Common use of Balancing Clause in Contracts

Balancing. (a) “In Balance” Determination. Advances shall only be made at such times as the Loans are “in balance”. The Loans shall be deemed to be “in balance” only at such times as Administrative Agent determines (i) that (A) amounts available for disbursement under the Loan Documents for Project Costs (including from non-interest contingency items) other than interest on the Loans (determined after deducting the allocated amount of any Defaulting Lender’s Commitment) together with (B) available undisbursed Non-Interest Balancing Deposits, will be sufficient (giving effect to the expected timing of availability) to complete the Facility in accordance with the requirements of this Agreement and pay all Project Costs other than interest on the Loans as and when expected to be incurred through the Outside Facility Substantial Completion Date, (ii) that (A) the amount available for disbursement under the Loan Documents for interest on the Loans (determined after deducting the allocated amount of any Defaulting Lender’s Commitment) together with (B) available undisbursed Interest Balancing Deposits, will be sufficient to pay interest on the Loans through October 15, 2018 (or such earlier date, approved by Administrative Agent, by which Borrower reasonably anticipates the Facility Substantial Completion Date occurring), and (iii) that the amount on deposit in the Facility Lessee Construction Account, or available for deposit from the proceeds of repayment of the Facility Lessee Reverse Loan, the proceeds of the Facility Lessee Loan or funds due from Facility Lessee pursuant to the Facility Lease or the Proton System Supplier under the Proton System Purchase Agreement, will be sufficient to pay all Facility Lessee Project Costs, including amounts due or to be become due under the Proton System Purchase Agreement.

Balancing. Company will accept for storage injection or deliver for withdrawal, or for transportation delivery and redelivery, on a daily basis, volumes thermally equivalent to volumes nominated and scheduled, less appropriate compressor fuel and lost-and-unaccounted-for gas (acollectively called “Company Use”) charges, unless otherwise mutually agreed to in writing. All imbalances between actual and nominated injection volumes or withdrawal volumes, or between delivery volumes and redelivery volumes, shall be treated as imbalance under, and received in accordance with, the Storage or Transportation Service Agreement(s) under which the gas in question is delivered to or from the storage or transportation facilities. Gas delivered to Company for withdrawal or redelivery hereunder on each day shall be at constant uniform rates as practicable throughout such day. 1. If Shipper is advised by any upstream third party of the need to reduce or suspend deliveries of gas scheduled for delivery to or from storage, or for transportation delivery and redelivery, Shipper shall immediately notify Company orally, and shall confirm such notification in writing, of such reduction or suspension. 2. Nothing in this Section II B shall limit Company’s right to take action as may be required to adjust injections or withdrawals of gas, including suspending storage services or to adjust deliveries and redeliveries, including suspending transportation services, in order to alleviate conditions that threaten the integrity of its system. 3. In the absence of an executed Accounting Allocation Agreement between Shipper and Company as described in Section II A. 4, balancing procedures shall be as specified in this Section II B. If an Accounting Allocation Agreement is in effect between Shipper and Company, such Agreement shall take precedence over the provisions specified in this Section II B. 4. If there is more than one supply source (whether at a single or at multiple Points of Receipt or Delivery) nominated to be received for Storage or Transportation, the nomination will identify how and which supply source(s) should be allocated by means of a Receipt Pre-Determined Allocation (“RPDA”) specified in the nomination. In Balance” Determination. Advances accounting for the volumes delivered or redelivered by Company, in circumstances where multiple services are provided at any Point of Delivery or Redelivery, the sequence of volumes delivered shall only be made at such times as determined by the Loans are Delivery Pre-Determined Allocation (“DPDA”) specified by Shipper in balance”its most recent nomination. The Loans nomination will identify which supply source(s) should be allocated in the event gas is not or cannot be delivered or redelivered as nominated. 5. To the extent feasible, all volumes received by or delivered to Company at a Point of Receipt or Delivery shall be deemed to be “in balance” only at such times as Administrative Agent determines (i) that (A) amounts available for disbursement under the Loan Documents for Project Costs (including from non-interest contingency items) other than interest on the Loans (determined after deducting the allocated amount of any Defaulting Lender’s Commitment) together with (B) available undisbursed Non-Interest Balancing Deposits, will be sufficient (giving effect to the expected timing of availability) to complete the Facility in accordance with the requirements confirmed nominations for that point. In the event the actual volumes received by Company do not equal the confirmed nominations for that point, any underage or overage will be allocated as follows: (a) First, in accordance with the effective RPDAs submitted by Shipper (or Shipper’s suppliers). Shipper agrees that such an allocation is binding on Shipper. (b) Then, if there is no effective RPDA, pro rata to the extent applicable based on confirmed nominations, as applicable. Shipper agrees that such an allocation is binding on Shipper. 6. To the extent feasible, all volumes delivered or redelivered by Company at a Point of this Agreement and pay Delivery or Redelivery shall be allocated in accordance with the confirmed nominations for that point. In the event the actual volumes delivered by Company do not equal the confirmed nominations for that point, any underage or overage will be allocated as follows: (a) First, in accordance with the effective DPDAs submitted by Shipper (or Shipper’s suppliers). Shipper agrees that such an allocation is binding on Shipper. (b) Then, if there is no effective DPDA, pro rata to the extent applicable based on confirmed nominations, as applicable. Shipper agrees that such an allocation is binding on Shipper. 7. Each Shipper shall be responsible for ensuring that its suppliers submit re-Determined Allocations (“PDAs”, which include RPDAs or DPDAs) as provided herein using a form acceptable to Company. Unless otherwise agreed, all Project Costs PDAs must be submitted to Company via facsimile or other than interest agreed upon electronic means on or before the date the PDA is to be effective. Such PDA shall specify how any underage or overage from the confirmed nominated volumes should be allocated among the entities listed on the Loans as PDA. Company shall acknowledge receipt and when expected acceptance of the PDA by returning acknowledgment of the PDA to be incurred through Shipper via mutually agreeable means. Company acceptance is contingent on Company being able to administer the Outside Facility Substantial Completion Date, (ii) allocation submitted by the Shipper. 8. To the extent that (A) the amount available for disbursement under the Loan Documents for interest on the Loans (determined after deducting the allocated amount of any Defaulting Lender’s Commitment) together with (B) available undisbursed Interest Balancing Deposits, will be sufficient to pay interest on the Loans through October 15, 2018 (actual injections or such earlier date, approved by Administrative Agent, by which Borrower reasonably anticipates the Facility Substantial Completion Date occurring), and (iii) that the amount on deposit in the Facility Lessee Construction Accountactual withdrawals, or available actual deliveries or actual redeliveries, for deposit from each Shipper do not exactly match confirmed nominations for any day, Company will attempt to balance any such differences among Company and the proceeds of repayment of the Facility Lessee Reverse Loanupstream or downstream entities, the proceeds of the Facility Lessee Loan without impacting Shipper, whenever possible. If an upstream or funds due from Facility Lessee pursuant downstream entity requires a Balancing Agreement for which any fee is required, Shipper agrees to the Facility Lease or the Proton System Supplier under the Proton System Purchase Agreement, will be sufficient to pay all Facility Lessee Project Costs, including amounts due or to be become due under the Proton System Purchase Agreementreimburse Company for any incurred expenses.