EXHIBIT 10.57
GAS TRANSPORTATION AGREEMENT
BETWEEN
TEXAS GAS TRANSMISSION CORPORATION
AND
PANDA-XXXXXXXX,L.P.
DATED AUGUST 1, 1996
INDEX
PAGE NO.
ARTICLE I Definitions 1
ARTICLE II Transportation Service 1
ARTICLE III Scheduling 2
ARTICLE IV Points of Receipt and Delivery 2
ARTICLE V Term of Agreement 3
ARTICLE VI Points(s) of Measurement 3
ARTICLE VII Facilities 3
ARTICLE VIII Rates and Charges 3
ARTICLE IX Miscellaneous 4
EXHIBIT "A"
FIRM POINT(S) OF RECEIPT
EXHIBIT "A-I"
SECONDARY POINT(S) OF RECEIPT
EXHIBIT "B"
FIRM POINT(S) OF DELIVERY
EXHIBIT "C"
SUPPLY LATERAL CAPACITY
STANDARD FACILITIES KEY
FIRM TRANSPORTATION AGREEMENT
THIS AGREEMENT, made and entered into this 1st day of
August, 1996, by and between Texas Gas Transmission Corporation,
a Delaware corporation, hereinafter referred to as "Texas Gas,"
and Panda-Rosemary, L.P., a Delaware limited partnership,
hereinafter referred to as "Customer,"
WITNESSETH:
WHEREAS, Customer has natural gas which it desires
Texas Gas to movethrough its existing facilities; and
WHEREAS, Texas Gas has the ability in its pipeline
system to move natural gas for the account of Customer; and
WHEREAS, Customer desires that Texas Gas transport such
natural gas for the account of Customer; and
WHEREAS, Customer and Texas Gas are of the opinion that
the transaction referred to above falls within the provisions of
Section 284.223 of Subpart G of Part 284 of the Federal Energy
Regulatory Commission's (Commission) regulations and the blanket
certificate issued to Texas Gas in Docket No. CP88-686-000, and
can be accomplished without the prior approval of the Commission;
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants herein contained, the parties hereto covenant
and agree as follows:
ARTICLE I
Definitions
1.1 Definition of Terms of the General Terms and Conditions
of Texas Gas's FERC Gas Tariff on file with the Commission is
hereby incorporated by reference and made a part of this
Agreement.
ARTICLE II
Transportation Service
2.1 Subject to the terms and provisions of this Agreement,
Customer agrees to deliver or cause to be delivered to Texas Gas,
at the Point(s) of Receipt in Exhibit "A" hereunder, Gas for
Transportation, and Texas Gas agrees to receive, transport, and
redeliver, at the Point(s) of Delivery in Exhibit "B" hereunder,
Equivalent Quantities of Gas to Customer or for the account of
Customer, in accordance with Section 3 of Texas Gas's effective
FT Rate Schedule and the terms and conditions contained herein,
up to 3,243 MMBtu per day, which shall be Customer's Firm
Transportation Contract Demand, and up to 489,693 MMBtu during
the winter season, and up to 694,002 MMBtu during the summer
season, which shall be Customer's Seasonal Quantity Levels.
2.2 Customer shall reimburse Texas Gas for the Quantity of
Gas required for fuel, company use, and unaccounted for
associated with the transportation service hereunder in
accordance with Section 16 of the General Terms and Conditions of
Texas Gas's FERC Gas Tariff. The applicable fuel retention
percentage(s) is shown on Exhibit "A". Texas Gas may adjust the
fuel retention percentage as operating circumstances warrant;
however, such change shall not be retroactive. Texas Gas agrees
to give Customer thirty (30) days written notice before changing
such percentage.
2.3 Texas Gas, at its sole option, may, if tendered by
Customer, transport daily quantities in excess of the
Transportation Contract Demand.
2.4 In order to protect its system, the delivery of gas to
its customers and/or the safety of its operations, Texas Gas
shall have the right to vent excess natural gas delivered to
Texas Gas by Customer or Customer's supplier(s) in that part of
its system utilized to transport gas received hereunder. Prior to
venting excess gas, Texas Gas will use its best efforts to
contact Customer or Customer's supplier(s) in an attempt to
correct such excess deliveries to Texas Gas. Texas Gas may vent
such excess gas solely within its reasonable judgment and
discretion without liability to Customer, and a pro rata share of
any gas so vented shall be allocated to Customer. Customer's pro
rata share shall be determined by a fraction, the numerator of
which shall be the quantity of gas delivered to Texas Gas at the
Point of Receipt by Customer or Customer's supplier(s) in excess
of Customer's confirmed nomination and the denominator of which
shall be the total quantity of gas in excess of total confirmed
nominations flowing in that part of Texas Gas's system utilized
to transport gas, multiplied by the total quantity of gas vented
or lost hereunder.
2.5 Any gas imbalance between receipts and deliveries of
gas, less fuel and PVR adjustments, if applicable, shall be
cleared each month in accordance with Section 17 of the General
Terms and Conditions in Texas Gas's FERC Gas Tariff. Any
imbalance remaining at the termination of this Agreement shall
also be cashed-out as provided herein.
ARTICLE III
Scheduling
3.1 Customer shall be obligated four (4) working days prior
to the end of each month to furnish Texas Gas with a schedule of
the estimated daily quantity(ies) of gas it desires to be
received, transported, and redelivered for the following month.
Such schedules will show the quantity(ies)of gas Texas Gas will
receive from Customer at the Point(s) of Receipt, along with the
identity of the supplier(s) that is delivering or causing to be
delivered to Texas Gas quantities for Customer's account at each
Point of Receipt for which a nomination has been made.
3.2 Customer shall give Texas Gas, after the first of the
month, at least twenty-four (24) hours notice prior to the
commencement of any day in which Customer desires to change the
quantity(ies) of gas it has scheduled to be delivered to Texas
Gas at the Point(s) of Receipt. Texas Gas agrees to waive this 24-
hour prior notice and implement nomination changes requested by
Customer to commence in such lesser time frame subject to Texas
Gas's being able to confirm and verify such nomination change at
both Receipt and Delivery Points, and receive PDAs reflecting
this nomination change at both Receipt and Delivery Points. Texas
Gas will use its best efforts to make the nomination change
effective at the time requested by Customer; however, if Texas
Gas is unable to do so, the nomination change will be implemented
as soon as confirmation is received.
ARTICLE IV
Points of Receipt, Delivery, and Supply Lateral Allocation
4.1 Customer shall deliver or cause to be delivered natural
gas to Texas Gas at the Point(s) of Receipt specified in Exhibit
"A" attached hereto and Texas Gas shall redeliver gas to Customer
or for the account of Customer at the Point(s) of Delivery
specified in Exhibit "B" attached hereto in accordance with
Sections 7 and 15 of the General Terms and Conditions of Texas
Gas's FERC Gas Tariff.
4.2 Customer's preferential capacity rights on each of
Texas Gas's supply laterals shall be as set forth in Exhibit "C"
attached hereto, in accordance with Section 34 of the General
Terms and Conditions of Texas Gas's FERC Gas Tariff.
ARTICLE V
Term of Agreement
5.1 This Agreement shall become effective August 20, 1996
and remain in full force and effect for a primary term beginning
August 20, 1996 (with the rates and charges described in Article
VIII becoming effective on that date) and extending for a period
of ten years, two months, eleven days from that date, or through
October 31, 2006; with extensions of one year at the end of the
primary term and each additional term thereafter unless written
notice is given at least one hundred eighty (180) days prior to
the end of such term by either party.
ARTICLE VI
Point(s) of Measurement
6.1 The gas shall be delivered by Customer to Texas Gas and
redelivered by Texas Gas to Customer at the Point(s) of Receipt
and Delivery hereunder.
6.2 The gas shall be measured or caused to be measured by
Customer and/or Texas Gas at the Point(s) of Measurement which
shall be as specified in Exhibits "A", "A-I", and "B" herein. In
the event of a line loss or leak between the Point of Measurement
and the Point of Receipt, the loss shall be determined in
accordance with the methods described contained in Section 3,
"Measuring and Measuring Equipment," contained in the General
Terms and Conditions of First Revised Volume No. 1 of Texas Gas's
FERC Gas Tariff.
ARTICLE VII
Facilities
7.1 Texas Gas and Customer agree that any facilities
required at the Point(s) of Receipt, Point(s) of Delivery, and
Point(s) of Measurement shall be installed, owned, and operated
as specified in Exhibits "A", "A-I", and "B" herein. Customer may
be required to pay or cause Texas Gas to be paid for the
installed cost of any new facilities required as contained in
Sections 1.3, 1.4, and 1.5 of Texas Gas's FT Rate Schedule.
Customer shall only be responsible for the installed cost of any
new facilities described in this Section if agreed to in writing
between Texas Gas and Customer.
ARTICLE VIII
Rates and Charges
8.1 Each month, Customer shall pay Texas Gas for the
service hereunder an amount determined in accordance with Section
5 of Texas Gas's FT Rate Schedule contained in Texas Gas's FERC
Gas Tariff, which Rate Schedule is by reference made a part of
this Agreement. The maximum rates for such service consist of a
monthly reservation charge multiplied by Customer's firm
transportation demand as specified in Section 2.1 herein. The
reservation charge shall be billed as of the effective date of
this Agreement. In addition to the monthly reservation charge,
Customer agrees to pay Texas Gas each month the maximum commodity
charge up to Customer's Transportation Contract Demand. For anY
quantities delivered by Texas Gas in excess of Customer's
Transportation Contract Demand, Customer agrees to pay the
maximum FT overrun commodity charge. In addition, Customer agrees
to pay:
(a) Texas Gas's Fuel Retention percentage(s).
(b) The currently effective GRI funding unit, if
applicable, the currently effective FERC Annual
Charge Adjustment unit charge (ACA), the currently
effective Take-or-Pay surcharge, or any other then
currently effective surcharges, including but not
limited to Order 636 Transition Costs.
If Texas Gas declares force majeure which renders it unable to
perform service herein, then Customer shall be relieved of its
obligation to pay demand charges for that part of its FT Contract
Demand affected by such force majeure event until the force
majeure event is remedied.
Unless otherwise agreed to in writing by Texas Gas and Customer,
Texas Gas may, from time to time, and at any time selectively
after negotiation, adjust the rate(s) applicable to any
individual Customer; provided, however, that such adjusted
rate(s) shall not exceed the applicable Maximum Rate(s) nor shall
they be less than the Minimum Rate(s) set forth in the currently
effective Sheet No. 10 of this Tariff. If Texas Gas so adjusts
any rates to any Customer, Texas Gas shall file with the
Commission any and all required reports respecting such adjusted
rate.
8.2 In the event Customer utilizes a Secondary Point(s) of
Receipt or Delivery for transportation service herein, Customer
will continue to pay the monthly reservation charges as described
in Section 8.1 above. In addition, Customer will pay the maximum
commodity charge applicable to the zone in which gas is received
and redelivered up to Customer's Transportation Contract Demand
and the maximum overrun commodity charge for any quantities
delivered by Texas Gas in excess of Customer's winter season or
summer season Transportation Contract Demand. Customer also
agrees to pay the ACA, Take-or-Pay Surcharge, GRI charges, fuel
retention charge, and any other effective surcharges, if
applicable, as described in Section 8.1 above.
8.3 It is further agreed that Texas Gas may seek
authorization from the Commission and/or other appropriate body
for such changes to any rate(s) and terms set forth herein or in
Rate Schedule FT, as may be found necessary to assure Texas Gas
just and reasonable rates. Nothing herein contained shall be
construed to deny Customer any rights it may have under the
Natural Gas Act, as amended, including the right to participate
fully in rate proceedings by intervention or otherwise to contest
increased rates in whole or in part.
8.4 Customer agrees to fully reimburse Texas Gas for all
filing fees, if any, associated with the service contemplated
herein which Texas Gas is required to pay to the Commission or
any agency having or assuming jurisdiction of the transactions
contemplated herein.
8.5 Customer agrees to execute or cause its supplier or
processor to execute a separate agreement with Texas Gas
providing for the transportation of any liquids and/or
liquefiables, and agrees to pay or reimburse Texas Gas, or cause
Texas Gas to be paid or reimbursed, for any applicable rates or
charges associated with the transportation of such liquids and/or
liquefiables, as specified in Section 24 of the General Terms and
Conditions of Texas Gas's FERC Gas Tariff.
ARTICLE IX
Miscellaneous
9.1 Texas Gas's Transportation Service hereunder shall be
subject to receipt of all requisite regulatory authorizations
from the Commission, or any successor regulatory authority, and
any other necessary governmental authorizations, in a manner and
form acceptable to Texas Gas and Customer. The parties agree to
furnish each other with any and all information necessary to
comply with any laws, orders, rules, or regulations.
9.2 Except as may be otherwise provided, any notice,
request, demand, statement, or xxxx provided for in this
Agreement or any notice which a party may desire to give the
other shall be in writing and mailed by regular mail, or by
postpaid registered mail, effective as of the postmark date, to
the post office address of the party intended to receive the
same, as the case may be, or by facsimile transmission. as
follows:
Texas Gas
Texas Gas Transmission Corporation
0000 Xxxxxxxxx Xxxxxx
Post Office Box 20008
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Gas Revenue Accounting
(Xxxxxxxx and Statements)
Marketing Administration (Other Matters)
Gas Transportation and Capacity Allocation
(Nominations)
Fax (000) 000-0000
Customer
Panda-Xxxxxxxx, L.P.
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Fuel Manager
The address of either party may, from time to time, be changed by
a party mailing, by certified or registered mail, appropriate
notice thereof to the other party. Furthermore, if applicable,
certain notices shall be considered duly delivered when posted to
Texas Gas's Electronic Bulletin Board, as specified in Texas
Gas's tariff.
9.3 This Agreement shall be governed by the laws of the
State of Kentucky.
9.4 Each party agrees to file timely all statements,
notices, and petitions required under the Commission's
Regulations or any other applicable rules or regulations of any
governmental authority having jurisdiction hereunder and to
exercise due diligence to obtain all necessary governmental
approvals required for the implementation of this Transportation
Agreement.
9.5 All terms and conditions of Rate Schedule FT, the
General Terms and Conditions of Texas Gas's effective FERC Gas
Tariff, and the attached Exhibits "A", "A-I", "B", and "C" are
hereby incorporated to and made a part of this Agreement.
9.6 This contract shall be binding upon and inure to the
benefit of the successors, assigns, and legal representatives of
the parties hereto.
9.7 Neither party hereto shall assign this Agreement or any
of its rights or obligations hereunder without the consent in
writing of the other party. Notwithstanding the foregoing, either
party may assign its right, title and interest in, to and by
virtue of this Agreement including any and all extensions,
renewals, amendments, and supplements thereto, to a trustee or
trustees, individual or corporate, collateral agent, or other
entity holding this Agreement, as security for bonds or other
obligations or securities, without the consent of the other Party
and without such trustee or trustees, collateral agent, or other
such entity, assuming or becoming in any respect obligated to
perform any of the obligations of the assignor and, if any such
trustee be a corporation, without its being required by the
parties hereto to qualify to do business in the state in which
the performance of this Agreement may occur, nothing contained
herein shall require consent to transfer this Agreement by virtue
of merger or consolidation of a party hereto or a sale of all or
substantially all of the assets of a party hereto, or any other
corporate reorganization of a party hereto.
9.8 This Agreement insofar as it is affected thereby, is
subject to all valid rules, regulations, and orders of all
goverurnental authorities having jurisdiction.
9.9 No waiver by either party of any one or more defaults
by the other in the performance of any provisions hereunder shall
operate or be construed as a waiver of any future default or
defaults whether of a like or a different character.
IN WITTNESS WHEREOF, the parties hereto have caused
this Agreement to be signed by their respective representatives
hereunto duly authorized, on the day and year first above
written.
ATTEST: TEXAS GAS TRANSMISSION CORPORATION
Xxxxxx X. Xxxxx
By_____________________________
Secretary Vice President
WITNESSES: PANDA-XXXXXXXX, L.P.
BY PANDA-XXXXXXXX CORPORATION
Xxxxx Xxxxxxx ITS GENERAL PARTNER
Xxxx Xxxxxxxx
__________________ By Xxxxxxx X. Nordlunc
Vice President
Attest: Xxx X. Xxxxxxxxxx
Assistant Secretary
Date of Execution by Customer:
August 15, 1996
