seller insofar as they pertain to
Seller's operations prior to Seller's delivery of gas to Buyer at the Point(s)
of Delivery. Except for state severance taxes, corporate income taxes,
franchise taxes and ad valorem taxes applicable to Seller, all new taxes, duties
and inspection fees, which may at any time in the future be imposed by federal,
state or local government, in respect to or measured by the gas delivered
hereunder or the delivery, receipt or usage thereof, at or after the Point(s) of
Delivery, shall be paid by Buyer. If Buyer is entitled to purchase gas free of
any tax, fee or charge, the Buyer shall furnish to Seller proper exemption
certificates to cover such purchases.
ARTICLE IX
MEASUREMENT
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9.1 As stated herein, the gas to be sold hereunder shall be delivered
to the Point(s) of Delivery and Seller shall cause the Transporter, or its duly
appointed agents, to read the meter, furnish, place and remove any and all
recording gauge charts, calculate the deliveries and perform any other service
pertaining to the routine operation of the meter.
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ARTICLE X
QUALITY
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10.1 The gas shall be sold and delivered in its natural state, without
the previous extraction of any valuable substance. The applicable Transporter's
rules, guidelines, and policies, as may be changed from time to time, shall
define the quality and heating value of the gas to be delivered hereunder. Any
quality and heating value standards of Transporter's contracts are hereby
expressly incorporated herein by reference as if completely set out, and shall
be applicable to and binding upon Seller and upon all natural gas sold by Seller
to Buyer. The heating value in Btus of gas at the Point(s) of Delivery shall
not be less than one thousand (1,000) Btus per standard cubic foot.
ARTICLE XI
DELIVERY PRESSURE
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11.1 Seller shall cause Transporter to deliver gas to Buyer at the
varying line pressures available from time to time in Transporter's pipeline
adjoining the Point(s) of Delivery.
ARTICLE XII
REFUSAL
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12.1 Buyer, at its option, may refuse to accept delivery of any natural
gas (a) not meeting the quality specifications set out in Article X, or (b) not
meeting the delivery pressure specifications set out in Article XI. If Buyer
notifies Seller of such refusal, Seller shall promptly use its best efforts to
cause such natural gas to satisfy such specifications, and if such
specifications are not promptly (and in any event within 10 days) satisfied,
Seller shall use its best efforts to locate, purchase and transport, at Seller's
expense, replacement natural gas of a quality at least equal to the natural gas
intended to be delivered hereunder. If Seller is unable to provide replacement
gas under this Article XII, Seller's obligations to provide replacement gas or
pay under Article VII hereof shall apply.
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ARTICLE XIII
POSSESSION OF GAS AND WARRANTY OF TITLE
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13.1 Control of Gas. Seller shall be deemed to be the owner and in
----------------
control and possession of the gas to be delivered hereunder until it shall have
been physically delivered to Buyer at the Point(s) of Delivery specified in
Article IV above, after which Buyer shall be deemed to be the owner and in
control and possession thereof.
13.2 Division of Responsibility. Buyer shall have no responsibility with
----------------------------
respect to any gas delivered hereunder until it is physically delivered to Buyer
at the Point(s) of Delivery, or on account of anything which may be done, happen
or arise with respect to said gas before such delivery; and Seller shall have no
responsibility with respect to said gas after such delivery to Buyer, or on
account of anything which may be done, happen, or arise with respect to said gas
after such delivery.
13.3 Warranty of Title. Seller warrants specifically the title to the gas
-------------------
delivered to the Buyer hereunder against the claims of all persons claiming by,
through or under the Seller, and the Seller further warrants the right to sell
and deliver such gas free and clear of all liens, encumbrances and claims
created by the Seller. In addition, Seller agrees that it will indemnify Buyer
and save Buyer harmless from all suits, actions, debts, accounts, damages,
costs, losses and expenses arising from or out of (i) adverse claims of any or
all persons to the gas to be delivered hereunder, or (ii) any liens,
encumbrances, or other title defects relating to the gas to be delivered
hereunder.
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ARTICLE XIV
FORCE MAJEURE
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14.1 Neither Seller nor Buyer shall be deemed in breach hereof for
nonperformance hereunder (except nonperformance of any obligation to make
payment of amounts payable hereunder when due) when such nonperformance is due
to any act, omission or circumstance occasioned by or in consequence of any acts
of God, strikes, lockouts, acts of the public enemy, war, blockades,
insurrections, riots, epidemics, landslides, lightning, earthquakes, fires,
storms, floods, washouts, arrests and restraints of rulers and peoples, civil
disturbances, explosions, breakage or accident to machinery or lines of pipe,
the binding order of any court or governmental authority which has been resisted
in good faith by all reasonable legal means, and any other cause, whether of the
kind herein enumerated or otherwise, in each case not reasonably within the
control of the party claiming an event of Force Majeure and which, by the
exercise of due diligence, such party is unable to prevent or overcome, in each
case with respect to the Seller, to the extent affecting the Seller's owned or
operated gas reserves or the Seller's ability to transport its gas to the Buyer.
Failure to prevent or settle any strike or strikes shall not be considered to be
a matter within the control of the party claiming suspension.
14.2 Such causes or contingencies affecting the performance hereunder by
either Seller or Buyer, however, shall not relieve it of liability in the event
of its concurring negligence or in the event of the failure to use best efforts
by the party claiming Force Majeure to remedy the situation and to remove the
cause in an adequate manner and with all reasonable dispatch, nor shall causes
or contingencies affecting such performance relieve either party from its other
obligations under this Agreement, even should it cause this Agreement to be
extended beyond the termination date.
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ARTICLE XV
SUCCESSORS AND ASSIGNS
----------------------
15.1 This Agreement shall extend to and be binding upon the parties
hereto, their successors and assigns. The Seller shall not assign this
Agreement or any of its rights or obligations hereunder unless it first shall
have obtained the consent thereto in writing of the Buyer, provided, however,
that Buyer shall not unreasonably withhold such consent, and provided further
that Seller may assign its rights under this Agreement to any affiliate of
Seller without Buyer's consent and further, may mortgage, pledge or assign for
financing purposes its right to receive payments hereunder without Buyer's
consent. The Buyer may not assign its rights hereunder without Seller's consent
which shall not be unreasonably withheld; provided, however, that in no event
shall any such assignment expand the obligations of Seller hereunder; and
provided, further, that the Buyer may assign its rights and obligations under
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this Agreement to any wholly owned subsidiary of Allegheny Energy, Inc. without
the consent of the Seller.
ARTICLE XVI
WAIVER OF DEFAULT
-----------------
16.1 No waiver by either party of any one or more defaults by the other
in the performance of any provision of this Agreement shall operate or be
construed as a waiver of any future default or defaults, whether of a like or of
a different character. No single or partial exercise of any right, remedy,
power or privilege hereunder shall in any way preclude any other or farther
exercise thereof or the exercise of any other right, remedy, power or privilege.
ARTICLE XVII
RULES AND REGULATIONS
---------------------
17.1 If any valid future laws, orders, rules or regulations of duly
constituted authorities having jurisdiction have the effect of altering or
amending the provisions of this Agreement, the parties shall continue the
performance of this Agreement as so altered or amended; provided, however, that
such alterations or amendments shall not alter or change the consideration paid
by Buyer to Seller, the term of this agreement, or the volumes of gas to be
delivered hereunder.
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ARTICLE XVIII
GOVERNING LAW
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18.1 All questions concerning the validity or the meaning of this
Agreement or relating to the rights and obligations of the parties with respect
to performance under this Agreement shall be construed and resolved under the
laws of the State of West Virginia, except to the extent specifically required
by federal law.
ARTICLE XIX
COMPLETE AGREEMENT
------------------
19.1 This document contains the entire agreement between the parties
and supersedes all prior or contradictory discussions or negotiations,
representations or agreements relating to the subject matter of this Agreement.
No changes to this Agreement shall be made or be binding on either party unless
made in writing and signed by each party to this Agreement.
ARTICLE XX
HEADINGS
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20.1 The captions or headings preceding the various parts of this
Agreement are inserted solely for the convenience of the parties hereto and
shall not be considered or given effect in construing this Agreement, or in
connection with the intent, rights, duties or liabilities of the parties.
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ARTICLE XXI
NOTICES
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21.1 Any notice, request, consent, waiver or other communication
required or permitted to be given hereunder shall be effective only if in
writing and shall be deemed sufficiently given only if delivered in person or
sent by facsimile or by certified or registered mail, postage prepaid, return
receipt requested, addressed as follows:
IF TO ENERGY CORPORATION OF AMERICA
----------------------------------------
Energy Corporation of America
Attn: John Mork
4643 S. Ulster
Suite 1100
Denver, CO 30237
WITH COPIES TO:
----------------
Goodwin & Goodwin, LLP
Attn: Thomas R. Goodwin
1500 One Valley Square
P.O. Box 2107
Charleston, WV 25328-2107
IF TO ALLEGHENY:
-----------------
Allegheny Energy, Inc.
Attn: Peter Dailey, Director
800 Cabin Hill Drive
Greensburg, PA 15601-1689
AND:
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Allegheny Power
Tom Henderson, General Counsel
1310 Fairmont Avenue
Fairmont, WV 26554
WITH COPIES TO:
----------------
Baker Botts, LLP
Attn: Sarah Dietrich
One Shell Plaza
910 Louisiana, 38th Floor
Houston, Texas 77002
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
SELLER: ENERGY CORPORATION OF AMERICA
By: /S/ John Mork
------------------------------------
John Mork
Its: President and Chief Executive Officer
BUYER: ALLEGHENY ENERGY SERVICE CORPORATION
By: /S/ Jay Pifer
------------------------------------
Jay Pifer
Its: Senior Vice President
<PAGE>
<TABLE>
<CAPTION>
Schedule A
Schedule of Point(s) of Delivery
Point(s) of Delivery at which Buyer is permitted to nominate to receive deliveries of gas from Seller
under Gas Purchase and Sale Agreement between ENERGY CORPORATION OF AMERICA
and ALLEGHENY ENERGY, INC. Dated December 20, 1999.
<S> <C> <C> <C> <C> <C> <C> <C>
STATE COMPANY PIPELINE ZONE NAME POINT NAME CONNECTING PARTY POINT CODE DRN
WV. . Barbour TCO Op. Area 8 E America Energy No. 4 Eastern American Energy 631241 28279
WV. . Boone TCO Op. Area 3 Twilight CNG Transmission Corporation 224 28290
WV. . Braxton TCO Op. Area 3 Flatwoods/Hope Hope Gas Inc 834482 224727
WV. . Clay TCO Op. Area 10 Wagner Gas Company Wagner Gas Company 834153
WV. . Jackson TCO Op. Area 3 MGC - Peake Peake Energy Inc. 830115 28388
WV. . Kanawha TCO Op. Area 3 Roaring Fork Cranberry Pipeline Corporation G4 129346
WV. . Kanawha TCO Op. Area 3 Charleston Tennessee Gas Pipeline Company B7 28418
WV. . Kanawha TCO Op. Area 3 Broad Run Tennessee Gas Pipeline Company B9 28421
WV. . Marshall TCO Op. Area 8 Rosbeys Rock Texas Eastern Transmission C11 28462
WV. . Monroe TCO Op. Area 3 WV Power Alderson West Virginia Power 834348 224620
WV. . Putnam TCO Op. Area 3 Lanham Cranberry Pipeline Corporation G1 60006
WV. . Raleigh TCO Op. Area 3 Fitz/Park - Cabot (Off) Cabot Corporation 829575 153571
WV. . Raleigh TCO Op. Area 3 Bradley Cranberry Pipeline Corporation G3 129348
WV. . Randolph TCO Op. Area 10 Coronado Tennessee Gas Pipeline Company B19 129370
WV. . Tyler TCO Op. Area 9 Tyler Transportation Hope Gas Inc C20295 157571
WV. . Upshur TCO Op. Area 8 Upshur Properties Mountaineer Gas Company 635252 247986
WV. . Wayne TCO Op. Area 3 North Ceredo Tennessee Gas Pipeline Company B6 28600
WV. . Wetzel TCO Op. Area 8 Fallen Timber Equitrans Inc K1 39018
WV. . Wetzel TCO Op. Area 8 Bayer Corporation Bayer Corporation 634916 222385
WV. . Wirt TCO Op. Area 3 Rockport CNG Transmission Corporation 142 28634
WV. . Wirt TCO Op. Area 8 E America Energy No. 3 Eastern Pipeline 631235 157572
WV. . Wood TCO Op. Area 3 D Darenco No 1 Eastern Pipeline 832255 157591
WV. . Wood TCO Op. Area 3 Gas Transport Gas Transport Inc 830319 157573
WV. . Wyoming TCO Op. Area 3 Ocsar Nelson CNG Transmission Corporation N3 286044
WV. . Wyoming TCO Op. Area 3 Tanner Cranberry Pipeline Corporation G5 129350
WV. . Non-Geographic TCO Op. Area 8 Blacksville Oil and Gs Blacksville Oil and Gas Company 6 25235+
WV. . Non-Geographic TCO Op. Area 3 Bluefield Gas Co Bluefield Gas Company 7 28468
WV. . Non-Geographic TCO Op. Area 8 Cameron Gas Company Cameron Gas Company 9 28464
WV. . Non-Geographic TCO Op. Area 3 Mountaineer Op - 03 Mountaineer Gas Company 27 28573
WV. . Non-Geographic TCO Op. Area 8 Mountaineer Op - 03 Mountaineer Gas Company 29 141253
WV. . Non-Geographic TCO Op. Area 10 Mountaineer Op - 10 Mountaineer Gas Company 28 141254
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<TABLE>
<CAPTION>
_us, current TCO gas delivery locations, or proposed location(s) to be
constructed as interconnections between
Columbia Gas Transmission (TCO) and Allegheny Energy, Inc. affiliate(s) located,
in one or more of the
following counties in West Virginia, Pennsylvania or maryland which are within
the TCO operationsal Areas
(as defined 2/1/1999) and known as Op. Area(s) 3,8, or 10 in the counties listed
below.
<S> <C> <C> <C>
STATE COUNTY PIPELINE ZONE NAME
WV. . Barbour TCO Op. Area 8
WV. . Boone TCO Op. Area 3
WV. . Braxton TCO Op. Area 3
WV. . Cabell TCO Op. Area 3
WV. . Clay TCO Op. Area 10
WV. . Jackson TCO Op. Area 3
WV. . Kanawha TCO Op. Area 3
WV. . Marshall TCO Op. Area 8
WV. . Mingo TCO Op. Area 3
WV. . Monroe TCO Op. Area 3
WV. . Pendleton TCO Op. Area 8
WV. . Pendleton TCO Op. Area 3
WV. . Putnam TCO Op. Area 3
WV. . Raleigh TCO Op. Area 3
WV. . Randolph TCO Op. Area 10
WV. . Roane TCO Op. Area 3
WV. . Summers TCO Op. Area 3
WV. . Tyler TCO Op. Area 8
WV. . Upshur TCO Op. Area 8
WV. . Wayne TCO Op. Area 3
WV. . Wetzel TCO Op. Area 8
WV. . Wirt TCO Op. Area 8
WV. . Wirt TCO Op. Area 3
WV. . Wood TCO Op. Area 3
WV. . Wyoming TCO Op. Area 3
PA. . Beaver TCO Op. Area 8
PA. . Cameron TCO Op. Area 8
PA. . Centre TCO Op. Area 8
PA. . Clinton TCO Op. Area 8
PA. . Crawford TCO Op. Area 8
PA. . Elk TCO Op. Area 8
PA. . Fayette TCO Op. Area 8
PA. . Greene TCO Op. Area 8
PA. . Indiana TCO Op. Area 8
PA. . Jefferson TCO Op. Area 8
PA. . Lawrence TCO Op. Area 8
PA. . McKean TCO Op. Area 8
PA. . Somerset TCO Op. Area 8
PA. . Washington TCO Op. Area 8
PA. . Westmoreland TCO Op. Area 8
MD. . Baltimore TCO Op. Area 10
MD. . Montgomery TCO Op. Area 10
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