Exhibit 10(d)
GAS SALES AGREEMENT
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This Agreement is made and entered into as of the 1st day of
November, 1993 by and between Delta Natural Gas Company, Inc. ("Buyer"), and
Natural Gas Clearinghouse ("Seller"), both Buyer and Seller sometimes
referred to collectively as "Parties" or singularly as "Party".
I. Definitions
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1.1 "Agreement" means the provisions of this document and those
contained in Exhibits "A" "B" and "C" attached hereto, as such may be
amended from time to time.
1.2 "Btu" (British Thermal Unit) means the amount of heat energy
required to raise the temperature of one pound of Water from fifty-nine-
degrees Fahrenheit (59 degrees F) to sixty degrees (60 degrees F), as
determined on a dry basis.
1.3 "Columbia Gas" shall mean Columbia Gas Transmission Corporation.
1.4 "Columbia Gulf" shall mean Columbia Gulf Transmission Company.
1.5 "Day" shall mean that period of 24 consecutive hours beginning
and ending at 8:00 a.m. Eastern Time.
1.6 "FERC" means the Federal Energy Regulatory Commission or any
successor government authority.
1.7 "Gas" or "Natural Gas" means the effluent vapor stream
(including Liquid Hydrocarbons) in its natural state produced from xxxxx,
including all hydrocarbon and nonhydrocarbon constituents and including
casinghead gas produced with crude oil, and residue gas resulting from the
processing of gas well gas or casinghead gas.
1.8 "Index Price" shall mean the arithmetic average of: (i) the
price denoted in the column labeled "Index for Columbia Gulf Transmission
Co., Louisiana", as it is published in the first issue of the Delivery Month
in Inside FERC's Gas Market Report, in the table titled "Prices of Spot Gas
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Delivered to Pipelines", plus transportation from onshore points to Rayne as
follows: the effective Base Rate stated at Sheet No. 019 of Columbia Gulf's
FERC Gas Tariff for Rate Schedule ITS-2, plus the ACA charge, plus .348%
fuel and any applicable FERC-approved surcharges; (ii) the price denoted in
the column labeled "Contract Index" for South Louisiana, Columbia-Rayne, in
the table titled "Spot Gas Prices", "Delivered to Pipelines-30-Day Supply
Transactions" in the first edition of each applicable month of Natural Gas
Intelligence; and (iii) the price denoted for Columbia Gulf Transmission
Co., Rayne, La. "Bid Week"
for applicable months as it is published in the first issue of the Delivery
Month in Natural Gas Week in the table titled "Spot Prices on Interstate
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Pipeline Systems" "Delivered-to-Pipeline" ($/MMBTU").
1.9 "Mcf" shall mean one thousand (1,000) cubic feet of Gas as
determined on the measurement basis set forth in this Agreement.
1.10 "MMBtu" means one million (1,000,000) Btu. One MMBtu is
equivalent to one Dth.
1.11 "Month" shall mean the period commencing at 8:00 a.m. Eastern
Time on the first Day of a calendar month and ending at 8:00 a.m. Eastern
Time on the first Day of the immediately following calendar month.
1.12 "Transporter" means Columbia Gulf and, where appropriate,
Columbia Gas.
II. Quantity
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2.1 Subject to the other provisions of this Agreement, Seller shall
sell and deliver and Buyer shall purchase and receive, on a firm basis, a
maximum daily quantity of gas up to 12,070 MMBtu ("MDQ"). Buyer shall
purchase, and Seller shall supply, one hundred percent of Buyer's gas
requirements for system supply on Columbia Gas from Seller pursuant to this
Agreement. Buyer shall be permitted to receive, and to transport through its
facilities, Gas from other suppliers, solely to the extent that such Gas is
received and transported by Buyer for industrial and commercial end-users
behind Buyer's citygate.
Notwithstanding the foregoing, Buyer shall not utilize Gas
purchased from Seller under this Agreement to supply new industrial load
added after November 1, 1993. In the event Buyer adds a new industrial
customer(s) after November 1, 1993, Buyer and Seller shall negotiate in
good faith with respect to the price and terms at which Seller would provide
Gas to supply such load. Buyer may also negotiate with other suppliers to
supply such new load. If Buyer and Seller do not agree on the terms and
price for supply to serve the new load, Buyer may make whatever arrangements
it deems appropriate to provide supply to such new load.
2.2(a) No later than forty-eight hours prior to the earlier of the
first-of-the-month nomination deadline for Transporter or such other
pipeline designated by the parties, Buyer shall notify Seller of the
quantity of Gas that Buyer desires to purchase from Seller on each Day of
the coming Month (the "Daily Nominated Quantity").
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2.2(b) On or before 4:00 pm Eastern Time on the day prior to
Transporter's nomination deadline for the next day, Buyer may adjust its
Daily Nominated Quantity prospectively for any day during the remainder of
that month.
2.2(c) Buyer may nominate quantities in excess of the MDQ, and
Seller shall exercise its best efforts to deliver the excess quantities,
provided that the Parties agree, prior to delivery, on the price of the
excess quantity and the terms and conditions of its delivery.
2.2(d) At the time of nomination pursuant to sections 2.2(a) and
2.2(b) of this Agreement, Buyer may direct Seller to cause Gas sold
hereunder to be delivered under Columbia Gas' Rate Schedule ITS, in lieu of
causing such Gas to be delivered under Columbia Gas' Rate Schedule GTS.
Notwithstanding the foregoing, Seller shall have the authority to determine
whether sufficient ITS capacity exists to permit delivery of Daily Nominated
Quantities. In the event Seller reasonably determines that sufficient ITS
capacity is not available to permit delivery of Nominated Quantities, Seller
is authorized to cause Buyer's Gas to be delivered under Columbia Gas' Rate
Schedule GTS.
2.2(e) Nominations required hereunder may be provided in writing
(including by facsimile transmission) or orally. Oral nominations shall be
confirmed in writing as soon as practicable.
2.3 The rules, guidelines, and policies of the Transporter(s)
actually transporting Gas under this Agreement, as may be changed from time
to time by agreement of the parties, shall define and set forth the manner
in which the Gas purchased and sold is transported. Buyer and Seller
recognize that the receipt and delivery on Transporter's pipeline facilities
of gas purchased and sold under this Agreement shall be subject to the
operational procedures of Transporter, as set forth in Transporter's then
effective Federal Energy Regulatory Commission Gas Tariff. Buyer and Seller
shall be obligated to use their best efforts to avoid imposition by
Transporter of penalties, scheduling fees, cash-out costs or similar charges
for imbalances or as a result of violations of Operational Flow Orders, as
permitted by Transporter's tariff ("Imbalance Charges"). If during any month
Buyer or Seller receives an invoice from Transporter that includes an
Imbalance Charge, both parties shall be obligated to use their best efforts
to determine the validity as well as the cause of such Imbalance Charge. If
the parties determine that the Imbalance Charge was imposed as a result of
Buyer's actions (which shall include, but shall not be limited to, Buyer's
failure to accept a daily quantity of Gas equal to Buyer's nomination of its
daily volume requirements), then Buyer shall pay for such Imbalance Charge.
If the parties determine that the Imbalance Charge was imposed as a result
of Seller's actions (which shall include, but not be limited to, Seller's
failure to deliver a daily quantity of gas equal to Buyer's nomination
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of its daily quantity requirements), then Seller shall pay such Imbalance
Charge.
2.4(a) If Seller fails to sell and deliver the quantity of Gas
nominated by Buyer pursuant to this Agreement, and such failure is not
otherwise excused under this Agreement, then Buyer's sole remedy shall be to
obtain alternate supplies of Gas to cover the quantity of Gas not delivered
by Seller (such alternate supplies obtained by Buyer are referred to as
"Deficiency Gas") and collect from Seller an amount equal to any additional
costs Buyer incurs to obtain Deficiency Gas, including, without limitation,
(i) the difference, if positive, between the price Buyer pays for a
substitute supply and the commodity charge applicable under section 3.2
hereof; (ii) any reasonable incremental expenses incurred in purchasing such
substitute supplies; and (iii) penalties charged by any pipeline that would
have transported the Gas Seller fails to deliver. Buyer shall use its best
efforts to obtain Deficiency Gas at the lowest reasonable cost available.
All other remedies Buyer may have at law and equity arising from Seller's
unexcused failure to deliver Gas nominated by Buyer are waived.
2.4(b) Buyer's obtaining of Deficiency Gas and recovery of Buyer's
costs from Seller, as specified in Paragraph 2.4(a), shall be limited to
those quantities underdelivered and to the period of underdelivery. Buyer's
recovery from Seller may be, at Buyer's choice, either a credit against
future purchases or a cash payment in accordance with Article IV.
2.5 The delivery of Gas from Seller to Buyer shall be made at the
Delivery Point(s) into Columbia Gulf designated in Exhibit A, as
supplemented by mutual written agreement of the Parties from time to time.
Title to Gas delivered under this Agreement shall pass to Buyer at the
Delivery Point(s).
2.6 Contemporaneously with the execution of this Agreement, Buyer
will delegate to Seller full responsibility for the administration,
management and operation of Buyer's firm transportation service agreement
with Columbia Gulf and Buyer's Rate Schedule GTS service agreement with
Columbia Gas pursuant to an Agency and Delegation Agreement acceptable to
Buyer, Seller, Columbia Gulf, and Columbia Gas. Seller shall assume full
responsibility for the nomination, scheduling and balancing of Gas
transported and stored under Buyer's transportation and GTS agreements with
Columbia Gulf and Columbia Gas. Seller's responsibility under the Agency and
Delegation Agreement shall commence upon delivery of Gas to the Delivery
Point(s) on Columbia Gulf, apply to the injection and withdrawal of Gas
from Columbia Gas' storage facilities, and continue until Gas is delivered
to Buyer's citygate delivery points designated in Exhibit A. Seller will
indemnify and hold Buyer harmless from all costs, expenses and liability,
including any liability under the Minimum Fixed Cost Contribution set forth
in Columbia Gas' Rate Schedule GTS, arising from: (i) Seller's failure to
follow Buyer's instructions under the Agency and
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Delegation Agreement; or (ii) Seller's unauthorized violation of any term or
condition contained in Buyer's transportation or Rate Schedule GTS
agreements with Columbia Gulf or Columbia Gas. Notwithstanding the foregoing
sentence, Buyer will indemnify and hold Seller harmless from any costs,
expenses and liability, including, without limitation, Imbalance Charges as
defined in Section 2.3, and Minimum Fixed Cost Contribution under Columbia
Gas' Rate Schedule GTS, resulting from any act or omission of Seller
undertaken in accordance with Buyer's nominations, other instruction(s) or
any other information supplied to Seller under this Agreement or the Agency
and Delegation Agreement.
2.7 Subject to Seller's acceptance of Buyer's creditworthiness,
which will not be unreasonably withheld, Seller shall finance the Storage
Inventory Transfer from Columbia Gas to Buyer pursuant to Section 43 of the
General Terms and Conditions of Columbia Gas' FERC Gas Tariff in accordance
with the terms set forth in Exhibit C to this Agreement.
III. Price
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3.1 Buyer shall pay Seller each Month a commodity charge for each
MMBtu nominated by Buyer and caused to be delivered by Seller at Buyer's
citygate, calculated as follows:
3.2(a) For the period commencing November 1, 1993 and ending
October 31, 1994, the monthly commodity charge for each MMBtu of Gas
nominated by Buyer and delivered by Seller under this Agreement shall equal
the sum of (A) the Index Price, as defined in section 1.8 hereof, and (B)
$0.05 per MMBtu.
3.2(b) For the period November 1, 1994 through April 30, 1996, and
for any extension of the Initial Term as defined in Article VII of this
Agreement, the monthly commodity charge for each MMBTU of Gas nominated by
Buyer and delivered by Seller under this Agreement shall equal the sum of
(A) the Index Price, as defined in section 1.8 hereof, and (B) $0.01 per
MMBtu.
3.3 Subject to Seller's obligation to indemnify and hold Buyer
harmless under Section 2.6 of this Agreement, Buyer shall be responsible for
and shall pay all charges, costs and expenses incurred in transportation and
storage of the Gas from the Delivery Point(s) to Buyer's citygate receipt
points, including any Minimum Fixed Cost Contribution liability under
Columbia Gas' Rate Schedule GTS. Buyer shall receive bills directly from
Columbia Gas and Columbia Gulf and shall pay such bills directly. Seller
shall be responsible for any charges incurred in connection with its
utilization of Buyer's Rate Schedule GTS rights on Columbia Gas for purposes
other than providing Gas supply to Buyer, and for any commodity charges
incurred in connection with
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its use of Buyer's Rate Schedule FTS rights on Columbia Gulf for purposes
other than providing Gas supply to Buyer. In the event Buyer identifies such
charges from Columbia Gas and Columbia Gulf that do not relate to Seller
providing Gas supply to Buyer, Buyer shall submit a statement to Seller for
reimbursement, in accordance with the provisions of section 4.5 of this
Agreement.
3.4 If any publication used to calculate the Index Price is no
longer available, or is not available for a given month, or if the Parties
shall agree that the published Index Price no longer reflects the spot
market for Gas at the delivery location, the Parties will agree on a
substitute publication or index. The substitute publication or index shall
be recognized in the industry as a measure of prices paid each month for
short term sales of Gas in the market region containing the Delivery
Point(s). Until a substitute publication or index can be agreed on, the
Index Price shall be computed on the remaining publication(s) or index.
3.5 In the event that Buyer is not permitted by the applicable
state or local regulatory body having jurisdiction to recover from its
customers any portion of the purchase price paid to Seller under this
Agreement, Buyer shall promptly notify Seller of such disallowance. Within
15 days of such notice, the Parties shall meet and attempt, in good faith,
to agree on a mutually acceptable course of action. If no resolution is
reached within 30 days of Buyer's notice, Buyer shall have the right, in its
sole discretion, to terminate the contract by notifying Seller in writing.
Such termination shall take effect on the first day of the Month following
Buyer's written notice of termination.
IV. Payment
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4.1 On or before the tenth (10th) Day of each Month, Seller shall
render to Buyer a statement setting forth the charges for the total MMBtu of
Gas nominated and delivered to Buyer at the Delivery Point(s) during the
immediately preceding Month. Invoices shall be sent to Buyer at:
Attn.: Xxxxx Xxxxxxxx
Delta Natural Gas Company, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Phone: (606) 744-6171 ext. 158
Fax: (000) 000-0000
Buyer shall pay the amounts invoiced on or before the twentieth (20th) day
of the Month. If presentation of a statement by Seller is delayed after the
tenth (10th) day of the Month, then the time for payment shall be extended a
corresponding period of time, unless Buyer is responsible for such delay.
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Payments shall be made to Seller by check or by wire transfer. Payment by
check shall reach Seller by the 20th day of the Month. Payment by wire
transfer shall be made direct to:
NationsBank-Dallas, Texas
ABA #000000000
Account #2261523836
Account Title: Natural Gas Clearinghouse
Payment by check shall be made to:
NationsBank
Credit Natural Gas Clearinghouse
X.X. Xxx 000000
Xxxxxx, XX 00000-0000
4.2 If Buyer presents to Seller reasonable evidence supporting
Buyer's good faith belief that the amount of the invoice is incorrect, Buyer
shall pay the undisputed amount. If Seller can to Buyer's reasonable
satisfaction, that Buyer's is incorrect, Buyer shall immediately pay any
remaining amount owed. Late payments and all amounts withheld by Buyer and
subsequently acknowledged or determined to be owing shall bear interest
running from the original due date until paid at the lower of the Prime Rate
of interest established by the Chase Manhattan Bank plus two percent (2%) or
the maximum applicable non-usurious rate.
4.3 If either Party discovers an error in the amount billed any
statement or payment rendered under this Agreement, such error shall be
adjusted within thirty (30) days of the discovery of the error, together
with interest at the rate provided for in Section 4.2. No adjustments
claimed within twenty-four (24) months of the date of the original
statement. A Party's rights under termination of this Agreement.
4.4 The Parties shall each preserve all test data, meter records,
charts and other similar records within their custody or control pertaining
to Gas sold and delivered under this Agreement for a period of at least
three (3) years following their creation. Upon at least twenty-four (24)
hours advance notice, each Party shall have the right during normal business
hours to examine the books and records of the other Party to the extent
necessary to verify the accuracy of any statement, charge, computation, or
demand made under or pursuant to this Agreement. A Party's rights under this
paragraph shall survive termination of this Agreement.
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4.5. In the event Buyer elects to be reimbursed by cash payment for
obtaining Deficiency Gas pursuant to section 2.4 of this Agreement, or seeks
reimbursement in accordance with section 3.3 of this Agreement, Buyer shall
render Seller a statement by the 10th day of the Month following the Month
in which Buyer obtained the Deficiency Gas. Seller shall pay the amount
invoiced by the 20th day of the Month. Payment shall be by wire transfer or
check at Buyer's option. If presentation of a statement by Buyer is delayed
beyond the 10th day of the Month, then the time for payment shall be
extended a corresponding period of time, unless Seller is responsible for
such delay. Any disputes regarding the amounts invoiced by Buyer shall be
resolved pursuant to the procedures set forth in section 4.2 hereof. Billing
errors shall be governed by section 4.3 hereof.
V. Creditworthiness of Buyer
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5.1 Prior to commencement of deliveries, or during the term of this
Agreement if Buyer has failed to make timely payment of undisputed amounts
on more than one occasion, Seller may require Buyer to supply Seller with
credit information including, but not limited to, bank references, financial
statements and names of persons with whom Seller may make reasonable inquiry
into Buyer's creditworthiness and obtain adequate assurance of Buyer's
solvency and ability to perform.
VI. Responsibility
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6.1 Except as provided in the Agency and Delegation Agreement
described in Section 2.6 of this Agreement, all charges, expenses, fees,
taxes, damages, injuries, and other costs incurred in or attributable to the
handling or transportation of the Gas delivered in accordance with this
Agreement prior to delivery to Buyer at the Delivery Point(s) shall be the
responsibility of Seller, as between the Parties, and Seller shall
indemnify, defend, and hold Buyer harmless from all such costs.
6.2 Except as provided in the Agency and Delegation Agreement
described in Section 2.6 of this Agreement, all charges, expenses, fees,
taxes (including sales, or transfer taxes and any other taxes levied on or
in connection with the transactions under this Agreement by the state, or
other government subdivision, in which the Gas is consumed or otherwise
used), damages, injuries, and other costs incurred in or attributable to the
purchase and transfer, transportation, and handling of the Gas from and
after delivery to the Delivery Point(s) shall be the responsibility of
Buyer, as between the Parties, and Buyer shall indemnify, defend, and hold
harmless Seller from all such costs. In the event Seller is required by law
to collect any such taxes, and Buyer claims an exemption from the taxes,
Buyer shall, upon Seller's request, furnish Seller with a copy of Buyer's
exemption certificate.
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6.3 Except as provided in Article XIII herein, Buyer warrants that
it has all necessary regulatory approvals and authorizations for the
purchase of Gas by Buyer hereunder.
VII. Term
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7.1 This Agreement shall become effective upon the date of
execution by both Parties ("Effective Date") and shall continue for a term
extending through April 30, 1996 ("Initial Term"). Following the Initial
Term, this Agreement shall continue in effect on a year-to-year basis unless
either Party gives written notice to the other of its intention not to
extend the Agreement, provided, however, such written notice must be given
at least six (6) months prior to the expiration of the Initial Term or any
subsequent one year extension.
7.2 If, upon termination of this Agreement, either pursuant to this
Article VII or to the election of Buyer under Section 3.5 hereof, there
remains in Buyer's storage account under Rate Schedule GTS, Gas which Seller
has caused to be injected but which has not been delivered to Buyer's
citygate, Buyer shall pay Seller for such Gas a price per MMBtu equal to the
greater of: (i) Seller's actual cost for the volumes of Gas that have not
been delivered, plus 15 cents; or (ii) the Index Price for the Month in
which the contract termination takes effect.
VIII. Quality and Measurement
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8.1 Buyer agrees to purchase nominated quantities of Gas delivered
by Seller to the Delivery Point(s) meeting the quality and pressure
specifications set forth in Transporter's Gas Tariff on file with the FERC.
If Gas delivered by Seller to the Delivery Point(s) is rejected by
Transporter for failure to meet its quality specifications, Buyer shall be
relieved of the obligation to receive and pay for such Gas, including any
applicable reservation charges. To the extent that Transporter accepts Gas
tendered by Seller for Buyer's account at the Delivery Point(s), Seller
shall be deemed to have complied with the quality specifications set forth
herein.
8.2 Buyer and Seller agree that the volume and heating value of Gas
sold and delivered hereunder will be measured at or near the Delivery
Point(s) by Transporter, using equipment owned or controlled by, and
measuring procedures employed by Transporter. The measurements made by
Transporter shall be accepted by Buyer and Seller, provided, however, the
measuring
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equipment and procedures used conform to Transporter's filed tariffs and to
generally recognized industry standards.
8.3 All Gas sold and delivered hereunder shall be measured as
provided for in the General Terms and Conditions of Transporter's FERC Gas
Tariff on file with the FERC.
IX. Processing
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9.1 Subject to the quality specifications of Article VIII, Seller
may process the Gas to remove any Liquid Hydrocarbons or Liquefiable
Hydrocarbons prior to and after the delivery of the Gas to Buyer at the
Delivery Point(s). In the event Seller elects to process the Gas, any
hydrocarbons so removed shall be Seller's sole responsibility and all costs
(including additional transportation costs attributable to such processing)
shall be paid by the Seller. The volumes delivered to Buyer shall be net of
any "plant volume reduction" as that phrase, or its equivalent, is defined
in pertinent gas processing agreements.
X. Force Majeure
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10.1 If either Party is rendered unable, wholly or in part, by
force majeure to perform its obligations under this other than the
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obligation to make payments then or thereafter due, it is mutually agreed
that performance of the respective obligations of the Parties, so far as
they are affected by such force majeure, shall be suspended without
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liability from the inception of any such inability until it is corrected but
for no longer period. In order to suspend by reason of force majeure, the
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Party claiming such inability shall promptly notify the other party of the
claimed inability to perform, the circumstances giving rise to the claim,
and the expected duration of the inability to perform. The Party claiming
force majeure shall promptly correct the inability to perform to the extent
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it may be corrected through the exercise of reasonable diligence. No Party
shall, however, be required against its will to adjust or settle any labor
disputes.
10.2 The term "force majeure" means an event that (i) was not
within the control of the party claiming its occurrence; and (ii) could not
have been prevented or avoided by such Party through the exercise of due
diligence. Events of force majeure include, without limitation by
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enumeration, acts of God, earthquakes, epidemics, fires, floods, hurricanes,
landslides, lightning, storms, washouts, freezing of xxxxx or lines of pipe
used to supply the Gas under this Agreement and other similar severe natural
calamities, acts of public enemy, wars, blockades, insurrections, riots,
civil disturbances and
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arrests, strikes, lockouts or other industrial disturbances, explosions,
breakage, accidents to equipment, facilities or lines of pipe used to enable
Seller to deliver or Buyer to receive Gas under this Agreement, the refusal
or inability of Transporter to transport Gas under an existing
transportation agreement, imposition by a regulatory agency, court or other
governmental authority having jurisdiction of binding laws, conditions,
limitations, orders, rules or regulations that prevent or prohibit either
Party from performing, provided such governmental action has been resisted
in good faith by all reasonable legal means, or any other cause of a similar
type.
The following are not events of force majeure: (i) the inability of
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Seller to obtain term Gas (i.e. Gas obtained on a basis other than
interruptible arrangements of 30 days or less) and resell such Gas to Buyer
at a profit; and (ii) the ability of Seller to sell its Gas supply to
another market at a more advantageous price; or (iii) depletion of Seller's
reserves.
XI. Notice
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11.1 Any notice, request, demand or statement which either Party
may desire to give to the other, shall be in writing and may be mailed by
registered or certified mail, return receipt requested, to the post office
address of the Parties shown below, or by facsimile transmission followed by
written confirmation by regular mail, unless otherwise provided in this
Agreement:
SELLER: Notices
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Natural Gas Clearinghouse
Attn: Xxxxxxx X. XxXxxxxxx
00000 Xxxxxxxxx Xxxxxxx, #0000
Xxxxxxx, Xxxxx 00000
Phone (000) 000-0000
Telecopy (000) 000-0000
Billing Inquiries
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Natural Gas Clearinghouse
Attn: Xxxxxxx X. XxXxxxxxx
00000 Xxxxxxxxx Xxxxxxx, #0000
Xxxxxxx, Xxxxx 00000
Phone (000) 000-0000
Telecopy (000) 000-0000
BUYER: Notices and Billing Inquiries
Attn.: -----------------------------
Xxxxx Xxxxxx
Xxxxx Xxxxxxxx
Delta Natural Gas Company, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Phone: (606) 744-6171 ext. 158
Fax: (000) 000-0000
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Notice shall be deemed received five business days following mailing if by
registered or certified mail or upon sender's receipt of transmission
confirmation if by facsimile transmission.
11.2 Either of the Parties may from time to time designate a
different address. Routine communications may be delivered by registered,
certified or ordinary mail, or by telephone or telecopy if the Parties
agree.
XII. Seller's Warranties and Gas Supply Obligations
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12.1 Seller warrants title to all Gas sold by it to Buyer and that
such Gas is free from all liens and adverse claims. Seller agrees to
indemnify Buyer from, and with respect to, all suits, actions, debts,
accounts, damages, costs, losses and expenses (including only reasonable
attorneys' fees) arising from or out of any adverse claims of any and all
persons related to such Gas or taxes or charges thereon prior to the time
the Gas is delivered at the Delivery Point(s). Buyer agrees to indemnify
Seller from and with respect to, all suits, actions, debts, accounts,
damages, costs, losses and expenses (including only reasonable attorneys'
fees) arising from or out of any adverse claims of any and all persons
related to such Gas or taxes or charges thereon at the time the Gas is
delivered at the Delivery Point(s) or thereafter.
XIII. Governmental Authorizations
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13.1 This Agreement shall be subject to all valid and applicable
laws of the United States and to the applicable valid rules, regulations or
orders of any regulatory agency or governmental authority having
jurisdiction, and the Parties shall be entitled to regard all applicable
laws, rules and regulations (federal, state or local) as valid and may act
in accordance therewith until such time as the same may be declared invalid
by final judgment of a court of competent jurisdiction and such judgment is
not subject to appeal.
13.2 Upon execution of this Agreement, each of the Parties agrees
to seek such government certificates, permits, licenses and authorizations
which, in its sole discretion, it deems necessary to perform its obligations
under this Agreement.
13.3 Upon execution of this Agreement, and from time to time
through out its term, each of the Parties shall make all filings required by
any regulatory bodies having jurisdiction over the activities covered by
this Agreement and upon request of the other Party shall promptly provide
copies of such to the other Party.
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13.4 Neither Party will knowingly enter into agreements or
undertake any activities or filings that would interfere with or frustrate
the other Party's efforts to obtain the necessary regulatory approvals to
fulfill its obligations under this Agreement.
XIV. Assignments
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14.1 Either Party may, without relieving itself of any obligations
under this Agreement, assign any of its rights under this Agreement to any
corporation, partnership, joint venture, or other entity with which it is
affiliated. Either Party, may also assign or pledge this Agreement under the
provisions of any mortgage, deed of trust, indenture or similar instrument.
But neither Party shall otherwise assign this Agreement or any of its
rights, duties or obligations unless it shall have first obtained the
consent in writing of the other Party, which consent shall not be
unreasonably withheld. This Agreement shall be binding upon, and inure to
the benefit of, the respective successors and assigns of the Parties.
XV. Confidentiality
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15.1 The terms of this Agreement, including but not limited to, the
price paid for Gas, the quantities of Gas purchased, and all other material
terms of this Agreement shall be kept confidential by the Parties except to
the extent that any information must be disclosed for the purpose of
effectuating transportation of the Gas, obtaining regulatory approval(s),
complying with a directive of any applicable regulatory body having
jurisdiction, or as required by law.
XVI. Miscellaneous
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16.1 No waiver by either Party of any one or more defaults by the
other in the performance of any provisions of this Agreement shall operate
or be constructed as a waiver of any other default or defaults, whether of a
like or of a different character.
16.2 THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF TEXAS.
16.3 This Agreement constitutes the entire agreement between the
Parties pertaining to the subject matter hereof, supersedes all prior
agreements
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and understandings, whether oral or written, which the Parties may have had
in connection herewith and may not be modified except by written agreement
executed by authorized representatives of the Parties.
16.4 Except as otherwise stated herein, any article or provision
declared or rendered unlawful by a court of law or regulatory agency with
jurisdiction over the Parties or deemed unlawful because of a statutory
change shall not otherwise affect the lawful obligations that arise under
this Agreement.
16.5 Neither Party shall be liable to the other for any
consequential, incidental, punitive, or exemplary damages as a result of any
act or omission under this Agreement or relating in any fashion to this
Agreement.
17.1 All disputes arising under this Agreement shall be resolved
through arbitration. All such arbitration shall be conducted pursuant to the
procedures set forth in Exhibit B hereto.
IN WITNESS WHEREOF, the Parties have duly executed this Agreement
as of the day and year written below.
SELLER: BUYER:
ACCEPTED and AGREED to this ACCEPTED and AGREED to this
28th day of October, 1993 21st day of October, 1993
NATURAL GAS CLEARINGHOUSE DELTA NATURAL GAS COMPANY,
INC.
By: /s/ [illegible signature] By: /s/ XXXX X. XXXXX
--------------------------------- ----------------------------
Xxxx X. Xxxxx
Title: SR. VICE PRESIDENT Title: Vice President
------------------------------ -------------------------
Operations & Engineering
14
EXHIBIT B
ARBITRATION PROCEDURE
1. Arbitration under the Agreement shall be governed by the Federal
Arbitration Act, 9 U.S.C. Section 1, et seq., and will not be governed by
the arbitration acts, statutes or rules of any other jurisdiction.
2. Either party may request arbitration by submitting a written
notice to the other. The notice shall name the noticing party's arbitrator
and shall contain a statement of the issue presented for arbitration. Within
fifteen (15) days of receipt of a notice of arbitration, the other party
shall name its arbitrator by written notice and may designate any additional
issues for arbitration. The two named arbitrators shall select the third
arbitrator within fifteen (15) days after the date on which the second
arbitrator was named. Should the two arbitrators fail to agree on the
selection of the third arbitrator, either party shall be entitled to request
the Senior Judge of the United States District Court of the District of
Houston to select the third arbitrator. All arbitrators shall be qualified
by education or experience within the natural gas industry to decide the
issues presented for arbitration and shall be licensed attorneys. No
arbitrator shall be: a current or former director, officer or employee of
either party, or its affiliates; an attorney (or member of a law firm) who
has rendered legal services to either party, or its affiliates, within the
preceding three years; or an owner of any of the common stock of either
party, its affiliates or direct competitors.
3. The three arbitrators shall commence the arbitration hearing within
twenty-five (25) days following the appointment of the third arbitrator. The
proceeding shall be held at a mutually acceptable site. If the parties are
unable to agree on a site, the arbitrators shall select a site other than
the State of Texas or the State of [Kentucky/Ohio]. Each party shall have an
opportunity to present its evidence at the hearing. The arbitrators may call
for the submission of pre-hearing statements of position and legal
authority, but no post-hearing briefs shall be submitted. After the
presentation of the evidence has concluded, each party shall submit to the
arbitration panel a final offer of its proposed resolution of the dispute. A
majority of the arbitrators shall approve the final offer of one party
without modification, and reject the offer of the other party. The
arbitration panel shall not have the authority to award punitive or
exemplary damages. The arbitrators' decision must be rendered within thirty
(30) days following the conclusion of the hearing or submission of evidence,
but no later than 90 days after appointment of the third arbitrator.
4. The decision of the arbitrators or a majority of them, shall be in
writing and shall be final and binding upon the parties as to the issue
submitted. Each
party shall bear the expense and cost of its arbitrator and one-half of the
expense and cost of the third arbitrator.
5. The arbitrators shall have the authority to establish rules and
procedures governing the arbitration hearing, except that there shall be no
pre-hearing discovery unless the parties mutually agree that discovery will
be permitted. Either party shall be entitled to insist that no discovery
shall be had, or that discovery be limited to one or more of the devices
authorized by the Federal Rules of Civil Procedure.
EXHIBIT C
STORAGE INVENTORY TRANSFER FINANCING
1. Seller shall pay Columbia Gas the amount billed to Buyer by Columbia Gas
pursuant to Section 43 of the General Terms and Conditions of Columbia Gas'
FERC Gas Tariff for the "Conversion Transfer" of storage inventory, as
defined in that section.
2. Buyer shall reimburse Seller for the amount paid under paragraph 1, plus
carrying charges calculated at 5% annual interest, over a 12 month period,
commencing the first month after Seller makes the payment under paragraph 1.
3. Seller shall xxxx Buyer for amounts due under this Exhibit C in 12 equal
monthly payments, beginning in the first month after the payment in
paragraph 1 is made. Such amounts shall be separately stated on Seller's
invoice. The provisions of Article IV of the Agreement shall govern billing
and payment under this Exhibit C.
FIRST AMENDMENT TO GAS SALES AGREEMENT
This Amendment is executed as of this 14th day of March, 1997, but
made effective May 1, 1997 except as indicated in Item 4 of this amendment,
by and between Delta Natural Gas Company, Inc. ("Buyer") and Natural Gas
Clearinghouse ("Seller").
WHEREAS, Seller and Buyer entered into a Gas Sales Agreement effective as of
November 1, 1993, Natural Gas Clearinghouse Contract No. 00-00-000 (herein
"Agreement");
WHEREAS, Seller and Buyer wish to amend the Agreement in certain particulars;
NOW THEREFORE, in consideration of the mutual covenants contained herein,
Seller and Buyer agree as follows:
1. Article 1.5 of the Agreement is deleted in its entirety and replaced with
the following:
"1.5 `Day' shall mean a period of 24 consecutive hours,
coextensive with a `day' as defined by the Transporter in a
particular transaction."
2. Article 1.11 of the Agreement is deleted in its entirety and replaced
with the following:
"1.11 `Month' shall mean the period beginning on the first
Day of the calendar month and ending immediately prior to the
commencement of the first Day of the next calendar month."
3. Article 1.8 of the Agreement shall be deleted in its entirety and
replaced with the following:
1.8 "Index Price" shall mean the price as published in the
first issue each month of Inside FERC's Gas Market Report in the
table titled "Prices of Spot Gas Delivered to Pipelines" under the
heading "Columbia Gulf/onshore", plus the applicable transportation
from onshore to Rayne, Louisiana, plus $0.01 per MMBtu. In the
event Seller arranges transportation on Columbia Gas to facilitate
deliveries to Buyer, applicable transportation charges on Columbia
Gas will be added to the price in addition to any charges incurred
on Columbia Gulf as stated above.
4. The first sentence of Article 2.1 shall be deleted and replaced with the
following: "Subject to the other provisions of this Agreement, Seller shall
sell and deliver and Buyer shall purchase and receive, on a firm basis, a
maximum daily quantity of gas up to 12,380 MMBtu ("MDQ")."
5. Article 2.2(d) of the Agreement shall be deleted and replaced with the
following:
2.2(d) Buyer and Seller agree that Seller shall cause Gas
to be sold and delivered to Buyer under Columbia Gas' Rate Schedule
GTS up to the respective Minimum Fixed Cost Contribution (MFCC)
threshold level(s) under Buyer's GTS agreements with Columbia Gas.
After satisfying Buyer's MFCC requirements under Columbia Gs' Rate
Schedule GTS, Seller shall endeavor to acquire released firm or
interruptible transportation capacity or other transportation
service less costly than GTS on the Columbia Gas system on Buyer's
behalf and as Buyer's agent in accordance with the terms and
conditions of the Limited Agency Agreement dated November 1, 1993.
6. Article 3.3 of the Agreement shall be deleted and replaced with the
following:
3.3 Subject to Seller's obligation to indemnify and hold
Buyer harmless under Section 2.6 of this Agreement, Buyer shall be
responsible for and shall pay all charges, costs and expenses
incurred in transportation and storage of the Gas from the Delivery
Point(s) to Buyer's citygate receipt points, including any Minimum
Fixed Cost Contribution liability under Columbia Gas' Rate Schedule
GTS. Buyer shall receive bills directly from the Transporter(s) and
shall pay such bills directly. Seller shall be responsible for any
charges incurred in connection with its utilization of Buyer's Rate
Schedule GTS rights on Columbia Gas for purposes other than
providing Gas Supply to Buyer. In the event Buyer identifies such
charges from Columbia Gas and Columbia Gulf that do not relate to
Seller providing Gas supply to Buyer, Buyer shall submit a
statement to Seller for reimbursement, in accordance with the
provisions of section 4.5 of this Agreement. Effective June 1,
1996, if Seller utilizes Buyer's Rate Schedule FTS rights on
Columbia Gulf for purposes other than providing Gas supply to
Buyer, Seller shall pay to Buyer (1) an amount equal to the posted
transportation rate or (2) in lieu of paying the posted rate, Buyer
and Seller may agree on a monthly basis prior to the beginning of
the month to share (eighty percent (80%) to Buyer and twenty
percent (20%) to Seller) in any savings obtained by Seller
reselling any released capacity and associated gas. This savings
will be calculated by taking the market price of the repackaged gas
as compared to the delivered price to Buyer
2
of the gas Seller would have otherwise delivered pursuant to the
terms and conditions of this Agreement less transportation
commodity charges and related costs.
7. In Article 4.1 of the Agreement, Seller's payment addresses shall be
deleted and replaced with the following:
Payment by wire transfer: Payment by check:
------------------------ ----------------
First National Bank of Chicago Natural Gas Clearinghouse
Chicago, IL P.O. Box 730508
Account Title: Natural Gas Clearinghouse Xxxxxx, XX 00000-0000
Account Number: 55-53911
ABA Number: 000000000
8. Article 7.1 of the Agreement shall be deleted and replaced with the
following:
7.1 This Agreement shall become effective as of November
1, 1993 ("Effective Date") and shall continue in full force and
effect, unless terminated earlier under the provisions hereof,
until April 30, 2000 ("Initial Term"). Following the Initial Term,
this Agreement shall continue in effect on an annual basis unless
either party provides written notice to the other of its intention
not to extend the Agreement, provided, however, such written notice
must be given at least six (6) months prior to the expiration of
the Initial Term or any subsequent one year extension.
9. Article 11.1 of the Agreement shall be revised by substituting the
following Notice address for Seller:
Notices
-------
Natural Gas Clearinghouse
Attn: Contract Administration
00000 Xxxxxxxxx Xxxxxxx Xxxxx 0000
Xxxxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Operational Matters
-------------------
Attn: Manager Customer Services
Phone: 800-NGC-1777
10. Exhibit A to the Agreement shall be amended by adding the following:
GTS Service Agreement No. 37948
Columbia Gulf Service Agreement No. 44375
Quantity: 310 Dth/Day
3
11. All other provisions of the Agreement shall remain in full force and
effect.
IN WITNESS WHEREOF, Seller and Buyer execute this agreement effective on the
date first written above.
"SELLER" "BUYER"
NATURAL GAS CLEARINGHOUSE, DELTA NATURAL GAS COMPANY, INC.
a Colorado general partnership
BY: /s/ [illegible signature] BY: /s/ XXXXXX X. XXXXXXXX
--------------------------------- -----------------------
TITLE: Vice President TITLE: MGR. - GAS SUPPLY
----------------------------- -----------------
4
SECOND AMENDMENT TO GAS SALES AGREEMENT AND FIRST
AMENDMENT TO LIMITED AGENCY AGREEMENT
This Amendment is made and entered into as of the 1st day June,
2002 by and between DYNEGY MARKETING AND TRADE ("Seller") and DELTA NATURAL
GAS COMPANY ("Buyer").
WHEREAS, Seller, as successor to Natural Gas Clearinghouse, and
Buyer are parties to a Gas Sales Agreement dated November 1, 1993, as
amended (Seller's Contract No. 6) ("Sales Agreement") and a related Limited
Agency Agreement dated November 1, 1993 ("Limited Agency Agreement"); and
WHEREAS, Seller and Buyer desire to amend the Sales Agreement and
the Limited Agency Agreement to provide for the addition of gas delivered at
the Mt. Olivet Delivery Point.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto agree as follows:
I.
The first sentence of Article 2.1 of the Sales Agreement is deleted
and replaced with the following: "Subject to the other provisions of this
Agreement, Seller shall sell and deliver and Buyer shall purchase and
receive, on a firm basis, a maximum daily quantity of gas up to 12,880 MMBtu
("MDQ").
II.
Exhibit A to the Sales Agreement is deleted and the Exhibit A
attached hereto is substituted therefor.
The third "WHEREAS" clause of the Limited Agency Agreement is
changed and amended to read in its entirety as follows:
"WHEREAS, Buyer has arranged for firm transportation of the supply
of Gas it will purchase from Seller under the Gas Contract on Columbia Gulf
Transmission Company pursuant to the terms of Service Agreements 43827,
43828, 43829, 44375, and 43332 ("Assignment Agreements") and transportation
and storage of such Gas pursuant to the terms of Rate Schedule GTS Service
Agreements ("GTS Agreements") Nos. 37813, 37814, 37815, 37948, 37954, and
with Columbia Gas Transmission Corporation (the Columbia companies being
referred (to herein collectively as "Columbia"); and"
1
IV.
This Amendment shall be effective as of June 1, 2002.
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as of the
date first hereinabove written.
DYNEGY MARKETNG AND TRADE DELTA NATURAL GAS COMPANY
By: /s/ XXXXX X. XXXXXX By: /s/ XXXXXX X. XXXXXXXX
--------------------------- -----------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxx
------------------- ------------------
Title: Vice President Title: MGR - GAS SUPPLY
------------------- ----------------
Energy Trading
--------------
2
EXHIBIT A
Attached to and made a part of Gas Sales Agreement dated November 1, 1993
between Dynegy Marketing and Trade, as Seller, and Delta Natural Gas
Company, as Buyer.
Columbia Gas Transmission Columbia Gulf Transmission MDQ
Delivery Point Co. GTS Service Agreement No. Co. Service Agreement No. MMBtu
-------------- ----------------------------- -------------------------- -----
Cumberland 37813 43828 5,400
Xxxxxxx 37814 43827 2,530
Winchester 37815 43829 4,140
N. Middletown 37948 44375 310
Mt. Olivet 37954 43322 500
------
Total MDQ: 12,880
