Exhibit 10.4
Contract No.: 4272
FIRM TRANSPORTATION AGREEMENT
THIS AGREEMENT is made, entered into and effective as of
this 1st day of November, 1993, by and between East Tennessee
Natural Gas Company, a Tennessee corporation hereinafter referred
to as "Transporter", and the United Cities Gas Company, an
Illinois corporation of the State of Tennessee, hereinafter
referred to as "Shipper". Transporter and Shipper shall be
referred to herein individually as "Party" and collectively as
"Parties."
ARTICLE I - DEFINITIONS
The definitions found in Section 1 of Transporter's General
Terms and Conditions are incorporated herein by reference.
ARTICLE II - SCOPE OF AGREEMENT
Transporter agrees to accept and receive daily, on a firm
basis, at the Receipt Point(s) listed on Exhibit A attached
hereto, from Shipper such quantity of gas as Shipper makes
available up to the applicable Transportation Quantity stated on
Exhibit A attached hereto and deliver for Shipper to the Delivery
Point(s) listed on Exhibit A attached hereto an Equivalent
Quantity of gas. The Rate Schedule applicable to this Agreement
shall be stated on Exhibit A.
ARTICLE III - RECEIPT AND DELIVERY PRESSURES
Shipper shall deliver, or cause to be delivered, to
Transporter the gas to be transported hereunder at pressures
sufficient to deliver such gas into Transporter's system at the
Receipt Point(s). Transporter shall deliver the gas to be
transported hereunder to or for the account of Shipper at the
pressures existing in Transporter's system at the Delivery
Point(s) unless otherwise specified on Exhibit A.
ARTICLE IV - QUALITY SPECIFICATIONS
AND STANDARDS FOR MEASUREMENTS
For all gas received, transported, and delivered hereunder,
the Parties agree to the quality specifications and standards for
measurement as provided for in Transporter's General Terms and
Conditions. Transporter shall be responsible for the operation of
measurement facilities at the Delivery Point(s) and Receipt
Point(s). In the event that measurement facilities are not
operated by Transporter, the responsibility for operations shall
be deemed to be Shipper's.
ARTICLE V - FACILITIES
The facilities necessary to receive, transport, and deliver
gas as described herein are in place and no new facilities are
anticipated to be required.
ARTICLE VI - RATES FOR SERVICE
6.1 Rates and Charges - Commencing on the date of
implementation of this Agreement under Section 10.1, the
compensation to be paid by Shipper to Transporter shall be in
accordance with Transporter's effective Rate Schedule FT-A or
FT-GS, as specified on Exhibit A. Where applicable, Shipper shall
also pay the Gas Research Institute surcharge and Annual Charge
Adjustment surcharge as such rates nay change from time to time.
6.2 Changes in Rates and Charges - Shipper agrees that
Transporter shall have the unilateral right to file with the
appropriate regulatory authority and make changes effective in
(a) the rates and charges stated in this Article, (b) the rates
and charges applicable to service pursuant to the Rate Schedule
under which this service is rendered and (c) any provisions of
Transporter's General Terms and Conditions as they may be revised
or replaced from time to time. Without prejudice to Shipper's
right to contest such changes, Shipper agrees to pay the
effective rates and charges for service rendered pursuant to this
Agreement. Transporter agrees that Shipper may protest or contest
the aforementioned filings, or may seek authorization from duly
constituted regulatory authorities for adjustment of
Transporter's existing FERC Gas Tariff as may be found necessary
to assure Transporter just and reasonable rates.
ARTICLE VII - RESPONSIBILITY DURING TRANSPORTATION
As between the Parties hereto, it is agreed that from the
time gas is delivered by Shipper to Transporter at the Receipt
Point(s) and prior to delivery of such gas to or for the account
of Shipper at the Delivery Point(s), Transporter shall be
responsible for such gas and shall have the unqualified right to
commingle such gas with other gas in its system and shall have
the unqualified right to handle and treat such gas as its own.
Prior to receipt of gas at Shipper's Receipt Point(s) and after
delivery of gas at Shipper's Delivery Point(s), Shipper shall
have sole responsibility for such gas.
ARTICLE VIII - XXXXXXXX AND PAYMENTS
Xxxxxxxx and payments under this Agreement shall be in
accordance with Section 16 of Transporter's General Terms and
Conditions as they only be revised or replaced from time to time.
ARTICLE IX - RATE SCHEDULES AND GENERAL TERNS AND CONDITIONS
This Agreement is subject to the effective provisions of
Transporter's FT-A or FT-GS Rate Schedule, as specified in
Exhibit A, and Transporter's General Terms and Conditions on file
with the FERC, or other duly constituted authorities having
jurisdiction, as the same may be changed or superseded from time
to time in accordance with the rules and regulations of the FERC,
which Rate Schedule and General Terms and Conditions are
incorporated by reference and made a part hereof for all
purposes.
ARTICLE X - TERM OF CONTRACT
10.1 This Agreement shall be effective as of November 1,
1993, and shall remain in force and effect until November 1, 2000
("Primary Term"); provided, however, that if the Primary Term is
one year or more, then the contract shall remain in force and
effect and the contract term will automatically roll-over for
additional five year increments ("Secondary Term") unless
Shipper, one year prior to the expiration of the Primary Term or
a Secondary Term, provides written notice to Transporter of
either (1) its intent to terminate the contract upon expiration
of the then current term or (2) its desire to exercise its
right-of-first-refusal in accord with Section 7.3 of
Transporter's General Terms and Conditions. Provided further, if
the FERC or other governmental body having Jurisdiction over the
service rendered pursuant to this Agreement authorizes
abandonment of such service, this Agreement shall terminate on
the abandonment date permitted by the FERC or such other
governmental body.
10.2 In addition to any other remedy Transporter may have,
Transporter shall have the right to terminate this Agreement in
the event Shipper fails to pay all of the amount of any xxxx for
service rendered by Transporter hereunder when that amount is
due, provided Transporter shall give Shipper and the FERC thirty
days notice prior to any termination of service. Service may
continue hereunder if within the thirty day notice period
satisfactory assurance of payment is made in accord with Section
16 of Transporter's General Terms and Conditions.
ARTICLE XI - REGULATION
11.1 This Agreement shall be subject to all applicable
governmental statutes, orders, rules, and regulations and is
contingent upon the receipt and continuation of all necessary
regulatory approvals or authorizations upon terms acceptable to
Transporter and Shipper. This Agreement shall be void and of no
force and effect if any necessary regulatory approval or
authorization is not so obtained or continued. All Parties hereto
shall cooperate to obtain or continue all necessary approvals or
authorizations, but no Party shall be liable to any other Party
for failure to obtain or continue such approvals or
authorizations. Further, if any governmental body having
jurisdiction over the service provided for herein authorizes
abandonment of each service on a date other than the Termination
Date as defined in Section 10.1 herein, then the Termination Date
shall nevertheless be the abandonment date so authorized.
11.2 Promptly following the execution of this Agreement, the
Parties will file, or cause to be filed, and diligently
prosecute, any necessary applications or notices with all
necessary regulatory bodies for approval of the service provided
for herein.
11.3 In the event the Parties are unable to obtain all
necessary and satisfactory regulatory approvals for service prior
to the expiration of two (2) years from the effective date
hereof, then, prior to receipt of such regulatory approvals,
either Party may terminate this Agreement by giving the other
Party at least thirty (30) days prior written notice, and the
respective obligations hereunder, except for the reimbursement of
filing fees herein, shall be of no force and effect from and
after the effective date of such termination.
11.4 The transportation service described herein shall be
provided subject to the provisions of the FERC Regulations shown
by Shipper on Exhibit A hereto.
ARTICLE XII - ASSIGNMENTS
12.1 Either Party may assign or pledge this Agreement and
all rights and obligations hereunder under the provisions of any
mortgage, deed of trust, indenture or other instrument that it
has executed or may execute hereafter as security for
indebtedness; otherwise, Shipper shall not assign this Agreement
or any of its rights and obligations hereunder, except as set
forth in Section 17 of Transporter's General Terms and
Conditions.
12.2 Any person or entity that shall succeed by purchase,
transfer, merger, or consolidation to the properties,
substantially or as an entirety, of either Party hereto shall be
entitled to the rights and shall be subject to the obligations of
its predecessor in interest under this Agreement.
ARTICLE XIII - WARRANTIES
In addition to the warranties set forth in Section 22 of
Transporter's General Terms and Conditions, Shipper warrants the
following:
13.1 Shipper warrants that all upstream and downstream
transportation arrangements are in place, or will be in place, as
of the requested effective date of service, and that it has
advised the upstream and downstream transporters of the receipt
and delivery points under this Agreement and any quantity
limitations for each point as specified on Exhibit A attached
hereto. Shipper agrees to indemnify and hold Transporter harmless
for refusal to transport gas hereunder in the event any upstream
or downstream transporter fails to receive or deliver gas as
contemplated by this Agreement.
13.2 Shipper agrees to indemnify and hold Transporter
harmless from all suit actions, debts, accounts, damages, costs,
losses, and expenses (including reasonable attorneys fees)
arising from or out of breach of any warranty, by the Shipper
herein.
13.3 Shipper warrants that it will have title or the right
to acquire title to the gas delivered to Transporter under this
Agreement.
13.4 Transporter shall not be obligated to provide or
continue service hereunder in the event of any breach of
warranty; provided, Transporter shall give Shipper and the FERC
thirty days notice prior to any termination of service. Service
will continue if, within the thirty day notice period, Shipper
cures the breach of warranty.
ARTICLE XIV - MISCELLANEOUS
14.1 Except for changes specifically authorized pursuant to
this Agreement, no modification of or supplement to the terms and
conditions hereof shall be or become effective until Shipper has
submitted a request for change through the TENN-SPEED 2 system
and Shipper has been notified through the TENN-SPEED 2 system of
Transporter's agreement to such change.
14.2 No waiver by any Party of any one or more defaults by
the other in the performance of any provision of this Agreement
shall operate or be construed as a waiver of any future default
or defaults, whether of a like or of a different character.
14.3 Except when notice is required through the TENN-SPEED 2
system, pursuant to Transporter's FT-A or FT-GS Rate Schedule, as
applicable, or pursuant to Transporter's General Terms and
Conditions, any notice, request, demand, statement or xxxx
provided for in this Agreement or any notice that either Party
may desire to give to the other shall be in writing and mailed by
registered mail to the post office address of the Party intended
to receive the same, as the case may be, to the Party's address
shown on Exhibit A hereto or to such other address as either
Party shall designate by formal written notice to the other.
Routine communications, including monthly statements and
payments, may be mailed by either registered or ordinary mail.
Notice shall be deemed given when sent.
14.4 THE INTERPRETATION AND PERFORMANCE OF THIS AGREEMENT
SHALL BE IN ACCORDANCE WITH AND CONTROLLED BY THE LAWS OF THE
STATE OF TENNESSEE, WITHOUT REGARD TO CHOICE OF LAW DOCTRINE THAT
REFERS TO THE LAWS OF ANOTHER JURISDICTION.
14.5 The Exhibit(a) attached hereto is/are incorporated
herein by reference and made a part of this Agreement for all
purposes.
14.6 If any provision of this Agreement is declared null and
void, or voidable, by a court of competent jurisdiction, then
that provision will be considered severable at Transporter's
option; and if the severability option is exercised, the
remaining provisions of the Agreement shall remain in full force
and effect.
14.7 This Agreement supersedes and cancels the Gas Sales and
Transportation Agreement(s)between Shipper and Transporter dated
(not applicable) and (not applicable), respectively.
IN WITNESS WHEREOF, the Parties hereto have caused this
Agreement to be duly executed as of the date first hereinabove
written.
EAST TENNESSEE NATURAL GAS COMPANY
BY
TITLE:
UNITED CITIES GAS COMPANY
BY
TITLE:
