EXHIBIT 10(xxxviii)
Contract #: 400196
SERVICE AGREEMENT
FOR RATE SCHEDULE SS-l
This Agreement, made and entered into this 23rd day of September,
1994 by and between TEXAS EASTERN TRANSMISSION CORPORATION, a Delaware
Corporation (herein called "Pipeline") and ELIZABETHTOWN GAS COMPANY, a
Division of NUI Corporation (herein called "Customer," whether one or
more),
W I T N E S S E T H:
WHEREAS, there currently exists between Pipeline and Customer two
service agreements under the Rate Schedule SS-1 (Pipeline's Contract No.
400116 and 400206) which specify an MDWQ of 872 dth and an MSQ of 52,290
dth and an MDWQ of 2,744 dth and an MSQ of 327,621 dth respectively; and
WHEREAS, Pipeline and Customer desire to enter into one service
agreement under Rate Schedule SS-1 which shall supersede the two
existing Rate Schedule SS-1 service agreements reference above; and
WHEREAS, withdrawal rights under the new Rate Schedule SS-1 service
agreement are consistent with the existing rights of the two existing
rate schedule SS-1 service agreements it supersedes;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, the parties do covenant and
agree as follows:
ARTICLE I
SCOPE OF AGREEMENT
Subject to the terms, conditions and limitations hereof and of
Pipeline's Rate Schedule SS-1, Pipeline agrees to provide firm service
for Customer under Rate Schedule SS-1 and to receive and store for
Customer's account quantities of natural gas up to the following
quantity:
Maximum Daily Injection Quantity (MDIQ) 1,953 dth
Maximum Storage Quantity (MSQ) 379,911 dth
Pipeline agrees to withdraw from storage for Customer, at
Customer's request, quantities of gas up to Customer's Maximum
Daily Withdrawal Quantity (MDWQ) of 3,646 dekatherms, or such
lesser quantity as determined pursuant to Rate Schedule SS-1, from
Customer's Storage Inventory, plus Applicable Shrinkage, and
to deliver for Customer's account such quantities. Pipeline's
obligation to withdraw gas on any day is governed by the provisions of
Rate Schedule SS-1, including but not limited to Section 6.
ARTICLE II
TERM OF AGREEMENT
The term of this Service Agreement shall commence on September 1,
1994 and shall continue in force and effect until 04/30/2012 and year to
year thereafter unless this Service Agreement is terminated as
hereinafter provided. This Service Agreement may be terminated by
either Pipeline or Customer upon five (5) years prior written notice to
the other specifying a termination date of any year occurring on or
after the expiration of the primary term. Subject to Section 22 of
Pipeline's General Terms and Conditions and without prejudice to such
rights, this Service Agreement may be terminated at any time by Pipeline
in the event Customer fails to pay part or all of the amount of any xxxx
for service hereunder and such failure continues for thirty (30) days
after payment is due; provided, Pipeline gives thirty (30) days prior
written notice to Customer of such termination and provided further such
termination shall not be effective if, prior to the date of termination,
Customer either pays such outstanding xxxx or furnishes a good and
sufficient surety bond guaranteeing payment to Pipeline of such
outstanding xxxx.
THE TERMINATION OF THIS SERVICE AGREEMENT WITH A FIXED CONTRACT
TERM OR THE PROVISION OF A TERMINATION NOTICE BY CUSTOMER TRIGGERS
PREGRANTED ABANDONMENT UNDER SECTION 7 OF THE NATURAL GAS ACT AS OF THE
EFFECTIVE DATE OF THE TERMINATION. PROVISION OF A TERMINATION NOTICE BY
PIPELINE ALSO TRIGGERS CUSTOMER'S RIGHT OF FIRST REFUSAL UNDER SECTION
3.13 OF THE GENERAL TERMS AND CONDITIONS ON THE EFFECTIVE DATE OF THE
TERMINATION.
In the event there is gas in storage for Customer's account on
April 30 of the year of termination of this Service Agreement, this
Service Agreement shall continue in force and effect for the sole
purpose of withdrawal and delivery of said gas to Customer for an
additional one-hundred and twenty (120) days.
ARTICLE III
RATE SCHEDULE
This Service Agreement in all respects shall be and remain subject
to the applicable provisions of Rate Schedule SS-1 and of the General
Terms and Conditions of Pipeline's FERC Gas Tariff on file with the
Federal Energy Regulatory Commission, all of which are by this reference
made a part hereof.
Customer shall pay Pipeline, for all services rendered hereunder
and for the availability of such service in the period stated, the
applicable prices established under Pipeline's Rate Schedule SS-1 as
filed with the Federal Energy Regulatory Commission and as the same may
be hereafter revised or changed.
Customer agrees that Pipeline shall have the unilateral right to
file with the appropriate regulatory authority and make changes
effective in (a) the rates and charges applicable to service pursuant to
Pipeline's Rate Schedule SS-1, (b) Pipeline's Rate Schedule SS-1,
pursuant to which service hereunder is rendered or (c) any provision of
the General Terms and Conditions applicable to Rate Schedule SS-1.
Notwithstanding the foregoing, Customer does not agree that Pipeline
shall have the unilateral right without the consent of Customer
subsequent to the execution of this Service Agreement and Pipeline shall
not have the right during the effectiveness of this Service Agreement to
make any filings pursuant to Section 4 of the Natural Gas Act to change
the MDIQ, MSQ and MDWQ specified in Article I, to change the term of the
service agreement as specified in Article II, to change Point(s) of
Receipt specified in Article IV, to change the Point(s) of Delivery
specified in Article IV, or to change the firm character of the service
hereunder. Pipeline agrees that Customer may protest or contest the
aforementioned filings, and Customer does not waive any rights it may
have with respect to such filings.
ARTICLE IV
POINT(S) OF RECEIPT AND POINT(S) OF DELIVERY
The natural gas received by Pipeline for Customer's account for
storage injection pursuant to this Service Agreement shall be those
quantities scheduled for delivery pursuant to Service Agreements between
Pipeline and Customer under Rate Schedules CDS, FT-1, SCT, PTI or IT-1
which specify as a Point of Delivery the "SS-1 Storage Point". For
purposes of billing of Usage Charges under Rate Schedules CDS, FT-1,
SCT, PTI or IT-1, deliveries under Rate Schedules CDS, FT-1, SCT, PTI
or IT-1 for injection into storage scheduled directly to the "SS-1
Storage Point" shall be deemed to have been delivered 60% in Market Zone
2 and 40% in Market Zone 3. In addition, at Customer's request any
positive or negative variance between scheduled deliveries and actual
deliveries on any day at Customer's Points of Delivery under Rate
Schedules CDS, FT-1, SCT, or IT-1 shall be deemed for billing purposes
delivered at the Point of Delivery and shall be injected into or
withdrawn from storage for Customer's account. In addition to accepting
gas for storage injection at the SS-1 Storage Point, Pipeline will
accept gas tendered at points of interconnection between Pipeline and
third party facilities at Oakford and Xxxxx Storage Fields provided that
such receipt does not result in Customer tendering aggregate quantities
for storage in excess of the Customer MDIQ. The Point(s) of Delivery at
which Pipeline shall deliver gas shall be specified in Exhibit A of the
executed service agreement.
Exhibit A and B are hereby incorporated as part of this Service
Agreement for all intents and purposes as if fully copied and set forth
herein at length.
ARTICLE V
QUALITY
All natural gas tendered to Pipeline for Customer#s account shall
conform and be subject to the provisions of Section 5 of
the General Terms and Conditions. Customer agrees that in the
event Customer tenders for service hereunder and Pipeline agrees to
accept natural gas which does not comply with Pipeline's quality
specifications, as expressly provided for in Section 5 of Pipeline's
General Terms and Conditions, Customer shall pay all costs associated
with processing of such gas as necessary to comply with such quality
specifications.
ARTICLE VI
ADDRESSES
Except as herein otherwise provided or as provided in the General
Terms and Conditions of Pipeline's FERC Gas Tariff, any notice, request,
demand, statement, xxxx or payment provided for in this Service
Agreement, or any notice which any party may desire to give to the
other, shall be in writing and shall be considered as duly delivered
when mailed by registered, certified, or regular mail to the post office
address of the parties hereto, as the case may be, as follows:
(a) Pipeline: Texas Eastern Transmission Corporation
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000-0000
(b) Customer: ELIZABETHTOWN GAS COMPANY
XXX XXXXXXXXXXXXX XXXXX
XXXXX, XX 00000
or such other address as either party shall designate by formal written
notice.
ARTICLE VII
ASSIGNMENTS
Any Company which shall succeed by purchase, merger, or
consolidation to the properties, substantially as an entirety, of
Customer, or of Pipeline, as the case may be, shall be entitled to the
rights and shall be subject to the obligations of its predecessor in
title under this Service Agreement; and either Customer or Pipeline may
assign or pledge this Service Agreement under the provisions of any
mortgage, deed of trust, indenture, bank credit agreement, assignment,
receivable sale, or similar instrument which it has executed or may
execute hereafter; otherwise, neither Customer nor Pipeline shall assign
this Service Agreement or any of its rights hereunder unless it first
shall have obtained the consent thereto in writing of the other;
provided further, however, that neither Customer nor Pipeline shall be
released from its obligations hereunder without the consent of the
other. In addition, Customer may assign its rights to capacity
pursuant to Section 3.14 of the General Terms and Conditions. To the
extent Customer so desires, when it releases capacity pursuant to
Section 3.14 of the General Terms and Conditions, Customer may require
privity between Customer and the Replacement Customer, as further
provided in the applicable Capacity Release Umbrella Agreement.
ARTICLE VIII
INTERPRETATION
The interpretation and performance of this Service Agreement shall
be in accordance with the laws of the State of Texas without recourse to
the law governing conflict of laws.
This Service Agreement and the obligations of the parties are
subject to all present and future valid laws with respect to the subject
matter, State and Federal, and to all valid present and future orders,
rules, and regulations of duly constituted authorities having
jurisdiction.
ARTICLE IX
CANCELLATION OF PRIOR CONTRACT(S)
This Service Agreement supersedes and cancels, as of the effective
date of this Service Agreement, the contract(s) between the parties
hereto as described below:
Service Agreement(s) dated, June 1, 1993 between Pipeline and
Customer under Pipeline's Rate Schedule SS-1 (Pipeline's
Contract No. 400116 and 400206).
IN WITNESS WHEREOF, the Parties hereto have caused this Service
Agreement to be signed by their respective Presidents, Vice Presidents,
or other duly authorized agents and their respective corporate seals to
be hereto affixed and attested by their respective Secretaries or
Assistant Secretaries, the day and year first above written.
TEXAS EASTERN TRANSMISSION CORPORATION
By /S/ Xxxxxx X. Xxxxx
Vice President
ATTEST:
/S/ Xxxxxx X. Xxxx
Secretary
ELIZABETHTOWN GAS COMPANY
a Division of NUI Corporation
By /S/ Xxxxxx X. Xxxxx
Vice President
Supply & Planing
ATTEST:
/S/ Xxxxxxx X. Xxxx
Asst. Secretary
