EX-10.45
Contract No.010012
FT SERVICE AGREEMENT
THIS AGREEMENT entered into this 1st day of November, 1997,
by and between Eastern Shore Natural Gas Company, a corporation of
the State of Delaware (herein called "Seller"), and Elkton Gas
Division of NUI Corporation (herein called "Buyer").
WITNESSETH
WHEREAS, Buyer desires to obtain Firm Transportation Service
from Seller and Seller is willing to provide Firm Transportation
Service for Buyer; and
WHEREAS, such service will be provided by Seller for Buyer in
accordance with the terms hereof.
NOW THEREFORE, in consideration of the premises and of the
mutual covenants and agreements herein contained, the sufficiency
of which is hereby acknowledged, Seller and Buyer do covenant and
agree as follows:
ARTICLE I
Definitions
In addition to the definitions incorporated herein through
Seller's Rate Schedule FT, the following terms when used herein
shall have the meanings set forth below:
1.1 The term "FERC" shall mean the Federal Energy Regulatory
Commission or any successor regulatory agency or body which has
authority to regulate the rates and/or services of Seller.
1.2 The term "Rate Schedule FT" shall mean Seller's Rate
Schedule FT and the General Terms and Conditions of Seller's FERC
Gas Tariff, as filed with the FERC and as changed and adjusted
from time to time by Seller in accordance with Section 4.2 hereof
or in compliance with any final FERC order affecting such Rate
Schedule and/or General Terms and Conditions.
ARTICLE II
Quantity
2.1 The Maximum Daily Transportation Quantity ("MDTQ") shall
be set forth on Exhibit "B" attached hereto. The applicable MDTQ
shall be the largest daily quantity of gas, expressed in
dekatherms ("dt"), that Seller is obligated to transport and make
available for delivery for the account of Buyer under this Service
Agreement on any one Gas Day.
2.2 Buyer may tender natural gas for transportation to Seller
on any Gas Day up to the MDTQ, plus the Fuel Retention Quantity as
defined in Section 31 of the General Terms and Conditions of
Seller's FERC Gas Tariff. Seller agrees to receive the aggregate
of the quantities of natural gas that Buyer tenders for
transportation, plus the Fuel Retention Quantity, at the Point(s)
of Receipt, up to the Maximum Daily Receipt Obligation ("MDRO")
specified for each Point of Receipt as set forth on Exhibit "A"
attached hereto, and to transport and make available for delivery
for the account of Buyer at each Delivery Point Area ("DPA")
specified on Exhibit "B" attached hereto, quantities of natural
gas up to the amount scheduled by Seller, less the Fuel Retention
Quantity, and Buyer agrees to accept or cause acceptance of such
delivery by Seller.
ARTICLE III
Payment and Rights of Termination
3.1 Upon the commencement of service hereunder, Buyer shall
pay Seller, for all service rendered hereunder, the rates
established under Buyer's Rate Schedule FT as filed with the FERC
and as said Rate Schedule may hereafter be legally amended or
superseded.
3.2 In the event Buyer fails to pay for the service provided
under this Agreement or otherwise fails to meet Seller's standards
for creditworthiness, Seller shall have the right to terminate
this Agreement pursuant to the conditions set forth in Section 11,
Section 18 and Section 19 of the General Terms and Conditions of
Seller's FERC Gas Tariff.
3.3 In the event Buyer and Seller mutually agree to a
negotiated rate(s) and/or terms of service hereunder (if
authorized by the Commission), provisions governing such
negotiated rate (including surcharges) and terms shall be set
forth on Exhibit C to this Agreement.
ARTICLE IV
Rights to Amend Rates and Terms and Conditions of Service
4.1 This Agreement in all respects shall be and remain
subject to the provisions of said Rate Schedule FT and the
provisions of the General Terms and Conditions of Seller's FERC
Gas Tariff (as the same may hereafter be legally amended or
superseded), all of which are made a part hereof by this
reference.
4.2 Seller shall have the unilateral right to file with the
appropriate regulatory authority and seek to make changes in: (a)
the rates and charges applicable to its Rate Schedule FT; (b) Rate
Schedule FT including the Form of Service Agreement and the
existing Service Agreement pursuant to which this service is
rendered; and/or (c) any provisions of the General Terms and
Conditions of Seller's FERC Gas Tariff applicable to Rate Schedule
FT, provided however, Seller shall not have the right, without the
consent of Buyer, unless required to do so pursuant to applicable
laws or regulations, to make any filing pursuant to Section 4 of
the Natural Gas Act to reduce the firm nature of the service
provided under said Rate Schedule or the provisions of Exhibits
"A", "B" and "C". Seller agrees that Buyer may protest or contest
the aforementioned filings, or seek authorization from duly
constituted regulatory authorities for such adjustment of Seller's
existing FERC Gas Tariff as may be found necessary in order to
assure that the provisions in (a), (b), or (c) above are just and
reasonable.
ARTICLE V
Term of Agreement and Commencement of Service
5.1 The primary term of this Agreement shall commence on
November 1, 1997 and shall continue in effect until October 31,
2006. Termination or renewal of this Agreement shall occur in
accordance with the provisions of Section 13 of the General Terms
and Conditions of Seller's FERC Gas Tariff.
5.2 Any portion of this Agreement necessary to correct or
"cash out" imbalances under this Agreement, pursuant to the
General Terms and Conditions of Seller's FERC Gas Tariff, shall
survive the other parts of this Agreement until such time as such
balancing has been accomplished.
ARTICLE VI
Point(s) of Receipt and Delivery and Maximum Daily Quantities
6.1 The Primary Point(s) of Receipt and MDRO for each
Primary Point of Receipt, for all gas delivered for the account of
Buyer into Seller's pipeline system under this Agreement, shall be
at the Point(s) of Receipt on Seller's pipeline system as set
forth on Exhibit "A" attached hereto.
6.2 The Primary Delivery Point Area(s) ("DPA") and Maximum
Daily Delivery Obligation ("MDDO") for each DPA for all gas made
available for delivery by Seller to Buyer, or for the account of
Buyer, under this Agreement shall be as set forth on Exhibit "B"
attached hereto. Exhibit "B" also includes the Maximum Hourly
Quantity ("MHQ") for each DPA as defined in Section 20 of the
General Terms and Conditions of Seller's FERC Gas Tariff.
ARTICLE VII
Notices and Payments
7.1 All notices and communications with respect to this
Agreement shall be in writing and shall be considered as duly
conveyed when sent to the addresses stated below or at any other
such address as either Seller or 8uyer may hereafter designate in
writing in accordance with the applicable provisions of Section 8
of the General Terms and Conditions of Seller's FERC Gas Tariff.
Seller: Eastern Shore Natural Gas Company
Post Office Box 1769
Dover, Delaware 19903-1769
Attention: Director of Customer Services
Buyer: Elkton Gas Division of NUI Corporation
550 Route 202-206
P.O. Box 760
Bedminster, New Jersey 07921-0760
Attention: Laura DiBenedetto
7.2 All payments for service provided under this Agreement
shall be by wire transfer of funds and shall be directed to the
address stated below:
Eastern Shore Natural Gas Company
PNC Bank - Wilmington, DE
Account No. 5684278110
ABA No. 031100089
ARTICLE VIII
Facilities
8.1 To the extent that construction of facilities is
necessary to provide service under this Service Agreement, such
construction, including payment for the facilities, shall occur in
accordance with Section 12 of the General Terms and Conditions of
Seller's FERC Gas Tariff.
ARTICLE IX
Regulatory Authorizations and Approvals
9.1 Seller's obligation to provide service is conditioned
upon receipt and acceptance of any necessary regulatory
authorization to provide Firm Transportation Service for Buyer in
accordance with the terms of Rate Schedule FT, this Service
Agreement and the General Terms and Conditions of Seller's FERC
Gas Tariff. Buyer agrees to reimburse Seller for all reporting
and/or filing fees incurred by Seller in providing service under
this Service Agreement.
ARTICLE X
Pressures
10.1 The quantities of gas delivered or caused to be
delivered by Buyer to Seller hereunder shall be delivered into
Seller's pipeline system at a pressure sufficient to enter
Seller's system, but in no event shall such gas be delivered at a
pressure exceeding the maximum authorized operating pressure or
such other pressure as Seller permits at the Point(s) of Receipt.
ARTICLE XI
Miscellaneous
11.1 This Agreement shall bind and benefit the successors and
assigns of the respective parties hereto; provided however,
neither party shall assign this Agreement or any of its rights or
obligations hereunder without first obtaining the written consent
of the other party.
11.2 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 construed as a waiver of any future defaults
of a like or different character.
11.3 This Agreement includes Exhibits "A", "B" and "C", which
are incorporated fully herein and made a part hereof.
11.4 Modifications to this Agreement shall not become
effective except by execution of an amendment thereto.
11.5 This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Delaware, without
recourse to the law governing conflicts of laws, and to all
present and future valid laws with respect to the subject matter,
including present and future orders, rules and regulations of duly
constituted governmental authorities.
ARTICLE XII
Superseding Prior Service Agreements
12.1 This Agreement, on its effective date, supersedes and
cancels the following Service Agreement(s) between Seller and
Buyer: None
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized officers or
representatives effective as of the date first written above.
SELLER BUYER
EASTERN SHORE NATURAL GAS COMPANY ELKTON GAS DIVISION OF
NUI CORPORATION
By: /S/ STEPHEN C. THOMPSON By: /S/ THOMAS E. SMITH
Title: President Title: Vice President
Supply & Planning
(To be attested by the Corporate Secretary
if not signed by an officer of the company)
Attested By: Attested By:
Title: Title:
Date: Date: