PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS ARE MARKED BY AN ASTERISK (*).
Dealer Sale Contract CONOCO FEB. 06, 1995
_______
We hereby confirm SALE PROPANE
to:
Empire Gas Corporation DATE: January 20, 1995
P.O. Box 303 CONOCO NO.: 30-9013694-0000-A10
Lebanon, MO 65536 SYSTEM CODE: 15
Attention: Kris Lindsey ACCOUNT CODE: 407
Per conversations between Kris Lindsey and our Lewis Bradshaw
PRODUCT: Propane (Stenched) meeting GPA specifications
PRICE: See Remarks
TERMS of PAYMENT: 1% 10 Days/Net 11 Days From Date of Invoice
F.O.B. ORIGIN POINT DESTINATION
- - ------------------------------------ ----------------------------------
Cherokee Pipeline - Wood River, IL 30-9009636-0000 Missouri, Various
Cherokee Pipeline - Belle, MO 30-9013694-0000 Illinois, Various
Cherokee Pipeline - Mt. Vernon, MO
Conoco/Medford Plant - Medford, OK
Conoco/Ponca City Refinery - Ponca City,
FREIGHT: Origin Collect
METHOD OF TRANSPORTATION: Common Carrier and/or Customer Truck
TERM OF AGREEMENT: January 21, 1992 through June 30, 1993 and year to
year thereafter.
QUANTITY: Subject to the terms and conditions on the reverse hereof, seller
agrees to sell and deliver, and buyer agrees to purchase and receive the
following volumes of product: (000) Gallons
MIN MAX MIN MAX MIN MAX MIN MAX
---- ---- ---- ---- ---- ---- ---- ----
JAN 1363 2045 APR 474 712 JUL 242 364 OCT 634 952
FEB 1119 1679 MAY 274 410 AUG 540 810 NOV 831 1247
MAR 903 1355 JUN 225 337 SEP 674 1010 DEC 1240 1860
---- ---- ---- ---- ---- ---- ---- ----
Q1 3385 5079 Q2 973 1459 Q3 1456 2184 Q4 2705 4059
Year Total 8519 12781
REMARKS: CONVERSION OPTION: Shall be negotiated on an annual basis prior
to converting volumes for the subsequent heating season.
(Continued on attached page)
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Conoco Inc. invoices should be mailed to the following address:
Empire Gas Corporation
P. O. Box 303
Lebanon, MO 65536
("Buyer")
Subject to terms and conditions on reverse side
Accepted February 7, 1995
_______________________________
/S/ KRIS LINDSEY,
_______________________________
By KRIS LINDSEY, VICE PRESIDENT
_______________________________
Please sign and return one copy and retain one copy for your files.
Mail customer invoices to:
Conoco Inc.
Gas Products Accounting
3rd Floor North Tower
P. O. Box 1267
Ponca City, OK 74602-1267
("Seller")
Mail contracts and correspondence to:
Conoco Inc.
Gas Products Division
Humber Building - 1021
P.O. Box 2197
Houston, TX 77252
1-800-423-4636
By /S/ DAVID L. LUGAR
__________________________
David L. Lugar
Manager, Propane Marketing
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Terms and Conditions Dealer Sale Contract
1. Specifications. All Products delivered hereunder will conform to
applicable NGPA and individual pipeline specifications in effect at time of
delivery unless mutually agreed otherwise and specified elsewhere in this
Agreement. Seller guarantees specifications at delivery point.
2. Measurement. Quantities of Products delivered will be determined in
tank cars or trucks at delivery point by means of slip tube, rotary gauge,
or other mutually acceptable gauging method or device. Volumes of LP-gas
Products will be corrected for temperature to 60 degrees F using "Standard
Factors for Volume Correction and Specific Gravity Conversion of Liquified
Petroleum Gases and Volatile Gasolines," NGPA Publication No. 2142-57 or
latest revision thereof. Volumes of Natural Gasoline will be corrected for
temperatures to 60 degrees F, using ASTM-IP Petroleum Measurement Tables,
American Addition, ASTM designation D 1250, abridged Table No. 7. A barrel
will consist of 42 U.S. gallons, and a gallon will contain 231 cubic inches.
3. Deliveries. Seller's tank cars must be unloaded and returned to
railroad within the 48-hour period beginning at 7 a.m. on the day following
notice of arrival at destination. Demurrage charges at destination will be
borne by Buyer. Seller's tank cars and transport trucks will not be
diverted except with written consent from Seller. If delivery is made by
Seller, in Seller-owned equipment, there will be added to the invoice a
separate freight charge equal to the lowest published applicable
transportation charge, as determined by Seller, from Supplier's terminal to
Buyer's destination(s). Seller will furnish, or cause to be furnished,
Buyer with copies of bills of lading and other shipping papers.
4. Title. Seller represents that it has title to the Products delivered
and has the right to deliver same. Title to Products delivered will pass to
Buyer upon completion of loading the same into tank trucks and/or tank cars
furnished by Buyer, upon delivery of Products in a tank car to carrier, upon
delivery thereof in a tank truck or tank car furnished by Seller alongside
Buyer's storage facilities at destination, or as stipulated on the face
hereof, as the case may be. Thereafter, Buyer will bear all risk of and be
solely liable for any loss or damage caused by or attributable to said
Products, or to their transportation, care, handling, resale, or use. Title
to Products delivered via pipeline will pass to Buyer at the FOB point.
5. Taxes. In addition to the delivered price, Buyer will pay all
applicable federal, state, and local sales or other excise taxes required to
be paid or collected by Seller by reason of the manufacture, sale, or
delivery of Products. Buyer agrees to furnish Seller with satisfactory tax
exemption certificate where exemption from applicable taxes is claimed.
6. Dispute. In the event the Buyer disputes an item billed, the Buyer
shall, within 10 days date of invoice, notify Seller of the item in dispute,
specifying Buyer's complaint, and payment of that item shall be withheld by
Buyer without interest until resolution of the dispute. The undisputed
amount, however, shall be paid without delay.
7. Payment Requirements. Payment for all Product delivered under this
Agreement will be paid to Seller at the place of payment designated on the
invoice. Invoices not paid pursuant to the "Terms of Payment" section on
the face of this Agreement will be considered delinquent. Seller may charge
interest at the lesser of the maximum legal interest or 18 percent per annum
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on all unpaid amounts on any delinquent accounts. Cash discounts, if any,
will not apply to freight charges prepaid by Seller.
8. Credit. If Buyer's credit becomes impaired or unsatisfactory to Seller
or if Buyer fails to make any payment due to Seller or if Buyer defaults in
performance of any of Buyer's obligations hereunder, Seller may, at its
discretion and without prejudice to its other legal remedies, suspend
deliveries to Buyer, or cancel this Agreement or ship hereunder only on a
COD or other basis satisfactory to Seller. In event of suspension of
deliveries, Seller reserves the right to adjust scheduled volumes.
9. Malodorant. Unless otherwise expressly directed in writing or on the
face hereof, LPG Products delivered will contain malodorant at the rate of 1
1/2 pounds of ethyl mercaptan, or its equivalent, per 10,000 gallons; the
kind and quantity of malodorant added will be indicated on the bill of
lading or the invoice relating to each delivery.
10. Claims. Seller will have no liability to Buyer for any defect in
quality or shortage in quantity of Products sold and delivered hereunder,
unless Buyer gives Seller notice of Buyer's claim by telegraph and Seller is
given an opportunity to inspect the Products in question prior to unloading
or, in case of any latent defect in quality, Buyer gives Seller notice
thereof within 48 hours after Buyer's discovery of such defect. Seller will
have no liability for any defect in any Product which has been commingled in
any way with a similar Product obtained elsewhere or with a different
Product, regardless of where obtained. Every notice of claim will set forth
fully the facts upon which the claim is based. It is agreed that any claim
of any kind by Buyer based upon or arising out of this Agreement or
otherwise will be barred unless asserted by Buyer by the commencement of an
action within 12 months after the delivery of the Product or other event,
action, or inaction to which such claim relates, provided, however, Seller
will not be liable for prospective profits or special, indirect, or
consequential damages. This provision will survive any termination of this
Agreement, however arising.
11. Purchase Requirement. If maximum, minimum volumes are specified on the
face of this Agreement, then Buyer will use its best effort to purchase and
accept delivery of the scheduled volumes indicated on the face of the
Agreement each month as scheduled. Buyer will not exceed the specified
maximum volumes during any month without prior consent of Seller. Buyer may
order and take delivery of volumes less than the scheduled minimum volumes
during any month, provided, however, that Buyer must purchase and accept
delivery of the minimum cumulative volumes for each calendar quarter.
Should Buyer fail to purchase and accept delivery of the minimum cumulative
volumes for any calendar quarter, Seller may at its option cancel this
Agreement, except as provided for in paragraph 14.
12. Trademark and Trade Name. If Conoco is the Seller hereunder, Conoco
hereby grants Buyer, during the term of this Agreement, the right and
license to use and display, in a manner specified by Conoco, and at Buyer's
expense, Conoco's trademarks, trade name, advertising, and other indicia of
Conoco in the advertisement, sale, or distribution of the Product, provided,
however, that the right and license hereby granted will terminate when this
Agreement ceases to be in force and effect or may be cancelled at any time
upon 30 days' prior written notice from Conoco to Buyer. Upon the effective
date of such notice or upon the termination of such right and license, Buyer
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will forthwith remove such trademark, trade name, advertising, and the
indicia from Buyer's Delivery Points, other places of business, and
quipment. At no time will Buyer apply Conoco's trademark, trade name,
advertising, or other indicia to any Product other than Products sold and
purchased under this Agreement.
13. Set-Off. In the event Buyer fails to make timely payment of any monies
due and owing to Seller, Seller may offset any deliveries or payments due
under this or any other agreement between the parties.
14. Force Majeure. Neither party will be liable to the other for any delay
or failure in performance under this Agreement other than the obligation to
make payments in the event and to the extent that such delay or failure in
performance is caused or prevented by any cause reasonably beyond its
control, including, but not limited to, acts of God, perils of navigation,
public enemies, war, riots, insurrection, acts or orders of governmental
authorities, fire, flood, explosion, accident, strike, or other difference
with workmen, embargo, inability to obtain fuel, power, labor,
transportation facilities, or raw materials upon which their performance of
this Agreement is dependent, accident, breakage of machinery or apparatus,
or national defense requirements, provided; however, that performance will
be resumed within a reasonable time after such cause has been removed and
provided, further, that neither party will be required to settle any labor
dispute against its will. Any deliveries suspended as a result of this
paragraph 14 will be cancelled without prejudice or penalty, but this
Agreement will otherwise remain unaffected. If, because of any of the
foregoing circumstances, Seller is unable to supply its requirements for and
its contractual obligations for one or more of the Products, then Seller
will allocate the available supply of such Product among its contract
customers and itself on an equitable pro rata basis. In the event Seller,
during a period of allocation pursuant to the provisions of this paragraph
14, delivers to Buyer a quantity of Product less than the minimum quantity
Buyer is required to purchase during such period as provided on the face of
this Agreement, then neither Seller nor Buyer will have any obligation to
sell or purchase the difference between the amount so delivered and such
minimum quantity during such period.
15. Miscellaneous. (a) Except as provided for in paragraph 14, should
either party fail to comply with any of the terms and conditions of this
Agreement, the other party, by notice in writing, may request the
noncomplying party to correct such noncompliance within 10 days from the
date of such notice. If such noncompliance is not corrected before the
expiration of said 10-day period, the other party, at its option, may
terminate this Agreement forthwith, but failure of either party to notify
the other party of such noncompliance will not be regarded, in the event of
any future similar noncompliance, as a waiver of the right to terminate this
Agreement in accordance with the foregoing provision.
(b) This Agreement sets forth the entire agreement between parties
respecting the sale and purchase of the Products, but neither it nor any
amendment will be binding upon either party until it is executed by both
parties.
(c) This Agreement will insure to the benefit of and be binding upon the
parties, their heirs, personal representatives, successors, and assigns, but
no assignment of all or any portion of this Agreement by Buyer will be valid
without the written consent of Seller.
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(d) This Agreement is subject to and may be overridden by all applicable
federal, state, and local laws, rules, regulations, and orders. Invoices
must bear a certification that these Products were produced and handled in
compliance with applicable requirements of the Fair Labor Standards Act, as
amended, and the regulations and orders of the U.S. Labor Department issued
pursuant thereto.
(e) Unless otherwise provided for herein, all notices will be in writing
and considered given when deposited in the United States mail, postage
prepaid, addressed to the appropriate party at the address shown above.
(f) Seller will indemnify, defend, and hold Buyer harmless from the acts or
omissions of Seller, and Buyer will indemnify, defend, and hold Seller
harmless from the acts or omissions of Buyer.
16. Audit. No commissions or fees will be paid nor any payments or rebates
be made to any employee or officer of Conoco, nor will anyone favor any
employee or officer of Conoco with gifts or entertainment of significant
cost or value, or enter into any business arrangements with any employees or
officers of Conoco other than as representatives of Conoco.
The parties hereto will maintain a true and correct set of records
pertaining to this Agreement and all transactions related thereto and will
retain such records for a period of 2 years after termination of this
Agreement. Prior to the expiration of such 2-year period, either party will
have access to all of such records and information, including all books,
papers, documents, agreements, and any other information that may have any
bearing on or pertain to this Agreement or any business conducted between
the parties, and either party will have the right to audit all such records
and information at reasonable times and places during normal working hours.
The parties hereto will also have the right to obtain statements from any
personnel of the other party in order to conduct or complete such audit.
The other party will cooperate fully in any such audit. All audits will be
conducted in accordance with generally accepted auditing standards.
17. Warning. The Material Safety Data Sheets and labels for Products,
delivered hereunder contain information regarding health risks and
recommendations for the safe use and handling of such Products. Buyer
acknowledges and represents that it has read and understands the Material
Safety Data Sheets, the labels, or warnings regarding such Products. Buyer
will exercise the degree of care necessary to protect all persons and
property from all hazards disclosed in such Material Safety Data Sheets,
labels, or warnings. Buyers obligations in this regard will include but not
be limited to (1) warning the employees of Buyer and of its affiliates who
may become exposed to such Products or their hazards; (2) taking measures to
assure that such employees have appropriate safety equipment which is
adequately maintained and properly used and that all precautions contained
in Material Safety Data Sheets, labels, and other warnings are followed; and
(3) warning third parties, including but not limited to Buyer's customers,
who may use or be exposed to such Products of their hazards, and requiring
that the precautions contained in such Material Safety Data Sheets, labels,
and other warnings are followed. If Buyer does not so protect all persons
and property from all hazards disclosed in such Material Safety Data Sheets,
labels, or warnings, Buyer will indemnify and hold Seller harmless from any
claims, causes of action, liabilities, losses, or expenses on account of
injury or death of persons and/or damage to property arising directly or
indirectly out of Buyer's failure to fulfill its obligations under this
paragraph 17.
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CONTRACT ATTACHMENT
January 20, 1995 30-9013694-0000-A10 Page 2
PRICE: Contract amended effective 4/1/91 until the end of the contract term
- - -- price shall be Conoco's established price on the date of delivery * per
gallon. This * shall only apply to purchases on Conoco's established
posting.
Contract amended on 1/20/95 to revise contract volumes and to establish Kris
Lindsey as Empire Gas contact.
* Confidential material deleted.
______________________________