Full opinion text
ORDER DAVID L. RUSSELL, District Judge. Before the Court is the motion for partial summary judgment of Plaintiff Sabine Corporation (“Sabine”). Plaintiff seeks summary judgment on its claim against Defendant ONG Western, Inc. (“ONG”) for breach of a take-or-pay gas contract for the years 1982, 1983, 1985, 1986 and 1987. Plaintiff asserts that evidence submitted by it shows there are no genuine issues of material fact concerning the existence of a contract between the parties; that Sabine had available gas to produce to ONG; that ONG refused to either take or pay for the contractually specified quantities of gas during the years in question; and the amount of damages sustained by Plaintiff as a result of ONG’s failure to take or pay for gas. Additionally, with respect to Defendant’s affirmative defenses, Plaintiff asserts that Defendant has not and cannot adduce facts to support certain of its ai-firmative defenses and that others are either inapplicable, legally insufficient or precluded by collateral estoppel. Defendant ONG, in opposing the motion, asserts that material issues of fact exist as to the amount of Sabine’s damages and further asserts that all of its affirmative defenses are legally sufficient under the current status of Oklahoma law. Defendant maintains that evidence submitted by it at least raises genuine factual issues concerning the applicability of those defenses. ONG does not dispute the existence of a contract between the parties or that it neither took nor paid for the quantity of gas specified in Article IV of the contract.. See Appendix to Brief of Defendant ONG in Response to Motion for Partial Summary Judgment (hereinafter “Defendant’s Brief”), Exhibit “A”, “Statement in Opposition to Sabine’s Statement of Undisputed Facts.” Rather, Defendant disputes the accuracy of Plaintiff’s calculations of the minimum volumes of gas ONG was required to take under the contract, see id. at ¶ 5, and Plaintiff’s figures for the volumes of gas actually purchased by ONG during the years in question. Further, in any event, ONG contends that its total take-or-pay obligation for the years in question was modified or excused by certain contractual provisions and legal defenses. Also before the Court is Plaintiff’s motion to strike the affidavits of Eddie J. Hudson, James A. Metcalf, Jr. and C.F. Hughes, Jr., filed as exhibits to Defendant ONG’s response brief to Plaintiff’s motion for partial summary judgment. In response to this motion ONG included supplemental affidavits of the latter two affiants. Plaintiff has objected to ONG’s submission of these supplemental affidavits without having first obtained leave from the Court. ONG has responded in turn to this objection, asserting that leave was not necessary and alternatively requesting leave to file the supplemental affidavits. The Court will address the motion to strike the affidavits and objection to the supplemental affidavits hereinafter only to the extent the affidavits and/or supplemental affidavits are material to the determination of whether there is a genuine issue of material fact on a point raised by Plaintiff’s motion. I. Force Majeure Defense Plaintiff asserts that it is entitled to summary judgment on Defendant’s affirmative defense of force majeure because 1) Defendant failed to give Plaintiff notice of a particular force majeure event; 2) Defendant has failed to allege a specific act of a governmental body or authority which would constitute an act of force majeure and, to the extent it has alleged same, has failed to submit evidence necessary to the existence of a defense based thereon; 3) a mere price increase cannot constitute a force majeure event because Defendant assumed the risk of such increase; 4) force majeure is not a defense to Defendant’s alternative mode of performance under the contract, that of paying for rather than taking gas; 5) the governmental regulation which Defendant alleges constitutes a force majeure event was foreseeable as a matter of law; and 6) Defendant cannot rely upon a “failure of markets” as a force majeure event because “failure of markets” is not an event of force majeure in the contractual force majeure clause in issue. To the extent a “failure of markets” falls within the scope of the force majeure clause in issue, Plaintiff asserts that Defendant is collaterally estopped from relying upon a mere inability to resell gas at a profit as a “failure of markets” in a force majeure clause by virtue of the determination of this issue adversely to ONG Western, Inc. in the case of Golsen v. ONG Western, Inc., 756 P.2d 1209 (Okla.1988). Defendant ONG in response contends that on May 4, 1983, it notified working interest owners of the Sarkeys No. 1-32 well, gas production from which is the subject of the take-or-pay contract in issue, that ONG had instituted ratable takes of gas under Okla.Stat. title 52, § 240, and that by letter dated November 15, 1983, ONG notified Sabine of its intent to implement the priority purchase schedule established by the Corporation Commission. Defendant asserts that the sufficiency of the notice, i.e., whether these letters gave “reasonably full particulars” of the force maj-eure event, is a question of fact for the jury. ONG also maintains that by the express language of the force majeure clause, ONG’s payment obligation is also excused or reduced whenever ONG is unable to take gas or is able to take only a lesser quantity as a result of a force maj-eure event. In this regard, ONG suggests that the force majeure clause in question should be construed in a manner analogous to the Tenth Circuit’s construction of take- or-pay, force majeure and “adjustment to minimum bill” clauses in International Minerals & Chemical Corp. v. Llano, Inc., 770 F.2d 879 (10th Cir.1985), cert. denied, 475 U.S. 1015, 106 S.Ct. 1196, 89 L.Ed.2d 310 (1986). Defendant ONG further argues that it did not assume the risk of the force majeure event of intervening regulation. Assumption of the risk of a specified force majeure event is, ONG posits, logically inconsistent with the purpose of a force majeure clause, which is to shift risks and limit the parties’ obligations. See Introductory Note to Restatement (Second) of Contracts, ch. 11, p. 309 (1981). ONG notes that the Uniform Commercial Code contemplates that the parties may by agreement expand the parameters of the legal excuse from performance provided in Section § 2-615. See Official Code Comment 8 to U.C.C. § 2-615, codified at Okla.Stat. title 12A, § 2-615. Finally, contrary to Sabine’s argument, ONG argues that a force maj-eure event need not be unforeseeable. Relying on Eastern Air Lines, Inc. v. McConnell Douglas Corp., 532 F.2d 957, 992 (5th Cir.1976) and Atlantic Richfield Co. v. ANR Pipeline Co., 768 S.W.2d 777 (Tex.App.1989), it suggests that parties are at liberty to define force majeure as they wish and to include foreseeable events as events of force majeure. The sole question in ONG’s view is whether the elements of the defense have been satisfied. ONG submits that because it has presented facts to support the defense, that is a jury question. The gas purchase contract in question was entered into on March 20, 1978 by Defendant and Plaintiff’s wholly-owned subsidiary whose interest in the well covered by the contract, the Sarkeys 1-32 well, was subsequently acquired by Plaintiff. The term of the contract is twenty (20) years. In precatory language, it is recited that the Seller (Sarkeys, Inc., now Sabine) is “desirous of obtaining a market for the gas produced [from its interest in the Sabine well] ... and to conserve said gas” and that Buyer (ONG) “is desirous of augmenting its supply of gas, and of conserving the gas produced and to be produced for the benefit of its parent company’s utility customers_” Gas Purchase Contract (Exhibit “A” to Plaintiff’s Motion) at p. 1. The essentials of the Seller’s delivery obligations and the Buyer’s take-or-pay obligations are set forth in Article IV of the contract, as follows: ARTICLE IV QUANTITIES AND DELIVERIES 4.1 Seller agrees to deliver and Buyer agrees to take or pay for if tendered and not taken at the respective delivery points during each accounting year certain volumes of gas from each gas well or gas condensate well in which Seller has a working interest, completed, producible, and connected by Buyer on the lands and leases covered hereunder. Such volumes of gas required to be taken or paid for if tendered and not taken attributable to Seller’s interest or interests in the mineral interests covered hereby shall be determined as follows: A. In the absence of an applicable gas proration order established by the Oklahoma Corporation Commission or successor body having jurisdiction, the minimum yearly volume to be taken or paid for hereunder attributable to Seller’s interest in each such gas or gas condensate well shall be the cumulative total for an accounting year of the daily volume of gas calculated as set forth below which represents the smallest volume of gas. (1) Basic Volume — This daily volume of gas shall be Seller’s percent of working interest in each such gas well or gas condensate well times ten million (10,000,000) cubic feet. (2) Deliverability — This daily volume of gas shall be Seller’s percent of working interest in each such gas or gas condensate well times seventy-five percent (75%) of the daily deliverability of such well. For the purposes of this contract, the “daily deliverability” of each well shall be the maximum sustainable daily volume which said well is physically and legally capable of delivering into Buyer’s pipeline connection to said well, or the maximum daily volume which the well operator elects to make available for delivery into Buyer’s pipeline, whichever daily volume is smaller. B. In the event acreage attributable to gas or gas condensate wells covered hereunder becomes subject to pro-ration by order of the Oklahoma Corporation Commission or successor body having jurisdiction, then with respect to Seller’s interest in such gas or gas condensate well connected by Buyer, and subject to a proration order, Buyer’s minimum yearly volume to be taken or paid for hereunder shall be the cumulative total for an accounting year of the daily volumes determined by applying for each day that one of the daily volumes of gas calculated as set forth below which represents the smaller volumes of gas. (1) Basic Volume — This daily volume of gas shall be Seller’s percent of working interest in each gas or gas condensate well times such well’s ratable share in accordance with the pro-ration formula of a total volume of gas equal to the total daily volume of gas committed to Buyer under this contract and contracts similar in form hereto, determined in the manner provided in subparagraph 4.1A(1) of Article IV, which is attributable to all of the gas or gas condensate wells included under the proration order. (2) Deliverability — This daily volume of gas shall be Seller’s percent of working interest in each gas or gas condensate well times seventy-five percent (75%) of the daily deliverability of such well, as defined in subparagraph A(2) of this paragraph 4.1. Notwithstanding the above, it is understood and agreed that if any well covered hereunder is restricted to less than its normal allowable by the Oklahoma Corporation Commission or successor body having jurisdiction, Buyer’s minimum yearly volume take-or-pay obligation shall be reduced by the difference between the volumes which Buyer under normal circumstances would have taken from such well and the allowed production during the period that such well is so restricted. C. It is understood that because of the nature of Buyer’s market demand, Buyer may purchase larger volumes of gas than its minimum yearly volumes obligation divided by twelve (12) in some accounting months and that it may purchase limited volumes of gas in some other months. It is understood that Seller may desire to produce its wells at certain minimum daily rates to effect removal of liquids in the well producing string and/or a certain minimum monthly rate to remove any question covering the validity of Seller's lease. Seller will notify Buyer of the desired daily rate of production or minimum monthly rate of production, as the case may be, for each well covered hereby, and will give Buyer at least thirty (30) days written notice of any change therein. Upon receipt of such notice, Buyer will so schedule its monthly purchases from each well covered hereunder, to the extent operationally practical. D. For the purpose of determining Buyer’s take-or-pay obligation with respect to Seller’s interest in each well covered under this contract, each gas horizon or zone separately completed and producible in each well in which Seller’s interest is covered hereunder and connected or eligible for connection by Buyer shall be considered as a separate well in making the computations to determine the volumes of gas to be taken or paid for hereunder (e.g., a dual completion shall be considered as two separate wells for the aforesaid purpose). E. Either party hereto shall have the right at any predetermined time in the presence of the other to make such tests as it deems necessary to determine the daily absolute open flow or the deliverability of any well or wells covered by this agreement. Pursuant to paragraph 4.1 of this Article IV, the calculated daily absolute open flow, if applicable, or the deliverability as determined by such tests, shall be used in the computation of the volumes of gas that Buyer is obligated to take-or-pay for attributable to the month in which the test was made, and shall likewise be used with respect to subsequent months until other tests are made. It is further agreed that the first such test performed on a well after deliveries of gas are commenced to Buyer hereunder shall be used for the computation of the volumes that Buyer is obligated to take-or-pay from such well from the date of commencement of Buyer’s take-or-pay for obligation for such wells until a subsequent test is made, provided that such initial test is performed within thirty (30) days following the date of initial deliveries of gas to Buyer from such well. F.It is agreed that in the absence of special rules established by the Oklahoma Corporation Commission, or successor body having jurisdiction, governing the production of gas or gas condensate wells covered hereunder, Buyer shall be considered as having allocated its purchases of gas ratably although it may purchase gas at varying rates from various wells or at varying rates from the same well at different times, so long as Buyer, on an annual basis, allocates its takes on the basis of that one of the following criteria which is from time to time applicable for the purpose of determining Buyer’s take-or-pay for requirement with respect to each of such wells, to-wit: (1) the percentage of basic volume for those wells for which the minimum yearly volume obligation is controlled by the basic volume, as determined pursuant to subparagraph 4.1A (1) of this Article IV. (2) the percentage of daily delivera-bility for those wells for which the minimum yearly volume obligation is controlled by such well’s daily delivera-bility. G. Buyer agrees to take from Seller hereunder during each accounting month after deliveries of gas commence hereunder throughout each Contract Year a minimum quantity of gas which is not less than one twenty-fourth (V24th) of the annual minimum quantity in effect for such Contract Year. The force majeure clause, Article XVI of the contract, provides as follows: ARTICLE XVI FORCE MAJEURE 16.1 If either Buyer or Seller is rendered unable, wholly or in part, by force majeure or any other cause of any kind not reasonably within its control, to perform or comply with any obligations or conditions of this contract, upon giving notice and reasonably full particulars to the other party, such obligations or conditions shall be suspended during the continuance of the inability so caused and such party so rendered unable shall be relieved of liability and shall suffer no prejudice for failure to perform the same during such period, it being understood that Buyer’s minimum annual obligation to take or pay for gas hereunder shall be reduced by the volume which Buyer, under normal circumstances, would have taken from the well during the period of time the inability exists; provided, obligations to make payments then due for gas delivered hereunder shall not be suspended, and in other cases, the cause of suspension (other than strikes, lockouts, or labor disputes) shall be remedied insofar as possible with reasonable dispatch. Settlement of strikes, lockouts, and labor disputes shall be wholly within the discretion of the party having the difficulty. The term “force majeure” shall include, without limitation by the following enumeration, acts of God and of the public enemy, the elements, freezing of wells or lines of pipe, repairing or altering machinery or lines of pipe, fires, accidents, breakdowns, strikes, labor disputes, and any other industrial, civil or public disturbance, inability to obtain materials, supplies, rights-of-way on customary terms, permits, or labor, any act or omission by parties not controlled by the party having the difficulty, any act or omission (including failure to take gas) of a purchaser of gas from Buyer which is excused by any event or occurrence of the character herein defined as constituting force majeure, failure of gas supply, and any laws, orders, rules, regulations, acts, or restraints, of any governmental body or authority, civil or military, or any other causes beyond the control of the parties hereto. If, in the event Buyer is prevented from purchasing gas from Seller for a continuous period of one year as a result of force majeure, then Seller may terminate this contract and dispose of the remaining gas to other purchasers. In its Answer to the First Amended Complaint, ONG alleges that “[a]ny unfulfilled take-or-pay obligations which ONG may have under the Contract for the contract years 1982 through 1987 were suspended by force majeure, including actions of regulatory agencies, or such other cause of [a] nature not reasonably within ONG’s control,” Answer of Defendant ONG Western, Inc. to First Amended Complaint II26, p. 13, including a combination of the following events, which ONG alleges resulted in “a substantial disappearance of ONG’s markets for natural gas, as well as the markets for natural gas of those who customarily purchased natural gas from ONG,” id. at ¶ 14, p. 6: 1) Drastically increased natural gas prices were required to be paid to producers in the field as a result of enactment of the Natural Gas Policy Act of 1978; 2) Conservation efforts by and fuel switching capabilities of natural gas consumers increased; 3) Discoveries of new supplies of natural gas and deliverability from such supplies increased; 4) The world-wide price of crude oil and crude oil products drastically declined; 5) Economic activity in the nation, and particularly Oklahoma, severly declined, and to the present time has not recovered in Oklahoma; 6) A large surplus of natural gas developed; and 7) Unforeseen regulatory changes occurred which, together with development of a gas “spot market” (a market for gas not committed to long-term gas purchase contracts) for cheaper gas drastically increased gas-to-gas competition, both nationally and in Oklahoma. Id. at ¶ 14, pp. 5-6. ONG further alleges that “[a]s a necessary consequence of the failure of ONG’s markets” due to a combination of the above-described unforeseen events, “ONG’s markets would not permit the purchase of the specified volumes of gas ... under the Contract during the contract years 1982 through 1987, without unlawful discrimination against ONG’s other suppliers of gas, which condition continues to the present date.” Id. at ¶ 14, p. 6. In response to Plaintiff’s motion for partial summary judgment as directed to this affirmative defense, Defendant submits the affidavit of C.F. Hughes, Jr., a registered petroleum engineer in Oklahoma who is currently employed as a consultant in natural gas marketing, was formerly Vice President-Gas Supply of both Oklahoma Natural Gas Company and of ONG Western, Inc. from October 1, 1979 to September 1, 1986 and previously thereto was Manager of Gas Supply and Reserves for ONG. See Affidavit of C.F. Hughes, Jr. (Exhibit “H” to Defendant’s Brief) at ¶¶ 1 & 4 and Supplementary Affidavit of C.F. Hughes, Jr. at ¶¶ 1 & 4. Mr. Hughes states that he was responsible for the negotiation of the gas purchase contract in question and all similar gas purchase contracts then being entered into by ONG. Id. at ¶ 6. Mr. Hughes describes the effect of various regulatory actions on the supply, demand and price structure of gas in both interstate and intrastate markets, including Federal Power Commission regulation of producer wellhead pricing for sales in interstate commerce, allegedly in response to Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035 (1954); the Natural Gas Policy Act of 1978, imposing price controls on “old gas” sold in interstate commerce but not that sold in intrastate commerce, and removing price restrictions on narrow categories of gas; and FERC Order No. 436, which he contends “virtually forced interstate pipelines to implement transportation programs,” affecting the ability of ONG, which is an intrastate pipeline, to compete with interstate pipelines for gas. Before 1979, and in March of 1978 when the gas purchase agreement in question was entered into, Hughes attests: [I]n order to obtain the gas supplies needed by ONG to meet the cold weather peak demand requirements of its utility customers, as such new supplies were discovered and developed, ONG was required to agree to higher level takes, approaching those of the interstate pipelines. ONG was also required to agree to include in its contracts provisions (“favored nation” or indefinite price escalation (“IPE”) clauses) providing that ONG would adjust the price being paid in the area to insure that the producer would receive the current market value for its gas. However, the quantity (take-or-pay) provisions in ONG’s contracts were intended to reflect the industry-accepted eventualities of minor annual take fluctuations related to weather and economic developments, or simply oversight in not turning on particular fields, and had functioned in that manner for many years, with ONG making such payments on occasion, and then readily making them up by takes in excess volumes in subsequent years. Similarly, the “favored nation” and IPE clauses merely tracked new prices paid in the unregulated free Oklahoma, intrastate market; the regulated, below-cost interstate prices were never a factor. Id. at ¶ 17. Also prior to 1979, according to the affiant, ONG had been able to “dispose of the deliverability under its contracts which was not required by its utility customers to large Oklahoma industrial customers or to interstate pipelines to serve their always gas supply-starved markets.” Id. at ¶ 18. After the NGPA, according to the affiant, interstate pipelines, which were previously gas-starved, “were bidding up the prices of gas in Oklahoma to astronomical levels, far above the actual market value of gas in the field” with the result that ONG, whose favored nation clauses had been entered into when triggering prices were determined by the Oklahoma intrastate free market (the lower regulated interstate prices were never a factor), was thereby forced to pay the same prices for gas from wells newly drilled on acreages subject to the old, pre-NGPA contracts, as the interstate pipelines were paying for new supplies of gas. Id. at ¶ 22. Then the affiant describes a “market collapse” which allegedly occurred in 1982. During this collapse, according to the affi-ant, ONG’s interstate pipeline customers began to rapidly lose their markets for their high-priced gas as fuel switching resulting from a decline in oil prices, conservation measures and the effect of an economic recession took effect. Id. at 11 23. This purportedly led to the interstate pipelines’ drastic reduction of purchases from ONG to reduce the pipelines’ liabilities under their own take-or-pay contracts. Finally, the affiant maintains that “As the FERC-encouraged and subsequently mandated transportation programs began to take effect, shut-in cheap spot market gas from producing areas such as Oklahoma not only displaced such interstate pipelines’ own contracted system supply, but ended any hope ONG had for resuming interstate sales, since its own cost of gas under its old contracts, escalated by favored nation clauses, was substantially above the free market price for gas in the field. Id. (emphasis added). The “bottom line,” according to the affidavit, is that the price of gas under ONG’s contract with Sabine remained at the highest price paid in the area, while the market price declined substantially, id. at 1124, with the spot market price for gas in the field currently $1.40 per MMBtu, id. at If 19 & 26, as compared to $3,812 per MMBtu, what Defendant contends Plaintiff claims is the present price operative under the contract in question. Id. at ¶ 19. The effect of this price differential, according to the affiant, is that interstate and unregulated competing Oklahoma intrastate pipelines are able to take advantage of the low spot market price and to supply industrial customers which were previously ONG customers, thus eliminating “a major portion of ONG’s sales of natural gas,” id. at II26, and rendering ONG incapable of taking all of the contractually provided volumes of gas under take-or-pay contracts like the present one. Id. at 21. Mr. Hughes also mentions Oklahoma Corporation Commission priority rules embodied in Rule 1-305 requiring pipelines to allocate their market demand and suggests that ONG was required to reduce its takes from the Sarkeys well pursuant to these priority rules. Assuming without deciding that one or more of the “events” described in Mr. Hughes’ affidavit, or a combination thereof, may be within the contemplation of the force majeure clause, a threshold issue is presented as to whether Defendant gave the contractually-required notice of such event or events. The failure to give proper notice is fatal to a defense based upon a force majeure clause requiring notice. See International Minerals & Chemical Corp. v. Llano, Inc., 770 F.2d at 885; Resources Investment Corp. v. Enron Corp., 669 F.Supp. 1038, 1043-44 (D.Colo.1987); Superior Oil Co. v. Transco Energy Co., 616 F.Supp. 98, 108-09 (W.D.La.1985). ONG relies on statements of C.F. Hughes, Jr. that ONG notified working interest owners in the Sarkeys well on May 4, 1983 that it had instituted ratable taking and that it notified Plaintiff on November 15,1985 that it was implementing a priority purchase schedule in accordance with Oklahoma Corporation Commission Rule 1-305. The gas purchase agreement in question, however, requires that every notice provided for in the contract be in writing and mailed to each party’s specified address see Exhibit “A” to Plaintiff’s Motion at ¶ 23.4. The affidavit is not sufficient to show written notice. However, ONG also relies on unauthenticated copies of letters included as Exhibits “P” and “Q” to its Brief in Response to Plaintiff’s Motion for Partial Summary Judgment. Since these documents would appear to be business records of Defendant, admissible at trial through a witness who could properly lay the foundation for their admissibility and authenticate them, the Court will consider these documents in determining whether there is a genuine factual issue concerning notice of a purported force majeure event or events. Exhibit “P” is a letter dated March 4, 1983 from Oklahoma Natural Gas Company to Inexco Oil Co., the operator of the Sarkeys well. Nowhere does the letter indicate that a copy thereof was sent by ONG Western, Inc. to Sarkeys, Inc., Plaintiff’s predecessor or Plaintiff. No material issue of fact is created concerning notice to Plaintiff on May 4, 1983 of a force majeure event as required by the contract. Exhibit “Q,” however, shows that a copy of this letter from Oklahoma Natural Gas Company dated November 15, 1983 was sent to Plaintiff. Accordingly the Court examines such written notice to determine whether a jury could reasonably find that the letter provided “reasonably full particulars to the other party” that the Buyer was “rendered unable, wholly or in part, by force majeure or any other cause not reasonably within its control, to perform or comply with any obligations or conditions” of the contract. Literally read, the letter gives notice that ONG Western, Inc. will be required to implement a priority purchase schedule in accordance with Oklahoma Corporation Commission Rules as of January 1, 1984 and requests that operators of Priority Four wells furnish ONG with copies of 1983 open flow potential tests on file with the Corporation Commission and that operators also notify ONG of Orders of the Corporation Commission establishing their wells’ status qualifying them for Priority One, Two or Three. It does not unequivocally state that ONG Western, Inc.’s supply exceeds its market demand and that curtailments are necessary, but this is at least a reasonable inference from the notice. Nor does the notice state what amount of curtailment is necessary. But whether this notice contains “reasonably full particulars” of a force majeure event or a partial inability to perform by virtue of Oklahoma Corporation Commission Rule 1-305 and/or a decline in market demand, assuming such events fall within the force majeure clause, is a question of fact for the jury. Plaintiff’s argument that an alleged act of force majeure does not relieve ONG of its alternative obligation to pay for gas not taken, whatever its viability may be with respect to this defense of commercial impracticability, must be rejected as to this defense. The force majeure clause, as Defendant suggests, unambiguously excuses both the obligation to take and the obligation to pay when gas cannot be taken for a reason within the clause. In so concluding, the Court is aware that the Tenth Circuit in International Minerals & Chemical Corp. v. Llano, Inc. construed a similar force majeure clause and an “adjustment of minimum bill” clause in a take-or pay contract in a manner consistent with and by reference to the doctrine of commercial impracticability, to the effect that a force majeure event — complete or partial inability to perform or comply with any obligations or conditions of the contract as a result of force majeure or any other cause beyond the party’s reasonable control — excuses taking but not paying. It logically follows that that Court would require that a party be both unable to take and unable to pay before the force majeure and “adjustment to minimum bill” provisions would have any effect. This Court cannot conceive of any event or cause within the contemplation of the force majeure clause which would render a party unable to pay. Thus, it would appear that such a construction might render the force maj-eure clause nugatory. Conversely, if a party is rendered only unable to take as a result of a cause or occurrence defined in the force majeure clause and such party is not then excused from paying, the force majeure clause has no effect; if the clause were removed from the contract, application of the take-or-pay clause alone would yield the same result. Plaintiff’s argument that an event of force majeure must be unforeseeable must be rejected. Nowhere does the force majeure clause specify that an event or cause must be a unforeseeable to be a force majeure event. The focus of the clause is upon a party’s ability to control rather than its ability to foresee the alleged cause. Plaintiff argues that ONG has failed to allege any act of a governmental body or authority which would constitute an act of force majeure and, to the extent it has alleged such an act, has failed to submit evidence necessary to the existence of a defense predicated on the force majeure clause, and that a mere price increase cannot constitute force majeure because Defendant assumed the risk of such increase. Both of these arguments depend to a lesser or greater extent on interpretation of the force majeure clause in issue. Although ONG invokes in its pleading and in evidence submitted in response to Plaintiff’s motion a plethora of statutes, regulations and orders which singly or in conjunction with each other purportedly rendered ONG unable to take gas during the year in question, the only law or rule of a governmental body which ONG asserts constitutes or is a basis for a force majeure event of which Defendant arguably gave Plaintiff notice, see above, is Rule 1-305 of the Oil and Gas Rules of the Oklahoma Corporation Commission. That Rule by its terms permits rather than requires a purchaser to reduce its takes when permitted production from all wells in a common source of supply from which a purchaser is required to take exceeds that purchaser’s market demand. In the event a purchaser elects to reduce its takes from wells within a common source of supply, the Rule does require that the reduction be made according to the priority schedule set forth in subsection B and that any reduction in taking from wells within a given priority be done ratably among those wells, see O.C.C. o & G Rule 1-305(C); Golsen ONG Western Inc., 756 P.2d at 1219. Thus, Rule 1-305, although a rule of a governmental body or authority and therefore a “force majeure” within the meaning of the force majeure clause, did not and can not render ONG unable to perform any, i.e. either, of its obligations under the contract when (if) its market demand was less than production it was required to take from all wells within the same source of supply with the Sarkeys well. The force majeure clause in the contract is only operative if a party “is rendered unable, wholly or in part, by force majeure or any other cause not reasonably within its control, to perform or comply with any obligations or conditions” of the contract. Of course, if ONG sought to avoid the consequences of an election not to reduce takes from the Sarkeys well commensurate with its market demand, that is, of also not reducing takes from other wells in the same source of supply, Defendant could opt to reduce or cease takes from the Sarkeys well (which would permit it to reduce or cease taking from other wells in the common source of supply in accordance with Rule 1-305) and pay any deficiencies. Secondly, Defendant ONG has not offered any competent evidence that the total permitted production from wells within the common source of supply in which the Sar-keys well is exceeded ONG’s market demand during the years in question. Compare with Affidavit of C.F. Hughes (Exhibit “H,” Appendix to Defendant’s Brief) at ¶ 25 and Exhibit “Q,” Appendix to Defendant’s Brief. Mr. Hughes’ statements to the effect that Defendant ONG experienced a drastic but unquantified overall decline in market demand; that in response thereto ONG notified Sabine and all other operators that it was implementing the priority purchase schedule specified in Rule 1-305; and that thereafter it reduced its takes from the Sarkeys well are at best a scintilla of evidence that Defendant ONG’s market demand was less than the total permitted production from the Sarkeys well and those other wells within the same common source of supply from which ONG was required to take. This is not enough to preclude summary judgment on the existence of a force majeure event, even if Rule 1-305 were construed or mandatory rather than permissive, i.e., to require a purchaser’s reduction of takes at any time the purchaser’s market demand for gas from a common source of supply was less than permitted production from such source which that purchaser was obligated to take. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202, 213-14 (1986); Kaiser-Francis Oil Co. v. Producer’s Gas Co., 870 F.2d 563, 565 (10th Cir.1989). Even assuming that the notice of November 15, 1983 were sufficient to invoke the force majeure clause based on a decline in or failure of market demand due to any or all of the various events or causes alleged by ONG to constitute events of force majeure, ONG’s force majeure defense based upon such other causes is legally insufficient because ONG has failed to submit any evidence showing that any or all of these alleged force majeure events rendered ONG unable to take gas within the meaning of the force majeure clause. At best, ONG’s evidence demonstrates that the effect of the various alleged events of force majeure was a decline in market demand and a disparity between ONG’s contract price and the market price or value of gas, see Affidavit of C.F. Hughes, Jr. (Exhibit “H,” Appendix to Defendant’s Brief) at ¶¶ 19, 23, 26 & 27, with the result that if ONG were to have taken the gas, it would have had to resell it at a loss. See id. at 1127. Such a loss of market demand which, as opposed to absolute demand, is a function of price, see Golsen v. ONG Western, Inc., 756 P.2d at 1213 n. 2, and the inability to resell gas at a profit, does not render a party “unable” to take gas. See Golsen v. ONG Western, Inc., 756 P.2d at 1213 (interpreting force majeure clause extending to “failure of gas supply or markets”); Kaiser-Francis Oil Co. v. Producer’s Gas Co., 870 F.2d at 566. While the Court agrees with Defendant that the purpose of a force majeure clause is to shift risks otherwise assigned and limit the parties’ obligations under a contract, see Introductory Note to Restatement (Second) of Contracts ch. 11, p. 309 (1981), ascribing such a purpose to the force majeure clause in question cannot alter the plain and unambiguous meaning of the term “unable.” And just as the Court has rejected an interpretation of the force majeure clause which would render it nugatory, the Court must reject an interpretation of the force maj-eure clause which would render the take-or-pay and price redetermination provisions, pursuant to which Defendant ONG clearly assumed the risk of a decline in market demand and market price, see Golsen v. ONG Western, Inc., 756 P.2d at 1213—14; Kaiser-Francis Oil Co. v. Producer’s Gas Co., 870 F.2d at 566; Universal Resources Corp. v. Panhandle Eastern Pipe Line Co., 813 F.2d 77, 80 (5th Cir.1987), nugatory. Cf. Golsen v. ONG Western, Inc., 756 P.2d at 1213-14 (construction of “failure of market” urged by defendant would negate lengthy and detailed price redetermination and take-or-pay provisions). Thus, even if the term “unable” as used in the force majeure clause in question was reasonably susceptible to the interpretation Defendant implicitly urges, the Court’s task of construing the force majeure clause in conjunction with the entire contract, each clause helping to interpret the others, and giving effect, whenever practicable, to each clause, see Okla.Stat. title 15, §§ 157, 166 & 168; Golsen v. ONG Western, Inc., 756 P.2d at 1214; Mercury Investment Co. v. F.W. Woolworth Co., 706 P.2d 523, 529 (Okla.1985); Shepherd v. French, 612 P.2d 727, 729 (Okla.App.1980); see also Ferrell Construction Co. v. Russell Creek Coal Co., 645 P.2d 1005, 1007 (Okla.1982); Walker v. Telex Corp., 583 P.2d 482, 485 (Okla.1978) (construction of ambiguous contract is a matter of law for the court); would mandate rejection of an interpretation that “unable to perform” as used in the force majeure clause means “unable to perform except at a loss.” Cf. Golsen v. ONG Western, Inc., 756 P.2d at 1214 (a clause will not be accorded a meaning which negates or is in conflict with major portions of a contract or is contrary to the parties’ general intent); Mercury Investment Co. v. F.W. Woolworth Co., 706 P.2d at 529 (terms in contract given their plain and ordinary meaning unless used by parties to convey a technical sense); Okla.Stat. title 15, § 160 (same). But cf. International Minerals & Chemical Corp. v. Llano, Inc., 770 F.2d at 886 (applying New Mexico law). Finally, with respect to ONG’s affirmative defense based on the force majeure clause, Plaintiff argues that ONG is somehow collaterally estopped from alleging that failure of markets was a force majeure event. Plaintiff’s argument in fact makes a case for the inapplicability of any issue preclusive effects of the Golsen court’s holding concerning what does not constitute a “failure of markets” as that term was used in the contract at issue therein and at once makes a purely contract-based argument: Unlike Golsen, where the Oklahoma Supreme Court held that the term “failure of markets” in a force majeure provision did not authorize relief from performance,' the force majeure clause of the contract [in issue] does not even contain a “failure of markets” provision. Brief in Support of Plaintiff’s Motion for Partial Summary Judgment (hereinafter “Plaintiff’s Brief) at pp. 32-33 (emphasis added). Defendant herein is not and could not rely on a non-existent “failure of markets” provision in the force majeure clause, but that has nothing to do with collateral estoppel. To the extent some decline in market demand is integral to ONG’s force majeure defense, whether as a result of a governmental regulation or as a “cause of any kind not reasonably within its control,” collateral estoppel is unapplicable because of a lack of identity of issues. See Anderson v. Falcon Drilling Co., 695 P.2d 521, 526 (Okla.1985); Kelley v. Kelley, 447 P.2d 774 (Okla.1968). The issue determined in the Golsen case was whether decline in market demand and inability to resell gas at a profit constituted a “failure of markets” as the term was used in the force majeure clause in that case. Even if a decline in market demand and inability to resell gas at a profit are integral to or constitute the basis of ONG’s force majeure defense herein, the issues presented in this case are whether that decline and inability or that which allegedly caused them fall within the events or causes defined in the force maj-eure clause within the contract in this case, which force majeure clause is different from that in the Golsen case and, if so, whether such events or causes rendered ONG “unable, wholly or in part, ... to perform.” II. Commercial Impracticability/Impossibility of Performance A second affirmative defense asserted by ONG on which Plaintiff moves for summary judgment is that of commercial impracticability. Initially, Plaintiff Sabine asserts that the undisputed fact that Defendant ONG actually recouped a 1979 payment for a 1978 deficiency by taking more than the minimum purchase amount of gas in 1984 somehow defeats the defense of commercial impracticability or equitably estops ONG from asserting it and undermines ONG’s credibility. This evidence of ONG’s ability to take or pay for gas in 1984 does not establish, as a matter of law, that taking or paying for gas in the years in question was not commercially impracticable for ONG. Plaintiffs motion for partial summary judgment is directed to its claim against Defendant ONG for breach of the contract only for the years 1982, 1983, 1985, 1986 and 1987. Plaintiff next urges that Defendant is collaterally estopped, by virtue of a determination adverse to it in Golsen v. ONG Western, Inc., 756 P.2d 1209, “from relitigating the fact that ‘failure of markets’ is simply failure of a market at the contract price.’ ” Plaintiff’s Brief at p. 18. Sabine suggests that ONG’s commercial impracticability defense is a “thinly disguised attempt to relitigate in this forum an issue that was necessarily decided ... in Golsen,” which Sabine explains this way: In Golsen, the Oklahoma Supreme Court held that as a matter of law, the trial court’s finding of a “failure of markets” was merely a finding “that no market exists ... for gas at or above ONG’s contract price.” Golsen at 1213. The Court went on to hold that this finding was fatal to ONG’s force majeure defense, and this finding is equally fatal to ONG’s commercial impracticability/impossibility defense asserted herein.” Id. at pp. 19-20. Sabine proceeds therefrom to assert that the Oklahoma Supreme Court recognizes the “viability” of nonmutual offensive collateral estoppel and that all of the elements necessary for application of that doctrine are present. Citing Veiser v. Armstrong, 688 P.2d 796, 800 n. 9 (Okla.1984), Sabine contends that the fact that the defense of impracticability is different than the defense of force majeure rejected in the Gol-sen case is immaterial, because collateral estoppel bars relitigation of a factual issue common to a different theory. ONG in response suggests that the Oklahoma Supreme Court has not endorsed the offensive use of collateral estoppel; that Sabine has not demonstrated that the precise issue(s) in this action were in fact determined in a prior action; and that ONG’s impracticability defense is not based on failure of markets. It appears that Plaintiff misunderstands or mischaracterizes the trial court’s and Oklahoma Supreme Court’s findings and conclusions in the Golsen case. The trial court’s conclusion that a “failure of markets” as that term was used in the force majeure clause did occur was based upon its findings of a severe decline in ONG’s market demand and of a consequential inability to sell gas at a profit. The Oklahoma Supreme Court accepted the findings of a decline in ONG’s market demand and its inability to sell gas at a profit but held that those findings were legally insufficient to constitute the force majeure of “failure of markets.” Sabine seemingly attempts to restate the issue decided in Golsen in the converse, that is, that “failure of markets” can never be anything more than a mere decrease in market demand and inability to resell at a profit and therefore, that “failure of markets” can never relieve a party of its obligations under a take-or-pay contract. In this case ONG is not attempting to establish a “failure of markets.” The Court agrees with Sabine that Defendant’s commercial impracticability defense depends upon a decline in market demand and inability to resell gas at a profit (which are the effects of an disparity between the contract price and the market price or value). Moreover, the Court notes that in interpreting “failure of markets” as used in the force majeure clause and in determining whether a decline in market demand and inability to resell gas at a profit could constitute “failure of markets,” the court in Golsen looked in part to the doctrine of commercial impracticability and interpreted “failure of markets” in a manner consistent with that doctrine. However, the court in Golsen never actually and necessarily decided whether a decline in market demand and the inability to sell gas at a profit or a disparity between the contract price and the market price or value constitutes commercial impracticability. Hence, the Golsen decision can have no issue pre-clusive effect on Defendant’s defense of commercial impracticability herein and cannot be employed by Plaintiff to collaterally estop Defendant from litigating whether a decline in market demand and inability to resell gas at a profit or a disparity between the contract price and market price or value constitutes commercial impracticability. See e.g., Anderson v. Falcon Drilling Co., 695 P.2d 521, 526 (Okla.1985). Thus, it is unnecessary for the Court to reach Sabine’s other arguments directed to the issue of collateral estoppel. Finally, Plaintiff argues that Defendant cannot, as a matter of law, establish the elements of the impracticability defense asserted because both of ONG’s obligations are not impracticable, mere financial loss is not commercial impracticability and ONG assumed the risk of increases in price and decreases in demand. In response to Plaintiff’s argument directed to the alternative nature of Defendant’s obligations under the contract, Defendant asserts that “the extreme increase in the cost of ONG’s performance renders both the obligation to take the high priced gas under the contract or the “alternative” obligation to pay for it anyway if not taken, impracticable to perform.” Defendant's Brief at p. 19. Section 2-615 of the Uniform Commercial Code, codified at Okla.Stat. title 12A, § 2-615, which applies to a contract for the delivery of natural gas, see Golsen v. ONG Western, Inc., 756 P.2d at 1220 (Kauger, J. and Opala, J. concurring), requires that a party asserting the defense of commercial impracticability establish that 1) it did not, by the terms of its contract, assume a greater obligation than is ordinary; and 2) its performance was made impracticable by the occurrence of a contingency or condition, the non-occurrence of which was a basic assumption of the contract. See Okla.Stat. title 12A, § 2-615(a); Golsen v. ONG Western, Inc., 756 P.2d at 1221. A judicially-required third element for relief on the basis of commercial impracticability is that the occurrence making performance impracticable must have been unforeseeable. Golsen, 756 P.2d at 1221; see also Bernina Distributors, Inc. v. Bernina Sewing Machine Co., 646 F.2d 434, 439 (10th Cir.1981) (foreknowledge of possibility of currency fluctuations), clarified at 689 F.2d 903 (10th Cir.1981). Moreover, increased cost of performance will not excuse performance unless it is due to an unforeseen contingency which alters the essential nature of the performance. See Golsen v. ONG Western, Inc., 756 P.2d at 1213, citing Uniform Commercial Code Comment 4 to Section 2-615, Okla.Stat. title 12A, § 2-615 and Restatement of Contracts § 455 (1932). In this case, ONG does not argue that the governmental regulation or deregulation of natural gas was unforeseeable; rather it argues that the unforeseen contingency was the result of the regulation — an extreme deviation between the contract price and the market value of gas and the financial hardship to ONG which will result. See Defendant's Brief at pp. 13, 19, 20-21. ONG argues that this extreme unforeseeable price differential altered the basic assumption of the contract because “the nonoccurrence of an extreme deviation in the contract price and market value of gas was a basic assumption of the parties.” Id. at p. 22. The contract in question provides that in the absence of an agreed redetermined contract price for each subsequent accounting year, the price for each accounting year would be redetermined, see Gas Purchase Contract (Exhibit “A” to Plaintiff’s Motion) at Art. XIV, ¶ 14.1C, p. 19, as a price equal to the highest price being paid during any one of the ninth (9th), tenth (10th) and eleventh (11th) accounting months of the accounting year immediately preceding the accounting period for which the redetermination is proposed for gas then being purchased in Beck-ham, Washita, Custer, and Roger Mills counties, Oklahoma, by any pipeline company or public utility that purchased an average of 200 million cubic feet of gas per day in the state of Oklahoma during the accounting year immediately preceding the accounting period for which the redetermination is proposed, which pipeline or public utility is then purchasing gas in one or more of the aforesaid counties. In selecting such price, there shall be considered only such contract arrived at as a result of arm’s length, good faith bargaining between producers which have no direct or indirect affiliation or special relationship with the purchaser being considered, and prices being paid under contract covering pipeline sales by or between transmission companies shall not be considered. Id. This provision negates the possibility that a basic assumption of the contract was that there not be a differential between the contract price and the market price. Indeed, the fact that this price redetermination clause ties the contract price to the highest price then being paid in a four-county area indicates that ONG at all times assumed the risk that this price would be above the market value or market price at any time that there is a variance in prices paid for gas within the four-county area, notwithstanding Mr. Hughes’ statement that such price escalation clauses were “included to insure that the producer would receive the current market value for its gas.” Hughes Affidavit at ¶ 9. See also ¶ 14 (“[N]o one had ever contemplated that the effect of the price redetermination clause in ONG’s pre-NGPA contracts would require ONG to pay more than the current market value of the gas.”); ¶ 7 (“It was a basic assumption of the parties that Sabine should receive market value for its gas and the parties inserted a price redetermination provision in the contract for that purpose.”) ONG, however, nevertheless argues that the non-occurrence of an extreme deviation in contract price and market price was a basic assumption of the parties in contracting. The problem with this argument is that it advocates inconsistent inferences about basic assumptions on which the contract was made. If the non-occurrence of a disparity between the contract price and the market price or value could not have formed a basic assumption of the contract because the risk of such occurrence was assumed by the buyer, then the non-occurrence of an extreme disparity cannot have been a basic assumption of the contract. While contracting for the purchase of gas at a fixed price subject to price redetermination based on the highest price then paid in a four-county area, and thus having assumed the very type of risk which is asserted to be an unforeseen contingency, ONG cannot argue that it did not assume the degree of risk which the alleged contingency brought to bear. However, even if the non-occurrence of a disparity of this magnitude between the contract price and the market price or value is accepted as a basic assumption of the contract, the defense of commercial impracticability with respect to the payment obligation fails for another, more basic, reason. Defendant ONG has failed to submit competent evidence to create a genuine factual issue as to whether its performance by payment is commercially impracticable. To show that performance of the take-or-pay contract by payment is impracticable, even assuming that the other elements of commercial impracticability are satisfied, ONG has the burden of submitting evidence from which a jury could conclude that ONG’s performance of the contract by payment would require unreasonable expense. See Golsen v. ONG Western, Inc., 756 P.2d at 1221. In order to meet the requirement of unreasonable expense a mere showing of loss under the contract is insufficient. To qualify, the applicant must show extreme, not merely unreasonable expense. Even those who criticize application of the defense to typical take-or-pay contract provisions recognize it may be applicable where the general financial health of the purchaser is threatened. Golsen v. ONG Western, Inc., 756 P.2d at 1221. ONG asserts that it meets the criteria established in Golsen for commercial impracticability of the payment obligation because payment of the potential take-or-pay liability would result in extreme financial hardship to “ONG” and the ratepayers of Oklahoma, and would threaten the overall financial health of ONEOK and would result in “grave injustice.” ONG’s evidence that its parent corporation’s overall financial health would be threatened by payment of potential take-or-pay liabilities of the parent, ONEOK, Inc., its division, Oklahoma Natural Gas Company, and of ONG Western, Inc. through August 31, 1988, offered through the affidavit of James A. Metcalf, Jr., Vice President-Controller and Chief Accounting Officer of Oklahoma Natural Gas Company, a division of ONEOK Inc., does not create a material factual issue as to whether the overall financial health of ONG Western, Inc. is threatened by performance through payment of the take-or-pay contract at issue in this case because it is not competent to that issue and it is not presented in a form which would permit one to ascertain or infer the effect of ONG Western, Inc.’s performance by payment of the contract in question on that corporation’s overall financial health. Similarly, evidence of the effect of payment of all of the potential take-or-pay liabilities of the parent, ONEOK Inc., its utility division, Oklahoma Natural Gas Company, and of its wholly-owned subsidiary, ONG Western, Inc., the subsidiary which is the Defendant herein, upon the utility ONG’s ratepayers suffers from the same defect and from the additional defect that it is wholly irrelevant to the issue in question. To the extent that ONG relies on this evidence to show that failure to excuse performance by the alternative mode of payment would result in “grave injustice,” see Defendant’s Brief at p. 15, citing Llano at 886 and Golsen at 1221, the evidence is not competent for essentially the same reason — it is not competent on the issue of the effect of performance of the contract in question on the obligor’s overall financial health. Whether “grave injustice” would result from failure to excuse performance is merely an inquiry used to assess whether the cost to the contracting party of performing the contract is so excessive and unreasonable as to warrant the conclusion that performance has become impracticable. See Gulf Oil Corp. v. Federal Power Commission, 563 F.2d 588, 599 (3rd Cir.1977), cert. denied, 434 U.S. 1062, 98 S.Ct. 1235, 55 L.Ed.2d 762 (1978), cited in International Minerals & Chemical Corp. v. Llano, Inc., 770 F.2d at 886. See also Introductory Note to ch. 11, Restatement (Second) of Contracts (1981) at pp. 309-10. That brings the Court to the question of whether evidence which is proffered by Defendant ONG of the increase in the cost to ONG of performing the take-or-pay contract in issue shows an increase sufficiently extreme and unreasonable so as to permit reasonable jurors to find that the contract has become commercially impracticable to perform. See Golsen, 756 P.2d at 1222. The only evidence submitted by ONG of the amount of increase in cost to ONG of performing the contract in question is the following statement contained in the Affidavit of C.F. Hughes, Jr.: The initial price under the Sabine contract was $1.72 per MMBtu, with a 3$ per year fixed price escalation, immediately before the enactment of the NGPA in 1978. In comparison, Plaintiff, Sabine, claims the present price under the contract is now $3,812 per MMBtu. The current spot market price of gas is approximately $1.40 per MMBtu. Thus, Sabine seeks to impose a “contract” price that is close to three times the current spot market price of gas, and more than twice the current market value of gas. Affidavit of C.F. Hughes, Jr. (Exhibit “H”, Appendix to Defendant’s Brief) at 1119. While ONG states in its brief that the spot market price for gas may or may not affect the actual market value for gas, see Defendant’s Brief at pp. 11-12 n. 7, ONG argues that it is the disparity between its contract price and the market value of gas which makes the contract impracticable to perform, rendering it unreasonably and excessively expensive. Thus, evidence concerning the spot market price of gas is not directly relevant. The affiant does not state what the current market value of gas is, but the Court will accept as true the affiant’s statement that the price under the contract for the year 1989 as Defendant asserts is claimed by Plaintiff, $3,812, is more than twice the current market value of gas. However, this evidence is not competent to establish the amount of disparity between the contract price for the years for which Plaintiff claims damages. See Brief in Suppo