Xxxxxxxx Xx. XXXXX0000
NATURAL GAS FIRM SUPPLY AGREEMENT
This Natural Gas Firm Supply Agreement ("Agreement"), is
made, entered into, and effective, as of the 1st day of
December, 1995 by and between ANADARKO TRADING COMPANY
(Seller), and INDIANA GAS COMPANY, INC. (Buyer).
Recitals
1. Seller is a corporation incorporated and existing under
the laws of the State of Delaware with its principal
place of business at 00000 Xxxxxxxxxx Xxxxx, Xxxxxxx,
Xxxxx.
2. Buyer is a corporation incorporated and existing under
the laws of the State of Indiana, with its principal
place of business at 0000 Xxxxx Xxxxxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxx.
3. This Agreement contains the mutual promises,
warranties, and covenants pursuant to which Buyer as a
purchaser of natural gas, and Seller as a merchant of
natural gas, shall perform the transactions described
herein.
4. Under this Agreement, Seller agrees to provide natural
gas on a firm basis, consistent with the terms and
conditions contained herein. Seller's ability to
provide natural gas on a firm basis, as represented to
Buyer and as agreed to herein, is a fundamental
inducement to Buyer's decision to enter this Agreement
and forms an essential element of the basis for the
bargained exchanges herein.
Definitions
As used herein, the following words shall
have the following definitions:
A. The term "Transporter" shall mean
Panhandle Eastern Pipe Line Company, or its
successor.
B. The term "Transporter's Tariff"
shall mean the tariff provisions of
Transporter, as approved by the Federal
Energy Regulatory Commission, or any
successor thereto, ("FERC"), including
changes to such tariff made after this
Agreement is effective, and Buyer's
contractual arrangements with Transporter.
If FERC should determine that Transporter's
Tariff shall cease to apply, in whole or in
part, to transactions hereunder, the parties
will promptly meet to determine and negotiate
mutually acceptable replacement guidelines
and standards. In that event, until an
agreement is reached, the most recently effective
Transporter's Tariff shall continue to apply.
C. The term "Btu" shall mean British
thermal unit, as defined in Transporter's
Tariff.
D. The term "Contract Month" shall
mean a calendar month during the
effectiveness of this Agreement, as
interpreted in light of Transporter's tariff.
E. The term "Day" shall be defined as
it is defined in Transporter's Tariff, or as
applied by Transporter.
F. The term "Gas" shall mean natural
gas, which shall meet the quality
specifications in this Agreement and
Transporter's Tariff.
G. The terms "MMBtu," "Dekatherm" or
"DTH" shall mean one million (1,000,000)
British thermal units.
H. The term "Maximum Daily Quantity"
shall mean the quantity of Gas which Seller
shall stand ready to supply on any Day during
a Contract Month to the extent nominated by
Buyer for purchase as the "Nominated Daily
Quantity".
I. The term "Nominated Daily Quantity"
shall mean the quantity of Gas which Seller
shall deliver to Transporter for the account
of Buyer on a particular Day, which quantity
shall be scheduled by Buyer pursuant to
Paragraph 5, labeled "Scheduling Procedures",
of this Agreement, but not to exceed the
Maximum Daily Quantity.
J. The term "Receipt Point(s)" shall
mean the point or points on Transporter's
system where Gas quantities are delivered
hereunder by Seller to Buyer.
1. Term: The term of this Agreement shall be from
December 1, 1995 through February 29, 1996.
2. Quantity:
(a) Subject to the provisions herein, Seller
represents, agrees, and assures that Seller can
and shall make available on a firm basis, to the
extent scheduled by Buyer as the Nominated Daily
Quantity, the following Maximum Daily Quantities
of Gas for purchase by Buyer in accordance with
the following schedule as to each Contract Month
during the term of this Agreement:
Contract Month Maximum Daily Quantity
December, 1995 - 50,000 MMBtu per day
January, 1996 - 50,000 MMBtu per day
February, 1996 - 50,000 MMBtu per day
(b) No provision of this Agreement shall be
construed to require Buyer to purchase or take any
minimum quantity of Gas, or to pay Commodity
Charges for any minimum quantity not taken except
as set forth in Paragraph 14 (b) hereof.
3. Price: Subject to the terms of this Agreement, Buyer
shall pay to Seller a Commodity Reservation Charge and
a Commodity Charge. Those charges shall be determined
as follows:
(a) Commodity Reservation Charge - Each Contract
Month, Buyer shall pay to Seller an amount
determined by multiplying the applicable Maximum
Daily Quantity set forth in Paragraph 2 above by
the Reservation Rate set forth for that particular
Contract Month in the following schedule times the
number of Days in that particular Contract Month.
Contract Month Reservation Rate
December, 1995 $0.020 per MMBtu
January, 1996 $0.020 per MMBtu
February, 1996 $0.020 per MMBtu
(b) Commodity Charge - Buyer and Seller intend to
apply a method of daily pricing, figured from a
commodity price index, to commodity sales under
this Agreement. Buyer shall pay to Seller each
Contract Month an amount determined by summing all
applicable "Daily Amounts" for the Contract Month.
A "Daily Amount" shall apply to each day during
the Contract Month for which Buyer has nominated
quantities for purchase. The "Daily Amounts"
shall be determined by multiplying i) the
quantities of Gas actually delivered to Buyer
under this Agreement at the Receipt Point(s) for
the particular Day of the Contract Month, up to
Buyer's Nominated Daily Quantity, ii) by a price
per MMBtu determined using the arithmetic average
of the high and low prices in the price range
reported in Gas Daily, in the table "DAILY PRICE
SURVEY", for "PEPL Oklahoma", for the applicable
Day, which price shall be deemed to be a delivered
price to the Receipt Point(s), inclusive of actual
transportation charges (including ACA, GRI, fuel,
all applicable surcharges, gathering costs,
transition costs, and take or pay, or other costs,
if any) from the wellhead to the Receipt Point(s),
and shall include all royalties and all present
and future production, delivery, severance, and
excise taxes, and all other costs of delivery to
the Receipt Point(s). As to any Day for which Gas
Daily for any reason (e.g. holidays and weekends)
does not publish the above referenced prices, the
applicable prices shall be that utilized for the
last prior Day such was published.
If a Receipt Point(s) other than mainline
Receipt Point(s) is used, any gathering,
transportation or other costs imposed on Buyer to
transport the gas to Transporter's mainline shall
be deducted from the Commodity Charge.
(c) Applicable Commodity Charge Index. If at any
time Gas Daily (or any successor publication
selected hereunder) is no longer published, or if
the specific postings referenced in Gas Daily are
no longer published, or no longer reflect the
original posting methodology used at the time of
the execution of this Agreement, the commodity
price shall be temporarily determined by reference
to applicable price postings in NGI's Daily Gas
Price Index and the Parties shall promptly
negotiate a new mutually agreeable method and/or
successor publication from which to determine
commodity pricing.
4. Taxes:
(a) Subject to the terms of this Agreement,
Seller shall pay all taxes imposed with respect to
the Gas delivered to Buyer hereunder prior to
delivery at the Receipt Point(s) and Buyer shall
pay all taxes imposed upon Buyer with respect to
such Gas on and after delivery thereof to Buyer at
the Receipt Point(s).
(b) If any sale of Gas from Seller to Buyer
pursuant to this Agreement shall be subject to
sales, use, or gross receipts tax, such tax shall
be borne by the Buyer. It is expressly understood
that the price mutually agreed to between Seller
and Buyer as provided for in Paragraph 3 above
shall be exclusive of sales, use, or gross
receipts tax related to the sale from Seller to
Buyer under this Agreement. Buyer shall provide
documentation to Seller of Buyer's exemption from
any tax that may otherwise apply under this
Agreement. If documentation is not provided,
Buyer shall reimburse Seller for any taxes paid by
Seller which are attributable to Buyer under this
Agreement.
5. Scheduling Procedures: Scheduling of purchases
hereunder shall be made by Buyer according to the
following procedures:
By 12:00 p.m. (noon), Eastern Standard Time, on the
fourth day preceding the day Transporter designates as
the day on which nomination information must be
submitted in order to ensure timely scheduling of gas
transportation on the first Day of the following
Contract Month (Transporter's Nomination Deadline),
Buyer shall provide written notification to Seller of
the initial Nominated Daily Quantity, not to exceed the
Maximum Daily Quantity, which Seller is to deliver to
Transporter for the account of Buyer on the first Day
of that following Contract Month.
By 12:00 p.m. (noon), Eastern Standard Time, on the Day
immediately preceding Transporter's Nomination
Deadline, Seller shall provide to Buyer, in writing,
all information required pursuant to Transporter's
Tariff, and other pertinent nomination and scheduling
guidelines and procedures (Nomination Information), for
Buyer to make a complete and valid nomination for gas
transportation service to commence on the first Day of
the following Contract Month. Until subsequently
changed by Buyer pursuant to the following, Seller
shall continue to deliver the initial Nominated Daily
Quantity to Transporter, for the account of Buyer, each
Day of the following Contract Month.
In its sole discretion, Buyer may elect to
prospectively change the Nominated Daily Quantity by
providing notice to Seller of the changed Nominated
Daily Quantity and the Day on which the changed
Nominated Daily Quantity is to be effective (the
Effective Date). Such notification shall be provided
by Buyer to Seller via telephone with concurrent
transmission by telefacsimile to Seller's
representative(s) and shall be provided not less than
four (4) hours prior to the time transporter specifies
as the time beyond which Transporter will not accept
and schedule changes to a valid nomination for gas
transportation service to occur on the Effective Date;
which time, specified by Transporter, is the Nomination
Cut-off Time. Not less than two (2) hours prior to the
Nomination Cut-off Time, Seller shall provide to
Buyer's representative(s) all Nomination Information
required to make a complete and valid nomination for
gas transportation service to commence on the Effective
Date. Seller shall continue to deliver to Transporter,
for the account of Buyer, the changed Nominated Daily
Quantity each Day unless and until Buyer elects to
again change the Nominated Daily Quantity pursuant to
the preceding.
Buyer may elect to prospectively change the Nominated
Daily Quantity for any Day of the month.
6. Receipt Point(s): The Receipt Point(s) hereunder shall
be at the ITP-ATC Mainline Pool Point, Meter Station PO
9995 located on Transporter's mainline system, unless
both parties reach prior mutual agreement on the use of
different Receipt Point(s) for a particular Contract
Month or portion thereof. Seller shall have a firm
obligation to deliver the Nominated Daily Quantity to
Buyer at the Receipt Point(s). Buyer shall have the
discretion to waive the requirement that a mainline
receipt point be used, provided, however, that no such
waiver shall constitute a waiver pertaining to any
other or future purchases and any such waiver shall not
prejudice the ability of Buyer to insist on future
mainline deliveries.
7. Operations: Buyer and Seller agree to accept for
purposes of this Agreement the applicable quality,
delivery pressure, measurement requirements and other
applicable rules, procedures, guidelines, tariff
provisions, contractual arrangements and policies of
Transporter, as the same may change from time to time.
8. Gas Quality: Gas delivered hereunder shall comply with
the quality and other specifications of Transporter's
Tariff, and shall be merchantable and free from
impurities that could affect its safe and normal use,
and free from hazardous or toxic substances, wastes, or
other contaminants.
9. Penalties: Seller shall be liable for all penalties,
cashouts, or other costs imposed on Buyer or Seller by
any third parties, including Seller's transporters and
Transporter, to the extent that such penalties are
caused by Seller's actions or inactions. Buyer shall
be liable for all penalties, cashouts, or other costs
imposed on Buyer or Seller by Transporter, to the
extent that such penalties are caused by Buyer's
actions or inactions. Seller agrees to use all
reasonable efforts to acquire operational balancing
agreements with Transporter, or other arrangements to
minimize the possibility of imbalance at the Receipt
Point(s) associated with Buyer's quantities.
10. Measurement: Measurement and determination of the
quantity of Gas delivered to Buyer at the Receipt
Point(s) shall be made in accordance with the
measurement procedures provided in Transporter's
Tariff.
11. Billing and Payment:
(a) On or before the fifteenth (15th) day
following each Contract Month, Seller shall
furnish, or have furnished, one statement to Buyer
stating the quantity of Gas delivered to the
Receipt Point(s) for Buyer's account in the
preceding Contract Month and the total dollar
amount due Seller pursuant to this Agreement (the
"Statement"). Seller's Statement shall reflect
both Commodity Reservation and Commodity Charges
due to Seller for the preceding Contract Month.
As to Commodity Charges, Seller's Statement shall
be based on Buyer's Nominated Daily Quantity for
each Day of such Contract Month, unless actual
information is available indicating Buyer received
less than the Nominated Daily Quantity, in which
event the statement shall be based on the actual
information or best available estimate. On or
before the twenty-fifth (25th) day of the month or
the tenth day following the receipt of Seller's
statement ("Due Date"), whichever is later, Buyer
shall make payment to Seller by wire transfer as
set forth in Paragraph 15 hereof.
(b) Buyer shall have the right to offset amounts
payable by Seller, due from Seller to Buyer, or
costs attributable to Seller against any payments
from Buyer to Seller, provided Buyer first
provides to Seller documentation supporting such
offset amounts.
(c) Interest shall accrue on all late payments
commencing on the applicable Due Date at the then
current prime rate of National City Bank,
Indianapolis, Indiana, or its successor, or the
maximum lawful rate, whichever is lower.
(d) If the Statements above are based on
nominations or estimates of quantities delivered,
Seller shall have the duty to promptly reconcile
such amounts with actual deliveries and remedy the
imbalance in accordance with the procedures
specified in Paragraphs 9 and 14 and as otherwise
provided herein, and in accordance with
Transporter's procedures.
12. Force Majeure: All obligations of the parties to this
Agreement, except for the obligation to make payments
due hereunder, shall be suspended while and only for so
long as compliance is prevented by a cause beyond the
control of the party claiming force majeure, such as an
"Act of God", war, civil disturbance, Federal or State
or local law, or binding order of a court or
governmental agency, provided the suspension shall be
only to the extent performance was prevented by the
event of force majeure and provided the party claiming
force majeure provides immediate notice by telephone
and followed by prompt written notice by telecopy with
reasonably full particulars to the other party at or
near the commencement of such force majeure.
Notwithstanding the foregoing, the events or
occurrences described above shall relieve Seller of its
obligations under this Agreement only to the extent
Seller's performance is prevented and only after Seller
has first curtailed all interruptible sales of Gas
supplies to be delivered to Transporter, and curtailed
on a prorata basis all firm sales of Gas supplies to be
delivered to Transporter. A party claiming force
majeure hereunder shall have the duty to make all
reasonable efforts to remedy the force majeure
condition as promptly as possible.
Nothing in this force majeure provision shall serve to
absolve a party hereto from liability for its own
negligence or failure to exercise reasonable care in
performance of this Agreement.
The term force majeure specifically excludes the
following occurrences or events:
(a) the loss, interruption, or curtailment of
interruptible transportation on either Transporter
or any third party transporter to effect receipt
or delivery of Gas hereunder;
(b) decreases in natural Gas supply due to
allocation or reallocation of production by well
operators, prorationing, or for other reasons;
(c) failure of specific, individual xxxxx or
appurtenant facilities in the absence of a force
majeure event broadly affecting other xxxxx in the
same geographic area.
Notice of force majeure must be sent immediately,
without regard to standard business hours, by telephone
and telecopy, with hard copy sent by overnight mail, to
each of the representatives for Buyer or Seller
designated below.
BUYER: SELLER:
Indiana Gas Company, Inc. Anadarko Trading Company
Attn: Xxxx X. Xxxxxx Attn: Xxxx Xxxxxxx
Gas Supply Marketing
0000 X. Xxxxxxxx Xxxxxx 00000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
Phone: (000) 000-0000 Phone: (000) 000-0000
Telecopy: (000) 000-0000 Telecopy: (000) 000-0000
and and
Indiana Gas Company, Inc. Anadarko Trading Company
Attn: Gas Control Attn: Gas Control
0000 X. Xxxxxxxx Xxxxxx 00000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
Phone: (000) 000-0000 Phone: (000)000-0000
Telecopy: (000) 000-0000 After Hours: (000) 000-0000
On Call Gas Controller
Telecopy: (000) 000-0000
13. Possession and Warranty of Title:
(a) As between the parties hereto, Seller shall
be in exclusive control and possession of the Gas
delivered hereunder until the same shall have been
received by Transporter for Buyer's account at the
Receipt Point(s). Upon such delivery and receipt,
control and possession will transfer to
Transporter, provided however, that this provision
does not relieve Seller of its responsibility for
injuries or damage caused if Seller fails to meet
the quality standards of this Agreement, or
Transporter's Tariff. Title to Gas delivered
hereunder shall pass at the Receipt Point(s).
(b) Seller warrants to Buyer that it has good and
marketable title and/or authority to sell all Gas
delivered hereunder and such Gas is free and clear
from all liens, claims, and encumbrances of every
kind. Seller will indemnify and save Buyer
harmless against all losses, damages and expenses
of every character including, but not limited to,
reasonable attorneys' fees, with respect to the
Gas delivered by it to Buyer on account of
royalties, taxes, payments or other charges
applicable before delivery of the Gas hereunder,
as well as any liens, encumbrances and claims of
every kind which relate to control or possession
of the Gas prior to delivery by Seller under this
Agreement.
14. Assurance of Supply:
(a) In the event Seller fails to deliver the
quantities of Gas as agreed herein for any reason
other than force majeure, Seller shall reimburse
Buyer within 15 days of receipt of an invoice and
supporting detail from Buyer for the difference,
if any, between the price per MMBtu which Buyer
would have paid Seller for the deficient portion
of the Nominated Daily Quantity under this
Agreement, and the price per MMBtu for the same
quantity of Gas which Buyer or its agents may
acquire in replacement thereof. Buyer shall use
its reasonable efforts to obtain such replacement
Gas at the lowest price reasonably possible.
Seller shall reimburse Buyer for actual
damages incurred related to the underdelivery,
including incremental costs and expenses incurred
by Buyer related to the underdelivery or to the
replacement of Gas as a result of Seller's failure
to deliver as agreed, and including Transporter's
demand charges incurred without corresponding
benefit to Buyer, reimbursement for all penalties,
imbalances, and cashouts incurred. If the failure
to deliver is substantial, Seller shall forfeit
all Commodity Reservation Charges to otherwise be
paid under this Agreement for that Contract Month.
The amount of reimbursement due pursuant to this
Paragraph shall be Buyer's sole and exclusive
monetary remedy. In addition to the remedies
above, Buyer shall retain the right to terminate
this Agreement. In the event of a force majeure
occasion affecting Seller's deliveries, if Seller
fails to prorata curtail in accordance with
Paragraph 12 of this Agreement, Buyer shall also
have the right to seek specific performance and/or
injunctive relief to seek delivery of Buyer's
proportionate share.
Assurance of Market Demand:
(b) In the event Buyer fails to purchase Buyer's
Nominated Daily Quantity scheduled by Buyer for a
particular Contract Month, for reason other than
as permitted by this Agreement, Buyer shall
reimburse Seller within 15 days of receipt of an
invoice and supporting detail from Seller for
actual damages incurred related to such failure to
purchase, including the difference (if any)
between the price per MMBtu which Seller would
have received from Buyer for the deficient portion
of the Nominated Daily Quantity for the particular
Contract Month under this Agreement, and the price
per MMBtu for the same quantity of Gas which
Seller sells to a third party in replacement
thereof. In addition, Buyer shall reimburse
Seller for actual damages incurred related to such
failure to purchase including incremental costs
and expenses incurred by Seller related to the
replacement sale of the Gas as a result of Buyer's
failure to purchase the Nominated Daily Quantity
as scheduled. Seller shall use its best efforts
to sell such replacement Gas at the highest price
possible, pursuant to arms length negotiation with
a nonaffiliated entity. If or to the extent
Seller is unable to sell any portion of the Gas in
question to a replacement market(s), at Seller's
option, Buyer shall take and pay for an equivalent
amount of Gas in mutually agreeable subsequent
months at the commodity price in effect for the
month in which the deficiency occurred. The
amount of reimbursement due pursuant to this
Paragraph and the applicable Commodity Reservation
Charge shall be Seller's sole and exclusive
remedy.
15. Correspondence: Except as provided in Paragraph 12
above, any notice, statement or xxxx shall be in
writing and shall be duly delivered when (i) mailed,
postage prepaid, by registered, certified, or first
class mail, or (ii) sent by prepaid overnight delivery
to the applicable address as follows, or (iii) by
telecopy directed to the appropriate person and
telecopy number below with hard copy also delivered as
in (i) or (ii) above:
NOTICES TO BUYER NOTICES TO SELLER
INDIANA GAS COMPANY,INC. ANADARKO TRADING COMPANY
0000 X. Xxxxxxxx Xx. 00000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx Attn: Xxxx Xxxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Telecopy: (000) 000-0000 Telecopy: (000) 000-0000
INVOICES TO BUYER INVOICES TO SELLER
INDIANA GAS COMPANY, INC. ANADARKO TRADING COMPANY
0000 X. Xxxxxxxx Xx. 00000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Corporate Accounting Attn: Xxxx Xxxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Telecopy: (000) 000-0000 Telecopy: (000) 000-0000
PAYMENTS TO BUYER PAYMENTS TO SELLER
INDIANA GAS COMPANY, INC. ANADARKO TRADING COMPANY
0000 X. Xxxxxxxx Xx. Mellon Bank, N.A.
Xxxxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX
Attn: Xxxx X. Xxxxxx Account No. 0000000
Phone: (000) 000-0000 ARA No. 043000261
Telecopy: (000) 000-0000 Confirmation of transfer:
Xx. Xxxxxxx Xxxxxxx
Phone: (000) 000-0000
16. Miscellaneous:
(a) This Agreement is subject to all applicable
laws, orders, rules, and regulations of any State
or Federal governmental body or official having
jurisdiction and both Seller and Buyer agree that
the transactions agreed to hereunder shall be
conditioned upon compliance with all such laws,
orders, rules, and regulations.
(b) Seller and Buyer expressly agree that laws of
the State of Indiana, except the law regarding
conflict of laws, shall govern the validity,
construction, interpretation and effect of this
Agreement. All actions relating to this Agreement
must be commenced and litigated in Indiana. Venue
for any such litigation shall be in the United
States District Court for the Southern District of
Indiana, if jurisdictional requirements are met,
otherwise in a court outside of Buyer's service
area. Seller waives any argument that Seller
lacks the minimum contacts with Indiana sufficient
to permit an Indiana court to exercise lawful
jurisdiction.
(c) Each party shall have the right following the
provision of reasonable notice and at all
reasonable hours to examine the appropriate books
and records of the other party to the extent
necessary to verify compliance with this
Agreement, including the accuracy of any
statement, payment, a force majeure claim or other
claimed excuse of performance. In the event an
error is discovered and communicated to the other
party, such error shall be adjusted promptly.
(d) Buyer shall be entitled to request Seller to
perform such deliverability, quality, or other
tests as may be necessary in Buyer's reasonable
judgment, to confirm Seller's compliance with this
Agreement and Transporter's Tariff. Buyer has the
right to attend and observe such tests, which
shall be performed at Seller's sole expense.
(e) During any month, if the quantities received
by Transporter for Buyer at the Receipt Point(s),
exceed Buyer's nomination for that Contract Month,
with respect to those quantities Buyer shall have,
pursuant to this Agreement, the right at its
discretion to:
(i) if those quantities have not been
cashed-out by Transporter and those
quantities are the result of Seller's
overdeliveries to the Transporter for Buyer's
account, Buyer shall have the right to
Buyer's choice of the following options:
(a) purchase those quantities
from Seller at a mutually agreeable
price, or
(b) require Seller to remove
those quantities from Buyer's account
with Transporter, provided Transporter
is willing to place those quantities on
Seller's account with Transporter.
Moreover, and in that event, Buyer will
have no obligation to Seller with
respect to purchasing those quantities,
and to the extent Buyer has made any
payment to Seller related to those
quantities, Buyer shall be entitled to
reimbursement, which reimbursement will
occur no later than thirty (30) days
from the date Buyer notifies Seller that
those quantities have been removed from
Buyer's account with Transporter and
have been placed on Seller's account
with Transporter.
(ii) If quantities have been cashed-out
by Transporter and said quantities are the
result of Seller's overdeliveries to
Transporter for Buyer's account, Buyer shall
have the right to Buyer's choice of the
following options:
(a) to remit to Seller the
cash-out price per MMBtu which is paid
to Buyer by Transporter, or
(b) if Buyer has paid Seller
for those quantities, Buyer may receive
cash reimbursement equal to the
difference between the cashout price
paid to Buyer by Transporter, and the
price paid by Buyer to Seller for the
cashout quantity; or
(c) if Buyer has paid Seller
for those quantities, Buyer may offset
payments to Seller for the difference
between the cashout price paid to Buyer
by Transporter, and the price paid by
Buyer to Seller for the cashout
quantity.
(iii)In addition to the above remedies,
Seller shall bear the economic burden of any
non-cashout penalties caused by the
overdeliveries.
(f) Either party may pledge, mortgage or assign
its rights hereunder as security for indebtedness.
Either party may assign its rights or obligations
under this Agreement to a corporate affiliate
without the consent of the other party. This
Agreement is otherwise non-assignable except with
the prior written consent of Buyer and Seller. This
Agreement extends to and is binding upon the respective
successors of Buyer and Seller.
(g) If the Federal Energy Regulatory Commission
("FERC") issues a rule, regulation, order or
decision during the effectiveness of this
Agreement which would subject Buyer or Seller to a
detrimental economic effect from continued
performance due to the effectiveness of the new
rules, regulations, or tariff provisions, the
affected party may within ninety (90) days of the
FERC action give written notice to the other party
of any changes to this Agreement it believes are
necessary to maintain the economic bargain. If
Buyer and Seller are unable to mutually agree upon
appropriate modification(s) within thirty (30)
days following the receipt of the above-referenced
written notice, this Agreement shall terminate
effective the next first day of the month
occurring sixty (60) days following receipt of
such written notice. Both parties shall have the
duty to negotiate in good faith with respect to
such modifications. Upon termination, the
obligations of Buyer and Seller under the
Agreement shall cease with the exception of the
obligation to make payments still owing as to
periods prior to the termination date.
(h) The parties contemplate and condition all
obligations hereunder on the ability of Buyer to
recover the entirety of all costs to be paid
hereunder from Buyer's customers. If recovery of
all such costs is prevented or frustrated by an
action or omission of a regulatory or legal
authority, Buyer shall have the right to terminate
this Agreement without further obligation of any
kind to Seller except to pay for Gas already
delivered.
(i) Seller shall have the right, but at no cost,
delay, risk, or expense to Buyer, to extract and
retain liquefiable hydrocarbons and/or helium, or
to have such extracted, through processing the
natural gas delivered hereunder at a point(s)
located on or adjacent to Transporter's system
downstream of the Receipt Point. In the event
Seller elects to process its natural gas pursuant
to this Paragraph, Seller shall not initiate such
processing unless Seller has made arrangements to
keep Buyer whole on an MMBtu basis in terms of i)
the total heating value of the natural gas to be
redelivered to Transporter's system by Seller for
Buyer's account after processing the natural gas
stream as compared to ii) the total heating value
of the natural gas attributable to natural gas
initially sold to Buyer by Seller at the Receipt
Point after reduction for the fuel required to
transport the natural gas to the inlet of the
processing facility so utilized. Further, such
processing arrangements shall not cause Buyer to
incur any accounting or other administrative
duties. All liquefiable hydrocarbons and/or
helium so extracted under this Paragraph shall
become the property of Seller. Seller's option to
commence the processing of natural gas pursuant to
this Paragraph or to decrease or to increase the
extent of such processing can be exercised from
time to time at Seller's discretion. Seller
agrees that it shall indemnify and hold Buyer
harmless from any and all claims which may arise
out of the extraction or sale of liquefiable
hydrocarbons and/or helium from the natural gas
stream sold to Buyer by Seller under this
Agreement including but not limited to royalties
or taxes related thereto.
(j) This Agreement is conditioned on the
continued solvency of Buyer and Seller. Both
parties shall have the right to request reasonable
information from the other so as to verify the
continued solvency of the other party. If
reasonable concerns as to the continued solvency
of one party arise, the other party shall be
entitled to reasonable assurances of the other
party's continued ability to perform. If one
party becomes insolvent or seeks bankruptcy
relief, the other party may prospectively
terminate this Agreement on prior notice without
further obligation other than to pay for Gas
previously delivered.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement in duplicate originals.
"SELLER"
ANADARKO TRADING COMPANY
By: ____________________________
Its: ___________________________
"BUYER"
INDIANA GAS COMPANY, INC.
By: ____________________________
Its:____________________________
State of
County of
NOTARIZATION
Before me appeared , who after being
duly sworn, executed this Agreement on behalf of Seller and
acknowledged his authority to sign this contract on behalf
of Seller.
Notary Public
State of Indiana
County of Xxxxxx
NOTARIZATION
Before me appeared , who after being
duly sworn, executed this Agreement on behalf of Buyer and
acknowledged his authority to sign this contract on behalf
of Buyer.
Notary Public
My Commission Expires:
My County of Residence:
