EXHIBIT 10.17(b)
THROUGHPUT AGREEMENT
This Throughput Agreement is being executed and entered into by Tengasco
Pipeline Corporation ("TPC"), and M. E. Xxxxxxx ("Xxxxxxx") this 16th day of
August, 2000.
Pursuant to that certain Loan Agreement between TPC and Xxxxxxx dated as
of August 16, 2000, and related documents as the same may be amended from time
to time ("Loan Agreement"), Xxxxxxx and other similarly situated persons are
making available to TPC, a wholly owned subsidiary of Tengasco, Inc., a loan in
the aggregate principal amount of 5.6 million dollars, a portion of which is
being loaned by Xxxxxxx and that portion being referred to herein as the "Loan,"
to provide financing for the construction of TPC's Swan Creek-Kingsport natural
gas pipeline ("Pipeline"). As an additional consideration for Xxxxxxx'x
agreement to make the Loan to TPC, TPC has agreed that Xxxxxxx shall be entitled
to participate in the revenue associated with the operation of the Pipeline to
the extent described in this Agreement.
NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the receipt and sufficiency of which are acknowledged
hereby, TPC agrees as follows:
Throughput Revenue Participation. Effective as of the commencement of
operations by the Pipeline, and each month thereafter until the Loan is paid in
full, TPC shall be liable for the payment to Xxxxxxx of Xxxxxxx'x Proportional
Part of a total Throughput Fee of ten cents ($0.10) per MMBtu of natural gas
delivered through the Pipeline. The Proportional Part of the total ten-cent
Throughput Fee that Xxxxxxx is entitled to receive under this Agreement is that
portion of the ten-cent fee equal to the ratio of the Loan being made by Xxxxxxx
to the total of all amounts loaned to TPC for this pipeline financing, currently
$5.6 million. The volumes delivered through the Pipeline shall be determined on
a monthly basis and shall equal the sum of all volumes delivered at delivery
points on the pipeline, net of line losses and fuel.
Default. In the event of any failure by TPC to perform, or cause the
performance of, any of its obligations under this Agreement, in addition to any
and all other remedies available to Xxxxxxx under this Agreement, the failure
will constitute an Event of Default under the Loan Agreement.
Enforcement Action. In the event Xxxxxxx is required to take legal action
against TPC to enforce their right to any payments due under this Agreement or
to enforce the performance by TPC of any other obligations under this Agreement,
Xxxxxxx shall be entitled to recover from TPC all of the costs and expenses of
such legal action including without limitation attorneys fees and court costs.
Term. Unless earlier terminated by Xxxxxxx in its sole discretion, this
Agreement shall continue in full force and effect for so long as the Loan
remains unpaid. When at any time the Loan is paid, this Agreement shall
terminate without any further action by TPC or by Xxxxxxx and Xxxxxxx shall
release all liens upon the Pipeline in accordance with the Loan Agreement.
Notices and Payments. Unless changed by written notice, all payments,
volume information, notices or other communications to Xxxxxxx shall be sent to
the following address:
M. E. Xxxxxxx
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Miscellaneous.
(a) Successors. The provisions of this Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
legal representatives, successors, and assigns. Xxxxxxx may not assign
this Agreement without written consent of TPC, which consent may not be
unreasonably withheld.
(b) Rights Cumulative; No Waiver: The rights granted Xxxxxxx under this
Agreement or the Loan Agreement or allowed by law or equity shall be
cumulative and may be exercised at any time and from time to time. No
failure on the part of Xxxxxxx to exercise, and no delay in exercising,
any right shall be construed or deemed to be a waiver thereof, nor shall
any single or partial exercise by Xxxxxxx of any right preclude any other
future exercise thereof or the exercise of any other right.
(c) Severance. If any provision of this Agreement or any application of
any provision shall have been declared invalid, illegal or unenforceable
by any court or agency of competent jurisdiction, such declaration shall
not affect or impair the validity, legality and enforceability of any
other provisions of this Agreement or of the Loan Agreement or any other
application of such provisions.
(d) Amendment. This Agreement may not be amended, modified or changed,
nor shall any waiver of any provision hereof be effective, except by an
instrument in writing signed by the party against whom enforcement of the
amendment, modification, change, or waiver is sought.
(e) Choice of Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Tennessee.
(f) Interpretation. All terms not otherwise defined in this Agreement
shall have the meanings ascribed to them in the Loan Agreement.
(g) Counterparts. This document may be executed in counterparts, all of
which executed counterparts shall together constitute a single document.
Signature and acknowledgment pages may be detached from the counterparts
and attached to a single copy of this document to physically form one
document.
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IN WITNESS WHEREOF, Xxxxxxx and TPC have executed this agreement as of
the day and year first above written.
TENGASCO PIPELINE CORPORATION
BY: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, President
/s/ M. E. Xxxxxxx
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M. E. Xxxxxxx
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