EXHIBIT 10.8
Pages where confidential treatment has been requested are marked "Confidential
Treatment Requested." The redacted material has been separately filed with the
Commission, and the appropriate place and in the margin with a star (*).
PRODUCT STORAGE AGREEMENT
(DYNEGY HACKBERRY, LOUISIANA STORAGE FACILITY)
THIS PRODUCT STORAGE AGREEMENT (the "Agreement") is made and entered into as of
this 1st Day of January, 2002, by and between DYNEGY MIDSTREAM SERVICES, LIMITED
PARTNERSHIP ("Dynegy") and DYNEGY LIQUIDS MARKETING AND TRADE ("DLMT") of 0000
Xxxxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000.
Subject to the following general terms and conditions and the attached specific
terms and conditions, "Dynegy" agrees to provide natural gas liquid storage for
Dynegy Liquids Marketing and Trade at its underground storage facilities
situated in Cameron Parish, Louisiana:
1. PRODUCT STORAGE
For and in consideration of the rates and fees to be paid by DLMT to Dynegy as
provided herein, Dynegy hereby agrees to lease storage space at its underground
storage facility for the storage of up to, but not to exceed, the maximum
quantity of natural gas liquid specification products or raw product
("Product(s)") set forth in Exhibit A which is attached hereto and made a part
hereof (the "Lease Volume").
2. DEFINITIONS
For the purpose of this Agreement, the following terms and expressions shall
have the following meanings:
"AFFILIATE" shall mean any Person that directly or indirectly through
one or more intermediaries, controls or is controlled by or is under
common control with the Person specified. The term "control" (including
the terms "controlled by" or "under common control with") means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through
ownership, by contract, or otherwise. Any Person shall be deemed to be
an Affiliate of any specified Person if such Person owns 50% or more of
the voting securities of the specified Person, if the specified Person
owns 50% or more of the voting securities of such Person, or if 50% or
more of the voting securities of the specified Person and such Person
are under common control.
"BARREL" shall mean forty-two (42) U.S. Gallons.
"BASE RATE" shall mean a per annum rate of interest equal to the lower
of (i) the maximum rate of interest allowed by law or (ii) two percent
above the "prime rate" of interest as announced from time to time by
Bank One, Chicago, Illinois (or any then current successor thereto).
"BUSINESS DAY" shall mean a Day on which Federal Reserve member banks in
Houston, Texas, are open for business.
"DAY OR DAILY" shall mean a twenty-four (24) hour period commencing
12:00 a.m. Midnight local time and extending until 12:00 a.m. Midnight
local time on the following Day.
"DELIVERY & RECEIPT POINTS" shall mean the points where Dynegy will
receive and deliver DLMT's Product(s) from and to the points outlined on
Exhibit C attached hereto and made a part hereof, subject to
availability of pipelines and xxxxx in service for storing and
delivering such Product(s). Custody transfer measurement shall be
performed by Dynegy unless provided by the operator of the Receiving
Facilities.
-1-
"DYNEGY FACILITIES" shall mean the Hackberry Storage Facility and any
other facilities used in accepting receipts or making deliveries of any
Products hereunder.
"EFFECTIVE DATE" shall mean the date on which DLMT may begin to store
Product(s) under this Agreement as set forth in Exhibit A.
"FORCE MAJEURE" shall have the meaning specified in Section 14.
"FRACTIONATION AGREEMENT" shall mean that certain Fractionation
Agreement between Dynegy and DLMT dated of even date herewith.
"GALLON" shall mean the unit of volume used for the purpose of
measurement of liquid. One (1) U.S. liquid Gallon contains two hundred
thirty-one (231) cubic inches when the liquid is at a temperature of
sixty degrees Xxxxxxxxxx (00 XXX. F) and at the vapor pressure of the
liquid being measured.
"GATHERING AGREEMENT" shall mean that certain Gathering Agreement
between Dynegy and DLMT of even date herewith.
"HACKBERRY STORAGE FACILITY" shall mean the underground storage
facilities owned and operated by Dynegy at or near Hackberry, Louisiana,
including, but not limited to, all storage caverns, related surface and
subsurface equipment and any pipelines owned or operated by Dynegy or
its Affiliates which deliver any Products to such underground storage
facilities.
"LAKE XXXXXXX FRACTIONATOR" shall mean the Dynegy owned and operated
natural gas liquids fractionation facility located near Lake Charles,
Louisiana.
"LEASE VOLUME" shall have the meaning specified in Section 1.
"LOSSES" shall mean any and all liabilities, losses, damages, demands,
claims, penalties, fines, actions, suits, legal, administrative or
arbitration or alternative dispute resolution proceedings, judgments,
orders, directives, injunctions, decrees or awards of any jurisdiction,
costs and expenses (including, but not limited to, reasonable attorneys'
fees and related costs).
"MONTH" OR "MONTHLY" shall mean a period commencing at 7:00 a.m. local
time on the first Day of a calendar Month and extending until 7:00 a.m.
local time on the first Day of the next succeeding calendar Month.
"OFFSPEC PRODUCT" shall have the meaning specified in Section 4.
"PERSON" shall mean any individual, corporation, partnership, limited
liability company, association, joint venture, trust or other
organization of any nature or kind.
"PRODUCT(s)" shall have the meaning specified in Section 1.
"RAW PRODUCT SPECIFICATIONS" shall have the same meaning as ascribed to
it in the Fractionation Agreement, which definition is incorporated
herein by reference.
"RECEIVING FACILITIES" shall mean third party facilities connected
either to the Storage Facility or to any of the Specification Product
Pipelines operated by Dynegy delivering to or receiving Product(s) from
the Hackberry Storage Facility.
"RAW PRODUCT" shall mean that mixture of natural gas liquid hydrocarbons
recovered from various gas processing plants which is owned and/or
controlled by DLMT meeting the Raw Product Specifications.
-2-
"Confidential Treatment Requested"
"YEAR" or "YEARLY" shall mean a period of 365 consecutive Days;
provided, however that any Year which contains the date of February 29
shall consist of 366 consecutive Days.
3. TERM
The term of this Agreement shall commence on the Effective Date and shall
terminate as specified in Exhibit A. Unless a new storage agreement is entered
into or this Agreement is renewed, at the expiration or termination of this
Agreement, DLMT shall remove all Product(s) stored hereunder on or before the
last Day of the term of this Agreement subject to the payment of all accrued
storage fees and other charges hereunder. In the event DLMT fails to remove
its Product(s) at the expiration of the term of this Agreement, Dynegy shall
have the right to sell all or any portion of such Product(s) on terms and at
such prices as Dynegy, in its sole discretion, deems appropriate under the
then existing circumstances. If Dynegy sells all or a portion of DLMT's
Product(s) under the terms of this Section 3, within sixty (60) Days of its
receipt of the proceeds derived from the sale of such Product(s), Dynegy shall
* remit same to DLMT less (i) a sales commission equal to [REDACTED] of the
gross proceeds of such sale(s) and (ii) any fees then due and owing by DLMT to
Dynegy.
Notwithstanding the Term of this Agreement as set forth in Exhibit A, every
* [REDACTED] after the Effective Date of this Agreement, either party shall have
the option to open this Agreement solely for the purpose of renegotiating
certain of the provisions of Exhibit A, including the Lease Volume, the Lease
Rate and Excess Storage fee (collectively, the "Variable Terms"). To exercise
such option, a party at least ninety (90) days before the expiration of such
* [REDACTED] period must provide to the other party written notification (the
"Renegotiation Notice") of its desire to renegotiate one or more of the
Variable Terms of Exhibit A. If, after negotiating in good faith for a period
of ninety (90) days following the date of the Renegotiation Notice, the
parties are unable to agree upon mutually acceptable changes to the Variable
Terms that are subject to renegotiation, either party shall have the right to
terminate this Agreement. During the period while negotiations are ongoing
until new provisions are mutually agreed to, the then existing provisions of
this Agreement immediately prior to such renegotiation shall continue to
apply. Except as otherwise agreed to in writing by the parties, if new
Variable Terms are mutually agreed to, such new Variable Terms shall be
effective as of, and shall, if necessary, be made retroactive to, the first
* Day of the applicable [REDACTED] period immediately following the
Renegotiation Notice, plus interest thereon at the Base Rate.
4. PRODUCT SPECIFICATIONS
All deliveries of Product(s) by DLMT hereunder shall meet Dynegy's
specifications for the type of Product(s) stored, as such specifications may
change from time to time, the most current of which are set forth in Exhibit B
attached hereto and made a part hereof. Provided, however, that as to Raw
Product which was gathered by Dynegy pursuant to the Gathering Agreement and
which is delivered directly into the Hackberry Storage Facility from Dynegy's
liquids gathering system, the Raw Product shall be deemed to meet the
specifications set forth in Exhibit B if it complied with the applicable Raw
Product Specifications. Otherwise, Dynegy reserves the right to perform an
analysis of DLMT's Product(s) prior to accepting same for storage, but assumes
no responsibility for doing so, and may refuse to accept delivery of such
Product(s) if it is contaminated or otherwise fails to conform with the
applicable specifications. DLMT agrees to and does indemnify fully and hold
harmless Dynegy and its parents, subsidiaries and Affiliates and its and their
agents, officers, directors, employees, representatives, successors and assigns
from and against any and all Losses arising out of or in any manner related to
DLMT delivering or causing to be delivered into the Dynegy Facilities any
Product(s) which is contaminated and/or fails to meet the applicable
specifications ("Offspec Product"), unless such Offspec Product was produced at
the Lake Xxxxxxx Fractionator, in which event, Dynegy agrees to and does
indemnify fully and hold harmless DLMT and its parents, subsidiaries and
Affiliates and its and their agents, officers, directors, employees,
representatives, successors and assigns from and against any and all Losses
arising out of or in any manner related to such production of Offspec Product.
Without limiting the indemnity by DLMT to Dynegy as set forth herein, if Dynegy
accepts into storage Offspec Product delivered by or on behalf of DLMT, DLMT
shall reimburse Dynegy for the reasonable costs and expenses incurred in
handling such Offspec Product. The foregoing indemnity shall not be applicable
to the extent any volumes of Offspec Product received from DLMT hereunder are
volumes that were produced at the Lake Xxxxxxx Fractionator and same were
directly delivered from such facility into the Dynegy Facilities hereunder in
such a manner that no party other than Dynegy could have commingled any other
volumes of any Products or contaminants with same.
5. PRODUCT DELIVERY AND REDELIVERY
Product(s) redelivery to DLMT out of the Hackberry Storage Facility will only
be made on the request of DLMT's designated representative or duly authorized
agent or as may be directed by representatives of DLMT. Dynegy will not
recognize sales, assignments or transfers of title to Product(s) while in
storage unless made in a manner approved by Dynegy in advance and then only
to another person or entity that has
-3-
entered into a valid storage agreement with Dynegy for storage at the Hackberry
Storage Facility. Product(s) redelivered by Dynegy hereunder shall be
redelivered only to the Delivery & Receipt Points. Volumes of Products delivered
by truck delivery to Dynegy's truck unloading and loading facility located at
the Lake Xxxxxxx Fractionator shall be deemed to be delivered to Dynegy first
under the terms of the Fractionation Agreement and shall not be deemed to be
delivered into storage and within the scope of this Agreement until same are
received at one of the Delivery & Receipt Points downstream of such truck
unloading/loading facility. Dynegy's redelivery of Product(s) to DLMT shall be
subject to the operating conditions, rates of delivery, delivery pressures,
scheduling, etc. of the receipt facilities at the Delivery & Receipt Point.
Custody of the Product(s) delivered or redelivered hereunder shall be deemed to
be transferred at the Delivery & Receipt Point. DLMT shall use all reasonable
efforts to give Dynegy advanced notice of deliveries or withdrawals of
Product(s). Dynegy shall not be required to receive or redeliver Product(s)
unless it has been given at least two Business Days advance notice of such
Product(s) delivery or redelivery, but always subject to the physical
capabilities of the Dynegy Facilities. Measurement of Product(s) delivered or
redelivered hereunder shall take place as near to the Delivery & Receipt Point
as practicable and shall be made by Dynegy in accordance with Dynegy's standard
measurement procedures, which shall conform to good measurement practices in the
industry. All measurements made by Dynegy shall be binding on the parties hereto
unless proven to be in error. DLMT shall have the right to witness all such
measurements.
6. LOSS ALLOWANCE
Due to normal operating losses which occur in receiving Product(s) for storage,
storing such Product(s) and redelivering Product(s) out of storage, DLMT's
withdrawals from storage shall be limited to the total volumes of each Product
received hereunder less a loss allowance percentage as specified in Exhibit A.
Dynegy shall be responsible for all Product losses exceeding the loss allowance
as specified in Exhibit A.
7. TRANSPORTATION COSTS TO AND FROM STORAGE
All transportation charges and other expenses incurred in connection with (i)
DLMT' delivery of Product(s) to the Delivery & Receipt Point and (ii) DLMT'
receipt of Product(s) at the Delivery & Receipt Point, if any, shall be paid by
DLMT directly to such transporter.
8. STORAGE AND HANDLING CHARGES
(a) DLMT shall pay Dynegy Monthly for the availability of the storage
space the "Lease Rate" as set forth in Exhibit A, without regard
as to whether any Product(s) has actually been or will be
delivered by DLMT to Dynegy for storage hereunder. DLMT shall
also pay to Dynegy each Month the other rates, fees and charges
set forth in Exhibit A.
(b) If at the end of any Month (i) the volume of a particular Product
stored by DLMT exceeds the storage volume of such Product
allocated for that Month as designated by DLMT as provided herein
(the initial allocation of which is set forth in Exhibit A),
and/or (ii) the total volume of all Products stored by DLMT
exceeds the Lease Volume, DLMT shall pay to Dynegy the Excess
Storage fee as set forth in Exhibit A.
(c) Nothing in this Section 8 shall be construed to create an
obligation on Dynegy to accept more Product(s) into storage in
excess of the Lease Volume. At any time there is an excess
balance, Dynegy may by written notice to DLMT require DLMT to
remove such excess balance within seventy-two (72) hours of
DLMT's receipt of such written notice and if any excess balance
remains at the end of such period, then DLMT shall reimburse
Dynegy for
-4-
any costs or liabilities incurred by Dynegy as a result thereof.
Notwithstanding the foregoing, DLMT shall never exceed the Lease
Volume without Dynegy's prior written consent.
9. INVOICING AND PAYMENTS
Each Month during the term of this Agreement, Dynegy shall invoice DLMT for all
amounts owed by DLMT to Dynegy for the immediately preceding Month's activities
and DLMT shall pay to Dynegy via wire transfer the amounts due no later than ten
(10) Days after DLMT's receipt of invoice therefor. If the Day on which any
payment is due is not a Business Day, then the relevant payment shall be due
upon the immediately preceding Business Day, except if such payment due date is
a Sunday or Monday, then the relevant payment shall be due upon the immediately
succeeding Business Day. Any amounts which remain due and owing after the due
date shall bear interest thereon at the Base Rate. If a good faith dispute
arises as to the amount payable in any statement, the amount not in dispute
shall be paid. If DLMT elects to withhold any payment otherwise due as a
consequence of a good faith dispute, DLMT shall provide Dynegy with written
notice of its reasons for withholding payment. If it is subsequently determined,
whether by mutual agreement of the parties or otherwise, that DLMT is required
to pay all or any portion of the disputed amounts to Dynegy, in addition to
paying over such amounts, DLMT also shall pay interest accrued on such amounts
at the Base Rate from the original due date until paid in full.
10. TITLE TO STORED PRODUCT
It is understood and agreed that (i) title to the Product(s) stored hereunder
shall remain in DLMT, subject to being commingled with like Product(s) belonging
to Dynegy and/or other parties, which DLMT hereby grants unto Dynegy the right
to do so as long as such commingling does not contaminate DLMT's Product(s), and
(ii) Product(s) redelivered to DLMT by Dynegy may not be identical Product(s)
delivered by DLMT hereunder, but shall be considered as fungible goods meeting
the same quality specifications. With respect to Product(s) in storage pursuant
to this Agreement, it is specifically agreed as follows:
(a) In the event there should be any loss of Product(s) (other than
normal operating losses which are provided for in Section 6) from
Dynegy's storage facilities and such loss is not attributable to
the failure of Dynegy to exercise that degree of care as would be
exercised by a reasonably careful Person under like
circumstances, then DLMT shall be prorated by Dynegy on the basis
of the ratio of DLMT's stored Product(s) to the total volumes of
like stored Product(s) in the Hackberry Storage Facility,
including those volumes owned by DLMT and Dynegy.
(b) In the event there should be a loss from storage and it is
ultimately determined that such loss was solely attributable to
Dynegy's failure to exercise that degree of care as would be
exercised by a reasonably careful Person under like
circumstances, then, subject to the provisions of Section 12, it
is agreed that Dynegy shall have the option, in its sole
discretion, to replace DLMT's lost volumes with like Product(s)
or to pay DLMT the fair market value of such lost Product(s) at
the time of the loss.
11. TAXES
Any tax, fee, charge or other exaction ("Levies"), now or hereafter enacted,
levied or assessed by any federal, state, local or other governmental authority
upon, or as a result of, any of the transactions contemplated in this Agreement,
or on any Product(s) delivered pursuant to such transactions, shall be borne by
DLMT. Any personal property or other ad valorem taxes ("Property Taxes") levied
or assessed by any
-5-
governmental authority upon DLMT's Product(s) delivered, stored and/or
redelivered hereunder shall be paid by DLMT. DLMT shall furnish Dynegy a proper
exemption certificate(s) where an exemption is claimed with regard to any
Product(s) or transactions under this Agreement that would otherwise be subject
to any Levies or Property Taxes. After giving DLMT written notice that intends
to take such action and a period of time no less than fifteen (15) for DLMT to
satisfy same, Dynegy shall have the right, but not the obligation, to pay any
such Levies or Property Taxes on behalf of DLMT (but, as to Property Taxes, at a
like rate no greater than that paid by Dynegy on its own like Product(s) in
storage) and DLMT shall be obligated to reimburse Dynegy for any such amounts so
paid on behalf of DLMT within ten (10) Days from DLMT's receipt of Dynegy's
invoice therefor.
12. LIMITATION OF LIABILITY
(a) Except as otherwise provided elsewhere in this Agreement, Dynegy
shall not be liable to DLMT for any loss of or injury to the
Product(s) stored by DLMT, however caused, unless such loss or
injury directly results from the failure of Dynegy to exercise
that degree of care as would be exercised by a reasonably careful
man under like circumstances. If any such loss or injury could
not have been avoided through the exercise of such care as a
reasonably careful person would exercise under like
circumstances, Dynegy shall not be liable for such loss or
injury.
(b) NOTWITHSTANDING ANYTHING TO CONTRARY SET FORTH HEREIN, DYNEGY
SHALL NOT BE RESPONSIBLE FOR ANY LOSSES, INJURIES OR DAMAGES
HEREUNDER IN EXCESS OF THE STORAGE FEES AND RATES PAID BY DLMT TO
DYNEGY AS PROVIDED HEREIN, UNLESS CAUSED BY DYNEGY'S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT. DYNEGY SHALL NOT BE RESPONSIBLE
FOR OBTAINING INSURANCE TO COVER THE PRODUCT(s) STORED HEREUNDER.
(c) DLMT shall defend and hold Dynegy and its parents, subsidiaries
and Affiliates and its and their agents, officers, directors,
employees, representatives, successors and assigns harmless from
any and all Losses arising out of or in any manner related to
DLMT's storage, transportation, use or handling of DLMT's
Product(s) before such Product(s) are delivered to Dynegy or
after such Product(s) are redelivered by Dynegy to DLMT as
provided in this Agreement.
(d) FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS REMEDY OR
MEASURE OF DAMAGES IS PROVIDED IN THIS AGREEMENT, SUCH EXPRESS
REMEDY OR MEASURE OF DAMAGES SHALL BE THE SOLE AND EXCLUSIVE
REMEDY HEREUNDER, AND THE OBLIGOR'S LIABILITY SHALL BE LIMITED AS
SET FORTH IN SUCH PROVISION, AND ALL OTHER REMEDIES OR DAMAGES
ARE WAIVED. IF NO REMEDY OR MEASURE OF DAMAGES IS EXPRESSLY
PROVIDED HEREIN, THE OBLIGOR'S LIABILITY SHALL BE LIMITED TO
DIRECT ACTUAL DAMAGES ONLY, EXCLUDING LOST PROFITS, AND SUCH
DIRECT ACTUAL DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY
HEREUNDER, AND ALL OTHER REMEDIES OR DAMAGES ARE WAIVED.
EXCEPT FOR THIRD PARTY CLAIMS COVERED BY ANY INDEMNITY
PROVISIONS SET FORTH IN THIS AGREEMENT, NEITHER PARTY SHALL
BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL,
PUNITIVE,
-6-
EXEMPLARY, OR INDIRECT DAMAGES IN TORT, CONTRACT OR OTHERWISE.
13. NOTICE OF CLAIM AND FILING OF SUIT
Claims by DLMT and all other persons claiming, by, through or under DLMT, must
be presented in writing to Dynegy within a reasonable time, and in no event
later than sixty (60) Days after (i) DLMT' Product(s) is (are) redelivered or
removed from the Hackberry Storage Facility or (ii) DLMT is notified by Dynegy
that loss of or injury to any Products has occurred, whichever is shorter. No
action may be maintained by DLMT and any other persons claiming by, through or
under DLMT, against Dynegy for loss of or injury to Product(s) stored in the
Hackberry Storage Facility unless a written claim therefor is received by Dynegy
within the time periods set forth herein and such action is commenced within
nine (9) Months after (a) DLMT's Product(s) is redelivered or removed from the
Hackberry Storage Facility or (b) DLMT is notified by Dynegy that loss of or
injury to Product(s) has occurred, whichever is shorter. In the situation where
Dynegy notifies DLMT of a loss or injury to Product(s), the time limits for
making written claims and the maintaining of actions after notice, as set forth
herein, shall begin on the date such notice is received by DLMT.
14. FORCE MAJEURE
In the event either party is rendered unable, wholly or in part, by Force
Majeure to carry out its obligations under this Agreement, it is agreed that
upon such party's giving notice and reasonably full particulars of such Force
Majeure in writing to the other party after the occurrence of the cause relied
on, then the obligations (except for the obligation to pay money due hereunder)
of the party giving such notice, so far as and to the extent that they are
affected by such Force Majeure, shall be suspended during the continuance of any
inability so caused, but for no longer period, and such cause shall so far as
possible be remedied with all reasonable dispatch. The term "Force Majeure" as
used herein shall mean acts of God, strikes, lockouts, or other industrial
disturbances, acts of the public enemy, wars, blockades, insurrections, riots,
epidemics, landslides, lightning, earthquakes, fires, tornadoes, hurricanes, or
storms, tornado, hurricane, or storm warnings which in any party's reasonable
judgment require the precautionary shutdown of a facility, floods, washouts,
arrests or restraints of the government, either federal or state, civil or
military, civil disturbances, explosions, sabotage, breakage, or accident to
equipment, machinery or lines of pipe, lack or brine or brine handling capacity,
freezing of machinery, equipment or lines of pipe, electric power shortages,
inability of any party to obtain necessary permits and/or permissions due to
existing or future rules, orders, laws or governmental authorities (both
federal, state and local), or any other causes, whether of the kind herein
enumerated or otherwise, which were not reasonably foreseeable, and which are
not within the control of the party claiming suspension and which such party is
unable to overcome by the exercise of due diligence. The term "Force Majeure"
shall also include those instances in which either party hereto is delayed in
acquiring, at reasonable cost and after the exercise of reasonable diligence,
(i) materials and supplies required for the purpose of constructing and
maintaining facilities, when such party is obligated to do so for the
performance of its obligations under this Agreement, or (ii) permits or
permission from any governmental agency required for the purpose of (a)
constructing and maintaining such facilities or (b) acquiring materials or
supplies required for such purpose. It is understood and agreed that the
settlement of strikes or lockouts shall be entirely within the discretion of the
party having the difficulty, and that the above requirement that any Force
Majeure shall be remedied with all reasonable dispatch shall not require the
settlement of strikes or lockouts by acceding to the demands of opposing parties
when such course is inadvisable in the discretion of the party having
difficulty.
-7-
15. MISCELLANEOUS
15.1 SUCCESSORS AND ASSIGNS
This Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and assigns. Notwithstanding the
foregoing, neither party may assign this Agreement, nor any interest herein,
without the prior written consent of the other party, which consent shall not be
unreasonably withheld or delayed; provided, however, that a party may from time
to time (i) designate an Affiliate to perform this Agreement, either in whole or
in part, such performance being considered that of the party hereto, or (ii)
assign this Agreement to an Affiliate without obtaining the other party's
consent thereto. It is understood, however, that by such designation or
assignment, unless the non-assigning party expressly releases the assigning
party, such assigning party shall not thereby avoid obligations imposed by the
terms and provisions hereof, past, present or future. DLMT agrees that it will
not assign or transfer any interest in the volumes of Raw Product dedicated to
this Agreement during the term hereof unless such assignment is made subject to
this Agreement and any assignee ratifies and adopts this Agreement in writing.
15.2 NO COMMISSIONS, FEES OR REBATES.
No director, employee or agent of either party shall give or receive any
commission, fee, rebate gift or entertainment of significant cost or value in
connection with this Agreement. Any representative or representative(s)
authorized by either party may audit the applicable records of the other party
for the purpose of determining whether there has been compliance with this
Section.
15.3 SEVERABILITY.
This Agreement and the operations hereunder shall be subject to the valid and
applicable federal and state laws and the valid and applicable orders, laws,
local ordinances, rules, and regulations of any local, state or federal
authority having jurisdiction, but nothing contained herein shall be construed
as a waiver of any right to question or contest any such order, laws, rules, or
regulations in any forum having jurisdiction in the premises. If any provision
of this Agreement is held to be illegal, invalid, or unenforceable under the
present or future laws effective during the term of this Agreement, (i) such
provision will be fully severable, (ii) this Agreement will be construed and
enforced as if such illegal, invalid, or unenforceable provision had never
comprised a part of this Agreement, and (iii) the remaining provisions of this
Agreement will remain in full force and effect and will not be affected by the
illegal, invalid, or unenforceable provision or by its severance from this
Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable
provision, there will be added automatically as a part of this Agreement a
provision similar in terms to such illegal, invalid, or unenforceable provision
as may be possible and as may be legal, valid, and enforceable. If a provision
of this Agreement is or becomes illegal, invalid, or unenforceable in any
jurisdiction, the foregoing event shall not affect the validity or
enforceability in that jurisdiction of any other provision of this Agreement nor
the validity or enforceability in other jurisdictions of that or any other
provision of this Agreement.
15.4 GOVERNING LAW
THIS AGREEMENT AND THE RIGHTS AND DUTIES OF THE PARTIES ARISING OUT OF THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED, ENFORCED, AND PERFORMED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, AS THE SAME MAY BE AMENDED FROM
TIME TO TIME, WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION
OR RULE THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER
THAN THE STATE OF TEXAS.
-8-
15.5 ENTIRE AGREEMENT; WAIVER
This Agreement, including, without limitation, all exhibits hereto, integrates
the entire understanding between the parties with respect to the subject matter
covered and supersedes all prior understandings, drafts, discussions, or
statements, whether oral or in writing, expressed or implied, dealing with the
same subject matter. Provided, however, shall there be any conflict regarding
the interpretation or meaning of any provisions of this Agreement, this
Agreement shall be construed together with the Ethane Agreement and, if
possible, shall be interpreted in a manner that will avoid conflicts between the
terms of this Agreement and the Ethane Agreement. This Agreement may not be
amended or modified in any manner except by a written document signed by both
parties that expressly amends this Agreement. No waiver by either party hereto
of any of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provision hereof (whether or not similar) nor shall such
waiver constitute a continuing waiver unless expressly provided. No waiver shall
be effective unless made in writing and signed by the party to be charged with
such wavier.
15.6 SETOFFS AND COUNTERCLAIMS
Except as otherwise provided herein, each party hereto reserves to itself all
rights, set-offs, counterclaims, and other remedies and/or defenses which such
party is or may be entitled to arising from or out of this Agreement or as
otherwise provided by law.
15.7 NO PARTNERSHIP, ASSOCIATION, ETC.
Nothing contained in this Agreement shall be construed to create an association,
trust, partnership or joint venture or impose a trust or partnership duty,
obligation or liability on or with regard to either party.
15.8 EXHIBITS
All Exhibits attached hereto are incorporated herein by reference as fully as
though contained in the body hereof. If any provision of any Exhibit conflicts
with the terms and provisions hereof, the provisions of this Agreement shall
prevail.
15.9 DTPA WAIVER
EACH PARTY EXECUTING THIS AGREEMENT HEREBY WAIVES ITS RESPECTIVE RIGHTS,
IF ANY, UNDER THE DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT,
SECTION 17.41 ET SEQ., EXCEPT FOR SECTION 17.555 TEXAS BUSINESS &
COMMERCE CODE, A LAW THAT GIVES CONSUMERS SPECIAL RIGHTS AND
PROTECTIONS. AFTER CONSULTATION WITH AN ATTORNEY OF ITS OWN SELECTION,
EACH PARTY EXECUTING THIS AGREEMENT VOLUNTARILY CONSENTS TO THIS WAIVER.
IN ADDITION, EACH PARTY EXECUTING THIS AGREEMENT HEREBY REPRESENTS AND
WARRANTS TO THE OTHER PARTY THAT (i) SUCH PARTY'S LEGAL COUNSEL WAS NOT
DIRECTLY OR INDIRECTLY IDENTIFIED, SUGGESTED, OR SELECTED BY THE OTHER
PARTY OR BY AN AGENT OF SUCH OTHER PARTY, AND (ii) NEITHER PARTY
EXECUTING THIS AGREEMENT IS IN A SIGNIFICANTLY DISPARATE BARGAINING
POSITION.
15.10 PRINCIPLES OF CONSTRUCTION AND INTERPRETATION
In construing this Agreement, the following principles shall be followed:
-9-
(a) no consideration shall be given to the fact or presumption that
one party had a greater or lesser hand in drafting this
Agreement;
(b) examples shall not be construed to limit, expressly or by
implication, the matter they illustrate;
(c) the word "includes" and its syntactical variants mean "includes,
but is not limited to" and corresponding syntactical variant
expressions; and
(d) the plural shall be deemed to include the singular and vice
versa, as applicable.
15.11 NOTICES
Any notice or other communication provided for in this Agreement or any notice
which either party may desire to give to the other shall be in writing and shall
be deemed to have been properly given if and when sent by facsimile
transmission, delivered by hand, or if sent by mail, upon deposit in the United
States mail, either U.S. Express Mail, registered mail or certified mail, with
all postage fully prepaid, or if sent by courier, by delivery to a bonded
courier with charges paid in accordance with the customary arrangements
established by such courier, in each case addressed to the parties at the
following addresses:
IF TO DYNEGY: DYNEGY MIDSTREAM SERVICES,
LIMITED PARTNERSHIP
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Vice President - Louisiana Gulf Coast Region
Phone: (000) 000-0000
Telecopy: (000) 000-0000
IF TO DLMT: DYNEGY LIQUIDS MARKETING AND TRADE
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Sr. Vice President
Phone: (000) 000-0000
Telecopy: (000) 000-0000
or at such other address as either party shall designate by written
notice to the other. A notice sent by facsimile shall be deemed to have
been received by the close of the business Day following the Day on
which it was transmitted and confirmed by transmission report or such
earlier time as confirmed orally or in writing by the receiving party.
Notice by U.S. Mail, whether by U.S. Express Mail, registered mail or
certified mail, or by overnight courier shall be deemed to have been
received by the close of the second business Day after the Day upon
which it was sent, or such earlier time as is confirmed orally or in
writing by the receiving party. Any party may change its address or
facsimile number by giving notice of such change in accordance herewith.
15.12 OTHER AGREEMENTS.
Simultaneously with the execution of this Agreement, DLMT and Dynegy or its (or
their) Affiliate(s) shall execute the Fractionation Agreement and a Gathering
Agreement of even date herewith.
-10-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Day and
Year first above written.
DYNEGY MIDSTREAM SERVICES, DYNEGY LIQUIDS MARKETING
LIMITED PARTNERSHIP AND TRADE
By: Dynegy Midstream G.P., Inc., its
General Partner
By: By:
-------------------------------- ------------------------------
Name: Name:
-------------------------------- ------------------------------
Title: Title:
-------------------------------- ------------------------------
-12-
"Confidential Treatment Requested"
EXHIBIT A
TO THE
PRODUCT STORAGE AGREEMENT
This Storage Agreement along with the General Terms and Conditions set forth in
the Product Storage Agreement to which this Exhibit is attached shall constitute
our mutual agreement to lease space in facilities owned or controlled by Dynegy.
1. LESSOR: Dynegy Liquids Marketing and Trade
2. TERM: From January 1, 2002 to December 31, 2021
(the "Primary Term") and shall continue from
Year to Year thereafter unless terminated by
either party hereto at the end of such Primary
Term or any Yearly extensions thereto by giving
the other party at least ninety (90) Days
advance written notice of its intention to
terminate this Agreement.
3. PRODUCTS: Raw Product, Purity Ethane, Propane and BG Mix.
4. STORAGE FACILITY: Dynegy's Hackberry Storage Facility, as
described in the Agreement.
* 5. LEASE VOLUME: [REDACTED]
* 6. LEASE RATE: [REDACTED] cents per Barrel per Year (payable
on a Monthly basis).
7. EXCESS STORAGE: For all Barrels in DLMT's account at Month-end
in excess of the Lease Volume, the excess
* storage fee shall be [REDACTED] cents per
Barrel. shall be required to obtain Dynegy's
prior written consent prior to exceeding the
Lease Volume at any time whether during or at
the end of the Month.
* 8. LOSS ALLOWANCE: [REDACTED] All other gains and losses of
Product(s) at the Hackberry Storage Facility
shall be for the account of Dynegy.
DLMT shall be required to schedule all movements through Dynegy's Product
Movement Group. Delivery orders for DLMT's account will only be set up to cover
volumes that are physically in the storage account.
In the event conditions change such that this Agreement causes, or could
reasonably be expected to cause, a material long term economic or operational
hardship to either party, upon the written request of either party, Dynegy and
DLMT shall meet to renegotiate in good faith such burdensome terms and
provisions so as to make them fair and equitable. Such renegotiations shall
occur within thirty (30) Days of the date of the non-requesting party's receipt
of such written request for renegotiations. If the parties are unable to agree
on new provisions to replace such burdensome terms and provisions within ninety
(90) Days of the non-requesting party's receipt of such written request, either
party shall have the right to terminate this Agreement. It is understood and
agreed that the rights granted in this paragraph can only be used by a party to
commence good faith renegotiations once during each Year during the Primary Term
hereof.
-1-
EXHIBIT B
TO THE
PRODUCT STORAGE AGREEMENT
PRODUCT SPECIFICATIONS
RAW PRODUCT SPECIFICATIONS
(a) The Raw Product delivered to Dynegy at the Delivery Point shall contain
no solid materials or free water at 60 DEG. F.
(b) Total sulfur content shall not exceed 30 ppm by weight to be determined
by ASTM-D-2784.
(c) The hydrogen sulfide content shall not exceed 1.5 ppm by weight, and the
corrosiveness of the Raw Product shall not exceed "1" (copper strip) as
given in ASTM-D-1838.
(d) The Raw Product shall not contain in excess of 1.0 liquid volume percent
carbon dioxide in the untreated ethane (ethane Component including all
carbon dioxide) at any time nor exceed 35 hundredths (0.35) liquid
volume percent carbon dioxide in the untreated ethane (ethane Component
including all carbon dioxide) when averaged over any given Month.
(e) The Raw Product shall not contain in excess of 1.5 liquid volume percent
methane and inerts of the ethane Component.
(f) The Raw Product color shall have a minimum Saybolt Number of +25 as
determined by ASTM-D-156.
(g) The maximum product end point at 14.7 psia shall not exceed 375 DEG. F
as determined by distillation pursuant to ASTM-D-216. The distillation
and color test are to be run on that portion of the mixture having a
boiling point of 70 DEG. F and above and at atmospheric pressure.
(h) DLMT shall not deliver Raw Product at temperatures in excess of 100 DEG.
F or less than 60 DEG. F.
(i) The Raw Product shall not contain more than 1 ppm fluorides.
(j) The Raw Product shall not contain more than 1 ppm carbonyl sulfide
(COS).
-1-
PURITY ETHANE SPECIFICATIONS
Product characteristics with test methods are herein specified for purity ethane
mixtures received or delivered by Dynegy Midstream Services, Limited
Partnership.
TEST METHODS
PRODUCT CHARACTERISTICS MINIMUM MAXIMUM LATEST REVISION
----------------------- ------- ------- ---------------
1. COMPOSITION ASTM E-260
Percent by Liquid Volume
Methane 3.0 XXX-0000
Xxxxxx 95.0 100.0
Ethylene 1.0
Heavier than Ethane 3.5 ASTM D-863
Propylene 1.0
2. CORROSION
Copper Strip @ 100 DEG. F 1-b ASTM D-1838
(Invalid if additive or inhibitor
is used.)
Corrosion Additive or Inhibitor,
PPM by Weight 1 Applicable Industry
Practices
3. TOTAL SULFUR
PPM by Weight in Liquid 5 ASTM D-3246
4. DRYNESS 7 pounds per Visual
standard cubic
fee of vapor maximum
5. CARBON DIOXIDE
PPM by Weight in Liquid 1,000 GPA 2177
PRODUCT ACCOUNTING
Any excess of these hydrocarbon components above the specification limits shall
not be accounted for.
-2-
PROPANE SPECIFICATIONS
Product characteristics with test methods are herein specified for propane
received by Dynegy. This product meets the requirement of the GPA HD-5 propane
specification.
TEST METHODS
PRODUCT CHARACTERISTICS MINIMUM MAXIMUM LATEST REVISION
----------------------- ------- ------- ---------------
1. COMPOSITION ASTM E-260
Percent by Liquid Volume Ethane As limited by other
components & vapor
pressure.
100
Propane 90.0 5.0
Propylene 2.5 ASTM D-2163
Butanes & Heavier
2. VAPOR PRESSURE
Psig @ 100 DEG. F 208 ASTM D-1267
3. CORROSION
Copper Strip @ 100 DEG. F 1-b ASTM D-1838
(Invalid if additive or inhibitor
is used.)
Corrosion Additive or Inhibitor,
PPM by Weight. 1 Applicable Industry Practices
4. TOTAL SULFUR
PPM by Weight in Liquid 120 ASTM D-3246
5. HYDROGEN SULFIDE
PPM by Weight in Liquid 1 Field - Length of Stain Tube
(Lab test required if field test is Lab Chromatography with Flame
positive.) Photometric Detector
6. CARBONYL SULFIDE
PPM by Weight in Liquid 2 Field - Length of Stain Tube
(Field test invalid if C(4) + exceeds
1.0 LV%) (Lab test required if field Lab - UOP 212 or UOP 791
test is positive.) Lab - Gas Chromatography with
Flame Photometric Detector
7. NON-VOLATILE RESIDUE
a) Milliliters @ 100 DEG. F 0.05 ASTM D-2158
b) Oil Stain Pass
THE FOLLOWING TESTS ARE OPTIONAL, DEPENDING UPON THE PRODUCT SOURCE:
8. DRYNESS
Freeze Valve, Seconds 60 (Note 2) ASTM D-2713
9. VOLATILE RESIDUE
95% Evaporated - Temperature, DEG. F -37 ASTM D-1837
10. AMMONIA
PPM by Weight in Liquid 1 Field - Length of Stain Tube
Lab - UOP 430
11. FLUORIDES
PPM by Weight in Liquid as 5 Field - Length of Stain Tube
Monatomic Fluorine
12. OTHER DELETERIOUS SUBSTANCES (PPM BY WEIGHT IN LIQUID)
Includes but not limited to 1 Gas chromatography with flame
(Isoprene, Butadiene, Vinyl ionization or electron
Chloride, glycol, amine, caustic) capture detection or other
NOTES: (1) The test methods for items 2 and 7 are not necessary if a
compositional analysis is available which indicates compliance with these
requirements. (2) The addition of methanol in the distribution system should be
on a spot basis and must not exceed a rate of 5 Gallons per 10,000 Gallons of
product.
-3-
EXHIBIT C
DELIVERY & RECEIPT POINTS
The Delivery & Receipt Points are the points of interconnect between the
Hackberry Storage Facility (including the pipelines to and from same) and the
following, with each point being bi-directional unless specified otherwise:
1. RAW PRODUCT:
- Dynegy liquids gathering system
- Dynegy NGL Pipeline from near Rose Bluff, Louisiana, to Mont Belvieu,
Texas
- Dynegy Fractionator
- ChevronTexaco (Texaco Pipeline L.L.C.) Lake Xxxxxxx Pipeline
- Interconnect to CITGO Lakemont Pipeline at the CITGO Pecan Grove
facility
2. PURITY ETHANE
- Dynegy Fractionator (Receipt Only)
- Interconnects to the following pipelines or facilities located at the
CITGO Pecan Grove facility: CITGO Lakemont Pipeline; Westlake
Petrochemical
- Interconnects to the following pipelines or facilities located at the
Equistar Chemicals L.P. Propylene Fractionation Unit: Equistar
Chemicals plant (Delivery Only); Sasoil ethane pipeline (Delivery
Only); and Xxxxxxxx ethane pipeline
- ChevronTexaco (Texaco Pipeline L.L.C.) Lake Xxxxxxx Pipeline
- Xxxxxx Xxxxxx Cypress Pipeline
3. PROPANE (HD-5)
- Dynegy Fractionator
- Dynegy NGL Pipeline from near Rose Bluff, Louisiana, to Mont Belvieu,
Texas
- Interconnects to the following pipelines or facilities located at the
CITGO Pecan Grove facility: CITGO Lakemont Pipeline; Westlake
Petrochemical
- Interconnect to the Equistar Chemicals plant located at the Equistar
Chemicals L.P. Propylene Fractionation Unit
- ChevronTexaco (Texaco Pipeline L.L.C.) Lake Xxxxxxx Pipeline
4. BUTANE-GASOLINE MIX (BG MIX)
- Dynegy Fractionator
- Dynegy NGL Pipeline from near Rose Bluff, Louisiana, to Mont Belvieu,
Texas
- CITGO Refinery via Pecan Grove interconnect
- ChevronTexaco (Texaco Pipeline L.L.C.) Lake Xxxxxxx Pipeline
- Interconnect to CITGO Lakemont Pipeline at the CITGO Pecan Grove
facility
-1-
