Capacity Contract (XXX13001) between. Baumgarten-Oberkappel Gasleitungsgesellschaft m. b. H.

Transcription

1 Capacity Contract (XXX13001) between Baumgarten-Oberkappel Gasleitungsgesellschaft m. b. H. Floridsdorfer Hauptstraße 1, floridotower 1210 Vienna, Austria - hereinafter referred to as BOG and Company Street ZIP City Country - hereinafter referred to as system user - hereinafter individually or collectively referred to as a Party or the Parties

2 TABLE OF CONTENTS Article 1 Object 3 Article 2 Capacity 3 Article 3 Use of Capacities, Nomination and Allocation 3 Article 4 Payment and Securities 4 Article 5 Severability 5 Article 6 General Terms and Conditions 5 Article 7 Arbitration 5 Article 8 Term 5 Article 9 Miscellaneous 6 Schedule 1: Schedule 2: Schedule 3: Schedule 4: Schedule 5: Schedule 6: Schedule 7: General Terms and Conditions for Transmission Network Access Term Sheet for Capacities and Payments Gas Quality and Pressure Specification Form of Bank Guarantee Verification of Creditworthiness Communication Types of Capacity and Principles for Interruption Page 2/6

3 Article 1 Object This Capacity Contract sets out the terms and conditions for the system user to use the committed capacities on the West-Austria Gasleitung (WAG) with effect of corresponding to the Capacity as specified in Article 2. Capacities on a firm basis are available as freely allocable capacities ("FZK") or, if applicable, as dynamically allocable capacities ("DZK"), all further defined in section 2 para 1 item 1 of the Gas System Charges Ordinance Freely allocable capacities are also available on interruptible basis ( UK ). Article 2 Capacity Subject to the terms and conditions of this Capacity Contract, BOG shall make available to the system user capacity at respective Entry and Exit Point(s) equal to the maximum hourly flow rates, expressed in kwh/h for the specified periods, according to Schedule 2. Article 3 Use of Capacities, Nomination and Allocation 3.1 Capacities resulting from this Capacity Contract may only be nominated by the balance group responsible ( Bilanzgruppenverantwortlicher BGV ) following attribution of such capacities to a balance group and/or a sub balance account in accordance with the Other Market Rules 2012 ( Sonstige Marktregeln, SoMa 2012 ) chapters 2 and 3 as well as if necessary in accordance with any supplementary provision. The sole responsibility for nomination and renomination of the capacities shall only lie with the BGV. The system user shall perform the attribution to a balance group and/or a sub balance account in due time. The respective lead times are published on The system user shall provide for a valid authorization of the BGV, in order to enable the capacity attribution to the respective balance group(s) and/or to a sub balance account in accordance with this Capacity Contract and communicate this information to BOG according to the rules of the Other Market Rules and any other provisions defined by BOG. 3.3 In case the market area manager demands a reduction of nomination or suspends the right to nominate due to a breach of contract committed by the BGV, this shall in no case limit the validity of the Capacity Contract and shall in no way reduce the system user s obligation of payment. If these capacity rights of the balance group and/or sub balance account are assigned to another BGV with a valid nomination permission or the contractual requirements between BGV and market area manager are restored, these capacity rights are fully entitled to being nominated. 3.4 The attribution of capacity to a balance group and/or sub balance account shall remain valid as long as the contractual obligations are met by the system user. The allocation of capacities is otherwise deemed void. 3.5 The allocation procedure shall be effected according to the confirmed nominations and the Other Market Rules. 3.6 In the cases mentioned in Article V para 8 (temporary disruptions) and Article XVIII (Force Majeure) of the General Terms and Conditions for Transmission Network Access BOG shall be entitled to reduce the service or, respectively, the agreed hourly Page 3/6

4 flow rate. In this case, for a limited time, system user shall be provided a reduced hourly flow rate which may also be reduced to zero (0). Article 4 Payment and Securities 4.1 For the services to be rendered in accordance with this Capacity Contract, system user shall undertake to effect to BOG on a ship-or-pay basis a monthly payment E m for the entire duration. This monthly payment E m shall be calculated in accordance with the charges set in the Gas System Charges Ordinance 2013, multiplied with the quantity of the respective capacity, as follows: E m = (SUC* Q i )/12 Where: - E m = monthly payment (expressed in EUR per month): - SUC= system utilisation charge (expressed in EUR/kWh/h) per year and point - Q i = committed hourly flow rate (expressed in kwh/h) according to Schedule 2 E m is calculated in accordance with the Gas System Charges Ordinance 2013 and the cost methodology as approved by Energie-Control Austria and as subsequently amended and published in its latest version on The calculation of E m is subject to any change of SUC accordingly. At the time of signature of this Capacity Contract the monthly payment E m for each entry and exit point equals to the amount as laid down in Schedule Any payment under this Article 4 is exclusive of any taxes, duties or levies of a similar nature. BOG is entitled to add to the amount due by system user all taxes, duties or levies of similar nature imposed on BOG by any authority concerning the services under this Capacity Contract. At present, except VAT, no such charges are imposed. 4.3 According to sec. 3 para 10 Gas System Charges Ordinance 2013, in the event of transport restrictions caused by unplanned maintenance activities, E m shall be reduced in accordance with the duration and extent of the restriction. This shall take the form of reductions of the monthly payment. The amount of such reduction is calculated by BOG by applying the formula in annex 2 of the Gas System Charges Ordinance The hourly flow rate to be used in the calculation is the one made available by BOG, even if the system user does not use such capacity or does not use it to its full extent. 4.4 BOG shall apply the reduction of E m only under the condition that the BGV provides the necessary information, in particular the capacities nominated by system users to BOG according to sec. 21 para 1 Gas Market Model Ordinance There shall be no reduction of E m in case of interruption of dynamically allocable capacities according to section 3 para 7 Gas System Charges Ordinance The fact that system user does not use in total or does not use to full extent the hourly flow rate, shall be of no implication to the system user s obligation to pay the monthly payment ( ship or pay ). 4.7 System user shall be obliged to provide payment security (bank guarantee or cash deposit) for its obligation and liabilities contracted herein. 4.8 A form of the bank guarantee is attached hereto as Schedule 4. Page 4/6

5 Article 5 Severability If any of the provisions of this Capacity Contract, including any part of the General Terms and Conditions for Transmission Network Access is or becomes ineffective, illegal, invalid, unenforceable, inoperative or void, the effectiveness of the other provisions shall not be affected or impaired thereby and will remain in full force and effect. The Parties undertake to replace the ineffective, illegal, invalid, unenforceable, inoperative or void provision by a new and effective operable provision which approximates to it as closely as possible in economic, technical and/or legal terms. Article 6 General Terms and Conditions 6.1 The General Terms and Conditions for Transmission Network Access ( General Terms and Conditions ) constitute an integral part of this Capacity Contract. System user acknowledges the General Terms and Conditions valid as of and as published on the Internet ( System user is fully aware of the provisions of the General Terms and Conditions and accepts them. In case of any contradictions/discrepancies between the General Terms and Conditions and the terms of this Capacity Contract, the latter shall prevail. 6.2 For the purpose of Article XV (4) of the General Terms and Conditions for Transmission Network Access the address given on the first page of this Contract shall be the relevant one. Article 7 Arbitration 7.1 All disputes arising out of or in connection with this Capacity Contract including all amendments, if any, shall be exclusively and finally settled under the Rules of Arbitration of the International Chamber of Commerce, Paris. 7.2 The arbitral tribunal shall be composed of three arbitrators. Unless otherwise agreed each Party shall appoint one (1) arbitrator and the third arbitrator will be selected by the first two arbitrators within thirty (30) days after the appointment of the second arbitrator. The third arbitrator shall act as chairman of the board of arbitration and shall be fully educated and trained as a lawyer. 7.3 The seat of the arbitration proceedings shall be in Vienna. Notwithstanding Article III (4) of the General Terms and Conditions for Transmission Network Access, the language of the proceedings shall be German. Article 8 Term 8.1 This Capacity Contract shall come into full force and effect upon signature. 8.2 The services and the corresponding obligation to effect the monthly payment shall commence as laid down in Schedule 2. Page 5/6

6 8.3 This Capacity Contract shall remain in force until , 06:00 a.m. Article 9 Miscellaneous 9.1 Any modification or amendment to this Capacity Contract shall be effective only if made in writing and if duly signed by both Parties. 9.2 The Schedules hereto constitute integral part of this Capacity Contract. In the event of any conflict between this Capacity Contract and the Schedules this Capacity Contract shall prevail. 9.3 The Other Market Rules ( Sonstige Marktregeln, SoMa 2012, Chapter 1 to 4) issued by E-Control Austria and as amended from time to time constitute an integral part of this Capacity Contract. IN WITNESS WHEREOF this Capacity Contract has been duly executed in two (2) originals Vienna,.,. Baumgarten-Oberkappel Gasleitungsgesellschaft m.b.h. Shipper Page 6/6

7 SCHEDULE 2 Term Sheet for Capacities and Payments For the services to be rendered in accordance with this Capacity Contract, system user shall undertake to effect to BOG on a ship-or-pay basis a monthly payment Em for the entire duration. This monthly payment Em shall be the total of the monthly payments listed below. Term Sheet: Committed Capacities and Payments Location Type of Point Quality From each at 6:00 Until each at 6:00 Capacity [kwh/h] Monthly Payment [EUR] Schedule 2 of the Capacity Contract Shipper CON-Nr

8 SCHEDULE 3 Gas Quality and Pressure Specification 1. Gas Quality 1.1 The Parties acknowledge that, the quality specification for natural gas to be transported in the WAG Pipeline System may be modified by provisions issued by the competent Austrian and/or European authorities. In such event, the corresponding amendments to this Gas Quality Specification shall be forthwith applied also for the purpose of this Capacity Contract. 1.2 Natural gas delivered by system user to BOG at Entry Point in the WAG Pipeline System shall comply with the specification as follows: Chemical composition Methane C 1 min. 85,00 mol% Ethane C 2 max. 7,00 mol% Propane C 3 max. 3,00 mol% Butane C 4 max. 2,00 mol% Heavier C5+ max. 1,00 mol% Nitrogen N 2 max. 5,00 mol% Carbon dioxide CO 2 max. 2,00 mol% Oxygen O 2 max. 0,02 mol% Sulphur content Hydrogen sulphide H2S max. 6,8 mg/m³ Mercaptan sulphur RSH max. 16,9 mg/m³ Total sulphur S max. 120,0 mg/m³ 150,0 mg/m³ for short time Gross Calorific Value B min. 10,7 kwh/m³ max. 12,8 kwh/m³ Wobbe Index min. 13,5 kwh/m³ max. 15,5 kwh/m³ Dew point Hydrocarbon dew point max. 0 C 1,0 and 70 bar gauge Water dew point max. -8 C at 64 bar gauge Impurities The natural gas shall be practically free of solid, dust, iron oxide, mud, liquid hydrocarbons and shall not be odorised. Temperature T max. 50 C Schedule 3 Page 1/2

9 2. Pressure 2.1 Entry Point In case of physical delivery from system user to BOG at the entry point the following shall apply: System user shall not be entitled to deliver natural gas to BOG at a Pressure lower than 49 bar gauge and higher than 70 bar gauge. Nevertheless, BOG may accept at its sole discretion in-take of natural gas at a Pressure deviating from abovementioned Pressure conditions. In any case such operation at deviating Pressure shall not disturb services for other shippers in the WAG System or create additional costs. 2.2 Exit Point BOG shall redeliver the natural gas at the exit point at a Pressure according to the actual hydraulic condition in the WAG System but not higher than 70 bar gauge, in line with appropriate agreements in force between downstream operators and BOG as amended and restated from time to time. In case the natural gas redelivered by BOG is at a pressure which does not comply with the above mentioned provision provided that system user has delivered at the entry point natural gas in compliance with Article 2.1, system user shall be entitled to refuse the acceptance of such natural gas, provided that the operator of the downstream gas transportation system refuses the acceptance of such natural gas; in case of such refusal by the system user, the natural gas shall be deemed as not redelivered by BOG for all purposes of this Capacity Contract. 2.3 Indemnification In any case BOG shall indemnify system user for all properly documented losses, damages and costs incurred by system user resulting from the delivery of natural gas not complying with the requirements stated herein. Schedule 3 Page 2/2

10 SCHEDULE 4 Form of Bank Guarantee THIS BANK GUARANTEE is issued on this [day] day of [month] [year] by [Bank s details to be inserted] (the Guarantor ) in favour of BOG, a company organised and existing under the laws of Austria having its registered offices at Floridsdorfer Hauptstraße 1, A-1210 Vienna (together with its successors and permitted assignees BOG ). [Bank Name to be added] herewith declares to have a Rating equal or higher than A3 Moody s or equivalent Standard & Poor s at the date of issue of this Bank Guarantee. WHEREAS a) [Client s details to be inserted] ( Client ), on [Effective Date] entered into a Capacity Contract ( Contract ) with BOG concerning transportation of natural gas by BOG. b) Under the Contract the monthly payment due by Client to BOG in consideration of the service provided by BOG shall be invoiced and due pursuant to the terms of the Contract (the Monthly Payment ) together with any other amount due and payable under the Contract. c) In accordance with the Contract Client has to procure a bank guarantee in favour of BOG to guarantee its payment obligations arising out of the Contract. NOW; THEREFORE; the Guarantor hereby agrees to the following: 1. Within the limits of the Maximum Guaranteed Amount set forth in 2 below: i. The Guarantor hereby irrevocably guarantees the due and prompt payment to BOG of any Monthly Payment as well as any other sums from time to time due and payable by Client, its successors and assignees, under the Contract as and when the same shall respectively become due and payable. ii. iii. Should Client fail, at any time for whatsoever reason, to pay any amount due to BOG with regard to any Monthly Payment and/or other sums, expressed to be due and payable by it to BOG under the Contract, upon BOG s written demand, the Guarantor shall promptly and unconditionally and without any objection out of the underlying contract pay to BOG; without set-off or counterclaim, the sum specified in BOG s demand. Any such payment shall be made within seven banking-days from receipt of BOG s written request. The amount payable shall include all such amounts as would have been received by BOG had payment been duly made by Client, as well as all costs (extrajudicial and judicial) and expenses which BOG may incur in collecting from Client and/or Guarantor. Any payment shall be made in the manner as directed by BOG. All payments by Guarantor to BOG shall be made free and clear of all taxes, levies, duties, imposts, fees, deductions or withholdings of any kind and notwithstanding any dispute or objection made by Client or by any other third party concerning the sum demanded or the existence of a breach under the Contract or otherwise. 2. The maximum guaranteed amount under this Guarantee is equal to EURO [amount to be inserted] ( Maximum Guaranteed Amount ) and BOG acknowledges and agrees that Guarantor shall not be obliged to make any payments under this Guarantee which individually or in aggregate exceed the Maximum Guaranteed Amount and Schedule 4 Page 1/2

11 BOG undertakes that all its requests to the Guarantor under this Guarantee shall not, individually or in aggregate, exceed the Maximum Guaranteed Amount. 3. This Guarantee is a continuing guarantee which shall be effective as of the date first written above and shall remain in full force and effect until the earliest of: i. the date on which all duties, liabilities and obligations of Client under the Contract have been finally and definitively discharged and BOG has given written confirmation of this, or ii. the date on which Guarantor has paid to BOG under this Guarantee an aggregate amount equal to the Maximum Guaranteed Amount. In any case, this letter of Guarantee shall expire on [month] [day] [year] [6 months after termination of Capacity Contract]; after such date this Guarantee will automatically become null and void and any subsequent claim received by the Guarantor will be invalid. 4. BOG s rights under this Guarantee shall not be affected, nor shall Guarantor be exonerated or discharged from its liabilities under this Guarantee by time being given to Client or by any other indulgence, waiver or concession to Client granted by BOG, by taking, holding, varying, non-enforcement or release by BOG of any other security for any of the payments of which is guaranteed hereunder, or by any other indulgence, waiver or concession to Client. 5. Any communication or notice required or permitted to be given under this Guarantee shall be made in writing (English language shall be used) and shall be sent by registered mail or fax addressed as follows: i) If to the Guarantor: [Bank] Tel.: Fax: Attn: (ii) If to BOG: Baumgarten-Oberkappel Gasleitungsgesellschaft m.b.h. Floridsdorfer Hauptstrasse 1 A-1210 Vienna Tel.: Fax: Attn.: Managing Director 6. Any dispute, controversy or claim arising between BOG and the Guarantor on the interpretation and/or fulfilment of this Guarantee shall be finally settled by arbitration in Vienna under the rules of arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with said rules. The arbitration Board shall decide according to the substantive Austrian Law (to the exclusion of rules and regulations governing conflict of laws) and the arbitration shall be conducted in German. Executed and delivered on the date first written above. [Bank] Schedule 4 Page 2/2

12 SCHEDULE 5 Verification of Creditworthiness BOG will analyse the creditworthiness of any requesting party on information publicly provided by rating agencies. Any requesting party being able to provide an actual credit rating of the below defined rating agencies complying with at least the defined or higher rating shall be released from its security obligations according to Article XXII of the General Terms and Conditions for Transmission Network Access (GTC TNA): A Rating from Standard & Poor s A Rating from Moody s The respective proof of creditworthiness shall be renewed annually by the system user. BOG has the right to require the latest business report confirmed by an auditor from the system user at any time. Any requesting party will be rated by BOG utilizing the information provided by Dun & Bradstreet. On the basis of the Total Credit Recommendation by Dun & Bradstreet, BOG will define the credit line of the requesting party and notify it thereof. In case a capacity contract is concluded system user has to provide a security according to Article XXII of BOG s GTC TNA. If the credit line is below the security obligation, the difference shall be paid. If the defined credit line is higher, BOG will refrain from an additional security. In case system user has more than one valid contract, the total of the security obligations will be deducted from the credit line. In case the credit line is higher than the total of the respective security obligations no further security shall be necessary. In case the credit line is lower than the total of the respective security obligations system user has to provide additional security according to the rules defined in Article XXII of BOG s GTC TNA for the difference between security obligations and the credit line. As long as system user has a valid capacity contract, BOG will review system user s creditworthiness at regular intervals. If any such review indicates that the creditworthiness of system user has deteriorated, BOG will notify system user thereof and system user shall be obliged to provide promptly additional security corresponding to the difference between its new credit line and the remaining security obligation according to Article XXII of BOG s GTC TNA for the contracts to be secured. In the event that any such review indicates that the creditworthiness of system user has improved, BOG will, upon system user s request, release any security provided by system user which may no longer be required. System user shall in any case be obliged to notify BOG promptly of any changes which may have significant impact on its creditworthiness. Schedule 5 Page 1/1

13 SCHEDULE 6 Communication 1. BOG and system user shall provide each other with all information necessary for the fulfilment of their respective obligations under this Capacity Contract according to the Other Market Rules ( Sonstige Marktregeln, SoMa 2012 ), in particular chapter Any information, document and instruction, which shall be exchanged in connection with the use of capacity, nomination and allocation, shall be exchanged directly between BOG s Service Provider and system user and copied to BOG. 3. All communication between system user and BOG s Service Provider shall be performed according to the Other Market Rules, in particular chapter 2. System user and BOG s Service Provider shall exchange identification codes, addresses, detailed formats and fax numbers which shall be attended 24 hours a day. Fax shall be used as backup system until detailed formats are agreed and in case described electronic means of communication are inoperable. 4. System user shall provide full contact data, in particular including name, address, phone number, address for administration, invoicing, use of capacity, nomination and allocation. 5. The language of communication shall be English. Schedule 6 Page 1/1

14 SCHEDULE 7 Types of Capacity and Principles for Interruption 1. Types of Capacity 1.1 Firm, freely allocable capacity (FZK) shall allow the injection of gas at the entry point and the withdrawal of gas at the exit points on a firm basis. This means access to the virtual trading point shall be guaranteed. 1.2 Dynamically allocable capacity (DZK) shall allow the injection of gas on a firm basis at an entry point in combination with the withdrawal of gas at certain exit points and shall function as interruptible capacity in combination with all other entry/exit points and the virtual trading point. The execution of nomination using DZK is subject to allocation constraints from the entry point with the corresponding withdrawal at the allocable exit points (respectively the withdrawal at the exit point with the corresponding injection at the allocable entry points). Nomination in a balance group at an entry point without the corresponding nomination at the allocable exit points in the same balance group (respectively a nomination at the exit point without the corresponding nomination at the allocable entry points), shall be executed depending on the overall network situation in the market area. BOG shall have the right to interrupt the service to the extent in which the quantities nominated using DZK do not correspond with the quantities nominated at the allocable points. Thus, access to the virtual trading point shall be interruptible for those DZK of which the allocation constraints are not met. As a result, the nominated quantities using DZK shall be divided in an executable share (i.e. fulfilling the allocation constraint) and a non-executable share (i.e. not fulfilling the allocation constraint). For the avoidance of doubt, such non-executable share does not provide for compensation. 1.3 Interruptible, freely allocable capacity (UK) shall allow the injection of gas at the entry point and the withdrawal of gas at the exit point on an interruptible basis. BOG shall have the right to interrupt the transportation service, in whole or in part. In such a case, the committed hourly flow rate will be not or only partly available to the balance group responsible ( Bilanzgruppenverantwortlicher BGV ) over a certain period of time (in both cases: interruption ). 2. Principles for Interruption 2.1 Within the firm capacities nominations shall be allocated first to the firm capacities (FZK) and DZK meeting the allocation constraints. Within interruptible capacities nominations shall be allocated first to UK according to the class ranking and DZK not meeting the allocation constraints. 2.2 Interruption sequence: Prior to the interruption of the UK at the respective entry or exit point, those DZK of all system users shall be interrupted at this entry/exit point where allocation constraints are not met. Within the interruptible, freely allocable capacity (UK) nominations shall be interrupted according to the class ranking as described below in the interruption classes, whereas the part of nominations related to a higher interruption class respectively shall be interrupted prior to the part of nominations related to a lower interruption class respectively. 2.3 UK of same type and class and same time stamp shall be ranked equally and shall be allocated pro rata. UK with earlier time stamp of same type and class shall rank over UK of a later time stamp of same type and class. Schedule 7 Page 1/2

15 3. Interruption Classes and Compensation In case of interruptions interruptible capacity shall be compensated according to the differentiation of interruption classes. A higher compensation factor reflects a lower interruption probability. classes products compensation factor rf class 1 yearly product 1.5 class 2 quarterly product 1.3 class 3 monthly product 1.1 class 4 daily product 1.05 The compensation is calculated according to the formula in annex 1 of the Gas System Charges Ordinance Schedule 7 Page 2/2