General Terms and Conditions of the Gazprom export LLC Natural Gas Auction for Delivery Period Winter 2016/2017

Transcription

1 General Terms and Conditions of the Gazprom export LLC Natural Gas Auction for Delivery Period Winter 2016/ Preamble On 31 August, 1 and 2 September 2016 Gazprom export LLC (hereinafter referred to as GPE ) will conduct auctions for sales of Natural Gas for the supply period of winter 2016/2017 from 1 October 2016 to 31 March 2017 ( Delivery Period ) at the delivery points Greifswald NEL, Greifswald OPAL exempted, Gaspool VP, Olbernhau II, Baumgarten and Arnoldstein ( Auctions ). For each Auction a specific number of lots, each 60 MWh/h, will be offered for allocation to successfully prequalified interested parties ( Bidders ) through a nondiscriminatory three-round auction on the basis of the present General Terms and Conditions ( GTCs ). The Auctions will consist of the following stages: - the prequalification procedure ( Prequalification ) for inclusion of interested parties in the Bidders List (for further details see Section 2 below); - the auction procedure for Bidders that were included in the Bidders List (for further details see Sections 3.1 to 3.3 below); - the contract award procedure for successful Bidders (for further details see Sections 3.4 to 3.6 below). Following a successful Auctions participation a Bidder may be awarded delivery of Natural Gas on the terms and in accordance with results of the Auctions and based on the relevant Gas Sales Agreement ( GSA ). 2. Prequalification of the Bidders GPE will publish on its website all relevant auction information and documentation ( Prequalification Pack ) for attention of the interested parties ( Applicants ), 2.1 In order to participate in the Prequalification Applicants shall submit the completed Prequalification Pack together with all supporting documents mentioned in Section 2.2 below to GPE by 15 August 2016, 16:00 CET at the latest in electronic form via attached pdfs validly signed, to the following address: auction2016@gazpromexport.com ( Prequalification Application ). 2.2 The following documents have to be provided by the Applicants for the purpose of a complete Prequalification Application: 1

2 a) Signed and completed Prequalification Application Form; b) Signed Confidentiality Agreement; c) Completed KYC Questionnaire; d) Copies of the following supporting corporate documents: aa) Proof of incorporation of the company and of authorization of the signatories; bb) Audited financials for the past three (3) years in English; cc) Copy of VAT Certificate. GPE may request at any time any other documents it deems reasonably necessary from the Applicants in the course of the Prequalification. 2.3 Any transfer and/or exchange of Confidential information which is related to the Auctions and/or Prequalification and/or the GSA shall be performed under the terms of the Confidentiality Agreement between the Parties. 2.4 For avoidance of any doubt it is understood that the Prequalification Application shall only be deemed to have been submitted if and when GPE has received a complete application. Applications shall not be deemed complete unless they include the documents and information required under Section 2.2 a) to d) above. Prequalification Applications received which are not complete by the deadline set for submission shall be deemed not to have been submitted. It is the Applicant s responsibility to submit correct and complete information and documentation in due time as per Section Upon receipt of the complete Prequalification Application GPE will review and process it in order to assess if the Applicant meets the relevant financial requirements to participate in the Auctions ( Financial Qualification ). The criteria for Financial Qualification are set out below in Section For the purpose of the Financial Qualification, the Applicant will be assessed based on its financial suitability: a) The Applicant shall pass a security check in accordance with the internal requirements of GPE applied to its customers. b) The Applicant must demonstrate a good credit standing as a proof of its financial sustainability. This is demonstrated when: aa) bb) the Applicant submits a declaration stating that no insolvency or similar proceedings have been applied for or opened against it; the credit standing of the company according to its annual accounts in the reasonable opinion of GPE is sufficient for the Applicant to be able to meet its payment obligations under the GSA in case of successful auction participation. 2

3 c) Notwithstanding GPE s right to evaluate the credit standing of the Applicant based on its reasonable opinion, the Applicant can demonstrate sufficient credit standing by choosing one of the following methods (depending on the results of Financial Qualification of the Applicant, it may be admitted as a Bidder if it agrees to enhance its credit standing by one of the methods of credit support set out below in case of being successful in the Auctions): aaa) Applicant with investment grade credit ratings provided by one of the following credit rating agencies is deemed to be Financially Qualified without further requirements: Moody s: minimum rating of Baa3, Standard & Poors: minimum rating of BBB-, Fitch: minimum rating of BBB-. bbb) Applicant with an equity of more than 4 million Euro and either (a) with a credit rating of Ba1 or lower by Moody s, BB+ or lower by Standard & Poors and BB+ or lower by Fitch or (b) without any credit ratings provided by Moody s, Standard & Poors and Fitch, may be accepted as Financially Qualified by GPE, if such Applicant agrees to provide GPE with a bank or company guarantee or letter of credit (upon condition that a bank or a company nominated by the Applicant as guarantor/letter of credit issuer has an investment grade credit rating provided by Moody s, S&P or Fitch as stipulated in Section 2.6 c) aaa) above), or a 100% advance payment to GPE. The respective agreement will be included in the GSA. ccc) Applicant with an operation experience of less than 3 years (by the date of application submission) or an equity of less than 4 million Euro may only be deemed Financially Qualified if a 100% advance payment is provided in accordance with respective provisions of the GSA. d) If an Applicant or a company (in case a company provides a company guarantee in favour of GPE) has more than one credit rating from Moody s, Standard & Poors and Fitch, the lowest one assigned/updated not later than 1 (one) year before the application submission date should be used as a rating of an Applicant for the purpose of Financial Qualification. 2.7 The Applicant will not pass the Prequalification and will immediately and at any time be excluded from the Auctions in the following cases: a) an application has been filed for, or insolvency or similar proceedings have been opened against the Applicant; b) the Applicant has been issued against or has received a conviction which doubts its financial or professional reliability; c) the Applicant has submitted an incomplete or forged Prequalification Application; 3

4 d) the Applicant has not accepted the GTCs and the terms of GSA; or e) after reasonable consideration GPE came to the opinion that the Applicant cooperates with another Applicant, either directly or indirectly, in order to influence the results of the Auctions. 2.8 Following the Prequalification assessment, as soon as a decision on the Applicant s admission to the Auctions has been made, but not later than 25 August 2016, 17:00 CET GPE will notify the Applicants by on the following: a) the Applicant has passed the Prequalification without any further requirements, or b) the Applicant has passed the Prequalification under the condition that a guarantee, letter of credit or 100% advance payment will be provided in accordance with the terms of the GSA, or c) the Applicant has not passed the Prequalification, in which case the reasons for the decision will be stated. Applicants under a) and b) will be included in the list of prequalified Bidders ( Bidders List ), and will be provided by GPE with further instructions (if any) and a generic auction address for further communication between GPE and Bidders during the Auctions as per Section 3 below. 2.9 For the avoidance of doubt, any Prequalification will be valid only for the Auctions as set out in these GTCs and GPE reserves the right to cancel the Prequalification or Auctions at any time. In case of any changes at any time in the information provided by Applicants or Bidders for the Prequalification purposes, these have to be notified to GPE promptly. GPE further reserves the right to exclude a Bidder from the Bidders List on reasonable ground. 3. Auction and Contract Award Procedure 3.1 The Auctions will be held on 31 August, 1 and 2 September 2016 (each an Auction Day ). During each Auction Day GPE will offer to the Bidders four (4) different products under Auction A, Auction B, Auction C and Auction D which are specified in Annex 1 to these GTCs. Each of the Auctions (A, B, C and D) during each Auction Day will be conducted in three rounds: 1 st round from 09:00 (beginning of the round) to 09:30 (end of the round) CET; 2 nd round from 11:00 (beginning of the round) to 11:30 (end of the round) CET; 3 rd round from 13:00 (beginning of the round) to 13:30 (end of the round) CET. 3.2 On each Auction Day, GPE will send an to the specified addresses of the Bidders at the beginning of each round but not later than 09:00 CET for the 1 st round, 11:00 CET for the 2 nd round and 13:00 for the 3 rd round as per Section 3.1, each containing the prices, below which GPE will not sell any quantity of gas, offered 4

5 during the relevant round of the relevant Auction Day under the relevant Auction (the Reserve Price ) and the number of lots offered during the relevant round of the relevant Auction Day under the relevant Auction. The Reserve Prices and the numbers of offered lots are confidential and shall not be communicated to the third parties before, during or after the Auctions. 3.3 Bidders who wish to participate in the Auctions will be required to submit only one tender for the requested lots for each product per each Auction round (the Bid ) to the provided address as per Section 2.8 within the timeframe of each round as per Section 3.1 above during any Auction Day by specifying the following: the product (Auction A, B, C or D), and specifically: - for Auction A the relevant delivery point, - for Auction B the request of capacity transfer for Entry HSK Olbernhau from the SELLER for the bid corresponding volume as described in the product specifications (Annex 1 and 2), - for Auction D the relevant delivery point, the number of lots it wishes to bid for and the binding bid price in /MWh for each requested lot. For the avoidance of doubt, any Bid already submitted to GPE is final and shall not be subject to any further adjustments. 3.4 After the end of each round on each Auction Day GPE will evaluate all Bids received according to the following principal, however, not being obliged to disclose or prove the allocation method to the Bidders. Any Bids with a price lower than the relevant Reserve Price will not be regarded by GPE for the purpose of the relevant Auction. In respect of Bids with a bid price equal to or higher than the respective Reserve Price, the lots will be allocated to the Bidders offering the highest bid prices, and, if bid prices are equal, on a first-come-first-serve basis. 3.5 The GSAs for the relevant products will be awarded not later than 10:00 CET to successful Bidders of the 1 st round, not later than 12:00 CET to successful Bidders of the 2 nd round and not later than 14:00 CET to successful Bidders of the 3 rd round on each Auction Day by notification of the Auctions outcome to the Bidders via . As soon as a Bidder received a notification from GPE stating that it had been successful in the Auction and that a GSA had been awarded, the terms of the GSA become binding between the Bidder and GPE. It is understood and expressly agreed by the Bidder that its submission of the Bid shall be an offer to enter into a contract pursuant to 145 German Civil Code, which is subject to an explicit acceptance of GPE pursuant to 156 German Civil Code. Accordingly, GPE is under no obligation to enter into any contract and at any time may terminate the Auctions without any contracts being awarded. 5

6 3.6 As soon as practically possible after the awarding of a contract, GPE shall send to the successful Bidder 2 (two) signed originals of the GSA to the Bidder s address set out in the Prequalification Application Form, which shall then be countersigned by the Bidder and one of them returned to GPE. 3.7 If GPE deems it reasonably necessary, it can request the successful Bidder to cooperate in operational tests prior to the start of the delivery period as set out in the GSA. 4. Nominations Following the award of the GSA to the successful Bidder, the successful Bidder shall as soon as reasonably practicable, but not later than one week prior to the delivery start send a nomination to GPE in free format setting out start and end dates of the delivery and the flat hourly profile in kwh/h. This shall be sent to the contact address of the GPE s dispatching center, which will be communicated to the successful Bidders following the contract award. GPE shall confirm the nomination to the successful Bidder via the set out in the Prequalification Application Form for dispatching purposes within two working days upon receipt of the nomination. Any further nominations and dispatching will follow the provisions of the GSA. 5. Miscellaneous 5.1 GPE reserves the right to change these GTCs at any time prior to the Auctions upon immediate notification to the respective Applicants and Bidders, and also reserves the right at any time to withdraw from and close the Prequalification and auction process without any liability to any of the Applicants and Bidders. 5.2 Any cooperation between Bidders, either direct or indirect, in order to influence the result of the Auctions is prohibited and will result in an immediate disqualification of the involved Bidders. Any GSA that was awarded despite such cooperation may be terminated by GPE with immediate effect. 5.3 These GTCs are published in English language, which shall be the binding version. Any translations will only be courtesy. 5.4 These GTCs, as well as any Prequalification and auction procedure, as well as the GSA are governed by substantive German Law excluding any application of conflicts of law provisions or the United Nations Convention on Contracts for the International Sale of Goods of 11 April Any dispute resolution shall follow the rules set out in the GSA. 6

7 5.5 GPE is providing Applicants or Bidders the information support regarding the Auctions. Questions should be solely sent to the following address: 7

8 Annex 1 Product Specifications Auction A Delivery Period: 06:00 CET on to 06:00 CET on ; Lot Size: 60 MWh/h (or 1440 MWh/day) on each day of the Delivery Period in a flat hourly profile; Delivery Point: (a) Greifswald NEL: the point at the German shore of the Baltic Sea near Greifswald where the offshore transportation system of Nord Stream AG, Zug, Switzerland, is connected to the NEL pipeline (Nordeuropäische Erdgasleitung); or (b) Gaspool VP: the virtual trading point of the market area of GASPOOL Balancing Service GmbH, Berlin, Germany. The choice for the Delivery Point (b), Gaspool VP, implies that the total product price, in addition to the offered bid price, will be increased by the cost of service for transportation of Natural Gas from Greifswald NEL to Gaspool VP (SF1), which will be notified by GPE to the Bidders prior to the beginning of the first Auction round but not later than 09:00 CET and will stay valid during all rounds on each Auction Day; Contract Price: Flexibility: Reserve price: for the Delivery Point (a): Fix Price as determined by the Auction; for the Delivery Point (b): Fix Price as determined by the Auction + SF1; 100% ToP; to be notified by GPE prior to each round on each Auction Day. Auction B Delivery Period: 06:00 CET on to 06:00 CET on ; Lot Size: 60 MWh/h (or 1440 MWh/day) on each day of the Delivery Period in a flat hourly profile; Delivery Point: Olbernhau II: the cross-border interconnection point between the exit point Olbernhau II in the pipeline system of GASCADE Gastransport GmbH, Kassel, Germany, and Entry point HSK Olbernhau into the transportation system of NET4GAS, s.r.o. Prague, Czech Republic located on the border between the Federal Republic of Germany and the Czech Republic near the municipality of Olbernhau. 8

9 The legal transfer from the SELLER to the BUYER of the Natural Gas delivered at the Olbernhau II Delivery Point (transfer of title) occurs at the moment when such natural gas crosses the German/Czech border (moment of delivery)*; *Optionally, on the BUYER s request, the capacity transfer for Entry HSK Olbernhau in NET4GAS system can be provided by the SELLER on the terms described in Annex 2 to the present GTCs. Contract Price: Flexibility: Reserve price: Fix Price as determined by the Auction; 100% ToP; to be notified by GPE prior to each round on each Auction Day. Auction C Delivery Period: 06:00 CET on to 06:00 CET on ; Lot Size: 60 MWh/h (or 1440 MWh/day) on each day of the Delivery Period in a flat hourly profile; Delivery Point: Greifswald OPAL exempted: the point at the German shore of the Baltic Sea near Greifswald where the offshore transportation system of Nord Stream AG, Zug, Switzerland, is connected to the OPAL pipeline (Ostsee-Pipeline- Anbindungsleitung) operated by OPAL Gastransport GmbH & Co KG for transit through Germany via exempted transit capacity*; Contract Price: Fix Price as determined by the Auction; Flexibility: 100% ToP; Reserve price: to be notified by GPE prior to each round on each Auction Day. *Transit exempted capacities in OPAL Entry Greifswald Exit Brandov can be booked by Auction participants via capacity booking request to OPAL Gastransport GmbH & Co KG. Transit exempted capacities in OPAL of OPAL Gastransport GmbH & Co KG mean bundled capacities between the Entry Point Greifswald and the Exit Point Brandov, taking into account the decision of German Federal Regulatory Office (FRO) dated 25 February 2009 (ref BK ), as amended by decision of FRO dated 7 July 2009 (ref. BK ), according to 28a German Energy Industry Act granting an exemption from the application of the provisions of regulated network access according to 20 to 25 German Energy Industry Act for Wingas OPAL Transit Capacities. Auction D Delivery Period: 06:00 CET on to 06:00 CET on ; 9

10 Lot Size: Delivery Point: 60 MWh/h (or 1440 MWh/day) on each day of the Delivery Period in a flat hourly profile; (a) Baumgarten: the point on the border between Austria and Slovakia near Baumgarten (eustream flange); or (b) Arnoldstein: the point on the border between Austria and Italy near Arnoldstein; The choice for the Delivery Point (b), Arnoldstein, implies that the total product price, in addition to the offered bid price, will be increased by the cost of service for transportation of Natural Gas from Baumgarten to Arnoldstein (SF2), which will be notified by GPE to the Bidders prior to the beginning of the first Auction round but not later than 09:00 CET and will stay valid during all rounds on each Auction Day; Contract Price: Flexibility: Reserve price: for the Delivery Point (a): Fix Price as determined by the Auction; for the Delivery Point (b): Fix Price as determined by the Auction + SF2; 100% ToP; to be notified by GPE prior to each round on each Auction Day. 10

11 Annex 2 Capacity Transfer for Entry HSK Olbernhau For the BUYERs participating in the Auction B with Delivery Point Olbernhau II, there is an additional option to request the capacity transfer for Entry HSK Olbernhau in NET4GAS system provided by GPE for a fee to be notified to the Bidders prior to the beginning of the first Auction round but not later than 09:00 CET of the first Auction Day. If the BUYER opts to exercise the capacity transfer, the BUYER shall fill in the form Request to a Capacity Transfer together with GPE and follow the special procedure in accordance with terms and conditions set out in the Network Code of NET4GAS. Compliance with such terms and conditions is subject to NET4GAS approval. In case the Applicant has difficulties with concluding the Capacity Transfer Agreement for the reasons arising from its non-compliance with NET4GAS requirements to shippers, GPE bears no responsibility for it. 11