EXHIBIT 10(B)
CONFORMED COPY
AGENCY AGREEMENT
between
GASCOR
and
KINETIK ENERGY PTY LTD
(ACN 079 089 188)
▇▇▇▇▇ & MC.KENZIE
Solicitors
▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 50 Bridge Street
MELBOURNE VIC 3000 ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Tel: (▇▇) ▇▇▇▇-▇▇▇▇ Tel: (▇▇) ▇▇▇▇-▇▇▇▇
Fax: (▇▇) ▇▇▇▇-▇▇▇▇ Fax: (▇▇) ▇▇▇▇-▇▇▇▇
CONTENTS
CLAUSE
NUMBER HEADING PAGE
1. DEFINITIONS 1
2. COMMENCEMENT 14
3. APPOINTMENT OF AGENT 14
3.1 Appointment 14
3.2 Duties of the Agent 14
3.3 Duties of Gascor 22
3.4 Conduct of Litigation 24
4. SUPPLY OF GAS 24
4.1 Obligations to Deliver and Take 24
4.2 Initial Nominations 25
4.3 Variation of Initial Nominations 26
4.4 Meaning of "Daily Nomination" 28
4.5 Daily Quantities 29
4.6 MDQ 29
4.7 AQ 30
4.8 Minimum Quantity of Gas in a Contract Year 31
5. PERIOD OF AGREEMENT 31
5.1 Contract Term 31
5.2 Accrued Rights 32
6. COMMISSION 32
6.1 Obligation to pay Commission 32
6.2 Interpretation 32
6.3 Calculation of Commission 32
6.4 Quantity of Gas Delivered under this Agreement 34
6.5 Redetermination of Gas delivered 37
6.6 Calculation of payments on account of Commission 39
6.7 Monthly Additional MDQ Instalments 40
6.8 Billing 41
6.9 Payment 43
6.10 Disputed amounts 44
6.11 Interest on late payment 45
6.12 Inaccuracy 45
6.13 Payment of Commission after expiry of the Contract Term 46
7. POINT OF DELIVERY 46
7.1 Point of Delivery 46
7.2 Gas to be delivered in a single stream 47
8. COSTS, RISK AND TITLE 47
8.1 Costs and Risks 47
8.2 Title 47
9. GAS MEASURING AND TESTING 47
10. GAS SPECIFICATION 48
11. FORCE MAJEURE 48
11.1 Effect of Principal Contract Force Majeure 48
11.2 Meaning of "Principal Contract Force Majeure" 48
11.3 Effect of Agency Force Majeure 48
11.4 Meaning of "Agency Force Majeure" 49
11.5 Certain matters not to constitute Agency Force Majeure 50
11.6 Affected Party 50
11.7 Notification of Force Majeure 50
11.8 Consultation 50
11.9 Reasonable diligence to overcome 51
11.10 Cessation of Agency Force Majeure 51
12. DISPUTE RESOLUTION 51
12.1 Obligation to seek Resolution 51
12.2 General Requirement 51
13. EXPERT 52
13.1 Application of this Clause 52
13.2 Appointment 52
13.3 Qualification 53
13.4 Powers and Duties 53
13.5 Confidentiality 53
13.6 Removal of Expert 54
13.7 Referral to Expert does not affect obligations 54
13.8 Communications to be copied to other Party 54
14. AGENT'S DEFAULT 54
14.1 Default Notice 54
14.2 Cure Period 54
14.3 Remedies for Default 55
14.4 Indemnity regarding Sellers 56
14.5 Damages and Consequential Loss 56
15. GASCOR'S DEFAULT 56
15.1 Default Notice 56
15.2 Cure Period 56
15.3 Remedies for Default 57
15.4 No right to terminate 57
15.5 Damages and Consequential Loss 57
15.6 Agent to mitigate loss 57
16. TAX 57
16.1 Tax pass-on 57
16.2 Timing and method of adjustment 59
16.3 Price Redetermination 59
16.4 Contract Price 59
16.5 Adjustment for GST 59
17. ASSIGNMENT 59
17.1 Interpretation 59
17.2 General Requirements 60
18. CONFIDENTIALITY 60
18.1 General Obligation 60
18.2 Exceptions 60
18.3 Transport Exemption 62
18.4 General Exceptions 62
18.5 Other Permitted Disclosures 62
18.6 Restrictions Survive Termination 62
19. COMMUNICATIONS 62
19.1 Communications 62
19.2 Manner of Service 63
19.3 Service particulars 63
19.4 Timing of service 63
19.5 Instantaneous Communications 64
20. SEVERANCE 65
20.1 General case 65
20.2 Exemption Event 65
20.3 New agreement 65
21. GENERAL 67
21.1 Entire Agreement 67
21.2 Waivers 67
21.3 Variations 67
21.4 Further assurance 67
21.5 Exercise of rights 67
21.6 Counterparts 68
21.7 Governing law and jurisdiction 68
22. INTERPRETATION 68
22.1 Quantities of Gas 68
22.2 Interpretation 68
22.3 Master Agreement to prevail 69
SCHEDULE 1 70
The Services 70
SCHEDULE 2 71
Accounting Policies 71
1. SALES REVENUE 71
2. BAD AND DOUBTFUL DEBTS 71
SCHEDULE 3 - RETAINED PROFIT 73
Part 1 73
Calculation of Retained Profit 73
Part 2 76
Base Amounts 76
Part 3 78
Variation of Retained Profit 78
Part 4
Variation of the Retained Profit in the event of a Failure
of Supply 80
SCHEDULE 4 81
Deed of Assignment 81
SCHEDULE 5 84
Deed of Release 84
SCHEDULE 6 87
Accounting and Audit Requirements 87
SCHEDULE 7 93
Litigation 93
SCHEDULE 8 95
Maximum Annual Quantity 95
SCHEDULE 9 96
Related Charges 96
SCHEDULE 10 98
Estimation Procedures 98
SCHEDULE 11 99
Minimum Take of Gas in a Contract Year 99
ANNEXURE A 103
First Interim Statement 103
ANNEXURE C 106
Monthly Claim Form 106
SCHEDULE 1 - BANK RECONCILIATION 109
SCHEDULE 2 - AGENCY GAS SALES DEBTOR LEDGER 110
SCHEDULE 3 - PROVISION FOR AGENCY BAD DEBTS 111
SCHEDULE 4 - CSO DEBTOR LEDGER 112
SCHEDULE 5 - REFUNDABLE ADVANCES DEBTOR AND ASSOCIATED
INTEREST LEDGER 113
SCHEDULE 6 - AGENCY CUSTOMER OVERPAYMENTS ACTUALLY REPAID
TO CUSTOMERS 114
SCHEDULE 7 - COST OF CONTRACT GAS SUMMARY 115
SCHEDULE 8 - OTHER AGENCY CUSTOMER ADJUSTMENTS 116
SCHEDULE 9 - AGENCY SALES REVENUE 117
SCHEDULE 10 - FIRST INTERIM INSTALMENT 118
SCHEDULE 11 - SECOND INTERIM INSTALMENT 119
SCHEDULE 12 - OTHER AMOUNTS PAYABLE TO/BY GASCOR 120
AGENCY AGREEMENT
THIS AGREEMENT is made on the 14th day of August, 1998.
BETWEEN
Gascor, being the body corporate of that name established under the Gas Industry
▇▇▇ ▇▇▇▇ of Sixth Floor, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ("GASCOR")
AND
Kinetik Energy Pty Ltd (ACN 079 089 188) of ▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ("AGENT").
RECITALS
A. Gascor agrees to appoint the Agent as its agent, and the Agent agrees
to act as Gascor's agent, to sell gas to Gascor Customers (as defined
in this Agreement) in accordance with the terms of this Agreement.
B. By an agreement dated 20 November 1996 ("PRINCIPAL CONTRACT") between
Esso Australia Resources Ltd (ARBN 000 444 860), BHP Petroleum (Bass
Strait) Pty Ltd (ACN 004 228 004) and Gascor, Esso and BHP agreed to
supply and Gascor agreed to take quantities of gas upon the terms and
conditions set out in that agreement.
C. It is intended by the Parties that the Agent will meet the
requirements of Gascor Customers for gas by ordering and taking gas
from Gascor and by purchasing gas from other sources in accordance
with the terms of this Agreement.
D. The Agent agrees to provide Services (as defined in this Agreement) to
Gascor in accordance with the terms of this Agreement.
E. This Agreement replaces the interim agency agreement which the Parties
entered into on 11 December 1997.
OPERATIVE PROVISIONS
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1. DEFINITIONS
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In this Agreement unless the context otherwise requires:
"ACT" means the Gas Industry Act 1994 (Vic).
"ACCC" is defined in the Act.
"ACCESS ARRANGEMENTS" means the proposed access arrangements (within the meaning
of the Code) of:
(a) Multinet and Multinet (Assets) Pty Ltd ACN 079 088 967;
(b) Stratus and Stratus Networks (Assets) Pty Ltd ACN 079 089 142;
(c) Transmission Pipelines Australia Pty Ltd ACN 079 089 268 and
Transmission Pipelines Australia (Assets) Pty Ltd ACN 079 136 413;
(d) VENCorp; and
(e) Westar and Westar (Assets) Pty Ltd ACN 079 089 062,
which were submitted to the Relevant Regulators for approval on or about
November 1997 (each an "ACCESS ARRANGEMENT").
"ACCOUNTING POLICIES" means the accounting policies described in Schedule 2.
"ADMINISTRATION COSTS" is defined in the Community Services Agreement.
"AFFECTED PARTY" is defined in Clause 11.6.
"AGENCY AGREEMENT" means, in relation to a Retailer (other than the Agent), the
agreement entered into on or about the date of this Agreement between Gascor and
that Retailer pursuant to which Gascor has agreed to appoint that Retailer as
its exclusive agent to sell gas to Gascor Customers (as defined in that
agreement) in the Agency Area (as defined in that agreement).
"AGENCY AREA" means the franchise area (as defined in the Agent's Retail
Licence).
"AGENCY FORCE MAJEURE" is defined in Clause 11.4.
"AGENCY RECORDS" means the records which the Agent is required to keep in
accordance with paragraph 4(a) of Schedule 6.
"AGENT DEFAULT NOTICE" is defined in Clause 14.1.
"ALLOCATED QUANTITY" is defined in the Master Agreement.
"ALLOCATION AGENT" is defined in the MSO Rules.
"ALLOCATION AUDITOR" is defined in the Master Agreement.
"ALLOCATION DAY" is defined in the Master Agreement.
"ALTERNATE GAS" is defined in Clause 3.2(c)(3).
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"ANNUAL STATEMENT" is defined in Clause 6.8(e).
"AQ" in respect of a Contract Year is determined pursuant to Clause 4.7.
"BASE AMOUNTS" means the Component A Base Amounts and the Component B Base
Amounts.
"BHP" means BHP Petroleum (Bass Strait) Pty Ltd (ACN 004 228 004).
"BILLING CYCLE" means the frequency with which a Customer receives a ▇▇▇▇ from
the Agent, being, in the case of Contract Customers, Monthly and, in the case of
other Gascor Customers, every two Months (or any other billing frequency for
Contract Customers or other Gascor Customers prevailing on the date of this
Agreement).
"BUSINESS" means the business of selling Gas to Gascor Customers on behalf of
Gascor which the Agent is authorised to carry on pursuant to this Agreement and
its Retail Licence and the business of providing the Services.
"BUYER'S MAKE-UP GAS" is defined in the Master Agreement.
"C MARKET GAS" is defined in the Principal Contract.
"C MARKET PRICE" is defined in the Principal Contract.
"CARBON TAX" means any royalty, tax, rate, duty, levy or charge in respect of
the production or emission into the atmosphere of carbon or any carbon compound.
"CASH MANAGEMENT ACCOUNT" is defined in Clause 3.2(f)(1)(B).
"CLASS A SUPPLY POINT" means a Supply Point on a Distribution Pipeline:
(a) from which a Contestable Customer is supplied, or is estimated to be
supplied, more than or equal to [THIS PARAGRAPH CONTAINS CONFIDENTIAL
INFORMATION WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.] GJ of gas in a year as determined
in accordance with the Distribution System Code; and
(b) which is registered by VENCorp as such for the purposes of determining
the appropriate unaccounted for gas benchmark in accordance with the
MSO Rules.
"CLASS B SUPPLY POINT" means a Supply Point on a Distribution Pipeline, other
than a Class A Supply Point, from which a Contestable Customer is supplied Gas.
"CODE" means the Victorian Third Party Access Code for Natural Gas Pipeline
systems made by Order in Council dated 9 December 1997 and published in the
Victorian Government Gazette (G49) on 11 December 1997.
"COMMISSION" is defined in Clause 6.3.
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"COMMUNICATIONS" is defined in Clause 19.1.
"COMMUNITY SERVICES AGREEMENT" means the community services agreement dated 20
April 1998 between the Agent and the Minister for Youth and Community Services,
as amended or replaced from time to time.
"COMMUNITY SERVICES COSTS" is defined in the Community Services Agreement.
"COMPONENT A BASE AMOUNTS" means the amounts set out in column 2 of Part 2 of
Schedule 3.
"COMPONENT B BASE AMOUNTS" means the amounts set out in column 3 of Part 2 of
Schedule 3.
"CONTESTABILITY DATE" means the First Contestability Date or a date (other than
a date which occurs prior to the First Contestability Date) upon which a
Customer in the Agency Area becomes a Contestable Customer.
"CONTESTABLE CUSTOMER" means, in relation to a Supply Point a non-franchise
customer in relation to that Supply Point within the meaning of section 6B of
the Act to whom the Agent is entitled to sell Gas in accordance with the terms
of its Retail Licence.
"CONTESTABLE TARIFF D CUSTOMER" means a Contestable Customer which withdraws Gas
at a Supply Point which is assigned to distribution tariff D within the meaning
of the Tariff Order or the December 1997 Tariff Order.
"CONTRACT CUSTOMER" means a Gascor Customer to whom Gas is sold under a Sales
Contract.
"CONTRACT GAS" means:
(a) Sales Gas which complies with the Gas Specifications and which Gascor
is entitled to purchase from the Sellers under the Principal Contract;
and
(b) Off Specification Gas which is deemed under Clause 10(b) to be
Contract Gas.
"CONTRACT PRICE" means the C Market Price as adjusted from time to time in
accordance with the terms of the Principal Contract.
"CONTRACT TERM" means the period specified in Clause 5.1.
"CONTRACT YEAR" means a period of 12 consecutive months beginning at 9.00am on 1
January in each year and ending at 9.00am on 1 January of the following year
during the Contract Term provided that:
(a) the first Contract Year shall be the period commencing at 9.00am on
the date of this Agreement and ending at 9.00am on 1 January 1999;
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(b) if the Contract Term ends on a date other than 1 January, then the
last Contract Year shall be the period commencing at 9.00am on 1
January immediately preceding and ending at the end of the day on
which the Contract Term ends.
"CPI" means the Consumer Price Index (All Groups) for Melbourne as first
published for a Quarter by the Australian Bureau of Statistics.
"CUSTOMER" means a person, other than a Licensed Retailer, who buys or wishes to
buy Gas from a Licensed Retailer.
"CUSTOMER SERVICE CODE" means the cod of that name which regulates the terms on
which Gas is supplied and sold to Gascor Customers, other than Contract
Customers, and with which the Agent is required to comply in accordance with its
Retail Licence.
"DAILY CASH RECEIVED" means, in respect of a day, the aggregate amount of Money
deposited in the Designated Accounts in respect of Gascor Customers on that day
less the aggregate amount of cheques and other payments deposited in the
Designated Accounts, whether on that day or any previous day, and dishonoured on
that day.
"DAILY NOMINATION" is defined in Clause 4.4(a).
"DAY" means a period of 24 consecutive hours or, on the days on which daylight
savings times begins and ends, 23 consecutive hours or 25 consecutive hours (as
the case may be) beginning and ending at 9.00am.
"DECEMBER 1997 TARIFF ORDER" means the Order in Council dated 9 December 1997
made under section 48A of the Act regulating certain gas industry tariffs and
charges and published in the Victorian Government Gazette (G49) on 11 December
1997.
"DEFAULT" means a Financial Default, a Non-financial Default, a Solvency
Default, a Minimum Quantity Default or a Retail Licence Default.
"DEFAULT RATE" means, for each Month or part thereof for which the Default Rate
is payable, an annual interest rate equal to [THIS PARAGRAPH CONTAINS
CONFIDENTIAL INFORMATION WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.]% above the average 90 day bank ▇▇▇▇ mid
rate as published on Reuters' page BBSY at or about 10.00am on the first Working
Day of that Month.
"DEFAULTING PARTY" means:
(a) in relation to a Default by the Agent, the Agent; and
(b) in relation to a Default by Gascor, Gascor.
"DESIGNATED ACCOUNTS" is defined in Clause 3.2(f).
"DISCLOSING PARTY" is defined in Clause 18.2.
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"DISTRIBUTION PIPELINE" is defined in the Distribution System Code.
"DISTRIBUTION SYSTEM CODE" means the code of that name which regulates the
supply of gas to or from the system of distribution pipelines and with which the
Agent is required to comply in accordance with its Retail Licence.
"ECOGEN MDQ REDUCTION MONTH" is defined in the Master Agreement.
"ESSO" means Esso Australia Resources Ltd (ARBN 000 444 860).
"ESTIMATION PROCEDURES" is defined in Clause 6.4(c).
"EXCLUDED SERVICES" has the same meaning as in the December 1997 Tariff Order.
"EXCLUDED TAX" means any Tax generally applicable to business operating in the
State including without limitation:
(a) taxes of general application imposed on income, capital gains or both
and whether calculated on a gross or net basis, such as Income Taxes;
(b) taxes on business inputs such as sales taxes, customs duties or import
duties (other than on the sale of gas);
(c) employee related taxes such as payroll taxes or fringe benefit taxes;
(d) taxes designed to have social or community benefits such as the
WorkCover levy;
(e) municipal rates, taxes or other charges imposed by local authorities;
(f) taxes on the ownership or occupancy of property;
(g) stamp duties and any other duties or charges imposed on business
transactions generally;
(h) taxes and charges having similar characteristics as the foregoing,
but does not include;
(i) PRRT or Carbon Tax; or
(ii) to the extent imposed on the sale of gas, GST or sales tax.
"EXEMPTION" means the Competition Policy Authorisation under Parts 6B or 6C of
the Act and includes any other legislation or regulation which, in respect of
any Relevant Agreement, has the same effect as Parts 6B or 6C of the Act.
"EXEMPTION EVENT" is defined in Clause 20.2(a).
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"EXPERT" means a person appointed as an expert in accordance with Clause 13.
"FINAL RECEIVABLES" is defined in Clause 6.13(b).
"FINANCIAL DEFAULT" means a Party's failure to satisfy a Financial Obligation
(but does not include a failure by Gascor to pay a disputed amount until such
time as the disputed amount is determined or agreed to be payable).
"FINANCIAL OBLIGATION" means an obligation under this Agreement to pay or cause
to be paid an amount of money.
"FINANCIAL HALF YEAR" means a period of six months ending on 30 June or 31
December in any year.
"FIRST CONTESTABILITY DATE" means the first date on which the Agent is entitled
to sell Gas to a Contestable Customer in accordance with the terms of its Retail
Licence.
"FIRST INSTALMENT" is defined in Clause 6.6(a).
"FIRST INTERIM STATEMENT" is defined in Clause 6.8(b).
"FORCE MAJEURE" means:
(a) Principal Contract Force Majeure; or
(b) Agency Force Majeure.
"GAS" means Sales Gas and TLPG.
"GAS MONTH" means a period of time commencing with the beginning of the 1st Day
of any calendar month and ending at the end of the last Day which commences in
that calendar month.
"GAS SPECIFICATIONS" means the specifications and requirements for Contract Gas
delivered to Gascor by a Seller, set out in Schedule 6 to the Principal
Contract.
"GASCOR CUSTOMER" means, in relation to a Supply Point in the Agency Area, a
Customer who is not a Contestable Customer, a Restricted Customer or an SOU
Customer in relation to that Supply Point.
"GASCOR DEFAULT NOTICE" is defined in Clause 15.1.
"GASCOR'S ACCOUNTANTS" means such member of The Institute of Chartered
Accountants in Australia or the Australian Society of Certified Practising
Accountants as Gascor may appoint from time to time or the Auditor-General of
Victoria.
"GJ" means gigajoules, 1 gigajoule being equal to 1,000,000,000 joules.
7
"GST" means a tax, duty, levy or charge on the supply of goods, services, real
property or other thing which:
(a) in general, is collected in instalments at each stage in the chain of
production and distribution; and
(b) permits businesses engaged in the production and distribution of goods
and services to offset the tax paid on acquisition of goods or
services against the tax collected on the supply of goods or services
(other than in specified circumstances, such as where the end user has
exempt or zero-rated status),
and would include a tax having similar characteristics to the value added tax
applicable in the United Kingdom or the goods and services tax applicable in New
Zealand or Canada, in each case, as at the date of this Agreement.
"GUARANTEE" means the deed of guarantee and indemnity between Westar Pty Ltd,
Westar (Assets) Pty Ltd, the Agent and Gascor entered into on or about the date
of this Agreement.
"INCOME TAX" means any Tax of general application imposed on income.
"INITIAL NOMINATION" is defined in Clause 4.2(b).
"LICENSED RETAILER" means a holder of a Retail Licence or a person who is
exempted from the requirement to obtain a Retail Licence under section 48G of
the Act.
"M", "M+1" and "M-1" are defined in Clause 6.2.
"MAQ" is defined in Clause 4.7(c).
"MARKET COSTS" means all charges, fees and payments payable to VENCorp by Market
Participants under the MSO Rules.
"MARKET MONTH" means period of time commencing at 9.00am Eastern Standard Time
on the first day of any calendar month and ending at 9.00am Eastern Standard
Time on the first day of the following calendar month.
"MARKET PARTICIPANT" is defined in the Act.
"MASTER AGREEMENT" means the master agreement between Gascor, the Retailers and
RCo entered into in December 1998 relating to their rights and obligations in
respect of the Principal Contract.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on:
(a) the financial condition of Gascor;
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(b) the rights of Gascor under the Principal Contract, any Relevant
Agreement or the Guarantee; or
(c) the ability of Gascor to perform any of its obligations under the
Principal Contract or any of the Relevant Agreements or any statutory
or regulatory obligation including any obligation under Gascor's
Retail Licence.
"MATERIAL FINANCIAL DEFAULT" means the occurrence of one or more Financial
Defaults where the aggregate amount of money due is at least [THIS PARAGRAPH
CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.].
"MDQ" means the maximum daily quantity of Contract Gas, expressed in TJ/Day,
which (subject to Clause 7.4 of the Master Agreement and Clause 4.6 of this
Agreement) the Agent is entitled to nominate and take pursuant to this Agreement
on any Day.
"METER" means an instrument that measures the quantity of gas passing through it
and includes associated equipment attached to the instrument to log measured
data and to filter, control or regulate the flow of gas.
"MINIMUM QUANTITY DEFAULT" means a failure by the Agent to observe or perform
any obligation under Clause 4.8 of this Agreement.
"MONEY" includes cash, cheques and any form of immediately available funds.
"MONTH" means a period of time commencing with the beginning of the 1st day of
any calendar month and ending at the end of the last day of that calendar month.
"MONTHLY ADDITIONAL MDQ INSTALMENT" means, in respect of a Month, the amount in
respect of additional MDQ for that Month as determined in accordance with Clause
6.7.
"MONTHLY CLAIM FORM" means a written statement containing the information
specified in Clause 6.8(d) and otherwise complying with paragraph 3 of Schedule
6.
"MONTHLY INSTALMENTS" means any Statement other than an Annual Statement.
"MSO RULES" means the Market and System Operation Rules made by Order-in-Council
under section 48N of the Act.
"MULTINET" means Multinet Gas Pty Ltd (ACN 079 088 930).
"NATURAL GAS" means a naturally occurring mixture of one or more hydrocarbons
being predominantly methane which normally exists in a gaseous state at 101.325
kilopascals and at a temperature of 15 degrees Centigrade together with one or
more of hydrogen sulphide, nitrogen, helium, carbon dioxide or other
constituents.
"NET RECEIVABLES" is defined in Clause 6.13(b).
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"NON-DEFAULTING PARTY" means:
(a) Gascor, in the case of a Default by the Agent; and
(b) the Agent, in the case of a Default by Gascor.
"NON-FINANCIAL DEFAULT" means a Party's failure to observe or perform any
obligation under this Agreement which is not a Financial Obligation or an
obligation under Clause 4.8 while that obligation is not suspended by an event
of Force Majeure.
"OFF SPECIFICATION GAS" means gas which does not comply with the Gas
Specifications.
"OPERATING ACCOUNT" is defined in Clause 3.2(f)(1)(A).
"ORG" is defined in the Act.
"PARTY" means a party to this Agreement.
"PERFORMANCE AUDITOR" is defined in the Master Agreement.
"PJ" means petajoules, 1 petajoule being equal to 1,000,000 GJs.
"POINT OF DELIVERY" is defined in the Principal Contract.
"PRINCIPAL CONTRACT" is defined in Recital B.
"PRINCIPAL CONTRACT FORCE MAJEURE" is defined in Clause 11.2(a).
"PRIOR GAS" is defined in Clause 3.2(n)(2).
"PRRT" means any Tax imposed or assessed under the Petroleum Resource Rent Tax
▇▇▇ ▇▇▇▇ or the Petroleum Resource Rent Tax Assessment ▇▇▇ ▇▇▇▇.
"QA" is defined in Clause 6.4(a).
"QB" is defined in the Agent's Sub-sales Agreement.
"QEST" is defined in Clause 6.4(a)(2).
"QT" is defined in Clause 6.4(a)(1).
"QUARTER" means a period of 3 Months commencing at the beginning of the first
day of January, April, July or October in any calendar year.
"RCO" means Gas Release Co Pty Ltd (ACN 079 089 286) of ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇.
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"REASONABLE AND PRUDENT OPERATOR" means a person who exercises that degree of
skill, diligence, care, prudence and foresight that would reasonably and
ordinarily be exercised by skilled, diligent, prudent and experienced operators
under similar circumstances and conditions in accordance with all applicable
laws, regulation and standards.
"RECEIVABLES" means the amounts due to Gascor from Gascor Customers for the sale
of Gas (including, without limitation, Third Party Gas) and in respect of
Related Charges.
"REFUNDABLE ADVANCE" means an amount of money paid by a Gascor Customer in
accordance with the Customer Service Code as security for that Customer
defaulting on payment of a ▇▇▇▇ for the sale of Gas.
"RECEIVABLES" means the amounts due to Gascor from Gascor Customers for the sale
of Gas (including, without limitation, Third Party Gas) and in respect of
Related Charges.
"REFUNDABLE ADVANCE" means an amount of money paid by a Gascor Customer in
accordance with the Customer Service Code as security for that Customer
defaulting on payment of a ▇▇▇▇ for the sale of Gas.
"RELATED CHARGES" means all of the charges and fees paid by Gascor Customers in
respect of:
(a) the billing and collection of amounts payable in respect of Gas
purchased;
(b) the installation, maintenance, reading or testing of Meters; and
(c) local capacity charges (being charges recovered from a Customer in
cases where the Customer is required to make a contribution to the
cost of connection before a service is connected) including, without
limitation, charges and fees of the type listed in Schedule 9.
"RELATED COMPANY" is defined in the Master Agreement.
"RELEASE GAS OPTION" is defined in the Master Agreement.
"RELEVANT AGREEMENT" is defined in the Master Agreement.
"RELEVANT REGULATOR" means ORG or ACCC.
"RELEVANT SHORTFALL" is defined in the Principal Contract.
"RESERVES SURPLUS" is defined in the Principal Contract.
"RESIDENTIAL CUSTOMER" is defined in the Customer Service Code.
"RESTRICTED CUSTOMER" means a Transmission Company (other than VENCorp).
"RETAILERS" means the Agent, Ikon Energy Pty Ltd (ACN 079 089 553) and Energy 21
Pty Ltd (ACN 079 089 213) (each a "RETAILER").
11
"RETAIL LICENCE" means a licence to sell gas granted under section 48E of the
Act (excluding a new areas licence within the meaning of section 6B of the Act).
"RETAIL LICENCE DEFAULT" occurs if the Retail Licence of the Agent is revoked by
ORG.
"RETAINED PROFIT" is defined in Part 1 of Schedule 3.
"SALES CONTRACT" means a contract in writing executed by or on behalf of Gascor
and a Gascor Customer for the sale of Gas by Gascor to that Gascor Customer,
including any such contract entered into by Gascor prior to the date of this
Agreement or entered into by the Agent as agent for Gascor before, on or after
the date of this Agreement.
"SALES GAS" means Natural Gas which has been processed and is of marketable
quality.
"SALES REVENUE" means the revenue derived from the sale of Gas by the Agent on
behalf of Gascor as determined in accordance with the Accounting Policies.
"SECOND INSTALMENT" is defined in Clause 6.6(b).
"SECOND INTERIM STATEMENT" is defined in Clause 6.8(c).
"SECOND TIER CONTESTABLE CUSTOMER" means a Contestable Customer which has
transferred from one Licensed Retailer to another Licensed Retailer.
"SELLER'S DEFAULT" is defined in the Master Agreement.
"SELLERS" means collectively Esso and BHP (each a "SELLER").
"SELLERS' PLANT" is defined in the Principal Agreement.
"SELLERS' SALES" is defined in the Master Agreement.
"SERVICES" means the services to be provided by the Agent under this Agreement
as specified in Schedule 1.
"SOLVENCY DEFAULT" means the occurrence of any one or more of the following in
respect of the Agent or Gascor:
(a) an order being made or a resolution being passed for the winding up of
or dissolution without winding up of the Party unless the order or
resolution is for the purpose of reconstruction or amalgamation under
a scheme to which the other Party has given consent; or
(b) the Party enters into any arrangement, reconstruction or composition
with or for the benefit of its creditors with the exception of a
reconstruction or amalgamation of a Party while solvent.
12
"SOU CUSTOMER" means any person identified in Schedule 9 to the Principal
Contract.
"STATE" means the State of Victoria.
"STATEMENT" means a First Interim Statement, a Second Interim Statement, a
Monthly Claim Form or an Annual Statement.
"STRATUS" means Stratus Networks Pty Ltd (ACN 079 089 099).
"SUB-SALES AGREEMENT" means, in relation to a Retailer or RCo, the agreement
entered into on or about the date of this Agreement between Gascor and that
Retailer or RCo relating to the supply by Gascor, and purchase by the Retailer
or RCo, of gas.
"SUPPLY POINT" has the same meaning as in the Act.
"TARIFF ORDER" means the Order-in-Council made under section 48A of the Act
regulating certain gas industry tariffs and charges (other than the December
1997 Tariff Order).
"TARIFFED SERVICES" has the same meaning as in the December 1997 Tariff Order.
"TAX" means a royalty, tax, rate, duty, levy or charge levied or imposed by the
Commonwealth of Australia, the State or any other governmental authority in
Australia, and, without limiting the generality of the foregoing, includes, if
levied or imposed by the Commonwealth of Australia, the State or any other
governmental authority in Australia, a Carbon Tax, sales, tax, GST and PRRT.
"THIRD PARTY GAS" means any Gas which the Agent has purchased or agreed to
purchase as principal from a person other than Gascor.
"TJ" means terajoules, 1 terajoule being equal to 1,000 GJ.
"TLPG" means tempered liquefied petroleum gas, being a mixture of vaporised
commercial propane and air.
"TRANSITION AGREEMENT" means the agreement entered into on or about the date of
this Agreement between Gascor and the Agent relating to the termination of the
interim agency agreement between Gascor and the Agent dated 11 December 1997.
"TRANSMISSION COMPANY" means:
(a) Transmission Pipelines Australia Pty Ltd (ACN 079 089 268);
(b) Transmission Pipelines Australia (Assets) Pty Ltd (ACN 079 136 413);
or
(c) VENCorp.
"UNDELIVERED GAS" is defined in Clause 3.2(c)(3).
"VENCORP" means the Victorian Energy Networks Corporation established under
Division 2A of Part 2 of the Act.
13
"WESTAR" means Westar Pty Ltd (ACN 079 089 008).
"WORKING DAY" means any day other than a Saturday or Sunday on which banks are
open for general banking business in the State.
--------------------------------------------------------------------------------
2. COMMENCEMENT
--------------------------------------------------------------------------------
Subject to the terms of the Transition Agreement, the terms and provisions of
this Agreement take effect from the date of this Agreement.
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3. APPOINTMENT OF AGENT
--------------------------------------------------------------------------------
3.1 APPOINTMENT
Gascor appoints the Agent:
(a) as its exclusive agent to sell Gas to Gascor Customers in the Agency
Area on behalf of Gascor; and
(b) to provide the Services,
and the Agent agrees to act as agent for Gascor and to provide the Services in
accordance with the terms of this Agreement.
3.2 DUTIES OF THE AGENT
(a) Services
(1) In consideration of Gascor's covenants and undertakings
under this Agreement (including Gascor's undertaking to pay
the Commission), the Agent agrees to provide the Services
during the Contract Term.
(2) Subject to Clause 3.2(c)(i), the Agent is entitled to
provide the Services on such terms as the Agent thinks fit.
(b) Ordering and purchasing of Third Party Gas
Subject to Clause 2 of the Master Agreement and Clause 4.8 of this
Agreement, the Agent may satisfy Gascor Customers' requirements for
Gas by purchasing Third Party Gas in its own right and on such terms
as the Agent thinks fit and arranging for the transportation of such
Gas to Gascor Customers.
(c) Authority to bind Gascor
14
(1) Except as permitted by Clause 3.2(c)(ii) or (iii) and
without prejudice to Clause 3.2(m):
(A) the Agent is not authorised to enter into
contracts on behalf of Gascor or bind Gascor in
any way and the Agent must not hold itself out as
authorised to bind Gascor; and
(B) without derogating from Clause 3.2(c)(i)(A), the
Agent is not authorised to enter any contracts on
behalf of Gascor with third parties for the
purpose of enabling the Agent to provide the
Services.
(2) The Agent is authorised to enter into contracts with Gascor
Customers for the sale of Gas on behalf of Gascor.
(3) If Gascor is deemed to have failed to have delivered to the
Agent under this Agreement any quantity of Contract Gas in
accordance with Clause 7.12 of the Master Agreement
("UNDELIVERED GAS"), the Agent may purchase on behalf of
Gascor a quantity of Gas (other than Contract Gas)
("ALTERNATE GAS") in lieu of all or part of the Undelivered
Gas.
(4) If the Agent purchases Alternate Gas on behalf of Gascor
pursuant to Clause 3.2(c)(iii), the Agent must pay on behalf
of Gascor all costs relating to the purchase and
transportation of the Alternate Gas, provided that Gascor
shall, subject to Clause 13.6 of the Master Agreement,
reimburse the Agent such costs if and to the extent that
Gascor is entitled to recover compensation from the Sellers
under Clause 23.4 of the Principal Contract for the sum of:
(A) the excess cost to Gascor of that quantity of
Alternate Gas over the amount that would have been
paid by Gascor to the Sellers for the quantity of
Undelivered Gas equivalent to that quantity of
Alternate Gas on the basis that the Undelivered
Gas would have been C Market Gas (as defined in
the Principal Contract); and
(B) the net cost or benefit of transporting that
quantity of Alternate Gas.
(5) Gascor shall execute such agreements as the Agent may
reasonably request to enable Gascor to recover compensation
from the Sellers (in the event of a failure by the Sellers
to deliver under the Principal Contract any quantity of Gas
which they are obliged to deliver) in respect of any fixed
costs or direct damages which, if incurred by the Agent,
would not be recoverable by Gascor from the Sellers under
the Principal Contract, provided that the Agent indemnifies
Gascor and keeps Gascor indemnified from and against any
claim, action, damage, loss, liability, cost, charge,
expense, outgoing or payment which Gascor pays, suffers,
incurs or is liable for in connection with entering into
such arrangements or agreements.
15
(d) Terms of sale
(1) The Agent must comply with the Customer Service Code and any
direction or determination made by an ombudsman referred to
in Clause 14.2 of either Party's Retail Licence in relation
to or affecting a Gascor Customer.
(2) The Agent must not:
(A) extend the Billing Cycle which applies to any
Gascor Customer; or
(B) issue a ▇▇▇▇ to a customer (as defined in the
Customer Service Code) in which the specified
pay-by date is:
(i) in the case of a residential customer
(as defined in the Customer Service
Code), more than 10 business days (as
defined in the Customer Service Code)
after the date on which the ▇▇▇▇ was
dispatched (except in accordance with an
instalment plan which the Agent is
required to offer under the Customer
Service Code); or
(ii) in the case of a business customer (as
defined in the Customer Service Code) or
a Contract Customer, more than 30 days
after the date on which the ▇▇▇▇ was
dispatched,
unless:
(C) and to the extent that it is required to do so
under the Customer Service Code and provided the
Parties enter into such arrangements as Gascor
considers necessary to compensate Gascor for any
loss which Gascor may suffer as a result of the
extension of the relevant Billing Cycle or pay-by
date (including without limitation any cost of
borrowings or loss of interest); or
(D) prior to doing so Gascor has agreed (such
agreement not to be unreasonably withheld or
delayed) the basis on which the terms of the
Commission payable by Gascor will be amended to
compensate Gascor for any loss which Gascor may
suffer as a result of the extension of the
relevant Billing Cycle or pay-by date (including
without limitation any cost of borrowings or loss
of interest).
(e) Agency records
The Agent must comply with the provisions of Schedule 6 relating to
the keeping of Agency Records, the provision of financial and other
information and Gascor's audit requirements.
16
(f) Bank accounts
(1) Gascor must establish and maintain:
(A) a separate bank account (the "OPERATING ACCOUNT")
for receipt of payments of less than $50,000; and
(B) a separate bank account (the "CASH MANAGEMENT
ACCOUNT") for receipt of payments greater than or
equal to $50,000,
(together the "DESIGNATED ACCOUNTS") for money paid in
respect of Receivables.
(2) The details of the Designated Accounts are:
(A) Operating Account:
No: 033/001 130 182
Name: Gascor
Bank: Westpac Banking Corporation
Branch: Institutional Banking, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(B) Cash Management Account:
No: 033/001 130 190
Name: Gascor
Bank: Westpac Banking Corporation
Branch: Institutional Banking, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(3) Gascor may, with the consent of the Agent (such consent not
to be unreasonably withheld or delayed), change either or
both of the Designated Accounts.
(4) Subject to Clause 3.2(f)(v), the Agent must not pay into the
Designated Accounts any monies other than Receivables,
Community Services Costs and Refundable Advances.
(5) If at any time the Agent receives a cheque or other form of
payment from the Minister for Youth and Community Services
for an amount representing the aggregate amount owing to the
Agent in respect of Community Services Costs and
17
Administration Costs, the Agent may pay that aggregate
amount into the Designated Accounts, provided that:
(A) that part of the aggregate amount which represents
reimbursement for Administration Costs will remain
the property of the Agent and must be remitted to
the Agent within 10 Working Days after Gascor
receives a notice in writing from the Agent
setting out the relevant amount; and
(B) all interest accrued on the aggregate amount
remains the property of Gascor.
(6) The Agent is only entitled to have access to bank statements
and account balances relating to the Designated Accounts and
is not entitled to appoint signatories to the Designated
Accounts.
(7) Gascor is responsible for paying all bank charges and fees
relating to the Designated Accounts.
(8) Subject to Clause 3.2(i), the Agent is not entitled to any
interest accrued on the Designated Accounts (which interest
remains the property of Gascor).
(g) Receivables
(1) The Agent is authorised to take all reasonable steps, at the
Agent's cost, to collect the Receivables, including without
limitation the commencement and prosecution of legal
proceedings on behalf of and in the name of Gascor, and to
settle any such proceedings on such terms as the Agent
thinks fit.
(2) Gascor must provide such assistance as the Agent may
reasonably request to enable the Agent to collect the
Receivables, provided that the Agent indemnifies Gascor and
keeps Gascor indemnified against any claim, action, damage,
loss, liability, cost, charge, expense, outgoing or payment
which Gascor pays, suffers, incurs or is liable for in
connection with providing such assistance.
(3) The Agent must ensure that all payments made in respect of
Receivables are promptly paid into the Designated Accounts.
(4) The Agent must diligently collect at the Agent's cost all
Receivables accrued as at 30 June 1997 on behalf of Gascor
in accordance with the procedures prescribed by Sections 4
and 5 of the customer Service Code or such other policies
and procedures as Gascor may from time to time agree with
the Agent (such agreement not to be unreasonably withheld or
delayed by either Party).
18
(5) If the Parties agree any other debt collection policies and
procedures as contemplated by Clause 3.2(g)(iv), then those
policies and procedures must be consistent with the Agent's
obligations under the Customer Service Code.
(h) Community service obligations
(1) The Agent must comply with its obligations under the
Community Services Agreement.
(2) The Agent is authorised to give discounts and refunds to,
and waive monies payable by, Gascor Customers for the
purpose of providing community services to eligible Gascor
Customer in accordance with the Community Services
Agreement.
(3) The Agent must account to Gascor for all Community Services
Costs and pay, or procure payment of, all Community Services
Costs into the Designated Accounts.
(i) Refundable Advances
(1) The Agent must ensure that all Refundable Advances are paid
into the Designated Accounts.
(2) If any Refundable Advance is required to be paid or returned
to the relevant Gascor Customer in accordance with the terms
of the Refundable Advance and the Customer Service Code, the
Agent must pay to the relevant Gascor Customer an amount
equal to the Refundable Advance, together with all accrued
interest to which the Gascor Customer is entitled, out of
its own funds.
(3) When a Gascor Customer who has provided a Refundable Advance
ceases to be a Gascor Customer on a Contestability Date,
Gascor must upon request by the Agent pay to the Agent from
the Designated Accounts the amount of that Refundable
Advance together with all interest accrued on that
Refundable Advance at the rate approved from time to time by
ORG under Clause 4.4.3.2 of the Customer Service Code,
provided that any amount of interest on that Refundable
Advance which has previously been taken into account in
calculating the Commission shall not be taken into account
in calculating the amount of interest payable to the Agent
under this Clause 3.2(i)(iii).
(4) If during a Month the Agent pays to a Gascor Customer in
accordance with Clause 3.2(i)(ii) an amount equal to a
Refundable Advance, together with all interest accrued on
that Refundable Advance at the rate approved from time to
time by ORG under Clause 4.4.3.2 of the Customer Service
Code, the amount of the Commission payable to the Agent in
respect of that Month shall be adjusted to take account of
such payment.
19
(5) If the Agent pays a Gascor Customer additional interest as
contemplated by Clause 4.4.4.2 of the Customer Service Code,
the Agent must pay that additional interest out of its own
funds and without recourse to Gascor.
(j) Good faith
The Agent must in all matters relating to this Agreement and the
Business act in good faith towards Gascor.
(k) Compliance
The Agent must comply with the terms of its Retail Licence and the
terms of Gascor's Retail Licence insofar as they relate to Gascor
Customers and otherwise conduct the Business in accordance with all
laws, by-laws and regulations applicable to the Business.
(l) Payment of costs and expenses
The Agent is responsible for the payment of all costs and expenses of,
and incidental to, the carrying on of the Business (including without
limitation all Market Costs, all transmission or distribution charges
and all cost of purchasing Third Party Gas and Alternate Gas).
(m) Gascor's contractual rights and obligations
(1) The Agent is authorised to exercise all Gascor's rights and
discretions under any contract or arrangement with a Gascor
Customer relating to the sale of gas (whether such contract
or arrangement was entered into Gascor as principal prior to
11 December 1997 or entered into by the Agent as agent of
Gascor after that date).
(2) The Agent must perform in all respects all of Gascor's
obligations under any contract or arrangement with a Gascor
Customer relating to the sale of gas (whether such contract
or arrangement was entered into by Gascor as principal prior
to 11 December 1997 or entered into by the Agent as agent of
Gascor after that date).
(3) The Agent must indemnify Gascor and keep Gascor indemnified
from and against any and all loss, damage, liability, cost
or expense suffered or incurred by Gascor as a result of, or
in connection with:
(A) any breach of this Agreement by the Agent,
including any act, neglect or default of the
Agent's agents or employees;
(B) any action or claim by any Gascor Customer against
Gascor in respect of any breach or non-performance
of a Sales Contract or any obligation to supply
Gas; or
20
(C) the exercise by the Agent on behalf of Gascor of
the rights or discretions referred to in clause
3.2(m)(1),
save to the extent that Gascor would not have incurred such
a liability had it claimed exemption from liability under
section 32 of the Act.
(n) Apportionment of Receivables
(1) When a Gascor Customer whose Meter is capable of recording
metering data on a daily basis and storing data in a data
logger ceases to be a Gascor Customer on a Contestability
Date and becomes a Customer of the Agent on that
Contestability Date, the Agent must within 60 days after
that Contestability Date, read that customer's Meter and
issue a ▇▇▇▇ to that customer in respect of the unbilled Gas
supplied by the Agent to that customer on behalf of Gascor
prior to the relevant Contestability Date.
(2) When a Gascor Customer whose Meter does not record metering
data on a daily basis and cannot store data in a data logger
ceases to be a Gascor Customer on a Contestability Date and
becomes a Customer of the Agent on that Contestability Date,
the Agent must determine the quantity of Gas supplied by the
Agent to that Gascor Customer on behalf of Gascor prior to
that Contestability Date ("PRIOR GAS") by apportioning the
quantity of Gas billed after that Contestability Date which
relates to a period which includes that Contestability Date
between Gascor and the Agent in proportion to the number of
days in that period prior to and including the
Contestability Date and the number of days in that period
after the Contestability Date respectively.
(3) In relation to the apportionment under Clause 3.2(n)(ii),
only that proportion of the Receivables which relates to
Prior Gas is required to be deposited by the Agent in the
Designated Accounts pursuant to Clause 3.2(g).
(4) When a Gascor Customer ceases to be a Gascor Customer on a
Contestability Date and:
(A) becomes a Customer of a person other than the
Agent on that Contestability Date; or
(B) having become a Customer of the Agent on that
Contestability Date ceases to be a Customer of the
Agent before the quantity of Gas supplied by the
Agent to that Customer can be determined under
Clause 3.2(n)(i) or (ii),
the Parties must agree the basis on which the Receivables
relating to unbilled Gas supplied to the Gascor Customer on
behalf of Gascor prior to the Contestability Date shall be
determined. If the Parties cannot agree on such basis within
30 days of the Contestability Date, either Party may refer
the matter to Gascor's Accountants for determination, whose
determination shall be final and binding on the Parties. Any
21
such determination must be consistent with the relevant
provisions of the MSO Rules, the Distribution System Code
and the Customer Service Code.
3.3 DUTIES OF GASCOR
(a) Gascor not to sell Gas to Gascor Customers otherwise than through the
Agent
Gascor undertakes that it will not, during the Contract Term, sell Gas
to Gascor Customers otherwise than through the Agent.
(b) Payment of Commission
Gascor must pay the Commission to the Agent on the due dates in
accordance with Clause 6.
(c) Assignment of Sales Contracts
(1) The Parties acknowledge that, subject to Clause 3.3(c)(5),
when a Customer in the Agency Area ceases to be a Gascor
Customer, the Agent will cease to sell Gas to that Customer
as agent for Gascor and that, to the extent that the Agent
continues to sell Gas to that Customer, it will do so as
principal.
(2) Subject to Clause 3.3(d)(2), Gascor must, if it is able to
do so, assign to the Agent, with effect from each
Contestability Date, all Gascor's rights, title and interest
in and to any Sales Contract with a Customer who ceases to
be a Gascor Customer on that Contestability Date but
continues to be supplied Gas by the Agent, save for any
Receivables owed by that Customer as at that Contestability
Date (which Receivables will remain the property of Gascor).
(3) If the consent of the Customer is required for an assignment
under Clause 3.3(c)(2), then the Agent must use its best
endeavours to obtain that consent.
(4) An assignment under Clause 3.3(c)(2) must be made by
assignment in the form of the deed of assignment set out in
Schedule 4 or such other form as Gascor may approve.
(5) If a Sales Contract referred to in Clause 3.3(c)(2) cannot
be assigned to the Agent (whether because the consent of the
relevant Customer cannot be obtained or for any other
reason) or cannot be terminated by Gascor or is to remain in
effect following an election by Gascor not to exercise its
right of termination:
(A) the Agent must:
(i) to the extent it lawfully can, perform
all the obligations of Gascor under the
Sales Contract; and
22
(ii) indemnify Gascor against any claim,
action, damage, loss, liability, cost,
charge, expense, outgoing or payment
suffered, paid or incurred by Gascor
after the relevant Contestability Date
under or in relation to the Sales
Contract; and
(B) Gascor must:
(i) if the Agent cannot lawfully exercise a
right of Gascor under the Sales
Contract, at the request and expense of
the Agent, exercise that right; and
(ii) within 10 Working Days after receipt pay
to the Agent any amount or account to
the Agent for the value of any other
benefit (after deduction of Gascor's
reasonable expenses) it receives after
the relevant Contestability Date in
respect of the Sales Contract.
(6) If Gascor so requests, the Agent must use its reasonable
endeavours to ensure that a Contract Customer whose Sales
Contract has been assigned in accordance with Clause
3.3(c)(2) and whose:
(A) Sales Contract is for a term of at least [THIS
PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION WHICH
HAS BEEN OMITTED, BUT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.] years; or
(B) payments for Gas sold and supplied to it in a year
under its Sales Contract exceed or could exceed an
aggregate amount of [THIS PARAGRAPH CONTAINS
CONFIDENTIAL INFORMATION WHICH HAS BEEN OMITTED,
BUT FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.],
and who ceases to be a Gascor Customer but continues to be a
Customer of the Agent after the relevant Contestability Date
enters into a deed of release in the form set out in
Schedule 5 or such other form as Gascor may approve,
releasing Gascor from all obligations and liabilities which
Gascor may have under the Sales Contract with that Customer.
(d) Termination of Sales Contracts
(1) Gascor may, if it is entitled to do so by the terms of the
relevant Sales Contract, terminate with effect from the
relevant Contestability Date, any Sales Contract with a
Customer who ceases to be a Gascor Customer on that
Contestability Date regardless of whether that Gascor
Customer continues to be supplied Gas by the Agent.
23
(2) Clause 3.3(c)(2) shall not apply to any Sales Contract which
Gascor elects to terminate in accordance with Clause
3.3(d)(1).
(3) Clause 3.3(c)(5) shall apply in relation to a Sales Contract
which Gascor has elected to terminate in accordance with
Clause 3.3(d)(1) for the period from the relevant
Contestability Date to the date on which the Sales Contract
is terminated.
(e) Good Faith
Gascor must in all matters relating to this Agreement and the Business
act in good faith towards the Agent.
3.4 CONDUCT OF LITIGATION
The Parties must comply with their obligations in relation to the conduct of
litigation as set out in Schedule 7.
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4. SUPPLY OF GAS
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4.1 OBLIGATIONS TO DELIVER AND TAKE
(a) Subject to the provisions of this Agreement and the Master Agreement,
on each Day during the Contract Term:
(1) Gascor must make available for delivery at the Point of
Delivery:
(A) the quantity of Contract Gas specified in the
Agent's Daily Nomination for that Day; or
(B) if different from Clause 4.1(a)(1)(A) including,
without limitation, because the Agent has
submitted an amended nomination under Clause
4.3(b), Clause 4.3(d) or Clause 4.5(b), the
quantity of Contract Gas which Gascor would have
been required to allocate to the Agent on that Day
in accordance with Clause 7 of the Master
Agreement if the Sellers had made available for
delivery to Gascor on that Day the quantity of Gas
which the Sellers were required to make available
to Gascor on that Day in accordance with the
Principal Contract; and
(2) the Agent must take at the Point of Delivery all Contract
Gas which is allocated to the Agent and made available for
delivery under this Agreement in accordance with Clause 7 of
the Master Agreement and Clause 6.4 of this Agreement.
24
(b) Gascor must submit nominations to the Sellers in accordance with the
terms of the Principal Contract which include the quantities of
Contract Gas nominated by the Agent in accordance with Clauses 4.2,
4.3 and 4.5(b).
(c) Gascor shall not be required to purchase Gas from any person (other
than a purchase from a Seller under the Principal Contract) in order
to satisfy its obligations to the Agent under this Agreement.
4.2 INITIAL NOMINATIONS
(a) (1) Subject to Clause 7.3 of the Master Agreement, on or
before 15 December in each Contract Year the Agent must
provide Gascor with its best estimates, as a Reasonable and
Prudent Operator, of the requirements of Gascor Customers in
the Agency Area for Contract Gas for the following Contract
Year (expressed, in quantities for each Gas Month).
(2) Subject to Clause 7.3 of the Master Agreement, on or before
the penultimate Working Day of each Gas Month during the
Contract Term, the Agent must provide Gascor with its
updated best estimates, as a Reasonable and Prudent
Operator, of the requirements for Contract Gas of Gascor
Customers in the Agency Area for each of the following three
Gas Months (expressed in quantities for each Day).
(b) Subject to Clause 7.3 of the Master Agreement, no later than 11 days
(or, if that day is not a Working Day, then the immediately preceding
Working Day) before the commencement of each Gas Month during the
Contract Term, the Agent must nominate the total quantity of Contract
Gas which the Agent requires under this Agreement for the following
Gas Month and for each Day of that Gas Month. The total quantity
nominated for a Day under this Clause 4.2(b), or deemed to have been
nominated for a Day under Clause 4.2(d), will be the "INITIAL
NOMINATION" for that Day.
(c) The Agent must ensure that each Initial Nomination, and any variation
pursuant to Clause 4.3, will be made in good faith and when given will
be the Agent's best estimate as a Reasonable and Prudent Operator of
its requirements for Contract Gas to be delivered under this Agreement
for the relevant Gas Month or Day (as the case may be).
(d) If the Agent fails to submit a nomination under Clause 4.2(b) for a
Gas Month and for each Day of that Gas Month, the Agent will be deemed
to have nominated:
(1) in respect of the Gas Month, a quantity of Contract Gas
equal to the quantity of Contract Gas (if any) which the
Agent estimated under Clause 4.2(a)(1) would be required for
that Gas Month; and
(2) in respect of each Day of the Gas Month, a quantity of
Contract Gas calculated by dividing the quantity of Contract
Gas (if any) which the Agent estimated under Clause
25
4.2(a)(1) would be required for the Gas Month by the number
of Days in the Gas Month.
(e) If the Agent fails to provide Gascor with its best estimates for a
Contract Year in accordance with Clause 4.2(a)(1), the Agent will be
deemed to have estimated that the requirements of Gascor Customers in
the Agency Area for Contract Gas in that Contract Year will be equal
to zero.
4.3 VARIATION OF INITIAL NOMINATIONS
(a) (1) (A) Subject to Clause 7.3 of the Master
Agreement, not later than 10.30am each Day, the
Agent may notify Gascor of its requirements for
Contract Gas to be delivered under this Agreement
for the following Day, which may differ from and
vary the Initial Nomination.
(B) If the Agent fails to notify Gascor in accordance
with Clause 4.3(a)(1)(A), then the Agent's
requirements for Contract Gas to be delivered for
the following Day will be taken to be the same as
those nominated under Clause 4.2(b) or deemed to
have been nominated under Clause 4.2(d).
(2) Gascor must notify the Sellers of its requirements for
Contract Gas to be delivered under the Principal Contract
for the following Day after 10.30 am and by no later than
11.00 am on each Day on which Gascor receives a notice from
the Agent in accordance with Clause 4.3(a)(1).
(3) If, on any Day, Gascor receives a notice from:
(A) the Agent in accordance with Clause 4.3(a)(1);
(B) any other Retailer in accordance with Clause
4.3(a)(1) of its Agency Agreement;
(C) the Agent in accordance with Clause 3.3(a)(1) of
its Sub-Sales Agreement;
(D) any other Retailer or RCo in accordance with
Clause 3.3(a)(I) of its Sub-sales Agreement; or
(E) the Agent or any other Retailer or RCo in
accordance with Clause 7.3 of the Master
Agreement,
Gascor must, subject to the terms of the Principal Contract,
notify the Sellers of its requirements for gas in accordance
with Clause 5.3(a) of the Principal Contract, which reflect
the aggregate quantity of gas for the following Day
nominated by the Agent under this Agreement and its
Sub-sales Agreement and all other Retailers under their
26
respective Agency Agreements and all other Retailers and RCo
under their respective Sub-sales Agreements.
(b) Subject to Clause 7.3 of the Master Agreement, the Agent may provide
up to three amended nominations during each of the following time
periods in respect of its total requirements for Contract Gas on a
Day:
(1) before 10.30am on that Day; and
(2) after 10.30am but before 2.30pm on that Day; and
(3) after 2.30pm but before 7.30pm on that Day, any of which may
vary the Initial Nomination.
(c) If Gascor receives one or more amended nominations from the Agent
under Clause 4.3(b), Gascor must provide to the Sellers:
(1) after 10.30 am but before or about 11.00am on a Day, a
nomination which includes the quantity of Contract Gas
specified in the last amended nomination (if any) received
by Gascor from the Agent on that Day pursuant to Clause
4.3(b)(1);
(2) after 2.30 pm but before or about 3.00pm on a Day, a
nomination which includes the quantity of Contract Gas
specified in the last amended nomination (if any) received
by Gascor from the Agent on that Day pursuant to Clause
4.3(b)(2); and
(3) after 7.30 pm but before or about 8.00pm on a Day, a
nomination which includes the quantity of Contract Gas
specified in the last amended nomination (if any) received
by Gascor from the Agent on that Day pursuant to Clause
4.3(b)(3).
(d) Subject to Clause 7.3 of the Master Agreement, if because of matters
connected with the safety or integrity of the gas transportation
system it is necessary or desirable for the Agent to amend its
nomination for a Day, the Agent at any time in the Day may give such
an amended nomination to Gascor (irrespective of whether the Agent has
previously given amended nominations on that Day pursuant to Clause
4.3(b)). Any amended nomination given pursuant to this Clause 4.3(d)
may only decrease the Agent's then prevailing nominated quantity of
Contract Gas for the Day. If an amended nomination is given pursuant
to this Clause 4.3(d), the Agent must as soon as practicable
thereafter provide reasons to Gascor as to why the amended nomination
was necessary or desirable.
(e) The Agent acknowledges that the Sellers are only required to use their
reasonable endeavours to make Contract Gas available for delivery on a
Day in accordance with amended nominations which Gascor may give on
that Day under Clause 5.3(b) or 5.3(c) of the Principal Contract.
27
(f) If, on any Day, Gascor receives an amended nomination from:
(1) the Agent under Clause 4.3(b), 4.3(d) or 4.5(b) of this
Agreement;
(2) any other Retailer under Clause 4.3(b), 4.3(d) or 4.5(b) of
its Agency Agreement;
(3) the Agent under Clause 3.3(b), 3.3(d) or 3.5(b) of its
Sub-sales Agreement;
(4) any other Retailer or RCo under Clause 3.3(b), 3.3(d) or
3.5(b) of its Sub-sales Agreement; or
(5) the Agent or any other Retailer under Clause 7.3 of the
Master Agreement,
Gascor must, subject to the terms of the Principal Agreement, submit
an amended nomination to the Sellers under Clause 5.3(b), Clause
5.3(c) or Clause 5.5(d) of the Principal Contract (as the case may
be), which reflects the aggregate quantity of Contract Gas for the Day
nominated by the Agent under this Agreement and its Sub-sales
Agreement and all other Retailers under their respective Agency
Agreements and all other Retailers and RCo under their respective
Sub-sales Agreements.
4.4 MEANING OF "DAILY NOMINATION"
(a) The "Daily Nomination" for a Day means:
(1) the Initial Nomination for that Day unless a notice of
variation of that Initial Nomination has been given pursuant
to Clause 4.3(a)(1)(A); or
(2) where a notice has been given pursuant to Clause
4.3(a)(1)(A) or Clause 4.5(b) varying the Initial Nomination
for that Day, the Initial Nomination as so varied.
(b) The Agent may nominate a Daily Nomination for a Day notwithstanding:
(1) that the Sellers have suspended deliveries of Contract Gas
pursuant to a request by Gascor under Clause 16.2(c) of the
Principal Contract; or
(2) Principal Contract Force Majeure.
4.5 DAILY QUANTITIES
(a) The maximum quantity of Contract Gas of which the Agent is entitled to
require delivery on any Day of the Contract Term is, subject to Clause
7.4 of the Master Agreement, the MDQ in effect for that Day.
(b) If Gascor receives a notice from the Sellers pursuant to Clause 5.5(d)
of the Principal Contract that the aggregate of the quantity of
Contract Gas nominated by Gascor for the following Day and the
quantity nominated for that following Day pursuant to Sellers' Sales
28
will be less than 100 TJ and that Sellers' Plant may be shut down on
that following Day, Gascor must give the Agent oral or written notice
of that fact as soon as reasonably practicable. The Agent may amend
its Daily Nomination for the following Day no later than 10 minutes
before the expiration of the hour afforded to Gascor under Clause
5.5(d) of the Principal Contract in which to amend Gascor's daily
nomination.
(c) If Gascor is informed by the Sellers pursuant to Clause 5.5(b) of the
Principal Contract of the Sellers' best estimate of the quantity of
Gas which the Sellers will be able to deliver on the Day following the
Day in respect of which the Daily Nomination referred to in that
Clause is given, Gascor must give the Agent oral or written notice of
that fact as soon as reasonably practicable after being so informed by
the Sellers.
(d) If the Agent nominates for delivery on a Day a quantity of Contract
Gas which exceeds the MDQ in effect for that Day, the Agent will be
deemed to have nominated a quantity of Contract Gas equal to that MDQ.
4.6 MDQ
(a) Subject to adjustment in accordance with this Clause 4.6, the
following NMQ rates will apply:
(1) from the date of this Agreement up to and including [THIS
PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN
OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.]: [THIS PARAGRAPH CONTAINS CONFIDENTIAL
INFORMATION WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.]TJ/Day; and
(2) from and including [THIS PARAGRAPH CONTAINS CONFIDENTIAL
INFORMATION WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.] to the end of
the Contract Term: [THIS PARAGRAPH CONTAINS CONFIDENTIAL
INFORMATION WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.] TJ/Day.
(b) MDQ may be adjusted:
(1) if the Agent's Allocated Quantity is reduced to zero, in
accordance with Clause 3.6 of the Master Agreement;
(2) if another Retailer's Allocated Quantity is reduced to zero,
in accordance with Clause 3.6 of the Master Agreement;
(3) to take account of Sellers' Sales, in accordance with
Clauses 4.5 and 4.6 of the Master Agreement;
(4) to take account of any Reserves Shortfall or Reserves
Surplus, in accordance with Clause 5.4 of the Master
Agreement;
29
(5) if Gascor exercises the Release Gas Option, in accordance
with Clause 6.1(b)(3) of the Master Agreement;
(6) in respect of each Ecogen MDQ Reduction Month, in accordance
with Clause 6.2(a) of the Master Agreement;
(7) in accordance with Clause 7.4(c), (d) and (e) of the Master
Agreement; and
(8) in accordance with Clause 3.5 of the Master Agreement.
4.7 AQ
(a) Subject to Clause 4.7(b), AQ will be [THIS PARAGRAPH CONTAINS
CONFIDENTIAL INFORMATION WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.] PJ/year for each
Contract Year.
(b) AQ may be adjusted:
(1) in accordance with Clauses 3.3(a) or (b) of the Master
Agreement;
(2) if another Retailer's AQ is reduced in accordance with
Clause 3.3(a)(1), (a)(2) or (b) of the Master Agreement, in
accordance with Clause 3.4 of the Master Agreement;
(3) as a result of a Reserves Shortfall or Reserves Surplus, in
accordance with Clause 5.5 of the Master Agreement;
(4) if Gascor exercises the Release Gas Option, in accordance
with Clause 6. 1 (b)(1) of the Master Agreement; and
(5) in accordance with Clause 7.6 of the Master Agreement.
(c) Subject to Clauses 4.5 and 4.7(d) of this Agreement and Clauses 7.5
and 7.10 of the Master Agreement, the Agent may take a quantity of Gas
in excess of AQ in any Contract Year up to the maximum annual quantity
("MAQ") set out against that Contract Year in column 2 of Schedule 8.
(d) MAQ may be adjusted:
(1) with effect from the Allocation Day, in accordance with
Clause 3.2(a) of the Master Agreement;
(2) if the Agent's AQ is reduced in accordance with Clause
3.3(a)(1) or (a)(2) of the Master Agreement, in accordance
with Clause 3.2(b) of the Master Agreement;
(3) if the Agent's Allocated Quantity is reduced to zero, in
accordance with Clause 3.2(c) of the Master Agreement;
30
(4) if another Retailer's AQ is reduced, in accordance with
Clause 3.3(a)(l) or (a)(2) of the Master Agreement, in
accordance with Clause 3.2(d) of the Master Agreement;
(5) as a result of a Reserves Shortfall or Reserves Surplus, in
accordance with Clause 5.6 of the Master Agreement;
(6) if Gascor exercises the Release Gas Option in accordance
with Clause 6.1 (b)(2) of the Master Agreement; and
(7) in accordance with Clause 7.5(b) of the Master Agreement.
4.8 MINIMUM QUANTITY OF GAS IN A CONTRACT YEAR
(a) Subject to Clause 4.8(b), in each Contract Year the Agent must take
under this Agreement a quantity of Contract Gas equal to the quantity
of Contract Gas set out in column 2 of Schedule 11 opposite that
Contract Year less the quantity of Gas delivered to and taken by the
Agent in that Contract Year under its Sub-sales Agreement.
(b) The Agent will be relieved of its obligation under Clause 4.8(a) to
take a minimum quantity of Contract Gas in a Contract Year if the
aggregate quantity of Contract Gas taken in that Contract Year by all
Retailers under their respective Agency Agreements and the aggregate
quantity of Gas taken in that Contract Year by all Retailers and RCo
under their respective Sub-sales Agreements is not less than the
quantity of Gas set out in column 3 of Schedule 11 opposite that
Contract Year.
--------------------------------------------------------------------------------
5. PERIOD OF AGREEMENT
--------------------------------------------------------------------------------
5.1 CONTRACT TERM
The Contract Term will commence on the date of this Agreement and, subject to
Clauses 6.13, 14 and 20 of this Agreement and Clauses 12, 17 and 18 of the
Master Agreement, will continue until the date on which all Customers in the
Agency Area have become Contestable Customers in accordance with section 6B of
the Act.
5.2 ACCRUED RIGHTS
Upon expiry of the Contract Term, the Parties will be discharged from any
further obligations or liabilities under this Agreement without prejudice to any
rights, obligations or liabilities which have accrued up to that date.
31
--------------------------------------------------------------------------------
6. COMMISSION
--------------------------------------------------------------------------------
6.1 OBLIGATION TO PAY COMMISSION
Gascor agrees to pay the Agent Commission in accordance with the provisions of
this Clause 6.
6.2 INTERPRETATION
In this Clause 6:
"M" means, in relation to a calculation of Commission or an amount payable
on account of Commission, the Month in respect of which the
calculation is made and in respect of which the First Instalment and
the Second Instalment are paid;
"M+1" means, in relation to a calculation of Commission or an amount payable
on account of Commission, the Month following the Month in respect of
which the calculation is made, being the Month in which the Commission
must be paid; and
"M-1" means, in relation to a calculation of Commission or an amount payable
on account of Commission, the Month prior to the Month in respect of
which the calculation is made.
6.3 CALCULATION OF COMMISSION
(a) The commission (the "COMMISSION") payable to the Agent in respect of a
Month during the Contract Term and each of the [THIS PARAGRAPH
CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN OMITTED, BUT FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.] Months after
the expiry of the Contract Term will be calculated as follows:
[THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN
OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.]
Where:
C is the amount of the Commission payable to the Agent in
respect of M;
S is the aggregate amount of Money received in relation to
Receivables (including bad debt recoveries and reimbursement
for Community Services Costs but excluding Refundable
Advances) from or on behalf of Gascor Customers (or, in the
case of reimbursement for Community Services Costs, from the
Minister for Youth and Community Services) for the sale of
Gas as recorded in the general ledger for the Designated
Accounts maintained by the Agent on behalf of Gascor for M;
32
G = [THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION WHICH
HAS BEEN OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.]
Where:
QAM-1 is the quantity of Contract Gas deemed to be
delivered to the Agent under this Agreement in the
Gas Month commencing in M-1 as determined in
accordance with Clause 6.4;
PM-1 is the Contract Price for M-1;
MIM is the Monthly Additional MDQ Instalment for M;
RPM is the amount of Retained Profit for M;
N is the amount calculated in respect of M as the sum of:
(a) the amount of Refundable Advances paid or returned
to Gascor Customers by the Agent, or credited to
Gascor Customers' accounts, in relation to bad
debts, in accordance with the Customer Service
Code, in M; and
(b) an amount equal to the interest on the Refundable
Advances which the Agent is required to pay or
return to, or credit to the accounts of, the
relevant Gascor Customers in M as approved by ORG
for the purposes of Clause 4.4.3.2 of the Customer
Service Code.
Z = [THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION WHICH
HAS BEEN OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.]
Where:
T is the aggregate amount paid or returned to Gascor
Customers by the Agent, or credited to Gascor
Customers' accounts, by the Agent in respect of
overpayments in M; and
O is the amount equal to T being the amount of
Commission paid to the Agent in M in respect of
Gascor Customer overpayments.
X is the amount payable either by the Agent (expressed as a
negative number) or to the Agent (expressed as a positive
number) in respect of errors made in one or more prior
months resulting in an over or under payment of the
Commission in respect of those prior months.
33
(b) If, in respect of a Month, the amount of the Commission payable to the
Agent in respect of that Month is calculated in accordance with Clause
6.3(a) to be a negative amount, that negative amount shall be carried
forward and applied in reduction of the amount of Commission payable
to the Agent in respect of the next Month, provided that if the next
Month would commence in the next Contract Year, the negative amount
shall be deemed to be a positive amount due and payable by the Agent
to Gascor in accordance with Clauses 6.8(e)(4) and 6.8(e)(5).
(c) All components of the formula in Clause 6.3(a) must exclude amounts
relating to GST.
6.4 QUANTITY OF GAS DELIVERED UNDER THIS AGREEMENT
(a) The quantity of Contract Gas delivered by Gascor to the Agent under
this Agreement in a Gas Month ("QA") shall be the lesser of:
(1) the total quantity of Contract Gas delivered to the Agent in
respect of that Gas Month as determined in accordance with
Clause7.1(b) of the Master Agreement ("QT"); and
(2) the estimated quantity of Contract Gas supplied by the Agent
to Gascor Customers in the Agency Area in the Market Month
("QEST") commencing in the Month in which that Gas Month
commences, calculated in accordance with the following
formula:
[THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION WHICH HAS
BEEN OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.]
Where:
QS = [THIS PARAGRAPH CONTAINS CONFIDENTIAL
INFORMATION WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.]
QW = [THIS PARAGRAPH CONTAINS CONFIDENTIAL
INFORMATION WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.]
UL = the unaccounted for gas benchmark rate for
Customers at Class A Supply Points, being [THIS
PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION WHICH
HAS BEEN OMITTED, BUT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.] (or such
other rate as may be determined by the Relevant
Regulator)
US = the unaccounted for gas benchmark rate for
Customers at Class. B Supply Points on the
Distribution Pipelines operated by Stratus, being
34
[THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION
WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.] (or such
other rate as may be determined by the Relevant
Regulator)
UT = the unaccounted for gas benchmark rate for
transmission pipelines, being [THIS PARAGRAPH
CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN
OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.] (or such other rate as
may be determined by the Relevant Regulator)
UW = the unaccounted for gas benchmark rate for
Customers at Class B Supply Points on the
Distribution Pipelines operated by Westar, being
[THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION
WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.] (or such
other rate as may be determined by the Relevant
Regulator)
And:
QCTM is the total quantity of Gas (expressed in GJ)
supplied to Customers and SOU Customers in the
Agency Area in that Market Month as measured at
the relevant custody transfer meters at connection
points between the transmission system operated by
VENCorp and the distribution system and as
determined by VENCorp;
QT is, in relation to a Market Month ending prior to
the First Contestability Date only, the quantity
of Gas (expressed in GJ) supplied by the Agent in
that Market Month to Customers at Supply Points on
the transmission pipelines operated by VENCorp as
determined by VENCorp;
QL is the aggregate quantity of Gas (expressed in GJ)
supplied by all Licensed Retailers to all
Contestable Customers and all SOU Customers at
Class A Supply Points in the Agency Area in that
Market Month as determined by VENCorp;
MS is the aggregate quantity of Gas (expressed in GJ)
supplied by all Licensed Retailers in that Market
Month to Contestable Tariff D Customers, Second
Tier Contestable Customers and SOU Customers at
Class B Supply Points on the distribution
pipelines operated in the Agency Area by Stratus
as determined by VENCorp;
ES is the quantity of Gas (expressed in GJ) supplied
by the Agent in that Month to Contestable
Customers (excluding Contestable Tariff D
35
Customers and Second Tier Contestable Customers)
at Class B Supply Points in the Agency Area on the
distribution pipelines operated by Stratus which
the Agent must estimate in accordance with the
Estimation Procedures;
MW is the aggregate quantity of Gas (expressed in GJ)
supplied by all Licensed Retailers in that Market
Month to Contestable Tariff D Customers, Second
Tier Contestable Customers and SOU Customers at
Class B Supply Points in the Agency Area on the
distribution pipelines operated by Westar as
determined by VENCorp; and
EW is the quantity of Gas (expressed in GJ) supplied
by the Agent in that Month to Contestable
Customers (excluding Contestable Tariff D
Customers and Second Tier Contestable Customers)
at Class B Supply Points in the Agency Area on the
distribution pipelines operated by Westar which
the Agent must estimate in accordance with the
Estimation Procedures.
(b) To the extent that VENCorp becomes able to determine the aggregate
quantity of Gas supplied by the Agent in a Market Month to Contestable
Customers in addition to Contestable Tariff D Customers and Second
Tier Contestable Customers, then the Parties agree that VENCorp will
be instructed to make such determinations.
(c) The procedures for determining any quantity of Gas which the Agent is
required to estimate in any Month for the purposes of Clause 6.4(a)
(the "ESTIMATION Procedures") are, as at the date of this Agreement,
those set out in Schedule 10.
(d) At any time during the Contract Term either Party may notify the other
Party that it seeks a review of the Estimation Procedures if it
considers that the Estimation Procedures are not producing estimates
which are fair and reasonable.
(e) If a notice is given pursuant to Clause 6.4(d), the Parties must meet
within [THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION WHICH HAS
BEEN OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.] days of such notice being given to seek to agree
necessary amendments to the Estimation Procedures.
(f) If the Parties are unable to agree amendments to the Estimation
Procedures within a period of [THIS PARAGRAPH CONTAINS CONFIDENTIAL
INFORMATION WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.] days of a notice being given
under Clause 6.4(d), either Party may refer the matter to the Agent's
auditors who shall be required (at the Agent's cost) to recommend
amendments to the Estimation Procedures.
(g) In determining any amendments to the Estimation Procedures, the
Agent's auditors (and any Expert under Clause 6.4(h) must approve only
those amendments which will ensure that the Estimation Procedures will
36
operate in a fair and reasonable manner and in accordance with
statutory accounting procedures.
(h) If Gascor reasonably considers that any amendments to the Estimation
Procedures as recommended by the Agent's auditors do not comply with
Clause 6.4(g), Gascor may refer the matter to an Expert for
determination in accordance with Clause 13 within [THIS PARAGRAPH
CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN OMITTED, BUT FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.] days of
receiving notice of the amendments recommended by the Agent's
auditors.
(i) The Estimation Procedures will be deemed to be amended to those agreed
pursuant to Clause 6.4(e) or determined pursuant to Clause 6.4(f) or
Clause 6.4(h) with effect from the date of such agreement or
determination.
(j) If:
(1) VENCorp cannot differentiate between Gas supplied to Gascor
Customers and Gas supplied to other Customers outside the
Agency Area; and
(2) the quantity of Gas estimated to be supplied to other
Customers outside the Agency Area is more than [THIS
PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN
OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.]% of the quantity of Gas supplied to
Gascor Customers in any period,
then the Parties must endeavour to use, as far as practicable,
metering data provided by VENCorp in order to estimate the quantity of
Gas supplied to Gascor Customers but, if that data is not available,
the Parties shall use the Estimation Procedures as modified to the
extent required.
(k) The Agent will enter into an agreement with VENCorp relating to the
information to be provided by VENCorp as contemplated by this
Agreement.
(l) The Agent must provide Gascor with a copy of the agreement referred to
in Clause 6.4(k) and, when reasonably requested by Gascor, any
information provided by VENCorp to the Agent under that agreement.
6.5 REDETERMINATION OF GAS DELIVERED
(a) If Qa in respect of a Gas Month is recalculated by the Agent pursuant
to Clause 7.2(c) of the Master Agreement, the next Monthly Claim Form
to be given by the Agent under Clause 6.8(d) must contain:
(1) a detailed reconciliation of (on the one hand) the amount of
the Commission paid by Gascor to the Agent for Contract Gas
for that Month in accordance with the Monthly Claim Form for
that Month against (on the other hand) the amount of the
Commission which Gascor should have paid to the Agent for
37
Contract Gas for that Month on the basis of Qa as
recalculated pursuant to Clause 7.2(c) of the Master
Agreement; and
(2) the amount payable by one Party to the other Party following
the reconciliation referred to in Clause 6.5(a)(l) so as to
ensure that the amount of the Commission paid by Gascor to
the Agent for Contract Gas in respect of that Month reflects
the quantity of Contract Gas delivered during that Month
under this Agreement.
(b) If after the Agent has submitted a First Interim Statement, Second
Interim Statement or Monthly Claim Form in respect of a Month pursuant
to Clause 6.8(b), (c) or (d), either Party considers that Qa in
respect of that Month was not properly measured or calculated in a
material respect such that the putative Qa differs from the original
Qa by more than [THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION
WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.]% of the original Qa, whether as a result of a
measurement error or because more accurate data has subsequently
become available, and that a revised Qa should be substituted, the
Agent must, upon becoming aware of the material discrepancy or being
notified of the material discrepancy by Gascor, redetermine Qa for
that Month and must then give Gascor a statement specifying the
substituted QA, details of the improper measurement or calculation or
new data and the consequential recalculation of Qb for the same Month.
(c) If Qa in respect of a Month is recalculated by the Agent pursuant to
Clause 6.5(b), the next Monthly Claim Form to be given by the Agent
under Clause 6.8(d) must contain:
(1) a detailed reconciliation of (on the one hand) the amount of
the Commission paid by Gascor to the Agent for Contract Gas
for that Month in accordance with the Monthly Claim Form for
that Month against (on the other hand) the amount of the
Commission which Gascor should have paid to the Agent for
Contract Gas for that Month on the basis of Qa as
recalculated pursuant to Clause 6.5(b); and
(2) the amount payable by one Party to the other Party following
the reconciliation referred to in Clause 6.5(c)(l) so as to
ensure that the amount of the Commission paid by Gascor to
the Agent for Contract Gas in respect of that Month reflects
the quantity of Contract Gas delivered during that Month
under this Agreement.
(d) If Qa is recalculated or redetermined by the Agent in accordance with
Clause 6.5(b), the recalculated or redetermined quantity must be taken
into account in the next Monthly Statement (as defined in the Agent's
Sub-sales Agreement) to the extent that it has the effect of
increasing or reducing Qb.
6.6 CALCULATION OF PAYMENTS ON ACCOUNT OF COMMISSION
(a) Gascor must pay the Agent an amount ("FIRST INSTALMENT") on account of
the Commission payable in respect of a Month calculated as follows:
38
[THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN
OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.]
Where:
I1 is the amount of the First Instalment;
R1 is the aggregate amount of Daily Cash Received from and
including the [THIS PARAGRAPH CONTAINS CONFIDENTIAL
INFORMATION WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.] day of M to
and including the [THIS PARAGRAPH CONTAINS CONFIDENTIAL
INFORMATION WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.] day of M;
QAM-1 is the quantity of Qa determined in accordance with Clause
6.4 for M-1;
PM-1 is the Contract Price in M-1;
RPM is the Retained Profit for M; and
MIM is the Monthly Additional MDQ Instalment for M calculated in
accordance with Clause 6.7(a).
(b) Gascor must pay the Agent a further amount ("SECOND INSTALMENT") on
account of the Commission payable in respect of a Month calculated as
follows:
[THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN
OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.]
Where:
I2 is the amount of the Second Instalment;
R2 is the aggregate amount of Daily Cash Received from and
including the [THIS PARAGRAPH CONTAINS CONFIDENTIAL
INFORMATION WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.] day of M to
and including the [THIS PARAGRAPH CONTAINS CONFIDENTIAL
INFORMATION WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.] day of M; and
QAM-1, PM-1, RPM AND MIM are defined in Clause 6.6(a).
(c) All components of the formulas in Clauses 6.6(a) and (b) must exclude
amounts relating to GST.
39
6.7 MONTHLY ADDITIONAL MDQ INSTALMENTS
(a) Prior to the end of each Quarter, up to (but not including) the final
Quarter of [THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION WHICH HAS
BEEN OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.], the Monthly Additional MDQ Instalment for each Month of
the following Quarter will be calculated by applying the following
formula:
[THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN
OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.]
Where:
MI is the Monthly Additional MDQ Instalment payable in respect
of each Month in the applicable Quarter;
CPIJ-2 is the CPI for the Quarter which is two Quarters previous to
that in which the calculation is to apply;
AP is, subject to Clause 6.1(b)(4) of the Master Agreement, the
annual MDQ amount, being $[THIS PARAGRAPH CONTAINS
CONFIDENTIAL INFORMATION WHICH HAS BEEN OMITTED, BUT FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.];
and
A is, where the Month ends:
(1) after the date of this Agreement and on or before
[THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION
WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.];
(2) after [THIS PARAGRAPH CONTAINS CONFIDENTIAL
INFORMATION WHICH HAS BEEN OMITTED, BUT FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.] and on or before [THIS PARAGRAPH
CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN
OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.];
(3) after [THIS PARAGRAPH CONTAINS CONFIDENTIAL
INFORMATION WHICH HAS BEEN OMITTED, BUT FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.] and on or before [THIS PARAGRAPH
CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN
OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.]; and
(4) after [THIS PARAGRAPH CONTAINS CONFIDENTIAL
INFORMATION WHICH HAS BEEN OMITTED, BUT FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.] and on or before [THIS PARAGRAPH
CONTAINS
40
CONFIDENTIAL INFORMATION WHICH HAS BEEN OMITTED,
BUT FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.].
(b) The Monthly Additional MDQ Instalment for each Month will be taken
into account in determining the Commission for that Month in
accordance with Clause 6.3.
(c) No Monthly Additional MDQ Instalment shall be taken into account in
determining the Commission in respect of any Month after [THIS
PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN OMITTED,
BUT FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.].
(d) If a Contestability Date is changed after the date of this Agreement,
the Parties must endeavour to agree appropriate amendments to variable
"A" in clause 6.7(a) to reflect the quantities of Gas taken, or to be
taken, under this Agreement and that taken, or to be taken, under the
Agent's Sub-sales Agreement.
6.8 BILLING
(a) On or before the [THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION
WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.] day of M or, if that day is not a Working Day,
on the next Working Day, Gascor must give the Agent a statement
specifying the quantity of Qt for M-1 as determined in accordance with
Clause 7.1 of the Master Agreement based on the statement given to
Gascor by the Measuring Agency (as defined in the Principal Contract)
in respect of M-1 pursuant to Clause 18.1 of the Principal Contract.
(b) The Agent must give a fully itemised statement of the First Instalment
in the form set out in Annexure A ("FIRST INTERIM STATEMENT") to
Gascor by no later than 10.00am on the [THIS PARAGRAPH CONTAINS
CONFIDENTIAL INFORMATION WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.] day of M or, if that day
is not Working Day, on the next Working Day. The itemised statement
must be sent by facsimile (with the signed original to follow promptly
by post) and signed by the Chief Executive Officer, Chief Financial
Officer or General Manager of the Agent.
(c) The Agent must give a fully itemised statement of the Second
Instalment in the form set out in the Annexure B ("SECOND INTERIM
STATEMENT") to Gascor by no later than 10.00am on the [THIS PARAGRAPH
CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN OMITTED, BUT FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.] day of M or,
if that day is not a Working Day, on the next Working Day. The
itemised statement must be sent by facsimile (with the signed original
to follow promptly by post) and signed by the Chief Executive Officer,
Chief Financial Officer or General Manager of the Agent.
(d) On or before the [THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION
WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.] day of M+1 or, if that day is not a Working Day
on the next Working Day, the Agent must give Gascor a Monthly Claim
Form, specifying the following in respect of M:
41
(1) the amount of the Commission payable in respect of M,
together with a statement of each item included in the
formula for the calculation of such Commission;
(2) the balance of the Commission payable in respect of M after
deduction of the First Instalment and the Second Instalment
paid on account of such Commission;
(3) any amounts payable by one Party to the other following
reconciliation pursuant to Clause 6.5(a) or (c);
(4) any other amounts then due and owing from one Party to
another under this Agreement including, without limitation,
payment for Alternate Gas pursuant to Clause 3.2(c)(3);
(5) the net sum payable by one Party to another after taking
account of the above.
(e) On or before the [THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION
WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.] day after the end of:
(1) each Contract Year (other than the last Contract Year); and
(2) the year in which the Contract Term expires,
Gascor must give a statement ("ANNUAL STATEMENT") to the Agent
specifying the following in respect of the preceding Contract Year:
(3) a detailed reconciliation of the amount of Commission as
required to be specified in each Monthly Claim Form in
accordance with Clause 6.8(d) in respect of that Contract
Year as adjusted for subsequent Months:
(A) on the basis of the estimated price for C Market
Gas as determined in accordance with Schedule 4 to
the Principal Contract (being variable PM-1 in the
formula for calculating the Commission) and of the
amount of the Commission determined in accordance
with Clause 6.3 for each Month of that Contract
Year on the basis of the actual price for C Market
Gas for that Contract year as determined in
accordance with Schedule 4 of the Principal
Contract;
(B) on the basis of the estimated escalated value of
Component B of the Retained Profit as determined
in accordance with Part 1 of Schedule 3 and of the
amount of the Commission determined in accordance
with Clause 6.3 for each Month of that Contract
Year on the basis of the actual escalated value of
Component B of Retained Profit for that Contract
42
Year as determined in accordance with Part 1 of
Schedule 3;
(C) on the basis of the amount of the Commission paid
by Gascor to the Agent for Contract Gas for each
Month in accordance with each Monthly Claim Form
and of the amount of the Commission which Gascor
should have paid to the Agent for Contract Gas for
each Month on the basis of Qa as recalculated
pursuant to Clause 7.2 of the Master Agreement or
Clause 6.5(c) of this Agreement; and
(D) on the basis of the amount of the Commission paid
by Gascor to the Agent for Contract Gas for each
Month in accordance with each Monthly Claim Form
and of the amount of the Commission which Gascor
should have paid to the Agent for Contract Gas for
each Month to take account of the quantity of
Buyer's Make-up Gas delivered to the Agent in the
relevant Contract Year under this Agreement in
accordance with Clause 2.2(g) of the Master
Agreement;
(4) any amount payable by the Agent to Gascor as calculated in
accordance with Clause 6.3(b); and
(5) the amount (if any) payable by one Party to another
following the reconciliation referred to in Clause 6.8(e)(3)
or the calculation referred to in Clause 6.8(e)(4).
6.9 PAYMENT
(a) Gascor must pay the First Instalment and the Second Instalment to the
Agent on the day on which the relevant itemised statement is received
pursuant to Clauses 6.8(b) or 6.8(c), (as the case may be) provided
that, if the relevant itemised statement is received after 10.00am,
Gascor may pay the First Instalment or the Second Instalment (as the
case may be) on the next Working Day.
(b) On or before the later of the [THIS PARAGRAPH CONTAINS CONFIDENTIAL
INFORMATION WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.] day of each Month (or, if that
day is not a Working Day, the next Working Day) or the [THIS PARAGRAPH
CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN OMITTED, BUT FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.] Working Day
after receipt of a Monthly Claim Form accompanied by all supporting
documentation which the Agent is required to provide pursuant to
paragraphs 3(c) and (d) of Schedule 6, Gascor must pay the amount
which it is required to pay pursuant to the Monthly Claim Form (except
to the extent Clause 6.10 provides otherwise) to the Agent by means of
electronic funds transfer (or other means acceptable to the Agent) to
the account maintained in Australia nominated from time to time by the
Agent for this purpose.
43
(c) Unless and until the Agent has submitted a Monthly Claim Form which is
accompanied by all the supporting documentation which the Agent is
required to provide pursuant to paragraphs 3(c) and (d) of Schedule 6
and which Gascor regards as material, Gascor is not obliged to make
any payment to the Agent in respect of that Monthly Claim Form or any
other Statement which may be submitted or prepared after the Month to
which that Monthly Claim Form relates.
(d) Within 7 days of receipt of an Annual Statement complying with Clause
6.8(e), the Party required to make a payment pursuant to that Annual
Statement must make payment (except to the extent Clause 6. 1 0
provides otherwise) to the Party required to be paid of the amount due
pursuant to that Annual Statement by means of electronic funds
transfer (or other means acceptable to the payee) to the account
maintained in Australia nominated from time to time by the payee for
this purpose.
(e) Any payment which a Party is required to make under this Agreement
(other than a payment which a Party is required to make pursuant to a
Statement) must be paid promptly on the due date by means of
electronic funds transfer (or other means acceptable to the payee) to
the account maintained in Australia nominated from time to time by the
payee for this purpose.
(f) Subject to Clauses 6.9(g) and 6.10(b), any payment which a Party is
required to make under this Agreement must be made without any
set-off, counter claim or condition and without any deduction or
withholding for any tax or any other reason, unless a Party is
required to make a deduction or withholding by law.
(g) Any payment which a Party ("PAYER") is required to make under this
Agreement may be set off against any payment which the other Party is
required to make to the payer under the Agent's Sub-sales Agreement.
6.10 DISPUTED AMOUNTS
(a) A Party may request from the Party who prepared a Statement further
information in relation to the contents of the Statement but any such
request will not extend the due date for payment pursuant to Clause
6.9. A Party who prepared a Statement must promptly provide any
information reasonably requested under this Clause 6. 10(a).
(b) If Gascor disputes any part of the amount set out in a Monthly
Statement as due and payable by Gascor, it must pay the undisputed
amount.
(c) If a Party disputes the whole or any part of the amount set out in a
Statement as due and payable by the Party it must notify the other
Party of the dispute as soon as practicable and, in any event, not
later than the date on which the amount would, but for this Clause
6.10, be due and payable and provide reasons why it disputes the
amount.
(d) Upon receipt of a Party's notice, the Parties must meet as soon as may
be practicable with a view to settling that dispute. If, upon the
expiry of [THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION WHICH HAS
BEEN OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
44
COMMISSION.] Working Days after receipt by the other Party of a notice
issued pursuant to Clause 6.10(c) the Parties have not reached
agreement, the matter may be referred for dispute resolution in
accordance with Clause 12.
(e) The Agent is not entitled to dispute the whole or any part of the
amount set out in a Monthly Statement or an Annual Statement after 30
June in the year following the year to which the Annual Statement
relates, provided that if an amount due for payment as set out in a
statement rendered to Gascor under Clause 18.3(a) or Clause 18.3(b) of
the Principal Contract is disputed by a Seller or Gascor and the
amount set out in that statement is found to be incorrect, each
Statement rendered under this Agreement which is affected by that
error shall be revised accordingly.
6.11 INTEREST ON LATE PAYMENT
(a) If a Party does not dispute an amount payable by it under a Statement
and the amount payable under the Statement is not paid by the due
date, or if any disputed amount is withheld by Gascor but later
determined or agreed to have been payable, then interest must be paid
by the relevant Party at the Default Rate on the said amount from (and
including) the original due date until (but excluding) the date paid.
(b) If a Party does not pay any amount due to the other Party under this
Agreement (other than an amount specified in a Monthly Statement as
payable by Gascor) by the due date, then interest must be paid by the
Party which owes the amount at the Default Rate on the said amount
from (and including) the original due date until (but excluding) the
date paid.
(c) If any disputed amount has been paid by a Party but is later
determined or agreed, in whole or in part, not to have been payable,
then interest must be paid by the Party which received that payment at
the Default Rate on the amount determined or agreed not to be payable
from (and including) the original date of payment until (but
excluding) the date of repayment.
(d) Interest payable pursuant to Clause 6.11(a), (b) or (c) will be
compounded quarterly on the last day of each Quarter.
6.12 INACCURACY
If after a payment has been made pursuant to a Statement or this Agreement which
was undisputed at the time of payment it is determined that the amount paid did
not accurately reflect the payment which should have been made in accordance
with this Agreement, the necessary adjustment will be made on the next Statement
after such determination and interest at the Default Rate less [THIS PARAGRAPH
CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.] per annum will be payable on the
amount of the adjustment, from (and including) the date when such amount was
paid or should have been paid, as the case may be, to (but excluding) the date
of payment of the adjustment.
45
6.13 PAYMENT OF COMMISSION AFTER EXPIRY OF THE CONTRACT TERM
(a) The Agent must continue to submit Monthly Claim Forms to Gascor for
each of the [THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION WHICH
HAS BEEN OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.] Months after the expiry of the Contract Term
(excluding the Month in which the Contract Term expires) in respect of
sales of Gas to Gascor Customers by the Agent on behalf of Gascor
prior to the expiry date and Gascor must, subject to Clause 6.10,
continue to pay any Commission specified in such Monthly Claim Forms.
(b) The Agent must, by no later than the [THIS PARAGRAPH CONTAINS
CONFIDENTIAL INFORMATION WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.] day after the expiry of
the Contract Term, give to Gascor a statement of the amount of
Receivables ("FINAL RECEIVABLES") as at the expiry of the period of
[THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN
OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.] Months referred to in Clause 6.13(a), less a provision
for bad and doubtful debts as determined in accordance with the
Accounting Policies ("NET RECEIVABLES").
(c) Gascor must sell, and the Agent must buy, the Final Receivables for a
purchase price equal to the amount of the Net Receivables.
(d) The sale and purchase of the Final Receivables must be completed
within [THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION WHICH HAS
BEEN OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.] Working Days after receipt by Gascor of the statement
referred to in Clause 6.13(b) when:
(1) Gascor must execute and deliver to the Agent an assignment
of the Final Receivables in such form as the Agent may
reasonably require; and
(2) the Agent must pay Gascor the purchase price for the Final
Receivables.
--------------------------------------------------------------------------------
7. POINT OF DELIVERY
--------------------------------------------------------------------------------
7.1 POINT OF DELIVERY
The delivery point for the delivery of Contract Gas under this Agreement is the
Point of Delivery.
7.2 GAS TO BE DELIVERED IN A SINGLE STREAM
Contract Gas to be delivered under this Agreement at the Point of Delivery will
be tested, measured and delivered in a single stream that may be commingled with
Sales Gas for delivery to other buyers.
46
--------------------------------------------------------------------------------
8. COSTS, RISK AND TITLE
--------------------------------------------------------------------------------
8.1 COSTS AND RISKS
Unless this Agreement provides otherwise:
(a) Gascor shall not be liable to the Agent for any costs or risks
associated with Contract Gas to be delivered under this Agreement; and
(b) the Agent must bear all costs and risks associated with that Contract
Gas after the Point of Delivery.
8.2 TITLE
(a) Gascor warrants good and unencumbered title to Contract Gas delivered
under this Agreement.
(b) Subject to Clause 8.2(c), property in Contract Gas delivered under
this Agreement will remain with Gascor up to the relevant Supply Point
at which point property in Contract Gas will pass to Gascor Customers.
(c) If on any day the quantity of Contract Gas injected into the
transmission system (as defined in the MSO Rules) on behalf of the
Agent exceeds the aggregate quantity of gas withdrawn by the Agent
from the transmission system in order to supply Gascor Customers, the
Agent is authorised to transfer title to such Contract Gas to other
Market Participants in accordance with the MSO Rules.
--------------------------------------------------------------------------------
9. GAS MEASURING AND TESTING
--------------------------------------------------------------------------------
The provisions relating to the measuring and testing of gas for the purposes of
this Agreement are as set out in Schedule 8 of the Principal Contract. Gascor
must not agree to a change in that Schedule without the consent of the Agent
(whose consent must not be unreasonably withheld or delayed).
--------------------------------------------------------------------------------
10. GAS SPECIFICATION
--------------------------------------------------------------------------------
(a) Gascor must deliver Contract Gas to the Agent at the Point of
Delivery.
(b) Unless and until Gascor requires the Sellers to suspend deliveries of
Off Specification Gas in accordance with the Principal Contract, all
Off Specification Gas which is delivered at the Point of Delivery will
be deemed to be Contract Gas.
47
(c) Gascor must comply with the procedures referred to in paragraph 5 of
Part B of Schedule 1 to the Master Agreement in relation to dealing
with Off Specification Gas.
--------------------------------------------------------------------------------
11. FORCE MAJEURE
--------------------------------------------------------------------------------
11.1 EFFECT OF PRINCIPAL CONTRACT FORCE MAJEURE
Subject to Clause 11.2(b), neither the Agent nor Gascor will be liable to each
other for any failure in the fulfilment of any of its obligations under, or be
in breach of, this Agreement (other than an obligation to pay money) to the
extent that such failure is caused by any delay, interruption, loss or damage
caused by the Principal Contract Force Majeure.
11.2 MEANING OF "PRINCIPAL CONTRACT FORCE MAJEURE"
(a) For the purpose of this Agreement, "PRINCIPAL CONTRACT FORCE MAJEURE"
means any event or circumstance which, in accordance with Clause 20.5
of the Principal Contract, relieves Gascor or any Seller from
liability under the Principal Contract for any failure in the
fulfilment of any of its obligations under the Principal Contract.
(b) A matter, event, occurrence or circumstance will not constitute
Principal Contract Force Majeure and will not relieve the Agent from
liability under Clause 11.1 in respect of any failure to comply with
an obligation under this Agreement unless and to the extent that such
matter, event, occurrence or circumstance would relieve Gascor from
liability in respect of a failure to comply with all corresponding or
related obligations under the Principal Contract.
(c) Notwithstanding the other provisions of this Clause 11, an event,
circumstance, matter or occurrence will cease to be Principal Contract
Force Majeure and the Agent will cease to be relieved from liability
pursuant to Clause 11.1 upon Gascor ceasing to be relieved from
liability under the Principal Contract.
11.3 EFFECT OF AGENCY FORCE MAJEURE
(a) Subject to Clauses 3.2(m)(3) and 11.3(d), the Agent will not be liable
to Gascor for any failure in the fulfilment of any of its obligations
under, or be in breach of, Clauses 3.2(a), (e) or (m)(2) of this
Agreement to the extent that such failure is caused by any delay,
interruption, loss or damage caused by Agency Force Majeure.
(b) Gascor will not be liable to the Agent for any failure in the
fulfilment of any of its obligations under, or be in breach of,
Clauses 3.3(b), 4.1(b), 4.3, 6.6 or 6.8 of this Agreement to the
extent that such failure is caused by any delay, interruption, loss or
damage caused by Agency Force Majeure.
(c) Agency Force Majeure does not relieve the Agent or Gascor from
liability for any failure in the fulfilment of any of its obligations
under, or for breach of, the provisions of this Agreement other than
48
the provisions referred to in Clause 11.3(a) or 11.3(b), as the case
may be.
(d) A matter, event, occurrence or circumstance will not constitute Agency
Force Majeure and will not relieve the Agent from liability pursuant
to Clause 11.3(a) in respect of any failure to comply with an
obligation under the Clauses of this Agreement referred to in Clause
11.3(a) if and to the extent that such relief, or the consequences of
such relief, would or may have the effect of causing Gascor, directly
or indirectly, to breach any of its obligations under the Act, the
Principal Contract, any Relevant Agreement or any of its material
obligations under any other agreement, deed, statute, regulation,
licence, code or instrument binding on Gascor.
11.4 MEANING OF "AGENCY FORCE MAJEURE"
For the purposes of this Agreement, "AGENCY FORCE MAJEURE" means, with respect
to a Party, any event or circumstance not within the control of that Party and
which by the exercise of a standard of care and diligence consistent with that
of a Reasonable and Prudent Operator, that Party is not able to prevent or
overcome including, without limiting the generality of the foregoing:
(a) acts of God, including but not limited to lightning, storm, action of
the elements, earthquakes, flood, washouts and natural disaster;
(b) strikes or other industrial disturbances;
(c) acts of the public enemy, including but not limited to wars (declared
or undeclared), blockades or insurrections;
(d) riots, malicious damage and civil disturbance;
(e) unavoidable accident, including but not limited to fire, explosion,
radioactive contamination and toxic dangerous chemical contamination;
(f) a circumstance or event that endangers safety or the integrity of
facilities necessary for the Affected Party's operations; and
(g) laws, rules, regulations, orders, judgments, rulings, decisions,
decrees or enforcement actions of any federal or State court,
government, tribunal or authority or of any statutory authority not
resulting from any wrongful act or omission of the Affected Party.
11.5 CERTAIN MATTERS NOT TO CONSTITUTE AGENCY FORCE MAJEURE
Notwithstanding any other provision in this Agreement, the following matters,
events, circumstances or occurrences will not constitute Agency Force Majeure:
(a) any matter, event, circumstance or occurrence;
49
(1) within the control of the Affected Party;
(2) which by the exercise of a standard of care and diligence
consistent with that of a Reasonable and Prudent Operator,
the Affected Party is able or would have been able to
prevent or overcome; or
(3) substantially caused by the neglect or default of the
Affected Party or by its failure to act as a Reasonable and
Prudent Operator; or
(b) the lack of funds or inability to use funds.
11.6 AFFECTED PARTY
For the purposes of this Agreement, "AFFECTED PARTY" means any Party who
purports to be relieved from liability under Clause 11.1 as a result of
Principal Contract Force Majeure or Clause 11.3 as a result of Agency Force
Majeure.
11.7 NOTIFICATION OF FORCE MAJEURE
The Affected Party must as soon as practicable notify the other Party of the
occurrence and details of any matter, occurrence, event or circumstance giving
rise to the Force Majeure, the manner in which the Force Majeure is likely to
affect its performance, the period during which the Force Majeure is likely to
affect its performance and the steps that it intends to take to overcome or
mitigate such event or circumstance. The Affected Party must keep the other
Party informed throughout the continuance of the Force Majeure of the steps it
is taking pursuant to Clause 11.9 and any change in its view on how the Force
Majeure is likely to affect its performance or the length of the period during
which the Force Majeure is likely to affect its performance. The Affected Party
must notify the other Party as soon as the Force Majeure has ceased to prevent
it from fulfilling its obligations.
11.8 CONSULTATION
Following the giving of a notice pursuant to Clause 11.7, the Parties must
consult in good faith to assess the Force Majeure and any ways in which it might
be avoided or its effects mitigated, having regard to each Party's rights and
obligations under any relevant agreement to which it is a party (including the
Principal Contract).
11.9 REASONABLE DILIGENCE TO OVERCOME
The Affected Party must use all reasonable endeavours and diligence to mitigate
the cause of, and the result of, the Force Majeure and to remedy the situation
and resume its performance of its obligations under this Agreement as soon as
practicable and the other Party must co-operate provided that this does not
require the settlement of strikes or labour disputes on terms contrary to the
reasonable wishes of the Affected Party.
50
11.10 CESSATION OF AGENCY FORCE MAJEURE
Notwithstanding the other provisions of this Clause 11, an event, circumstance,
matter or occurrence will cease to be Agency Force Majeure and an Affected Party
will cease to be relieved from liability pursuant to Clause 11.3 upon that
Affected Party not complying with, or ceasing to comply with, Clause 11.7 or
11.9.
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12. DISPUTE RESOLUTION
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12.1 OBLIGATION TO SEEK RESOLUTION
(a) If a Party claims a difference or dispute has arisen in connection
with this Agreement that Party must give notice to the other Party
identifying such difference or dispute, giving reasonable details of
its claim and designating its representative in negotiations, being a
senior officer of the Party with authority to settle the matter. The
other Party must within three Working Days give notice designating its
representative in negotiations with similar authority.
(b) Within five Working Days of the notice of a difference or dispute, the
senior officers of each Party must meet to seek to resolve the matter.
(c) If the difference or dispute is not resolved by the senior officers
within a period of 10 Working Days of their first meeting or 15
Working Days of receipt of the first-mentioned notice under Clause
12.1(a), either Party may then commence arbitration in accordance with
Clause 12.2.
12.2 GENERAL REQUIREMENT
Subject to Clause 12.1, any dispute or difference between the Parties arising
out of or in connection with:
(1) this Agreement and the subject matter of this Agreement;
(2) the construction of this Agreement;
(3) the rights, obligations, duties or liabilities of any Party under this
Agreement,
must, in default of agreement between the Parties and in the absence of any
provision in this Agreement to the contrary, be referred to a single arbitration
by Gascor (one party to the arbitration) and the Agent (the other party to the
arbitration) in accordance with Clauses 11.2 to 11.17 of the Master Agreement
which shall apply to this Agreement subject to all necessary modifications in
drafting.
51
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13. EXPERT
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13.1 APPLICATION OF THIS CLAUSE
Wherever in this Agreement any person is to be appointed as an expert ("EXPERT")
or any matter is to be referred to an Expert, and whenever the Parties agree
that a point of difference between them is to be resolved by an Expert, this
Clause 13 will apply and there will be a single proceeding before the Expert for
the purposes of this Agreement. Gascor and the Agent will be bound by a
determination of an Expert in accordance with this Agreement, save in the event
of fraud or manifest error.
13.2 APPOINTMENT
The procedure for the appointment of an Expert is as follows:
(a) The Party wishing the appointment to be made must give notice to that
effect to the other Party, giving details of the matter which is
proposed to be resolved by the Expert and designating its
representative in negotiations, being a senior officer of the Party
with authority to settle the matter. The other Party must within 5
Working Days give notice designating its representative in
negotiations, with similar authority.
(b) Within 15 Working Days of the notice proposing the appointment of an
Expert, the designated representatives of the Parties must meet to
seek to resolve the matter.
(c) If the matter to be referred to the Expert is not resolved by the
representatives within a period of 10 Working Days of their first
meeting or 25 Working Days from the date of the notice first referred
to in Clause 13.2(a), the Parties must meet to agree upon a single
Expert to whom the matter in dispute will be referred for
determination.
(d) If, within 20 Working Days of the first date on which the Parties were
required to meet pursuant to Clause 13.2(c), the Parties fail to agree
upon the appointment of a single Expert, any Party to the
determination may request the President of the Institute of Chartered
Accountants in Australia to appoint an Expert. In order for the
request to be valid, the Party giving the request must, at the same
time as the request is made, give a copy of the request to the other
Party. Provided each Party is consulted prior to any appointment of an
Expert, that appointment will be final and binding on the Parties.
13.3 QUALIFICATION
A person may not be appointed, or remain, an Expert if at the time of the
appointment or at any time before that person gives his or her determination
under such appointment, has, has had or may have some interest or duty (either
as an employee or adviser or otherwise) which conflicts or may conflict with his
or her function under such appointment.
52
13.4 POWERS AND DUTIES
(a) The Parties may make submissions to the Expert in relation to any
matter before the Expert for determination. The Expert must, promptly
after his or her appointment, fix a reasonable time and place (being
Melbourne unless the Parties agree otherwise) for receiving
submissions or information from the Parties or from any other persons
that he or she may think fit. The Expert may make such further
enquiries and require such other evidence as the Expert may consider
necessary for determining the matter before him or her and must, in
accordance with this Agreement, determine the matter with all due
diligence and speed.
(b) The Expert will be deemed not to be an arbitrator, but shall render
his or her decision as an expert and his or her decision will be final
and binding on the Parties in the absence of fraud or manifest error.
The Commercial Arbitration Act 1984 and the law relating to
arbitrators will not apply to the Expert or his or her determination
or the procedure by which the Expert reaches his or her determination.
(c) Each Party to the determination will bear the costs and expenses of
all counsel, witnesses and employees retained by it, but, except where
otherwise specifically provided in this Agreement, the cost and
expenses of the Expert will be apportioned between the Parties in such
proportions as the Expert, in the circumstances, considers proper.
13.5 CONFIDENTIALITY
(a) The matter for determination, all submissions, documents and the
Expert's determination must be kept confidential by the Parties to the
determination during the term of this Agreement and for five years
after the termination of this Agreement and shall not be disclosed
except as may be permitted under Clause 18. Nothing in this Clause
13.5(a) applies to or in relation to or restricts in any way:
(1) disclosure of information to the Expert; or
(2) disclosure of the matter for determination or the
determination in the course of legal proceedings or in the
course of any other judicial, arbitral or administrative
proceedings (including proceedings before an arbitrator)
between the Parties.
(b) It will be a term of the Expert's appointment that the Expert be
required to undertake to keep confidential matters coming to his or
her knowledge by reason of his or her appointment and carrying it out,
for a period ending no earlier than the date which is five years after
the termination of the Master Agreement.
13.6 REMOVAL OF EXPERT
If an Expert appointed under this Clause 13 has not arrived at a determination
within three Months of the date of his or her appointment, any Party to the
determination may, upon giving notice to the other, terminate such appointment
53
and a new Expert must be appointed and the matter in dispute must be resubmitted
for determination in accordance with this Clause 13.
13.7 REFERRAL TO EXPERT DOES NOT AFFECT OBLIGATIONS
The referral of a dispute or difference to an Expert pursuant to this Clause 13
will not affect the obligations of the Parties to supply or take Gas in
accordance with the terms and conditions of this Agreement.
13.8 COMMUNICATIONS TO BE COPIED TO OTHER PARTY
Any communication by one Party with the Expert (whether pursuant to Clause 13.4
or otherwise) must be copied, at the same time, to the other Party.
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14. AGENT'S DEFAULT
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14.1 DEFAULT NOTICE
If a Default by the Agent occurs, Gascor may give the Agent a notice ("AGENT
DEFAULT NOTICE") specifying the Default that has occurred.
14.2 CURE PERIOD
Upon receipt of an Agent Default Notice, the Agent will have:
(a) in the case of a Financial Default, [THIS PARAGRAPH CONTAINS
CONFIDENTIAL INFORMATION WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.] Working Days to cure
that Default;
(b) in the case of a Non-financial Default which Gascor reasonably
considers may be cured, that period which Gascor and the Agent agree
in good faith is a reasonable period in which to cure the Default or,
if they are unable to agree a period, [THIS PARAGRAPH CONTAINS
CONFIDENTIAL INFORMATION WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.] days, provided that the
cure period will end at the time the Agent ceases to be diligently
pursuing a cure of the Default;
(c) in the case of a Non-financial Default which Gascor reasonably
considers cannot be cured, no period in which to cure the Default; or
(d) in the case of a Minimum Quantity Default, a Retail Licence Default or
a Solvency Default, no period in which to cure the Default.
54
14.3 REMEDIES FOR DEFAULT
If a Default by the Agent has occurred and is not cured within the cure period
(if any) described in Clause 14.2, Gascor may (without prejudice to any of its
other rights in this Agreement) exercise any or any combination of the following
remedies as appropriate:
(a) if the Default is a Material Financial Default, subject to giving
[THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN
OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.] Working Days' notice in writing to the Agent stating its
intention to do so if the Default is not cured (and the Default is not
cured within that notice period):
(1) terminate the agreement between Gascor and the Agent
recorded by this Agreement, the Agent's Sub-sales Agreement
and the Master Agreement; or
(2) suspend any obligations which it owes to the Agent under the
agreement between Gascor and the Agent recorded by this
Agreement, the Agent's Sub-sales Agreement and the Master
Agreement until the Default is cured;
(b) if the Default is a Minimum Quantity Default, a Retail Licence Default
or a Solvency Default, subject to giving notice in writing to the
Agent stating its intention to do so:
(1) terminate the agreement between Gascor and the Agent
recorded by this Agreement, the Agent's Sub-sales Agreement
and the Master Agreement; or
(2) suspend any obligations which it owes to the Agent under the
agreement between Gascor and the Agent recorded by this
Agreement, the Agent's Sub-sales Agreement and the Master
Agreement until the Default is cured;
(c) if the Default is a Non-financial Default which has a Material Adverse
Effect, subject to giving [THIS PARAGRAPH CONTAINS CONFIDENTIAL
INFORMATION WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.] Working Days' notice in writing
to the Agent stating its intention to do so if the Default is not
cured (and the Default is not cured within that notice period):
(1) terminate the agreement between Gascor and the Agent
recorded by this Agreement, the Agent's Sub-sales Agreement
and the Master Agreement; or
(2) suspend any obligations which it owes to the Agent under the
agreement between Gascor and the Agent recorded by this
Agreement, the Agent's Sub-sales Agreement and the Master
Agreement until the Default is cured;
(d) subject to Clause 14.5, ▇▇▇ the Agent for damages for that Default; or
(e) exercise all other available legal and equitable remedies (other than
in respect of damages), including, without limitation, suing for
specific performance, injunctive relief or such other orders as it
deems appropriate.
55
14.4 INDEMNITY REGARDING SELLERS
The Agent agrees to indemnify Gascor and keep Gascor indemnified from and
against any and all liability, loss, damage, cost or expense which Gascor may
suffer or incur as a result of or in connection with any action or claim which
any Seller may bring against Gascor as a result of a failure by Gascor to
observe or perform any obligation under the Principal Contract if and to the
extent that such failure arose directly or indirectly as a result of or in
connection with a Default by the Agent.
14.5 DAMAGES AND CONSEQUENTIAL LOSS
Subject to Clauses 3.2(m)(3) and 14.4, if any Default by the Agent gives Gascor
a right to damages, such damages will be limited to damages for direct and
foreseeable loss attributable to such Default and the Agent will not be liable
to Gascor for any loss of profit or anticipated profit, business interruption,
indirect loss, consequential loss or loss of use suffered by Gascor.
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15. GASCOR'S DEFAULT
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15.1 DEFAULT NOTICE
If a Default by Gascor occurs, the Agent may given Gascor a notice ("GASCOR
DEFAULT NOTICE") specifying the Default that has occurred.
15.2 CURE PERIOD
Upon receipt of a Gascor Default Notice, Gascor will have:
(a) in the case of a Financial Default, [THIS PARAGRAPH CONTAINS
CONFIDENTIAL INFORMATION WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.] Working Days to cure
that Default;
(b) in the case of a Non-financial Default, that period which Gascor and
the Agent agree in good faith is a reasonable period in which to cure
the Default or, if they are unable to agree a period, [THIS PARAGRAPH
CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN OMITTED, BUT FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.] days,
provided that the cure period will end at the time Gascor ceases to be
diligently pursuing a cure of the Default; or
(c) in the case of a Solvency Default, where the Agent reasonably consider
that the Default may be cured, [THIS PARAGRAPH CONTAINS CONFIDENTIAL
INFORMATION WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.] Working Days to cure the Default.
56
15.3 REMEDIES FOR DEFAULT
Subject to Clause 13.6 of the Master Agreement, if a Default by Gascor has
occurred and is not cured within the cure period described in Clause 15.2, the
Agent may (without prejudice to any other of its other rights in this Agreement)
exercise any or any combination of the following remedies as appropriate:
(a) subject to Clause 15.5, ▇▇▇ Gascor for damages for that Default; or
(b) subject to Clause 15.4, exercise all other available legal and
equitable remedies (other than in respect of damages or the right to
terminate this Agreement), including without limitation suing for
specific performance, injunctive relief or such other orders as it
deems appropriate.
15.4 NO RIGHT TO TERMINATE
Notwithstanding any right of law or equity to the contrary, the Agent is not in
any circumstances entitled to terminate this Agreement as a result of a Default
by Gascor or for any other reason.
15.5 DAMAGES AND CONSEQUENTIAL LOSS
If any Default by Gascor (other than a Default which was directly or indirectly
caused by or arose as a result of a Seller's Default in which case Clause
13.6(a) of the Master Agreement applies) gives the Agent a right to damages,
such damages will be limited to damages for direct and foreseeable loss
attributable to such Default and Gascor will not be liable to the Agent for any
loss of profit or anticipated profit, business interruption, indirect loss,
consequential loss or loss of use suffered by the Agent or any other person,
except to the extent that Gascor has obtained compensation from the Sellers or
insurance proceeds (both as contemplated by Clause 13.6 of the Master Agreement)
and the Agent is entitled to such compensation or proceeds in accordance with
Clause 13.6 of the Master Agreement.
15.6 AGENT TO MITIGATE LOSS
The Agent must use reasonable endeavours to mitigate its losses as a result of a
Default by Gascor, provided that the Agent is not required to take any action or
incur any liability in excess of its rights to compensation or damages under
this Agreement.
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16. TAX
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16.1 TAX PASS-ON
Subject to Clause 16.3, the amount of the Commission under this Agreement will
be:
57
(a) decreased to take into account the full amount of any new Tax (other
than any Excluded Tax) imposed on each Seller or Gascor after the date
of this Agreement to the extent that such Tax:
(1) relates to the production and processing of Natural Gas for
Gascor or the supply of Contract Gas to Gascor under the
Principal Contract or the supply of Contract Gas to the
Agent under this Agreement; and
(2) is attributable to the quantity of Contract Gas supplied to
the Agent under this Agreement.
(b) decreased by the full amount of any increase in any Tax (other than
any Excluded Tax) imposed on Gascor to the extent that such increase
in any Tax relates to any change in the rate or basis of calculation
of such Tax from that existing as at the date of this Agreement and to
the extent that such Tax:
(1) relates to the production and processing of Natural Gas for
Gascor or the supply of Contract Gas to Gascor under the
Principal Contract; and
(2) is attributable to the quantity of Contract Gas supplied to
the Agent under this Agreement;
(c) increased by the full amount of any Tax (other than any Excluded Tax)
imposed on Gascor at the date of this Agreement ceasing to be imposed
on Gascor to the extent that such Tax:
(1) relates to the production and processing of Natural Gas for
Gascor or the supply of Contract Gas to Gascor under the
Principal Contract; and
(2) is attributable to the quantity of Contract Gas supplied to
the Agent under this Agreement.
(d) increased by the full amount of any decrease in any Tax (other than
any Excluded Tax) imposed on Gascor to the extent that such decrease
in any Tax relates to any change in the rate or basis of calculation
of such Tax from that existing as at the date of this Agreement and to
the extent that such Tax:
(1) relates to the production and processing of Natural Gas for
Gascor or the supply of Contract Gas to Gascor under the
Principal Contract; and
(2) is attributable to the quantity of Contract Gas supplied to
the Agent under this Agreement.
16.2 TIMING AND METHOD OF ADJUSTMENT
(a) Any increase or decrease referred to in Clause 16.1 will be effective
upon the imposition or cessation of the relevant Tax or the change to
the rate or basis of calculation of the Tax.
58
(b) If there is a new Tax or change in relation to a Tax of the type
contemplated in Clause 16.1, Gascor must provide the Agent with
details of the new Tax or change and the increase or decrease in the
payment for Gas and information about the method and distribution of
that Tax.
16.3 PRICE REDETERMINATION
(a) At any time following a revised C Market Price agreed or determined
pursuant to Clause 10 of the Principal Contract taking effect, the
references in Clause 16.1 to "the date of this Agreement" will be
deemed to be to "the date upon which the current C Market Price was
agreed or determined pursuant to Clause 10 of the Principal Contract".
(b) Any subsisting adjustment to the payment for Gas pursuant to Clause
16.1 will cease to have any effect from the date upon which the
revised C Market Price agreed or determined pursuant to Clause 10 of
the Principal Contract following a notice pursuant to Clause
10.1(a)(i) or (ii) of the Principal Contract takes effect, but without
prejudice to any adjustment arising pursuant to Clause 16.3(a) from
the time the revised C Market Price takes effect.
16.4 CONTRACT PRICE
Notwithstanding any other provision of this Clause 16, if the payment for Gas
under the Principal Contract is revised or adjusted as a result of the
application of Clause 24 of the Principal Contract, the Contract Price shall be
revised or adjusted by an equivalent amount.
16.5 ADJUSTMENT FOR GST
Any amounts required to be paid between the Parties under this Agreement are
increased by the full amount of any GST payable by the payee to the extent that
such GST relates to the supply of goods, services, real property or other things
to which the amount required to be paid relates or the receipt of the amount by
the payee.
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17. ASSIGNMENT
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17.1 INTERPRETATION
In this Clause "ASSIGN" includes transfer or otherwise dispose of any legal or
equitable interest, either in whole or in part, whether by sale, lease,
declaration or creation of a trust or otherwise.
17.2 GENERAL REQUIREMENTS
A Party may not assign any rights under this Agreement except as permitted by
Clause 14 of the Master Agreement.
59
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18. CONFIDENTIALITY
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18.1 GENERAL OBLIGATION
Subject to Clauses 18.2, 18.3, 18.4 and 18.5, this Agreement, all information
with respect to this Agreement and all operations under this Agreement must be
kept confidential by the Parties from the date of this Agreement until the date
which is 5 years after the termination of the Master Agreement and must not be
disclosed to any person, other than persons that are dealing with this
Agreement, or matters arising from or related to this Agreement, in the service
or employment of or retained by the Party receiving or holding the same or
persons to whom that Party is compelled by law to disclose the same, unless the
agreement of the other Party is first obtained (such agreement not to be
unreasonably withheld). A Party who discloses information under this Clause 18.1
to a person in the service or employment of that Party or retained by that Party
must use all reasonable endeavours to ensure that the person does not disclose
the information except in the circumstances permitted by this Clause 18.
18.2 EXCEPTIONS
The information referred to in Clause 18.1 may be disclosed by a Party
("DISCLOSING PARTY"):
(a) to any related body corporate (within the meaning of the Corporations
Law) of that Party, subject to the related body corporate first
agreeing with the Disclosing Party to be bound by confidentiality
provisions no less onerous than those contained in this Clause 18, and
the Disclosing Party will be liable to the other Party for any breach
of such confidentiality provisions by its related body corporate;
(b) to any lending or financial institution which has made, or is
considering making, financial accommodation available to or is
otherwise engaged by the Disclosing Party or a related body corporate
of the Disclosing Party, subject to such institution first undertaking
for the benefit of the other Party to be bound by confidentiality
provisions substantially the same as those contained in this Clause 18
(except that information may be disclosed to the persons in the
service or employment of or retained by the lending or financial
institution who are dealing with the financial accommodation or
possible financial accommodation);
(c) to any party with whom a Disclosing Party is in bona fide negotiations
to assign the whole of its interest in this Agreement, subject to such
party first agreeing with the Disclosing Party (which will be deemed
to hold the benefit of that agreement for the other Party) to be bound
by confidentiality provisions substantially the same as those
contained in this Clause 18;
(d) to the State or any statutory authority of the State;
(e) to the Commonwealth of Australia or any statutory authority of the
Commonwealth of Australia, subject to the Disclosing Party first
notifying the other Party and, to the maximum extent practicable,
minimising the disclosure and informing the person to whom the
60
disclosure is made of the commercial and confidential nature of the
information disclosed;
(f) to any other party who a Disclosing Party wishes or the Parties wish
to employ or retain as a consultant, adviser or potential witness
("CONSULTANT") in relation to any matter under this Agreement, subject
to the Disclosing Party minimising the disclosure and informing the
person to whom the disclosure is made of the commercial and
confidential nature of the information disclosed and the consultant
first agreeing with the Disclosing Party (which will be deemed to hold
the benefit of that agreement for the other Party) to be bound by the
confidentiality provisions substantially the same as those contained
in this Clause 18;
(g) to the ACCC, ORG or any other government body which regulates the
conduct of any business of the Disclosing Party subject to the
Disclosing Party first notifying the other Party and, to the maximum
extent practicable, minimising the disclosure and informing the person
to whom disclosure is made of the commercial and confidential nature
of the information disclosed;
(h) to any Performance Auditor or Allocation Auditor appointed in
connection with or as contemplated by the Master Agreement, subject to
the Performance Auditor or Allocation Auditor first agreeing with the
Disclosing Party (which will be deemed to hold the benefit of that
agreement for the other Party) to be bound by confidentiality
provisions substantially the same as those contained in this Clause
18;
(i) where the Disclosing Party is Gascor, to any person or persons
("BIDDER") with whom the State or Gascor is in negotiations (which
includes the calling of expressions of interest) to transfer all or
any of the shares in a Retailer or a Transmission Company or all or a
substantial part of the assets or undertaking of a Retailer or a
Transmission Company or to any lending or financial institution which
has made, or is considering making, financial accommodation available
to or is otherwise engaged by the Bidder or any legal or financial
adviser or consultant engaged by the Bidder;
(j) to:
(1) a firm of accountants appointed for any purpose under this
Agreement;
(2) an auditor appointed for any purpose under this Agreement;
or
(3) an Expert or a person whom a Party is considering as an
Expert,
subject to the Disclosing Party, to the maximum extent practicable,
minimising the disclosure and informing the person to whom the
disclosure is made of the commercial and confidential nature of the
information disclosed;
(k) for the purposes of a prospectus or other offering document relating
to the offering of shares in the Agent or any Related Company of the
Agent as part of a proposed listing of the Agent or that Related
Company on a stock exchange; or
61
(l) to any Allocation Agent for the purposes of the MSO Rules.
18.3 TRANSPORT EXEMPTION
To the extent only that the information referred to in Clause 18.1 relates to
the quantity, quality measurement and testing of Contract Gas to be delivered to
the Agent under this Agreement, it may be disclosed by a Party to a Transmission
Company or any other person who transports, or a person with whom the Agent is
in bona fide negotiations in relation to the transportation of Contract Gas
taken under this Agreement, subject to the person first agreeing with the
Disclosing Party (which will be deemed to hold the benefit of that agreement for
the other Party) to be bound by confidentiality provisions substantially the
same as those contained in this Clause 18.
18.4 GENERAL EXCEPTIONS
This Clause 18 does not apply to information which is now, or after the date of
this Agreement becomes, a part of the public domain through no fault of the
Party wishing to disclose it or which corresponds in substance to information
furnished by a third party without restriction on disclosure or which must be
disclosed pursuant to a statutory obligation.
18.5 OTHER PERMITTED DISCLOSURES
Any Party required by law or the rules of an established stock exchange, or
finding it desirable in submissions to an Expert or in the assertion of any
claim or defence in a judicial, arbitral or administrative proceeding, to
disclose information which is otherwise required to be maintained in confidence
pursuant to this Clause 18 may make such disclosure, regardless of this Clause
18, provided that the disclosing party first notifies the other Party of such
requirement or desirability and, to the maximum extent practicable, minimises
the disclosure of any such information.
18.6 RESTRICTIONS SURVIVE TERMINATION
Notwithstanding Clauses 14 and 20 of this Agreement and Clauses 12, 17 and 18 of
the Master Agreement, the Parties agree that the restrictions contained in this
Clause 18 will survive the termination of this Agreement.
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19. COMMUNICATIONS
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19.1 COMMUNICATIONS
All notices, notifications, nominations, consents, approvals, requests,
requirements, reports, Statements, acknowledgments, invoices, Agent Default
Notices, Gascor Default Notices and the like ("COMMUNICATIONS") between the
Parties must be in legible writing (subject to Clause 19.5) and in the English
language.
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19.2 MANNER OF SERVICE
Subject to Clause 19.5, any Communication given in connection with this
Agreement must be:
(a) delivered by hand;
(b) sent by prepaid post;
(c) sent by facsimile; or
(d) sent by such other electronic media as the Parties may agree.
19.3 SERVICE PARTICULARS
Subject to Clause 19.5, to be effective each Communication to a Party must be
sent in accordance with the particulars of the Party set out below or such other
particulars as may be notified from time to time by that Party.
The address, facsimile and telephone particulars of each Party as at the date of
this Agreement are:
Gascor
Address: ▇▇▇▇▇ ▇, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile: (▇▇) ▇▇▇▇ ▇▇▇▇
Telephone: (▇▇) ▇▇▇▇ ▇▇▇▇
Attention: Negotiations and Contracts Manager
Kinetik Energy Pty Ltd
Address: ▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile: (▇▇) ▇▇▇▇ ▇▇▇▇
Telephone: (▇▇) ▇▇▇▇ ▇▇▇▇
Attention: General Manager
19.4 TIMING OF SERVICE
(a) Communications will be properly served or given and deemed received
if.
(1) delivered by hand, on the date of delivery;
(2) sent by prepaid post, 4 days after posting;
(3) sent by facsimile on production of a transmission report by
the machine from which the facsimile was sent which
indicates that the facsimile was sent in its entirety to the
facsimile number of the recipient or, if transmission is not
effected during a Working Day and the subject matter of the
Communication is not required by (and sent to) the operating
63
personnel of a Party, at the commencement of the next
following Working Day.
(b) The Parties must endeavour to ensure that all date stamps appearing on
facsimiles are in accordance with the time in Melbourne.
19.5 INSTANTANEOUS COMMUNICATIONS
(a) Subject to Clause 19.5(d), in the case of a Communication for the
purposes of Clause 4.2(b) or 4.3 or for the purposes of submitting an
amended nomination pursuant to Clause 4.5(b), the Agent must first
endeavour to make the Communication by utilising the computer-based
communication system approved by Gascor for the transmission of
nominations for gas and other information.
(b) If the computer-based communication system referred to in Clause
19.5(a) is unavailable at any relevant time, the Agent must send the
Communication by facsimile to Gascor and to the operating personnel of
Gascor.
(c) If the Agent is unable to send a Communication by facsimile pursuant
to Clause 19.5(b), the Agent must endeavour to make the Communication
by telephoning operating personnel of Gascor.
(d) In the case of a Communication for the purposes of submitting an
amended nomination under Clause 4.3(d) or making the initial
notification under Clause 11.7, the Party making the Communication
must first endeavour to do so by telephoning operating personnel of
the other Party.
(e) As soon as practicable after endeavouring to telephone, or
telephoning, operating personnel of the other Party pursuant to Clause
19.5(c) or (d), the Party making the Communication must also send the
Communication by facsimile to the other Party and to the operating
personnel of that other Party.
(f) A Communication under Clause 19.5 will be made:
(1) when the electronic transmission sent under Clause 19.5(a)
is received by the recipient; or
(2) when the facsimile described in Clause 19.5(b) or (e) is
properly served or made pursuant to Clause 19.4.
(g) Each Party must notify the other Party of the telephone and facsimile
numbers of its operating personnel from time to time for the purposes
of Communications pursuant to this Clause 19.5.
(h) A reference in this Clause 19.5 to the operating personnel of Gascor
includes any agent, contractor or other person appointed or nominated
by Gascor as its operating personnel for the purposes of this Clause
19.5.
64
--------------------------------------------------------------------------------
20. SEVERANCE
--------------------------------------------------------------------------------
20.1 GENERAL CASE
(a) If the whole or any part of a provision of this Agreement is or
becomes void, unenforceable or illegal or otherwise contravenes any
law or statute, it is severed from this Agreement and the remainder of
this Agreement continues in full force and effect.
(b) If the severance referred to in Clause 20. 1 (a) would alter the basic
nature of this Agreement (other than a Party's right to information),
this Agreement will be deemed to have terminated on the date upon
which the Parties first become aware of the provision being void,
unenforceable or illegal or otherwise contravening any law or statute.
20.2 EXEMPTION EVENT
(a) If any Party becomes aware that the Exemption is likely to be repealed
or amended or to cease to apply to any of the Sellers, the Agent,
Gascor and this Agreement or to lapse within 3 months (the occurrence
of each such event being an ("EXEMPTION EVENT"), that Party must
notify the other Party. The Parties must meet within 5 Working Days of
such notice to discuss the potential Exemption Event.
(b) (1) If following a meeting pursuant to Clause 20.2(a), a
Party reasonably considers that the Exemption Event may
result in that Party being in contravention of Part IV of
the Trade Practices ▇▇▇ ▇▇▇▇, the Party may so notify the
other Party and the Parties must then jointly brief, as soon
as reasonably practicable, a Senior Counsel or equivalent
(experienced in matters relating to the Trade Practices Act
1974) to advise on the likelihood of such a contravention.
(2) If the Parties are unable to agree on counsel within 5
Working Days of a Party's notice under Clause 20.2(b)(1),
any Party may request that the Chairman of the Victorian Bar
Council nominate counsel and such nomination will be binding
on the Parties.
20.3 NEW AGREEMENT
(a) If either:
(1) this Agreement is terminated pursuant to Clause 20. 1 (b) or
(2) the advice obtained from counsel pursuant to Clause 20.2(b)
confirms the likelihood of a contravention of Part IV of the
Trade Practices Act 1974 upon the occurrence of the
Exemption Event, and the Exemption has not been replaced by
another regulation, enactment or arrangement having the same
effect as the Exemption,
65
the Parties must meet as soon as possible thereafter and negotiate in
good faith with the intent of agreeing the terms of a new agency
agreement on terms and conditions (including without limitation price)
similar to those in this Agreement taking into account the effect of
those provisions that contravene or are likely in any Party's
reasonable opinion to contravene the provisions of Part IV of the
Trade Practices ▇▇▇ ▇▇▇▇.
(b) Negotiations commenced under Clause 20.3(a)(2) may cease upon it
becoming apparent that:
(1) the Exemption will not be repealed, amended, cease to apply
or lapse;
(2) the Exemption has been replaced by another regulation,
enactment or arrangement having the same effect as the
Exemption; or
(3) the Exemption is not required in order to prevent a Party
being in contravention of Part IV of the Trade Practices ▇▇▇
▇▇▇▇.
(c) If:
(1) the Parties have not agreed the terms of a new agreement
within 60 days after the occurrence of an Exemption Event;
(2) the Exemption has not been replaced by another regulation,
enactment or arrangement having the same effect as the
Exemption; and
(3) it has not become apparent that the Exemption is not
required in order to prevent the Party seeking to utilise
this Clause 20.3(c) being a contravention of Part IV of the
Trade Practices ▇▇▇ ▇▇▇▇,
a Party may by notice to the other Party terminate this
Agreement with effect from the later of:
(A) the Exemption being repealed, amended, ceasing to
apply to each of the Agent, Gascor and this
Agreement or lapsing; and
(B) the date of such notice.
--------------------------------------------------------------------------------
21. GENERAL
--------------------------------------------------------------------------------
21.1 ENTIRE AGREEMENT
(a) Subject to the Transition Agreement, this Agreement, the Agent's
Sub-sales Agreement and the Master Agreement constitute the entire
contract between the Parties and supersedes all other agreements and
understandings between the Parties with regard to the matters dealt
with in this Agreement, the Agent's Sub-sales Agreement and the Master
Agreement and no representations, terms, conditions or warranties not
66
contained in this Agreement, the Agent's Sub-sales Agreement or the
Master Agreement will be binding on the Parties.
(b) The Schedules form part of this Agreement and the Parties must perform
their respective obligations as set out in the Schedules.
21.2 WAIVERS
A Party may not allege or purport to rely upon any waiver of any breach of or
non-compliance with any warranty, term or condition of this Agreement unless
that waiver is in writing and signed by the Party against which that waiver is
claimed. A waiver of any breach or non-compliance will not be and will not be
deemed to be a waiver of any other or subsequent breach or non-compliance.
21.3 VARIATIONS
A Party may not allege or purport to rely upon any modification, variation or
amendment of this Agreement unless it is in writing and signed by each Party.
21.4 FURTHER ASSURANCE
From time to time at the request of a Party, the other Party must do and execute
or cause to be done or executed all such acts, deeds and assurances reasonably
necessary for ensuring full and proper compliance with or performance of the
terms of this Agreement.
21.5 EXERCISE OF RIGHTS
A Party may exercise a right, power or remedy at its discretion, and separately
or concurrently with another right, power or remedy. A single or partial
exercise of a right, power or remedy by a Party does not prevent a further
exercise of that or any other right, power or remedy. Failure by a Party to
exercise a right, power or remedy in respect of any breach does not prevent the
exercise of a right, power or remedy in respect of any subsequent breach.
21.6 COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which is
an original instrument and all of which constitute one and the same instrument.
21.7 GOVERNING LAW AND JURISDICTION
This Agreement will be governed by and interpreted in accordance with the laws
from time to time in force in the State. The Parties irrevocably and
unconditionally submit to the non-exclusive jurisdiction of the Courts of the
State and all Courts which are competent to hear appeals in that jurisdiction.
67
--------------------------------------------------------------------------------
22. INTERPRETATION
--------------------------------------------------------------------------------
22.1 QUANTITIES OF GAS
In this Agreement, any reference to a quantity of gas is a reference to the
energy content of gas and the related volume of gas necessary to supply that
energy content.
22.2 INTERPRETATION
In this Agreement, unless the context otherwise requires:
(a) words (including words herein defined or given a special meaning)
denoting the singular include the plural and vice versa; words of any
gender include the corresponding words of the other genders; other
parts of speech and grammatical forms of a word or phrase defined in
this Agreement have a corresponding meaning; and references to persons
include corporations and vice versa;
(b) a reference to a Clause, Recital, Schedule or Annexure is respectively
a reference to the specified Clause, Recital, Schedule or Annexure of
this Agreement and a reference in a Schedule to a paragraph is a
reference to the specified paragraph in that Schedule or, if that
Schedule has more than one Part, to the specified paragraph in the
Part in which the reference occurs;
(c) all references to units of measurement in this Agreement are
references to the units of measurement defined in or for the purposes
of the National Measurement Act, 1960 (Commonwealth);
(d) all references to amounts of money in this Agreement are references to
those amounts in the lawful currency of Australia;
(e) a reference to this Agreement includes the Recitals, Schedules and
Annexure to this Agreement;
(f) the headings in this Agreement are inserted for convenience only and
do not affect the construction of this Agreement;
(g) reference to any Act of the Parliament of the Commonwealth of
Australia or any State of that Commonwealth or any regulations
thereunder includes, subject to the context and not including the
Exemption, any consolidations, amendments, re-enactments or
replacements of any of them and, in the case of a reference to an Act,
the regulations for the time being in force under it;
(h) all numerical information used and calculations made under this
Agreement will be, as far as practicable, to an accuracy of 4 decimal
places or such greater accuracy as may be necessary to ensure that
financial calculations are correct to the nearest cent and all
payments to be made under this Agreement will be rounded to the
nearest dollar;
68
(i) this Agreement is not intended to, and does not, create any
partnership, joint venture or other business entity between Gascor and
the Agent;
(j) reference to any Party includes a reference to the Party and its
successors and permitted substitutes (including persons taking by
novation) and assigns;
(k) reference to a time and date in connection with the performance of an
obligation or the exercise of a right by a Party is a reference to the
time and date in Melbourne, Victoria;
(l) if a period of time is specified and dates from a given day or the day
of an act or event, it is to be calculated exclusive of that day;
(m) if an event must occur on a stipulated day which is not a Working Day
then the stipulated day will be taken to be the next Working Day;
(n) a reference to a quantity of Gas being "delivered" to or "taken" by a
person means a quantity delivered to or taken by that person under
this Agreement;
(o) the word person includes a firm, a body corporate, an unincorporated
association or an authority; and
(p) a reference to this Agreement or another instrument (not including the
Exemption) includes any variation of any of them.
22.3 MASTER AGREEMENT TO PREVAIL
To the extent that any provision of this Agreement is inconsistent with any
provision of the Master Agreement, the provision of the Master Agreement will
prevail.
69
SCHEDULE 1
THE SERVICES
The Agent is responsible for all retail functions relating to the sale and
supply of Gas to Gascor Customers, including without limitation:
(1) the purchasing of Third Party Gas in accordance with Clause 3.2(b);
(2) the transportation of Contract Gas made available by Gascor to the
Agent at the Point of Delivery to Gascor Customers;
(3) the transportation of Third Party Gas from the point at which such gas
is delivered to the Agent to Gascor Customers;
(4) the marketing of Gas to Gascor Customers;
(5) the invoicing of Gascor Customers;
(6) the maintaining of accounts of Gascor Customers;
(7) the reading of Meters;
(8) the collection of debts; and
(9) complying with the Unclaimed Monies ▇▇▇ ▇▇▇▇ in relation to Gascor
Customers.
70
SCHEDULE 2
ACCOUNTING POLICIES
The following accounting policies must be used for the purpose of preparing the
Agency Records:
1. SALES REVENUE
Sales revenue for a Month is:
(a) the aggregate amount, expressed in dollars, invoiced in that Month by
the Agent to Gascor Customers in respect of Gas including Related
Charges; plus
(b) the sales revenue accrual for unbilled Gas supplied to Gascor
Customers in the Month determined as follows:
(1) at the end of the Month, the accrual is the quantity of Gas
supplied to Gascor Customers which has not been billed to
those customers converted to revenue based on the prevailing
Tariff Order or December 1997 Tariff Order;
(2) the amount of the accrual must be reconcilable to the total
quantity of Gas deemed to be made available to the Agent in
the Month under this Agreement and purchased by the Agent
from other persons, after making adjustments for the
reversal of the closing accrual for the preceding Month, the
billed revenue in the Month and unaccounted for gas;
(3) the accrual must be calculated by applying both the fixed
and variable charges contained within the prevailing tariff
to the quantity of Gas referred to in paragraph (1)(b)(1);
less
(c) the closing accrual for the preceding Month.
2. BAD AND DOUBTFUL DEBTS
(a) A specific provision must be made for the entire amounts of bad and
doubtful debts that remain outstanding [THIS PARAGRAPH CONTAINS
CONFIDENTIAL INFORMATION WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.] days or more after the
relevant invoice date.
(b) A reversal of the provision for bad and doubtful debts must be made to
the extent that debts previously classified as bad or doubtful are
subsequently collected.
(c) Gascor, in consultation with the Agent, will determine at least
annually which debts that have previously been provided for will be
71
written off and will advise the Agent when provisions in respect of
such debts are to be removed from the bad debt provision.
72
SCHEDULE 3 - RETAINED PROFIT
PART 1
CALCULATION OF RETAINED PROFIT
1. The amount of profit ("RETAINED PROFIT") which Gascor will retain in
each Month during the Contract Term (being variable RPM in the formula
contained in Clause 6.3) will be calculated as follows:
[THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN
OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.]
Where:
RPM is the amount of the Retained Profit for a Month ("MONTHM");
AM is the amount ("COMPONENT A") calculated in accordance with
paragraph 2 of Part 1 of this Schedule for MonthM; and
BM is the amount ("COMPONENT B") calculated in accordance with
paragraphs 3 to 5 (inclusive) of Part 1 of this Schedule for
MonthM;
provided that if [THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION
WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.] is less than zero, RPM shall be deemed to be
zero.
2. Component A for MonthM is calculated as follows:
[THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN
OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.]
Where:
AM is Component A for MonthM;
AMB is the amount set out in column 2 of Part 2 of this Schedule
against MonthM;
CPINt-1 is the Consumer Price Index (All Groups - weighted average of
eight capital cities), as first published by the Australian Bureau of
Statistics for the Quarter ended 30 September in the calendar year
immediately prior to the Contract Year in which MonthM falls or, if
MonthM falls in the Contract Year ending on [THIS PARAGRAPH CONTAINS
CONFIDENTIAL INFORMATION WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.], [THIS PARAGRAPH
CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN OMITTED, BUT FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.]; and
73
CPIBN is the base Consumer Price Index (All Groups - weighted average
of eight capital cities) being [THIS PARAGRAPH CONTAINS CONFIDENTIAL
INFORMATION WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.] (the Consumer Price Index (All
Groups - weighted average of eight capital cities) for the Quarter
ended [THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN
OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.].
3. Prior to the end of each Contract Year (or, if the relevant CPI data
is not available, as soon as reasonably practicable after the relevant
CPI data becomes available) an estimate of Component B to apply for
each Month in the following Contract Year will be made by Gascor by
applying the following formula:
[THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN
OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.]
Where:
BM is the estimated amount of Component B for MonthM;
BMB is the amount set out in column 3 of Part 2 of this Schedule
against MonthM;
CPIEt is the estimated CPI for the Contract Year in which MonthM
falls, being equal to CPIE (as defined in paragraph (a) of
Schedule 4 to the Principal Contract) for that year; and
CPIAB is the actual CPI for the [THIS PARAGRAPH CONTAINS
CONFIDENTIAL INFORMATION WHICH HAS BEEN OMITTED, BUT FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.]
calendar year (being the arithmetic average, rounded to the
third decimal place, of the CPI for each of the four
Quarters of that calendar year), being equal to CPIA (as
defined in paragraph (c) of Schedule 4 to the Principal
Contract) for that year.
4. For the purposes of calculating the Retained Profit during each
Contract Year (as itemised in the Monthly Claim Forms), Component B
will be calculated on the basis of the estimated amount of Component B
as determined in accordance with paragraph 3 of Part 1 of this
Schedule
5. If the estimated amount of Component B for January in any Contract
Year cannot be determined in accordance with paragraph 3 of Part 1 of
this Schedule by the date on which the Agent must give a Statement for
that month because of the unavailability of CPIEt, the Agent must, for
the purpose of calculating the estimated amount of Component B for
that month, use, in place of CPIEt, the estimated CPI for the previous
Contract Year and make appropriate reconciliation in the next Monthly
Claim Form.
6. Promptly after the CPI for each year becomes available (generally
during the third week in January of the following year), the actual
amount of Component B applicable for each Month in the Contract Year
just ended will be calculated by Gascor in accordance with the
following formula:
74
[THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN
OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.]
Where:
RB is the actual amount of Component B for MonthM;
BMB is as defined in paragraph 3 of Part 1 of this Schedule;
CPIAt is the actual CPI for that year, being equal to CPIA (as
defined in paragraph (c) of Schedule 4 to the Principal
Contract) for that year; and
CPIAB is as defined in paragraph 3 of Part 1 of this Schedule.
7. After calculating the actual amount of Component B for each Month in a
Contract Year in accordance with paragraph 5 of Part 1 of this
Schedule, Gascor must calculate the difference between the aggregate
estimated amounts of Component B for each Month of that Contract Year
and the aggregate actual amounts of Component B for each Month of that
Contract Year ("RECONCILIATION AMOUNT").
8. The Reconciliation Amount determined in respect of a Contract Year in
accordance with paragraph 6 of Part 1 of this Schedule will be taken
into account in the next Annual Statement in accordance with Clause
6.8(e)(3)(B) of this Agreement.
75
PART 2
BASE AMOUNTS
---------------------------- ------------------------ --------------------------
COLUMN 1 COLUMN 2 COLUMN 3
MONTH COMPONENT A* COMPONENT B*
($ MILLION) ($ MILLION)
---------------------------- ------------------------ --------------------------
1998
---------------------------- ------------------------ --------------------------
July
---------------------------- ------------------------ --------------------------
August
---------------------------- ------------------------ --------------------------
September
---------------------------- ------------------------ --------------------------
October
---------------------------- ------------------------ --------------------------
November
---------------------------- ------------------------ --------------------------
December
---------------------------- ------------------------ --------------------------
1999
---------------------------- ------------------------ --------------------------
January
---------------------------- ------------------------ --------------------------
February
---------------------------- ------------------------ --------------------------
March
---------------------------- ------------------------ --------------------------
April
---------------------------- ------------------------ --------------------------
May
---------------------------- ------------------------ --------------------------
June
---------------------------- ------------------------ --------------------------
July
---------------------------- ------------------------ --------------------------
August
---------------------------- ------------------------ --------------------------
September
---------------------------- ------------------------ --------------------------
October
---------------------------- ------------------------ --------------------------
November
---------------------------- ------------------------ --------------------------
December
---------------------------- ------------------------ --------------------------
2000
---------------------------- ------------------------ --------------------------
January
---------------------------- ------------------------ --------------------------
February
---------------------------- ------------------------ --------------------------
March
---------------------------- ------------------------ --------------------------
April
---------------------------- ------------------------ --------------------------
May
---------------------------- ------------------------ --------------------------
76
---------------------------- ------------------------ --------------------------
COLUMN 1 COLUMN 2 COLUMN 3
MONTH COMPONENT A* COMPONENT B*
($ MILLION) ($ MILLION)
---------------------------- ------------------------ --------------------------
June
---------------------------- ------------------------ --------------------------
July
---------------------------- ------------------------ --------------------------
August
---------------------------- ------------------------ --------------------------
September
---------------------------- ------------------------ --------------------------
October
---------------------------- ------------------------ --------------------------
November
---------------------------- ------------------------ --------------------------
December
---------------------------- ------------------------ --------------------------
2001
---------------------------- ------------------------ --------------------------
January
---------------------------- ------------------------ --------------------------
February
---------------------------- ------------------------ --------------------------
March
---------------------------- ------------------------ --------------------------
April
---------------------------- ------------------------ --------------------------
May
---------------------------- ------------------------ --------------------------
June
---------------------------- ------------------------ --------------------------
July
---------------------------- ------------------------ --------------------------
August
---------------------------- ------------------------ --------------------------
September
---------------------------- ------------------------ --------------------------
October
---------------------------- ------------------------ --------------------------
November
---------------------------- ------------------------ --------------------------
December
---------------------------- ------------------------ --------------------------
*[THESE COLUMNS CONTAIN CONFIDENTIAL INFORMATION WHICH HAS BEEN OMITTED, BUT
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.]
77
PART 3
VARIATION OF RETAINED PROFIT
1. The Parties acknowledge that the method of calculating the Retained
Profit as set out in Part 1 of this Schedule assumes that the
Contestability Dates will be as follows:
CONTESTABILITY DATE CUSTOMER LOAD (GIGAJOULES)
1 October 1999 more than 500,000
1 March 2000 100,000 to 499,999
1 September 2000 5,000 to 99,999
1 September 2001 All remaining customers
2. If:
(d) there is any change in any Contestability Date; or
(e) any increase in the reference tariffs of Transmission
Pipelines Australia Pty Ltd (ACN 079 089 268) or
Transmission Pipelines Australia (Assets) Pty Ltd (ACN 079
136 413) (together, or separately, "TPA"), as set out in the
access arrangements of TPA relating to the principal
transmission system approved by the ACCC under the Code on
18 December 1998, made in recognition of the capital costs
incurred by TPA in constructing or commissioning the
existing transmission pipeline between Barnawartha in
Victoria and Culcairn in New South Wales or the
construction, installation or commissioning of the proposed
new compressor at Springhurst,
(each a "VARIATION EVENT")
then the Base Amounts will be varied to take account of the Variation
Event in accordance with paragraphs 3 to 9 (inclusive).
3. If Gascor considers that a Variation Event is likely to occur, or a
Variation Event has occurred, Gascor must appoint KPMG of ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ or, if KPMG are unable to accept the
appointment, such member of The Institute of Chartered Accountants in
Australia or the Australian Society of Certified Practising
Accountants as the Parties may agree (such agreement not to be
unreasonably withheld or delayed) ("REVIEWING ACCOUNTANT") to
determine the variations required to be made to the Base Amounts as a
result of the Variation Event.
4. For the purposes of determining the variations required to be made to
the Base Amounts, the Reviewing Accountant must use the ["Gascor
Retained Profit"] model developed and used by KPMG for the purposes of
determining the Base Amounts and must use the same assumptions and
inputs as were used for the purposes of determining the Base Amounts,
save to the extent that, in the Reviewing Accountants' reasonable
78
opinion, the assumptions and inputs have or need to be changed to take
account of the Variation Event.
5. It must be a term of the appointment of the Reviewing Accountant that
the Reviewing Accountant must not disclose to the Agent any
information relating to the determination or variation of another
Retailer's Base Amounts (as defined in that Retailer's Agency
Agreement).
6. The Reviewing Accountant will be deemed not to be an arbitrator, but
shall give its decision as an expert and its decision shall be final
and binding on the Parties in the absence of fraud or manifest error.
7. The costs and expenses of the Reviewing Accountant must be borne by
Gascor.
8. Any variation of the Base Amounts as determined in accordance with
paragraphs 2 to 4 (inclusive), will take effect from the date on which
the Variation Event occurred, whether or not the variation is
determined by the Reviewing Accountant before or after that date, and,
for the avoidance of doubt, the Reviewing Accountant may vary the Base
Amounts with retrospective effect (in which case the Reviewing
Accountant must specify, and the Parties must give effect to, any
necessary reconciliation).
9. For the purposes of this Part 4, a variation of the Base Amounts may
include a reduction or increase in the length of the period in respect
of which Base Amounts (as varied) are calculated commensurate with the
Contract Term.
79
PART 4
VARIATION OF THE RETAINED PROFIT IN THE EVENT OF A FAILURE OF SUPPLY
1. For the purposes of this Part 4:
"FAILURE OF SUPPLY" means a total failure by the Sellers to supply any
Gas at the Point of Delivery for a period of at least [THIS PARAGRAPH
CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN OMITTED, BUT FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.] consecutive
hours.
2. If, in any Month during the Contract Term (other than a Month ending
on or prior to [THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION WHICH
HAS BEEN OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.]), there is a Failure of Supply (whether that
Failure of Supply commences before or during that Month), the Retained
Profit for that Month ("MONTHM") shall be adjusted as follows:
[THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN
OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.]
ARP is the amount of the Retained Profit for MonthM as adjusted;
RPM is the amount of the Retained Profit for MonthM as
calculated in accordance with Part 1 of this Schedule;
HM is the [THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION
WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.] in MonthM; and
HF is the [THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION
WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.] in MonthM during which
the Sellers totally failed to supply any Gas at the Point of
Delivery.
80
SCHEDULE 4
DEED OF ASSIGNMENT
DATE:
PARTIES:
BETWEEN:
GASCOR, being the body corporate of that name established under the Gas Industry
▇▇▇ ▇▇▇▇ having its principal office at sixth floor, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ("GASCOR")
AND
KINETIK ENERGY PTY LTD ACN 079 089 188 of Level 19, East Tower, ▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ("AGENT")
A. Gascor and the Agent entered into an Agency Agreement on [ ] 1998
("AGENCY AGREEMENT") in which Gascor appointed the Agent as its agent
to supply and sell gas to Gascor Customers.
B. Gascor is obliged under Clause 3.3(c)(2) of the Agency Agreement to
assign to the Agent, with effect from each Contestability Date, all
Gascor's rights, title and interest in and to any Sales Contract with
a Customer who ceases to be a Gascor Customer on that Contestability
Date, save for certain Receivables.
C. The Obligor ceased, or will cease, on the Effective Date to be a
Gascor Customer and consequently Gascor wishes to make this assignment
in favour of the Agent.
OPERATIVE PROVISIONS:
1. In this Deed:
"CONTRACT[S]" means [insert description of the Sales Contract(s) being
assigned].
"CONTRACTUAL RIGHTS" means all rights of Gascor (present or future,
actual or contingent) against the Obligor under or in relation to the
Contract[s].
"EFFECTIVE DATE" means [insert the relevant Contestability Date].
"OBLIGOR" means [insert name, address and ACN (if applicable) of the
relevant Customer].
2. Terms defined in the Agency Agreement have the same meaning when used
in this Deed.
81
3. With effect on and from the Effective Date but subject to Clause 4,
Gascor absolutely assigns to the Agent all Gascor's rights, title and
interest in and to the Contract[s] and the Contractual Rights. The
Agent accepts this assignment.
4. The assignment in Clause 3 does not include Gascor's rights, title and
interest in and to any Receivables owed by the Obligor as at the
Effective Date.
5. The Agent assumes, and undertakes to perform, all Gascor's liabilities
and obligations under or in relation to the Contractual Rights and the
Contract[s].
6. Following execution of this Deed by Gascor and the Agent, Gascor must
execute and send to the Obligor a notice of assignment directing the
Obligor to pay all amounts which fall due under the Contract[s] to,
and otherwise to perform the Contract[s] in favour of, the Agent.
7. This Deed is governed by the laws of the State of Victoria.
EXECUTED by the parties as a deed
THE OFFICIAL SEAL of GASCOR is affixed to this document by the Administrator in
the presence of:
------------------------------------ ---------------------------------------
Witness Administrator
------------------------------------ ---------------------------------------
Name (please print) Name (please print)
82
THE COMMON SEAL of
KINETIK ENERGY PTY LTD
ACN 079 089 188 is affixed to this
document
------------------------------------ ---------------------------------------
Director/Secretary Director
------------------------------------ ---------------------------------------
Name (please print) Name (please print)
83
SCHEDULE 5
DEED OF RELEASE
DATE:
PARTIES:
BETWEEN:
[insert name of Customer] [insert ACN/ARBN] of [insert address] ("CUSTOMER")
AND
GASCOR, being the body corporate of that name established under the Gas Industry
▇▇▇ ▇▇▇▇ having its principal office at sixth floor, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ("GASCOR")
AND
KINETIK ENERGY PTY LTD ACN 079 089 188 of Level 19, East Tower, ▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ("RETAILER")
A. By an agreement ("CONTRACT") dated [ ] entered into by [Gascor]
[the Retailer as agent for an on behalf of Gascor] and the Customer,
Gascor agreed to supply gas and related services to the Customer.
B. On [ ] ("EFFECTIVE DATE") Gascor assigned to the Retailer all its
rights, title and interest in and to the Contract [, save for any
payments which the Customer may owe now or in the future in respect of
gas supplied prior to the Effective Date].
C. The Customer agrees to release Gascor from all obligations and
liabilities under the Contract with effect from the Effective Date on
the terms of this Deed.
OPERATIVE PROVISIONS:
1. The Retailer will, at all times after the Effective Date, comply with
Gascor's obligations under the Contract.
2. The Customer will, at all times after the Effective Date, comply with
the Customer's obligations under the Contract.
3. In consideration of the covenant of the Retailer contained in Clause 1
of this Deed, the Customer hereby releases and forever discharges
Gascor from all obligations, liabilities, claims and demands arising
out of, or in respect, of the Contract.
4. This Deed is governed by the laws of the State of Victoria.
84
EXECUTED by the parties as a deed
THE OFFICIAL SEAL of GASCOR is affixed to this document by the Administrator in
the presence of:
------------------------------------ ---------------------------------------
Witness Administrator
------------------------------------ ---------------------------------------
Name (please print) Name (please print)
THE COMMON SEAL
of [INSERT NAME OF CUSTOMER]
ACN [insert ACN/ARBN] is affixed to this document:
------------------------------------ ---------------------------------------
Director/Secretary Director
------------------------------------ ---------------------------------------
Name (please print) Name (please print)
85
THE COMMON SEAL
of KINETIK ENERGY PTY LTD
ACN 079 089 188 is affixed
to this document
------------------------------------ ---------------------------------------
Director/Secretary Director
------------------------------------ ---------------------------------------
Name (please print) Name (please print)
86
SCHEDULE 6
ACCOUNTING AND AUDIT REQUIREMENTS
1. FIRST INTERIM STATEMENT
The First Interim Statement must be:
(a) in the form set out in Annexure A to this Agreement; or
(b) in such other form as Gascor may decide from time to time following
consultation with the Agent.
2. SECOND INTERIM STATEMENT
The Second Interim Statement must be:
(a) in the form set out in Annexure B to this Agreement; or
(b) in such other form as Gascor may decide from time to time following
consultation with the Agent.
3. MONTHLY CLAIM FORM
(a) The Monthly Claim Form must be:
(1) in the form set out in Annexure C to this Agreement; or
(2) in such other form as Gascor may decide from time to time
following consultation with the Agent.
(b) Each Monthly Claim Form must be:
(1) submitted both electronically and as a signed paper
document; and
(2) certified by the Agent's Chief Executive Officer of Chief
Financial Officer or General Manager.
(c) Each Monthly Claim Form must be accompanied by sufficient supporting
documentation to explain the agency transactions for M, including
without limitation:
(1) copies of bank statements in relation to the Designated
Accounts;
(2) copies of the statements of total quantity of Contract Gas
(Qt) allocated to the Agent under Clause 7.1 of the Master
Agreement as issued by Gascor in respect of M-1;
87
(3) copies of the Agent's calculations of S, G, RPM, N, Z and X
made in accordance with Clause 6.3; and
(4) such additional information as Gascor may reasonably require
for its own reporting purposes.
(d) In addition to the information required to be included in each Monthly
Claim Form relating to the calculation of the Commission, each Monthly
Claim Form must be accompanied by the following information in respect
of M:
(1) the amount of Sales Revenue in respect of M as determined in
accordance with the Accounting Policies;
(2) an analysis of the movement in bad and doubtful debt
provision for M including recoveries, write offs and further
provisions as determined in accordance with the Accounting
Policies;
(3) a listing of bad debt recoveries against Refundable
Advances;
(4) estimated cost of the quantity of Contract Gas supplied by
the Agent to Gascor Customers in M, being the quantity which
the Agent is required to determine in accordance with Clause
6.4 of this Agreement;
(5) copies of monthly summary sheets in respect of the Agent's
Customer and Refundable Advances debtors ledgers, showing
month end balances;
(6) reconciliations for each general ledger account required to
be maintained by the Agent pursuant to paragraph 4(a) of
this Schedule;
(7) the summary trial balance for agency transactions ("AGENCY
TRIAL BALANCE"), prepared by the Agent;
(8) copies of monthly general ledger transaction reports in
respect of the Agent's customer service obligation deposits
ledgers, showing month end balances;
(9) a summary general ledger transaction listing of repayments
by the Agent to customers in respect of overpayments; and
(10) all other information referred to in the checklist for
supporting documentation attached to the Monthly Claim Form
set out in Annexure C to this Agreement.
(e) All amounts stated in a Monthly Claim form must be rounded to the
nearest cent, whereas all amounts stated in any supporting
documentation may be rounded to the nearest multiple of $1,000.
88
4. AGENCY RECORDS
(a) The Agent must keep full, accurate and separate records ("AGENCY
RECORDS") in respect of all transactions with Gascor Customers and
Gascor including but not limited to:
(1) a general ledger detailing all ledger transactions relating
to Gascor Customers including those accounts as may be
prescribed from time to time by Gascor;
(2) a debtors sub-ledger;
(3) a ledger of Refundable Advances;
(4) a sub-ledger of advances from Australia Post;
(5) Designated Accounts ledger;
(6) details of reimbursements receivable in respect of Community
Services Costs;
(7) details of recoveries of bad debts;
(8) details of bad debt provisions, write-offs and recoveries of
bad debts against Refundable Advances;
(9) details of interest on Refundable Advances;
(10) details of unbilled gas sales accruals;
(11) details of all quantities of Contract Gas supplied by the
Agent to Gascor Customers and Contract Gas purchased; and
(12) a summary sales ledger in respect of Gas supplied by the
Agent to Gascor Customers and Related Charges.
(b) The Agent must maintain all Agency Records in accordance with
applicable law, including without limitation the Corporations Law, the
Accounting Policies and otherwise in accordance with generally
accepted accounting practices and principles.
(c) The Agent must permit Gascor and its accountants and auditors and
their respective representatives and employees, on reasonable notice
and at all reasonable times during normal business hours, to inspect
and, at Gascor's cost, take copies of:
(1) all Agency Records; and
(2) all books and records of the Agent relating to transactions
entered into by Gascor or the Agent on behalf of Gascor
prior to the date of this Agreement.
89
(d) All Agency Records and all records relating to the calculation of the
Commission must be preserved by the Agent for a period of 7 years from
the date on which the Agency Records were created.
5. AUDIT RIGHTS
(a) By no later than 31 January and 31 July each year during the Contract
Term, the Agent must procure that, at the Agent's cost, its auditors
or such other registered company auditor as Gascor may approve (such
approval not to be unreasonably withheld or delayed) ("AGENT'S
ACCOUNTANTS") prepare an audit report for Gascor and Gascor's
Accountant's, on whether, in their opinion:
(A) the Commission payable in respect of the preceding Financial
Half Year has been properly calculated in accordance with
this Agreement;
(B) the Agency Trial Balance is presented fairly in accordance
with the Account Policies, this Agreement and accounting
standards (as defined in section 9 of the Corporations Law)
and other mandatory reporting requirements; and
(C) the Agent has kept the Agency Records to enable the Agency
Trial Balance to be prepared and audited as required by this
Agreement.
(b) The Parties must ensure that Gascor's Accountants and the Agent's
Accountants confer and use their best endeavours to adopt a common
audit methodology ("AUDIT METHODOLOGY") which the Agent's Accountants
must apply in order to form an opinion on the matters pursuant to
paragraph 5(a) of this Schedule.
(c) If Gascor's Accountants and the Agent's Accountants do not agree on
the Audit Methodology, either Party may refer the matter to an Expert.
(d) The Agent must ensure that the Agent's Accountants use the Audit
Methodology agreed pursuant to paragraph 5(b) of this Schedule or
determined pursuant to paragraph 5(c) of this Schedule for the purpose
of the preparation of reports pursuant to paragraph 5(a) of this
Schedule.
(e) The Agent must ensure that the Agent's Accountants give Gascor or
Gascor's Accountants access to and, at Gascor's cost, copies of all
working papers relating to the preparation of its reports.
(f) If the Agent's Accountants:
(1) do not carry out the Audit Methodology to provide assurance
on the above matter; or
(2) do not carry out the Audit Methodology in a manner
consistent with professional standards as determined by
Gascor's Accountants, acting reasonably,
90
Gascor's Accountants will complete the audit necessary to provide the
appropriate level of assurance to Gascor. In these circumstances, the
Agent will cooperate with Gascor's Accountants and will bear the cost
of carrying out this audit.
6. FORECAST AND BUDGET DATA
(a) By no later than the [THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION
WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.] day of each Month during the Contract Term, the
Agent must, at its own cost, provide Gascor with a Monthly rolling
forecast for the next three Months commencing with the Month following
the Month in which the forecast is submitted, showing:
(1) the aggregate amount of Money estimated to be received in
relation to Receivables;
(2) the total quantity of Contract Gas, expressed in GJ,
estimated to be delivered by Gascor to the Agent under this
Agreement;
(3) the estimated Sales Revenue, expressed in dollars and
associated GJ; and
(4) the total quantity of Gas estimated to be nominated by the
Agent under Clause 4.2(a)(2) of this Agreement and Clause
3.2(a)(2) of the Agent's Sub-sales Agreement.
(b) by no later than [THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION
WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.] in each year during the Contract Term, the Agent
must, at its own cost, provide Gascor with a 12 month budget statement
by month and by the year total for the next annual accounting period
ending on [THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION WHICH HAS
BEEN OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
Commission.] in the following year ("FIRST YEAR"), and an annual
budget statement for the subsequent year ending on [THIS PARAGRAPH
CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN OMITTED, BUT FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.] in the year
after the First Year, each showing:
(1) the aggregate amount of Money estimated to be received in
relation to Receivables;
(2) the total quantity of Contract Gas, expressed in GJ,
estimated to be delivered by Gascor to the Agent under this
Agreement;
(3) the estimated Sales Revenue, expressed in dollars and
associated GJ, and by separate agency customer
categorisations in accordance with the Agent's normal
business categorisation of Gascor Customers;
(4) the total quantity of Gas estimated to be nominated by the
Agent under Clause 4.2(a)(2) of this Agreement and Clause
3.2(a)(2) of the Agent's Sub-sales Agreement; and
91
(5) agency balance sheet account values including, but no
limited to, the following accounts:
(A) agency gas sales debtors;
(B) provision for agency bad debts; and
(C) such other sundry agency balance sheet accounts as
the Agent maintains.
(c) Each Monthly rolling forecast or budget statement referred to in
paragraphs 6(a) and 6(b) must be:
(1) submitted by the Agent in both electronic form (either
contained on a computer disk or transmitted by electronic
mail) and documentary form; and
(2) certified by the Agent's Chief Executive Officer or Chief
Financial Officer or General Manager.
92
SCHEDULE 7
LITIGATION
1. CUSTOMER AT THE SUIT OF THE AGENT
The following provisions shall apply as between Gascor and the Agent in the
event that the Agent issues, or proposes to issue, legal proceedings against a
Gascor Customer ("Proceedings") in connection with the sale of Contract Gas to
that Customer:
(a) The Agent is authorised by Gascor to conduct the Proceedings as agent
of Gascor and to do all things which the Agent considers necessary or
desirable in order to bring the Proceedings as agent of Gascor.
(b) The Agent shall have conduct of the Proceedings, including the right
to appoint legal advisers, the right to settle or compromise the
Proceedings or to bring appeal proceedings.
(c) The Agent must provide Gascor with all such information as Gascor may
reasonably request relating to Proceedings in which the amount claimed
exceeds the monetary limit from time to time for civil claims brought
in the County Court of Victoria, including all pleadings, legal
opinions and copies of correspondent subject to Gascor paying the
Agent's reasonable out of pocket expenses and provided the provision
of information will not prejudice the conduct of the Proceedings).
(d) The Agent indemnifies Gascor against any claim action, damage, loss,
liability, cost, charge or expense which Gascor may suffer or incur as
a result of, or in connection with, the Proceedings or any judgment or
order made in connection with them. The Agent must provide Gascor with
such security as Gascor may reasonably require in support of this
indemnity.
2. GASCOR AT THE SUIT OF A CUSTOMER
The following provisions shall apply as between the Agent and Gascor in the
event that a Gascor Customer issues, or threatens to issue, legal proceedings
against Gascor ("CLAIM") as the principal of the Agent in connection with the
sale or supply of Contract Gas to that Gascor Customer:
(a) The Agent must promptly notify Gascor if the Agent is served with any
legal process initiated by or on behalf of a Gascor Customer in which
Gascor is named.
(b) The Agent shall have the conduct of defending the Claim and issuing
any counterclaim.
(c) The Agent is authorised to do all things and to take all action as
agent of Gascor to defend the Claim (including bringing any
counterclaim) and to appoint legal advisers and to settle or
compromise the Claim (and any counterclaim) and to issue any appeal
proceedings.
93
(d) If the Agent does not assume the conduct of the defence of the Claim,
Gascor may assume the defence (and any counterclaim) at the cost of
the Agent. If Gascor assumes the defence (and any counterclaim), the
Agent must provide Gascor with all such information and assistance as
Gascor may reasonably request relating to the Claim, the defence and
any counterclaim including all correspondence and other relevant
material.
(e) The Agent indemnifies Gascor against any claim, action, damage, loss,
liability, cost or expense which Gascor may suffer or incur as a
result of, or in connection with, the Claim (and any counterclaim) or
any judgment or order made in connection with it. The Agent must
provide Gascor with such security as Gascor may reasonably require in
support of this indemnity.
(f) Subject to paragraph 2(d), the Agent must provide Gascor with all such
information as Gascor may reasonably request relating to the Claim
(and any counterclaim) if the amount claimed or counterclaimed exceeds
the monetary limit from time to time for civil claims brought in the
County Court of Victoria, including all pleadings, legal opinions and
copies of correspondence (subject to Gascor paying the reasonable out
of pocket expenses of the Agent and provided the provision of
information will not prejudice the defence of the Claim (or the
bringing of any counterclaim)).
94
SCHEDULE 8
MAXIMUM ANNUAL QUANTITY
COLUMN 1 COLUMN 2*
CONTRACT YEAR MAQ
(PJ)
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
*[THIS COLUMN CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN OMITTED, BUT
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.]
95
SCHEDULE 9
RELATED CHARGES
------------------------------------- ------------------------------------------
Item Description
------------------------------------- ------------------------------------------
1. Collection fees. A customer charge (applicable to non
residential only) where a field call is
required to collect outstanding monies
(current charge $[THIS PARAGRAPH
CONTAINS CONFIDENTIAL INFORMATION WHICH
HAS BEEN OMITTED, BUT FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.])
------------------------------------- ------------------------------------------
2. Returned cheque fees. A fee charged for cheques dishonoured by
the bank.
------------------------------------- ------------------------------------------
3. Account establishment fees. A consumer charge to recover the costs
of establishing a new account.
------------------------------------- ------------------------------------------
4. Direct debit default fees.
------------------------------------- ------------------------------------------
5. Statement fees.
------------------------------------- ------------------------------------------
6. Quotation fees. A customer charge for work which does
not proceed after the customer has
requested it (and usually relates to
alterations of meter positions). Current
charge: $[THIS PARAGRAPH CONTAINS
CONFIDENTIAL INFORMATION WHICH HAS BEEN
OMITTED, BUT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.].
------------------------------------- ------------------------------------------
7. Sub-meter hire charges. A charge for sub meters provided,
especially in flats, where individual
consumption data is required.
------------------------------------- ------------------------------------------
8. Recoveries - excess services A charge made to a customer for laying
charges. of a new service to their property where
the distance from the existing main is
greater than 20 meters.
------------------------------------- ------------------------------------------
9. Natural gas account statement A charge made to a customer who
request fees. requested a duplicate of the existing
gas account.
------------------------------------- ------------------------------------------
10. Unmetered gas lights charge. A charge for unmetered gas lights which
is based upon a fixed cost for the
number of mantles within the gas light
based upon average consumption.
------------------------------------- ------------------------------------------
11. Reconnection fees. A charge for reconnecting a customer who
had been disconnected for bad debts.
------------------------------------- ------------------------------------------
12. Meter testing fees. A charge for testing a meter where a
customer believes that the recording is
incorrect. Should the meter be tested
and found to be accurate, then the
customer is charged the cost of testing
the equipment.
------------------------------------- ------------------------------------------
96
------------------------------------- ------------------------------------------
13. No access fees. A customer charge where access to the
meter is obstructed (by the customer).
------------------------------------- ------------------------------------------
14. Alter mater charges. A charge for physically re-sitting a
meter at a customer's premises.
------------------------------------- ------------------------------------------
15. Base and enclosure assembly A charge for installing a concrete slab
charges. base and an enclosure around a
commercial meter.
------------------------------------- ------------------------------------------
97
SCHEDULE 10
ESTIMATION PROCEDURES
The estimated quantity of Gas supplied to each Contestable Customer in the
Agency Area in a Month will be determined by calculating the quantity of Gas,
expressed in GJ, underlying the sales revenue generated by the Agent from that
Contestable Customer in that Month.
The procedures for determining the estimated quantity of Gas supplied by the
Agent to a Contestable Customer in the Agency Area in a Month, as required for
the purposes of Clause 6.4(a), are as follows:
1. The quantity of Gas invoiced to the Contestable Customer in a Month
must be determined and the number of days covered by the invoice must
be converted into equivalent days by treating weekend days and public
holidays as [THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION WHICH
HAS BEEN OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.] instead of unity (except where there are other
consumption patterns). The invoiced quantity will then be divided by
the number of equivalent days to obtain a GJ/equivalent day amount.
2. The number of days from but excluding the day on which the Contestable
Customer's meter was last read to and including the last day of the
Month in respect of which the estimate is being determined will be
converted into equivalent days and an accrual will be calculated by
multiplying the number of equivalent days by the GJ/equivalent day
amount.
3. The estimated quantity of Gas supplied in a Month to the Contestable
Customer will then be determined by taking the aggregate quantity,
expressed in GJ, invoiced to the Contestable Customer in that Month
and adding an accrual for the estimated quantity of unbilled Gas
supplied to the Contestable Customer in that Month, as determined in
accordance with paragraph 2, and deducting the accrual, as determined
in respect of the Contestable Customer in accordance with paragraphs 1
and 2 for the preceding Month.
98
SCHEDULE 11
MINIMUM TAKE OF GAS IN A CONTRACT YEAR
---------------------------- ------------------------ --------------------------
COLUMN 1 COLUMN 2 COLUMN 3
CONTRACT YEAR AGENT'S ANNUAL MINIMUM AGGREGATE ANNUAL
QUANTITY (IN PJ)* MINIMUM QUANTITY OF ALL
RETAILERS AND RCO (IN
PJ)*
---------------------------- ------------------------ --------------------------
1998
---------------------------- ------------------------ --------------------------
1999
---------------------------- ------------------------ --------------------------
2000
---------------------------- ------------------------ --------------------------
2001
---------------------------- ------------------------ --------------------------
*[THESE COLUMNS CONTAIN CONFIDENTIAL INFORMATION WHICH HAS BEEN OMITTED, BUT
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.]
99
EXECUTED as an agreement.
THE OFFICIAL SEAL of GASCOR )
was hereunto affixed by authority of )
the Administrator in the presence of: )
▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇
----------------------------------- --------------------------------------
Administrator Witness
▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------- --------------------------------------
Print Name Print Name
THE COMMON SEAL of )
KINETIK ENERGY PTY LIMITED )
ACN 079 089 188 )
was affixed to this document )
in the presence of: )
▇▇ ▇▇▇▇▇ J ▇▇▇
----------------------------------- --------------------------------------
Signature of director Signature of director/secretary
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
----------------------------------- --------------------------------------
Name of director (please print) Name of director/secretary (please print)
100
--------------------------------------------------------------------------------
[AGENT]
FIRST INTERIM INSTALMENT CLAIM - [MONTH]
([THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN OMITTED,
BUT FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.] DAY OF
MONTH M)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
$
+ Daily cash received day 1-12 of M
- 50% of M-1 agency contract gas received
- 50% of Gascor M retained profit
- 50% of M agency AMDQ instalment
First interim instalment on account of ----------
Commission (I1)
==========
Note: Values to be completed to three decimal places
--------------------------------------------------------------------------------
101
--------------------------------------------------------------------------------
AGENTS CERTIFICATION
I .................., certify that the claim of $................. has been
properly calculated and is based on only valid transactions with agency
customers.
Signed
.....................................
Name
.....................................
Title Chief Executive Officer/Chief Financial Officer/General Manager
(Please select)
--------------------------------------------------------------------------------
102
ANNEXURE A
FIRST INTERIM STATEMENT
103
--------------------------------------------------------------------------------
[AGENT]
SECOND INTERIM INSTALMENT CLAIM - [MONTH]
([THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN OMITTED,
BUT FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.] DAY OF
MONTH M)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
$
+ Daily cash received day 13-27 of M
- 50% of M-1 agency contract gas received
- 50% of Gascor M retained profit
- 50% of M agency AMDQ instalment
Second interim instalment on account of -----------
Commission (I2)
==========
Note: Values to be completed to three decimal places
--------------------------------------------------------------------------------
104
--------------------------------------------------------------------------------
AGENTS CERTIFICATION
I .................., certify that the claim of $................. has been
properly calculated and is based on only valid transactions with agency
customers.
Signed
.....................................
Name
.....................................
Title Chief Executive Officer/Chief Financial Officer/General Manager
(Please select)
--------------------------------------------------------------------------------
105
ANNEXURE C
MONTHLY CLAIM FORM
106
--------------------------------------------------------------------------------
[AGENT]
[MONTH] MONTHLY AGENT COMMISSION CLAIM FORM
CLAIMED BY [AGENT] ON THE [THIS PARAGRAPH CONTAINS CONFIDENTIAL INFORMATION
WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.] DAY OF
[MONTH]
PAYABLE BY GASCOR ON THE [THIS PARAGRAPH CONTAINS
CONFIDENTIAL INFORMATION WHICH HAS BEEN OMITTED, BUT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.] DAY OF
[MONTH]
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
Schedule Total Line
$,000
RECEIPTS
--------
+ Cash received from agency customers per general ledger 2 0 29
+ Bad debts recovered per the general ledger 3 0 43
+ CSO and energy relief reimbursements per the general ledger 4 0 48
-----------------
Cash received for gas sales and related services (S) 0
ADDITIONS
---------
+ Refundable advances (N) 5 0 56
+ Net agency customer overpayments (Z) 6 0 63
DEDUCTIONS
----------
- Cost of M-1 contract gas and M AMDQ (G) 7 0 71
(In accordance with section 6.3 of the agreement)
- M Gascor retained profit (RPm)
(as set out in column 4 of part 1 of schedule 3 for
M as adjusted to take account of indexation in
accordance with Part 2 of schedule 3)
-----------------
+/ Other agency customer adjustments (X) 8 0 77
-----------------
AGENCY COMMISSION FOR THE MONTH (C = S-G-RPM+N+Z+X) 0
-----------------
- First instalment (I1) 10 0 94
- Second instalment (I2) 11 0 99
-----------------
Net sum payable
-----------------
+/ Amounts payable to/by Gascor for gas reconciliation 7 0 72
+/ Other amounts payable to/by Gascor under agency agreement 105
-----------------
BALANCE OF COMMISSION PAYABLE BY GASCOR ON THE 13TH DAY 0
-----------------
--------------------------------------------------------------------------------------------
107
--------------------------------------------------------------------------------
AGENTS CERTIFICATION
I .................., certify that the claim of $................. has been
properly calculated and is based on only valid transactions with agency
customers.
Signed
.....................................
Name
.....................................
Title Chief Executive Officer/Chief Financial Officer/General Manager
(Please select)
--------------------------------------------------------------------------------
108
SCHEDULE 1 - BANK RECONCILIATION
-------- ----------------------------------- ------------ ----------- ------------ --------- ------
LINE OPERATING CASH CASH CONTROL TOTAL REF
ACCOUNT MANAGEMENT ACCOUNT
ACCOUNT
$,000 $,000 $,000 $,000
-------- ----------------------------------- ------------ ----------- ------------ --------- ------
1 OPERATING BALANCE OF GENERAL LEDGER 0
AGENCY GENERAL LEDGER ACCOUNT
TRANSFERS
2 Cash receipts transferred 0
3 Dishonoured cheques 0
CASH RECEIPTS
4 Agency customer receipts for gas 0 Sch 2
related services
5 Bad debt recovered 0 Sch 3
6 CSO and energy relief reimbursements 0 Sch 4
7 Refundable deposits received 0 Sch 5
8 Bank interest received 0
9 Sundry 0
CASH PAYMENTS
10 Transfer to Gascor 0
11 Bank fees 0
12 Sundry 0
13 Australia Post deposit movement 0
ADJUSTMENTS
14 Gasmart adjustments 0
15 Other 0
16 0
17 0
18 0
19 0
20 0
21 0
------------ ----------- ------------ ---------
22 CLOSING BALANCE OF GENERAL 0 0 0 0
LEDGER ACCOUNT
============ =========== ============ =========
23 Deposits not yet credited
24 Unpresented payments
------------ ----------- ------------ ---------
25 BALANCE PER BANK STATEMENT 0 0 0
============ =========== ============ =========
26 Timing difference 0
============
-------- ----------------------------------- ------------ ----------- ------------ --------- ------
109
SCHEDULE 2 - AGENCY GAS SALES DEBTOR LEDGER
-------------------------------------------------------------- -----------------
Line $,000
-------- ----------------------------------------------------- -----------------
27 Opening balance
28 Gas billed
29 Cash received from agency customers
30 Sales adjustments
31 Bad debts written off
32 Customer deposits offsets
33 Outstanding Credit Balance Transfer
34 Refund adjustment
35 CSO Transfers
36 Other
37
38
39 -----------------
40 Closing balance 0
=================
-------------------------------------------------------------- -----------------
110
SCHEDULE 3 - PROVISION FOR AGENCY BAD DEBTS
------- ------------------------------------------- ----------- --------- ------------
Line Specific General Total
Customers
----------------------------------
$,000 $,000 $,000
------- ------------------------------------------- ----------- --------- ------------
41 Opening balance 0
42 Bad debts transferred from consumer accounts 0
43 Bad debts recovered in the month
44 Bad debts written off in the month 0
45 Other adjustments 0
----------- --------- ------------
40 Closing balance 0 0 0
=========== ========= ============
------- ------------------------------------------- ----------- --------- ------------
111
SCHEDULE 4 - CSO DEBTOR LEDGER
----------------------------------------------------------------------------------------
Line $,000
----------------------------------------------------------------------------------------
47 Opening balance
48 CSO and energy relief reimbursements received in the month
49 Amounts claimed by customers for month
--------------
50 Closing balance 0
==============
----------------------------------------------------------------------------------------
112
SCHEDULE 5 - REFUNDABLE ADVANCES DEBTOR AND ASSOCIATED
INTEREST LEDGER
----------------------------------------------------------------------------------------
Line Deposits Interest Total
-------------------------------------
$,000 $,000 $,000
----------------------------------------------------------------------------------------
51 Opening balance 0
52 Deposits applied against bad debts 0
53 Deposits repaid to customers 0
54 Interest applied against bad debts 0
55 Interest paid to customers for month 0
-------------------------------------
56 Net refundable advances (N)
57 Deposits received in the month 0
58 Interest earnt for month 0
-------------------------------------
59 Closing balance 0 0 0
=====================================
----------------------------------------------------------------------------------------
113
SCHEDULE 6 - AGENCY CUSTOMER OVERPAYMENTS ACTUALLY
REPAID TO CUSTOMERS
----------------------------------------------------------------------------------------
Line $,000
----------------------------------------------------------------------------------------
60 Opening balance
61 Aggregate amount paid or returned to Gascor Customers by the Agent, or
credited to Gascor Customers' accounts, by the Agent in respect of
overpayments in M (T)
62 Amount equal to T being the amount of Commission paid to the Agent in M
in respect of Gascor customer overpayments (O)
63 Net refundable agency customer overpayments (Z)
--------------
64 Closing balance 0
==============
----------------------------------------------------------------------------------------
114
SCHEDULE 7 - COST OF CONTRACT GAS SUMMARY
----------------------------------------------------------------------------------------
Line GJ
----------------------------------------------------------------------------------------
65 Total quantity of gas delivered to the Agent for M-1 (as per
clause 7 of the master agreement) (Qt, M-1)
----------------------------------------------------------------------------------------
Estimated quantity of Contract gas supplied by the Agent to agency
customers (Qest metered, M-1) calculated by Vencorp as:
66 Total quantity of Contract gas supplied for M-1 (Qctm M-1).
Less: Total quantity of Contract gas supplied to contestable
customers. Less: Total quantity of Contract gas supplied to
sellers own use sites in M-1 (All scaled up for distribution
and transmission UAFG)
67 Less: Estimated contestable sites (M-1)
68 (Quest M-1)
--------------
0
==============
$,000
69 Quantity of contract gas delivered by Gascor to the Agent under the
Agency agreement Qa M-1 (lessor of Qt M-1 or Quest M-1) x contract
price (P M-1) =
70 Add additional MDQ for M (MI M)
71 Total gas claim for the month (G)
----------------------------------------------------------------------------------------
REDETERMINATION OF GAS DELIVERED (SEC 6.5C(1)) GJ $,000
Original Qa (M-2)
Recalculated Qa (M-2)
---------------------------
72 Reconciliation adjustment
---------------------------
----------------------------------------------------------------------------------------
115
SCHEDULE 8 - OTHER AGENCY CUSTOMER ADJUSTMENTS
--------------------------------------------------------------------------------
Line $,000
--------------------------------------------------------------------------------
73 +/- Other
74
75
76
77 Other agency customer adjustments (X)
--------------
--------------------------------------------------------------------------------
116
SCHEDULE 9 - AGENCY SALES REVENUE
-------- ----------------------- --------------- --------------- -------------- --------------
Line Opening Gas and Closing Sales
accrual associated Accrual
services
billed
------ -------- ------ -------- ------ ------- ------ -------
GJ $,000 GJ $,000 GJ $,000 GJ $,000
-------- ----------------------- ------ -------- ------ -------- ------ ------- ------ -------
78 Non contract DOM 0 0
79 Non contract COMM 0 0
80 Non contract INDUST 0 0
81 Contract COMM 0 0
82 Contract IND 0 0
83 Contract CORP 0 0
84 Other 0 0
85
86
87
88
------ -------- ------ -------- ------ ------- ------ -------
89 All agency sales 0 0 0 0 0 0 0 0
====== ======== ====== ======== ====== ======= ====== =======
-------- ----------------------- ------ -------- ------ -------- ------ ------- ------ -------
117
SCHEDULE 10 - FIRST INTERIM INSTALMENT
--------------------------------------------------------------------------------
Line $,000
--------------------------------------------------------------------------------
90 Daily cash received day 1-12 of M
91 50% of M-1 agency contract gas received
92 50% of Gascor M retained profit
93 50% of M agency AMDQ instalment
94 First interim instalment on account of Commission (I1)
--------------
--------------------------------------------------------------------------------
118
SCHEDULE 11 - SECOND INTERIM INSTALMENT
--------------------------------------------------------------------------------
Line $,000
--------------------------------------------------------------------------------
95 Daily cash received day 13-27 of M
96 50% of M-1 agency contract gas received
97 50% of Gascor M retained profit
98 50% of M agency AMDQ instalment
99 Second interim instalment on account of Commission (I2)
--------------
--------------------------------------------------------------------------------
119
SCHEDULE 12 - OTHER AMOUNTS PAYABLE TO/BY GASCOR
--------------------------------------------------------------------------------
Line $,000
--------------------------------------------------------------------------------
100 Alternate gas pursuant to clause 3.2(c)(3)
101 Other
102
103
104
105 Other amounts then due by Gascor under agreement including
Alternate Gas
--------------
--------------------------------------------------------------------------------
120
CHECKLIST OF SUPPORTING DOCUMENTATION TO ACCOMPANY
EACH MONTHLY CLAIM FORM
This checklist is intended to assist the Agent in ensuring that each Monthly
Claim Form submitted to Gascor is accompanied by all the required supporting
documentation. However, this checklist is not exhaustive and the Agent must
comply fully with the requirements in relation to supporting documentation as
set out in Clause 6.8(d) and paragraph 3 of Schedule 6 to the Agency Agreement
between Gascor and the Agent.
This checklist forms part of the Monthly Claim Form annexed to the Agency
Agreement. It must be completed as part of each Monthly Claim Form submitted to
Gascor.
Tick if attached
Gas Sales
o Copy of the calculation of Daily Cash Received for sales of Gas and related
services (S).
o The amount of Sales Revenue as determined in accordance with the Accounting
Policies set out in Schedule 2.
o The movement in bad and doubtful debts provision including recoveries,
write-offs and further provisions.
o Monthly summary sheets in respect of customer service obligation deposits
ledgers showing month end balances.
o Copies of monthly summary sheets in respect of Customer and Refundable
Advances debtor ledger, showing month end balances and the ageing of
debtors (N).
o Bad debt recoveries against Refundable Advances.
o Copy of the calculation of net Gascor Customer overpayments (Z).
o Summary ledger listing of repayments to Customers in respect of
overpayments.
o Copy of supporting documentation for other Gascor Customer adjustments (X).
Gas purchases
o Copies of the statements of the total quantity of Contract Gas allocated
(for the Month covered by the Monthly Claim Form and the preceding Month).
o Cost of M-1 gas and M AMDQ (G).
o Estimated cost of Contract Gas supplied to Gascor Customers.
121
General ledger
o Copies of completed reconciliations for each general ledger account.
o Summary trial balance for general ledger transactions.
Other
o Copy of the calculation of Retained Profit (A).
o Copies of bank statements in relation to the Operating Account and Cash
Management Account.
122