EXHIBIT 10-Q.19
NATURAL GAS FIRM SUPPLY AGREEMENT
This Natural Gas Firm Supply Agreement ("Agreement"), is
made, entered into, and effective, as of the 1st day of
October, 1994 by and between ANADARKO TRADING COMPANY
(Seller), and INDIANA GAS COMPANY, INC. (Buyer).
Recitals
1. Seller is a corporation incorporated and existing
u nder the laws of the State of Delaware with its
principal place of business at 17001 Northchase Drive,
Houston, Texas.
2. Buyer is a corporation incorporated and existing
un der the laws of the State of Indiana, with its
principal place of business at 1630 North Meridian
Street, Indianapolis, Indiana.
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
natu ral 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
shal l have the following definitions:
A. The term
"Transporter" shall m ean 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 Brit ish thermal unit, as defined in
Transporter's Tariff.
D. The term "Contract
Month" shal l mean a calendar month during
the effectiveness of this Agreement, as
interpreted in light of Transporter's tariff.
E. The term "Day" shall
be define d as it is defined in Transporter's
Tariff, or as applied by Transporter.
F. The term "Gas" shall
mean natu ral 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 Quanti ty" 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 Quan tity" 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)" sh all 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
Oct ober 1, 1994 through September 30, 1995.
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
October, 1994 - 0 MMBtu per day
November, 1994 - 0 MMBtu per day
December, 1994 - 50,000 MMBtu per day
January, 1995 - 50,000 MMBtu per day
February, 1995 - 50,000 MMBtu per day
March, 1995 - 0 MMBtu per day
April, 1995 - 0 MMBtu per day
May, 1995 - 0 MMBtu per day
June, 1995 - 0 MMBtu per day
July, 1995 - 0 MMBtu per day
August, 1995 - 0 MMBtu per day
September, 1995 - 0 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,
Buy er shall pay to Seller a Commodity Reservation
Charge and a Commodity Charge. Those charges shall be
determined as follows:
(a) Commodity Reservation Charge - Each
Cont ract 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
October, 1994 $0.000 per MMBtu
November, 1994 $0.000 per MMBtu
December, 1994 $0.085 per MMBtu
January, 1995 $0.085 per MMBtu
February, 1995 $0.085 per MMBtu
March, 1995 $0.000 per MMBtu
April, 1995 $0.000 per MMBtu
May, 1995 $0.000 per MMBtu
June, 1995 $0.000 per MMBtu
July, 1995 $0.000 per MMBtu
August, 1995 $0.000 per MMBtu
September, 1995 $0.000 per MMBtu
(b) Commodity Charge - Buyer and Seller
inte nd 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 North--Texas Panhandle", 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
mainlin e 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 a t 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 th
e 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 th
e 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 Nomina
ted Daily Quantity for any Day of the month.
6. Receipt Point(s): The Receipt Point(s) hereunder
s hall 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
penaltie s, 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 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 fo llowing 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 amo unts 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
paymen ts 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 nom inations 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 serv
e 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 o f 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 a llocation or reallocation of production by
well operators, prorationing, or for other
reasons;
(c) failure of specific, individual
wells or appurtenant facilities in the absence of
a force majeure event broadly affecting other
wells 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: Curt S. Hribernik Attn: Jake Woodall
Gas Supply Marketing
1630 N. Meridian Street 17001 Northchase Drive
Indianapolis, IN 46202 Houston, TX 77060
Phone: (317) 321-0610 Phone: (713) 874-3263
Telecopy: (317) 921-2760 Telecopy: (713) 874-3354
and and
Indiana Gas Company, Inc. Anadarko Trading Company
Attn: Gas Control Attn: Gas Control
1630 N. Meridian Street 17001 Northchase Drive
Indianapolis, IN 46202 Houston, TX 77060
Phone: (317) 321-0535 Phone: (713)874-3290
Telecopy: (317) 321-0787 After Hours: (800) 375-2337
I.D. #0049
Telecopy: (713) 874-1656
13. Possession and Warranty of Title:
(a) As between the parties hereto,
Seller sh all 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 goo d 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 prorate 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 Buy er'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 1
2 above, any notice, statement or bill 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
1630 N. Meridian St. 17001 Northchase Drive
Indianapolis, IN 46202 Houston, TX 77060
Attn: Curt S. Hribernik Attn: Jake Woodall
Phone: (317) 321-0610 Phone: (713) 874-3263
Telecopy: (317) 921-2760 Telecopy: (713) 874-3354
INVOICES TO BUYER INVOICES TO SELLER
INDIANA GAS COMPANY, INC. ANADARKO TRADING COMPANY
1630 N. Meridian St. 17001 Northchase Drive
Indianapolis, IN 46202 Houston, TX 77060
Attn: Corporate Accounting Attn: Jake Woodall
Phone: (317) 321-0610 Phone: (713) 874-3263
Telecopy: (317) 921-2760 Telecopy: (713) 874-3354
PAYMENTS TO BUYER PAYMENTS TO SELLER
INDIANA GAS COMPANY, INC. ANADARKO TRADING COMPANY
1630 N. Meridian St. Mellon Bank, N.A.
Indianapolis, IN 46202 Pittsburgh, PA
Attn: Curt S. Hribernik Account No. 1157237
Phone: (317) 321-0610 ARA No. 043000261
Telecopy: (317) 921-2760 Confirmation of transfer:
Ms. Lanette Chapman
Phone: (713) 874-3364
16. Miscellaneous:
(a) This Agreement is subject to all
applica ble 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 la ws 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
followin g 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
Selle r 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
rece ived 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 b een 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 quant ities from Seller
at a mutually agreeable price, or
(b)
require Seller to re move 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 t he cash-out price per
MMBtu which is paid to Buyer by
Transporter, or
(b) if
Buyer has paid Se ller 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 Se ller 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 remed ies, Seller shall bear the
economic burden of any non-cashout penalties
caused by the overdeliveries.
(f) Either party may pledge, mortgage
or ass ign 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
Commiss ion ("FERC") issues a rule, regulation,
order or decision during the effectiveness of this
Agreement which would subject Buyer to a
detrimental economic effect from continued
performance due to the effectiveness of the new
rules, regulations, or tariff provisions, Buyer
may within ninety (90) days of the FERC action
give written notice to Seller 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 al l 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 c ost, 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 con tinued 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
County of
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