Exhibit 10(i).14
TRANSPORTATION SERVICE AGREEMENT
ON TRANSPORTER'S DISTRIBUTION SYSTEM
(APPLICABLE TO NEBRASKA CUSTOMERS
WITH USAGE OF 500 THERMS PER DAY OR MORE)
This Transportation Service Agreement ("Agreement") is made and entered
into between ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc. ("Transporter") and NEDAK, LLC ("Customer").
Transporter and Customer collectively may be referred to herein as the
"Parties", or individually as a "Party."
In consideration of the premises and of the mutual covenants herein
contained, the Parties do covenant and agree as follows:
ARTICLE I - SCOPE OF AGREEMENT
Subject to the terms, conditions and limitations hereof and of any specific
terms and conditions incorporated herein by reference, Transporter agrees to
receive, transport and deliver thermally equivalent volumes of Gas, adjusted for
the Retention Quantity, up to the Maximum Daily Delivery Quantity (MDDQ).
ARTICLE II - TERM OF AGREEMENT
This Agreement shall become effective and continue in effect as set forth
in Article VI hereof.
ARTICLE III - RATES, BILLING AND PAYMENT
Customer shall pay Transporter for all services rendered hereunder at rates
stated in this Agreement, as follows:
Monthly Administrative Fee: $200.00 per Delivery Point
Monthly Customer Charge: $6.00 per month
Monthly Transportation Charge: Shall be as defined herein. See separate
negotiated rate Agreement.
Additional Charges: Transporter may add to the Customer's ▇▇▇▇
any Additional Charges, as defined herein,
applicable to the Customer.
Customer shall make any payment due Transporter hereunder within fifteen
(15) days after receipt of invoice, or interest at the rate of the then prime
rate of interest, per annum, charged by the ▇▇▇▇▇ Fargo Bank of Colorado, or
such lesser rate of interest required by applicable law, shall accrue and be
paid on any late payments. In the event of suit or other action to recover money
due under this Agreement, Transporter shall be entitled to recover its
reasonable costs of collection, including attorneys' fees, as permitted by law.
ARTICLE IV - UNAUTHORIZED OVERRUN CHARGES
When not authorized by Transporter prior to the start of the Gas Day,
Customer shall pay an incremental overrun charge of $0.60 (Sixty Cents) for each
Therm delivered by Transporter during a Gas Day in excess of the Customer's
MDDQ. Authorization shall be deemed given by Transporter if Transporter confirms
Customer's nomination that is in excess of the MDDQ.
ARTICLE V - RECEIPT POINT AND DELIVERY POINT
Gas to be received by Transporter for the account of Customer hereunder
shall be received at the Receipt Point as set forth on Appendix A, attached
hereto and made a part hereof.
Gas to be delivered by Transporter for the account of Customer hereunder
shall be delivered on the outlet side of the gas regulator station at the
Delivery Point serving Customer's Ethanol Plant near Atkinson, Nebraska as set
forth on Appendix A, attached hereto and made a part hereof. For contractual
purposes hereunder, the Gas volumes delivered by Transporter to Customer at the
Delivery Point shall be deemed to be equal to the Gas volumes as measured at the
Receipt Point.
Additional information concerning the Receipt Point, Delivery Point, and
Quantities are set forth on Appendix A to this Agreement.
ARTICLE VI - SPECIFIC INFORMATION
Agreement/Contract Number: To be determined
Agreement Date: June 15, 2006
Term: The period commencing as of the first day of the month in which the
initial delivery of gas is made to Customer's Ethanol Plant near Atkinson,
Nebraska and continuing for a period of ten (10) years thereafter (Primary
Term). At the end of the Primary Term, this Agreement shall then continue
automatically in full force and effect on a year-to-year basis unless and until
terminated by either party upon sixty (60) days advance written notice of
termination. Notwithstanding anything in this Agreement to the contrary, this
Agreement shall automatically terminate in the event: either (a) Customer fails
to pay KMI the required amount of the Facility Payment as required by the
Facility Agreement or (b) the KMI Facilities to be constructed by KMI in
accordance with the Facility Agreement are completed, but initial delivery of
gas to Customer's Ethanol Plant has not occurred on or before December 31, 2007.
Further, KMI may terminate this Agreement at any time upon sixty (60) days
written notice to Customer if Customer permanently discontinues operation of its
Ethanol Plant and related facilities. Additionally, this Agreement may be
terminated by KMI or Customer as provided for in the Facility Agreement or as
otherwise provided for herein.
Notices shall be as follows:
Transporter: Mailing Address: Street Address:
▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc. ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc.
▇.▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax number: (▇▇▇) ▇▇▇-▇▇▇▇
Scheduling: Payment Address:
Transportation Administration ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc.
(▇▇▇) ▇▇▇-▇▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Customer: Mailing Address: Street Address:
NEDAK Ethanol LLC
Attn: ▇▇▇▇ Leiswell ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Mailing Address For Scheduling, Notices and Billing If
Different Than Above: (Same as above)
Send to the attention of:
NEDAK Ethanol LLC
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax number:
Contact Name: ▇▇▇▇ Leiswell
Retention Quantity: The Retention Quantity percentage to be charged Customer for
service under this Agreement shall be deemed to be one half of one percent
(0.5%) of total volumes received at the Receipt Point.
ARTICLE VII - STANDARD TERMS AND CONDITIONS OF SERVICE
Appendix B to this Agreement contains Standard Terms and Conditions of
Service, which terms and conditions are incorporated herein by reference.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be signed by their
duly authorized representative.
Transporter: Customer:
▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc. NEDAK, LLC
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------- ---------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Director of Transportation Services Title: Board Member
▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc.
APPENDIX A
RECEIPT POINT, DELIVERY POINT, AND QUANTITIES
To the Transportation Service Agreement between ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc.
("Transporter") and NEDAK, LLC ("Customer").
Agreement/Contract Number: To be determined
Agreement Date: June 15, 2006
Receipt Point: The physically measured interconnection point between Transporter
and the Upstream Pipeline that is upstream of the Delivery Point, such
identifying number to be determined.
Delivery Point: The outlet side of transporter's gas meter station serving
Customer's Ethanol Plant near Atkinson, Nebraska at the interconnection point
between Transporter's facilities and Customer's facilities, such identifying
number to be determined.
Maximum Daily Delivery Quantity (MDDQ): Shall be 37,200 therms per day, at
reasonably uniform rates of flow, during the Primary Term hereof. After the
Primary Term, the MDDQ shall be the lesser of 1) the total burner tip capability
(calculated on a daily basis) of Customer's equipment located at Customer's
Ethanol Facility near Atkinson, Nebraska or 2) 37,200 therms per day. For the
purposes of this Agreement Burner tip capability shall be determined by
referring to the manufacturer's name plate designation on each piece of
equipment.
Effective Date: Shall be the first day of the month in which the initial
delivery of gas is made to Customer's Ethanol Plant near Atkinson, Nebraska
APPENDIX B
STANDARD TERMS AND CONDITIONS FOR SERVICE UNDER
TRANSPORTATION SERVICE AGREEMENT
ON TRANSPORTER'S NEBRASKA GAS DISTRIBUTION SYSTEM ("Agreement")
1. TRANSPORTATION SERVICE
Transporter will make Transportation Service available on Transporter's gas
distribution system to Nebraska commercial and industrial customers with average
daily Gas usage of at least 500 Therms per Day, as defined herein, who execute
an Agreement with Transporter. By executing an Agreement, Customer agrees to
abide by, and shall be obligated to comply with these Standard Terms and
Conditions. Average daily gas usage for year-round customers shall be the
average daily usage over the prior calendar year. Average daily usage for
seasonal customers shall be the average daily usage over the most recent season
of Gas usage by the customer.
Customer understands and acknowledges that in order for Transporter to
provide Transportation Service to Customer's Ethanol Plant near Atkinson,
Nebraska it will be necessary for Transporter to construct and place into
service certain pipeline facilities ("KMI Facilities") as more particularly
described in the Facility Agreement, dated June 15, 2006, entered into between
Transporter and Customer ("Facility Agreement").
2. DEFINITIONS
As used in the Agreement, including Appendices thereto:
a. The term "Additional Charges" means any sales, excise, franchise or
other tax, applicable to Customer, if any, unauthorized overrun fees,
Critical Flow Day fees, and any other fee or charge or payment authorized
by the Agreement, the Negotiated Rate Agreement or the Facility Agreement.
b. The term "Administrative Fee" means a portion of the amount to be paid
Monthly by the Customer for Transportation Service which is a fixed amount,
without regard to the transportation quantities. The term "Administrative
Fee" does not include "Additional Charges".
c. The term "Agreement" means this Transportation Service Agreement between
▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc. and NEDAK, LLC.
d. The term "Btu" means one British thermal unit, i.e., the amount of heat
required to raise the temperature of one (1) pound of water from sixty (60)
degrees Fahrenheit to sixty-one (61) degrees Fahrenheit.
e. The term "Capacity" means the maximum Gas volume which any particular
segment of Transporter's system is capable of carrying under current
operating conditions.
f. The term "Choice Gas Program" means the retail unbundling program
offered by Transporter in the State of Nebraska under that name.
g. The term "Critical Flow Day" shall mean that Day or Days for which
Transporter has posted on its website that Customer's confirmed Receipt
Point nominations, less Retention Quantity, must equal actual gas
deliveries as measured at the Delivery Point. Such posting shall be made
when Transporter determines, in the reasonable exercise of its discretion,
that such action is necessary to maintain compliance with Upstream Pipeline
directives, avoid threat to Transporter's pipeline system integrity, or
otherwise.
h. The term "Cubic Foot of Gas" means the amount of gas necessary to fill
one cubic foot of space at sixty (60) degrees Fahrenheit and under an
absolute pressure of 14.73 pounds per square inch.
i. The term "Curtailment" means a partial or total reduction of the
quantities of Gas which Transporter would otherwise receive, transport, or
deliver to the Customer under this Agreement, whether due to capacity
constraint, construction, maintenance, Force Majeure, or any other cause
whatsoever.
j. The term "Customer" means NEDAK, LLC. The Customer may be represented by
a duly authorized agent.
k. The term "Customer Charge" means a portion of the amount to be paid
Monthly by the Customer for Transportation Service which is a fixed amount,
without regard to the transportation quantities.
l. The term "Day" or "Daily" means a period of twenty-four (24) consecutive
hours, beginning at 9:00 a.m. Central Clock Time, and ending 9:00 a.m.
Central Clock Time on the following day. The reference date for any Day or
Gas Day shall be the calendar date upon which said 24 hour period
commences.
m. The term "Delivery Point" means the outlet side of the gas meter station
serving Customer's Ethanol Plant near Atkinson, Nebraska at the location
where Transporter's Gas facilities are interconnected with the Customer's
facilities and where the Customer and Transporter have agreed that Gas will
be delivered by Transporter to the Customer. For contractual purposes
hereunder, the Gas volumes delivered by Transporter to Customer at the
Delivery Point shall be deemed to be equal to the Gas volumes as
measured at the Receipt Point.
n. The term "Negotiated Rate Agreement" means that Negotiated Rate
Agreement for Distribution Transportation Service, dated June 15, 2006,
entered into between Transporter and Customer.
o. The term "Force Majeure" means any act of God, strike, walkout, or other
industrial disturbance, act of the public enemy, war, riot, lightning,
fire, storm, flood, earthquake, explosion, repair or maintenance,
governmental regulation or restraint, inability to obtain any required
governmental permits or authorizations, interruptions of firm
transportation service, or any other cause, whether of the kind
specifically enumerated above or otherwise, which is not reasonably within
the control of the claiming party.
p. The term "Facility Agreement" means that Facility Agreement dated June
15, 2006 entered into between Transporter and Customer.
q. The term "Gas" means natural gas that is received by Transporter from an
Upstream Pipeline at the Receipt Point and re-delivered by Transporter to
the Customer's Delivery Point, the quantity of which shall be determined on
a Therm basis.
r. The term "Lost and Unaccounted for Gas Quantity" means the difference
between the sum of all input quantities of Gas received into Transporter's
distribution system and the sum of all output quantities of Gas delivered
from Transporter's distribution system, and shall include, but not be
limited to, Transporter use gas, and gas vented and lost as a result of an
event of Force Majeure.
s. The terms "Month", and "Monthly" mean the period between meter read
dates.
t. The term "Natural Gas" means any mixture of hydrocarbons or of
hydrocarbons and non-combustible gases, in a gaseous state, consisting
essentially of methane.
u. The term "Receipt Point" means the point at which the Upstream
Pipeline's facilities are interconnected with Transporter's facilities. Gas
volumes shall be physically measured at the Receipt Point.
v. The term "Retention Quantity" means the amount, stated as a percentage,
by which Gas received at a Receipt Point is reduced in order to compensate
Transporter for the Lost and Unaccounted-for Gas Quantity. Title to the
Retention Quantity shall vest in Transporter upon receipt at the Receipt
Point(s) at no cost to Transporter and free and clear of all adverse claims
and liabilities.
w. The term "Therm" means one hundred thousand (100,000) British thermal
units.
x. The term "Transportation" or "Transportation Service" means the movement
of Gas through Transporter's facilities from the Receipt Point(s) to the
Delivery Point(s) under this Agreement.
y. The term "Transportation Charge per Therm" or "Transportation Charge"
means that portion of the amount to be paid Monthly by the Customer for
Transportation Service which is a variable amount based upon the Therms
which are actually delivered by Transporter to Customer, multiplied by the
Transportation Charge Per Therm, as specified in the Negotiated Rate
Agreement (as escalated in accordance therewith). The term "Transportation
Charge per Therm" or "Transportation Charge" does not include "Additional
Charges".
z. The term "Upstream Pipeline" means any pipeline delivering, or to
deliver, gas for transportation service to the Receipt Point(s). The
Upstream Pipeline may include transmission facilities owned by Transporter,
an affiliate of Transporter, or a third party.
3. FORCE MAJEURE AND CURTAILMENT
In the event of Force Majeure or Curtailment, the Customer agrees to limit
its daily deliveries from Transporter to the amount specified by Transporter
through its nominations process. Transporter agrees to use all possible
diligence to remove any such limitation of Customer's daily deliveries as
quickly as is possible.
4. NOMINATIONS, SCHEDULING, BALANCING, AND ALLOCATIONS
For purposes of billing and allocation of volumes, Transporter will be
deemed to deliver to Customer a daily gas quantity equal to Customer's daily
Delivery Point volumes as measured at the Receipt Point. Transporter shall
allocate daily Receipt Point volumes equal to Customer's daily Delivery Point
volumes, grossed up for applicable Retention Quantity. Customer agrees to
balance its nominations on a daily basis. During any Day that is a Critical Flow
Day, Customer will be subject to Critical Flow Day fees of $0.50 (Fifty Cents)
per therm, for daily Receipt Point allocated volumes that are greater than, or
lesser than, the daily confirmed Receipt Point nomination, subject to an allowed
tolerance of +/- 10% of the Receipt Point nomination. Should daily Receipt Point
allocated volumes on a Critical Flow Day exceed the +/- 10% tolerance, then the
entire volume above or below the confirmed Receipt Point nomination shall be
subject to the $0.50 per therm fee.
Each Gas Day under this Agreement, Customer or its agent shall submit
receipt and delivery nominations of Gas, and Transporter shall confirm such
nominations, according to the nomination provisions set forth below. Customer
shall:
For Transportation Services, submit nominations to Transporter by 11:30
a.m. Central Clock Time via Transporter's website, as directed by Transporter,
at least one (1) Business Day
prior to the Day Gas is to flow.
Include in the nomination the gross quantity of Gas in Therm's to be
received by Transporter at the specified Receipt Point, and the net quantity to
be delivered by Transporter at each specified Delivery Point. The gross Receipt
Point nominations less the Retention Quantity must equal the net Delivery Point
nominations.
Provide any required gas supply contract or gas supply agreement
identifying numbers at the Receipt Point, and gas supply priority rankings, if
applicable.
Transporter reserves the right at its discretion to modify these nomination
procedures from time to time, with notice to Customer.
Customer acknowledges and agrees that Transporter is not responsible for
eliminating any Imbalances in Gas volumes between Customer and any third party
upstream or downstream of Transporter's Facilities, unless such imbalance is the
result of Transporter's error or failure to perform under the terms of the
Agreement, nor is Transporter obligated to deviate from its standard operating
and accounting procedures in order to reduce or eliminate any such third party
imbalances, unless such imbalance is the result of Transporter's error or
failure to perform under the terms of the Agreement.
Nominations are subject to approval by Transporter based upon preservation
of system operational integrity or if such nomination exceeds the specified MDDQ
with the Customer. Transporter reserves the right to curtail Customer's
deliveries in order to match Customer's confirmed nominations.
5. OBLIGATION TO PROVIDE GAS SALES OR TRANSPORTATION SERVICE
Customer understands and agrees that by taking Transportation Service, it
is responsible for arranging its own Upstream Pipeline capacity and/or Gas
supply. Customer may choose a Gas supplier from the qualified suppliers in the
▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc. Choice Gas program or any other supplier of Customer's
choosing. Customer acknowledges that it understands the terms and conditions
under which its Gas supplier will provide Gas to the Receipt Point and that such
Gas supply may or may not be delivered to the Receipt Point on a firm basis.
Customer also understands and agrees that in the event of Gas curtailment or Gas
supplier default, Transporter will not be responsible to supply Customer with
Gas.
6. ELECTRONIC FLOW MEASUREMENT AND ASSOCIATED EQUIPMENT
Condition Precedent: As a condition of service under this Agreement,
Customer must have suitable electronic flow measurement (EFM) equipment, as
determined by Transporter, installed with respect to the Receipt Point meter.
All associated charges are included in Transporter's estimated cost referenced
in Section 11 of the Facility Agreement, except Power and Telephone costs.
Power and Telephone: Customer shall be directly responsible for the cost of
the electric power supply (if needed) and telephone line, as dedicated solely
for the EFM, and any other third party monthly costs associated with those
services. Transporter shall have the right to refuse transportation service to
Customer until such telephone lines have been installed. Telephone lines
installed on or after the Agreement Date must be land lines; cellular telephones
will not be accepted for new installations.
Volume Monitoring: Customer will be provided the ability to monitor the
volume collected by the EFM via Transporter's website. However, Transporter's
monthly volume statements shall be considered as the official custody transfer
measurement.
Equipment Outage: The Customer will maintain the telephone line and cause
any interruption in service over the telephone line to be repaired as soon as
possible. In the event that there is a communication failure, Customer shall
immediately notify Transporter of such failure by calling ▇-▇▇▇-▇▇▇-▇▇▇▇, and
ask for Retail Dispatch. The parties shall work together to obtain EFM data
until such failure is corrected. Further, if interruption of service occurs on
the telephone line, the Customer will receive an additional twenty-four (24)
hours, for up to three (3) business days, to bring actual receipts or deliveries
and nominations more closely into alignment.
Overpressure Protection: Transporter may install regulation and relief
devices where applicable, as determined by Transporter, to meet the regulatory
obligations of its own pipeline facilities. These pressure devices should not be
relied on by the Customer for operation of its own pipeline facilities.
Transporter will provide its overpressure protection calculation data, upon
written request, to the Customer. This data will be provided as a courtesy only,
and Customer acknowledges and agrees that Transporter's voluntary provision of
such data to Customer is not intended to, nor should it be construed as,
Transporter's acceptance to provide overpressure protection to the Customer's
facilities or impose upon Transporter any obligation whatsoever to provide any
overpressure protection to the Customer's facilities. By acceptance of this
Agreement, Customer acknowledges and agrees that overpressure protection for any
facilities downstream of the custody transfer point is Customer's sole
responsibility. Customer acknowledges and agrees that Transporter shall not be
liable for losses, claims or damages of any kind whatsoever, foreseeable or
unforeseeable, that arise from or relate to Customer's reliance upon
Transporter's overpressure protection data and the content, errors, omissions,
misinterpretations, or delays, associated therewith.
Upon Termination: Should this Agreement be terminated, Transporter may elect to
relocate the
EFM equipment to other points on its system at its discretion. Transporter shall
not make reimbursements for EFM installation(s) upon termination of this
Agreement.
7. ADDITIONAL FACILITIES
Except for those facilities so noted in the Facility Agreement, in no event
shall Transporter be obligated to provide any Transportation Service for which
Capacity is not available or which would require the construction or acquisition
of new facilities or the modification or expansion of existing facilities.
8. GAS QUALITY AND UPSTREAM PIPELINE TARIFF REQUIREMENTS
All natural gas tendered for transportation to Transporter for the account
of the Customer at the Receipt Point(s) shall conform to the most restrictive
gas quality specifications set forth in the tariff(s) of the Upstream
Pipeline(s) transporting the Customer's Gas upstream of the Receipt Point set
forth on Appendix A, as those specifications are revised from time to time.
Transporter may refuse to receive on a non-discriminatory basis any gas for
transportation that does not meet such quality specifications. Customer also
agrees to comply with all applicable tariff provisions, rules, regulations, and
service agreement provisions regarding transportation, delivery, and storage set
forth in the tariff(s) of the Upstream Pipeline(s) transporting the Customer's
Gas upstream of the Receipt Point set forth on Appendix A, as those tariff
provisions, rules, regulations, and service agreement provisions are revised
from time to time. All such applicable tariff provisions, rules, regulations,
and service agreement provisions, including definitions, are incorporated herein
and made a part hereof by reference; provided, however, that the provisions of
this Agreement shall govern in the event of any conflict with such applicable
tariff provisions, rules, regulations, and service agreement provisions.
9. TITLE, POSSESSION, TAXES AND LIABILITY
The Customer or its agent, as the case may be, shall retain title to its
gas throughout the period that the gas is in Transporter's possession and
control. Transporter will not purchase or take title to the Customer's gas under
this Agreement, but will take control and possession of the Customer's gas at
the Receipt Point. The Customer grants to Transporter such authorizations as may
be required to possess and control the Customer's gas, and to arrange for the
receipt, transportation, commingling, and delivery of the Customer's Gas to the
Customer at the Delivery Point. The Customer warrants that it, or its agent, has
title to the natural gas delivered hereunder and that the natural gas is free
from liens and adverse claims of any kind. The Customer will save and hold
Transporter harmless from all loss, damage and expense due to adverse claims
against Transporter for the title of the natural gas delivered hereunder. As
between Transporter and the Customer, the Customer shall be deemed to be in
control and possession of the natural gas, and responsible for any damage or
injuries caused thereby until the natural gas is delivered at the Receipt Point,
except for injuries and damage caused by the negligence or willful misconduct of
Transporter, and Transporter shall be deemed to be in control and possession of
the natural gas and responsible for any damage or injuries caused thereby after
the natural gas is delivered at the Receipt Point and before it is delivered to
the Customer at the Delivery Point, except for injuries and damage caused by the
negligence or willful misconduct of the Customer.
Neither party hereto shall be liable for incidental or consequential damages.
10. ASSIGNMENT
This Agreement shall be binding upon and inure to the benefit of any heirs,
successor(s) and assigns to either Transporter or the Customer by merger,
consolidation, acquisition or otherwise. This Agreement may not be assigned by
Customer to any other party without the express written consent of Transporter,
which consent may not be unreasonably withheld by Transporter, except that
Customer may assign this Agreement to its lenders or their agent as collateral
for indebtedness to construct Customer's Ethanol Plant near Atkinson, Nebraska
and the lenders or their agent can further assign them to any successor operator
of the plant in a foreclosure or agreement in lieu of foreclosure.
11. INTERPRETATION AND PERFORMANCE
The interpretation and performance of this Agreement shall be in accordance
with the laws of the State of Nebraska.
12. AGREEMENTS BEING SUPERSEDED
When this Agreement becomes effective, it shall supersede and cancel any
other transportation service agreements or similarly named agreements between
the Parties for the same service, except the Facility Agreement and the
Negotiated Rate Agreement, both as defined and referenced herein. Such separate
arrangements, if any, shall remain in place per the terms contained therein.
13. CERTIFICATIONS
By executing this Agreement, the Customer certifies that: (1) the Customer
will install and will utilize gas-fired equipment with an aggregate gas
consuming capability of 500 Therms per Day or more; (2) the Customer or its duly
authorized agent will obtain title to, or will secure a contractual right to
acquire such title to, the gas to be transported by Transporter; (3) the
Customer or its duly authorized agent has, or will have, entered into all
arrangements necessary for the commitment of deliveries to Transporter.
Transporter may refuse to receive on a non-discriminatory basis any gas for
transportation where the Customer or its duly authorized agent has failed to
meet any one of these requirements. If Transporter so requests, the Customer
must provide such proof.
14. MISCELLANEOUS PROVISIONS
Processing: Transporter shall have the right to process, or cause to be
processed, Gas received from Customer, and title to all extracted liquid and
liquefiable hydrocarbons and other products, including any methane lost or
removed in the extraction process or required for fuel, shall pass to
Transporter at no cost, and Customer shall hold Transporter harmless and free
and clear of adverse claims. It is expressly understood and agreed to by the
Parties that any condensate or "drips" that occur in Transporter's system are
the property of and title thereto is
vested in Transporter.
Right-of-Way. In order for Transporter to provide service to Customer,
Transporter owned facilities may be installed on Customer's property. In that
event, Customer shall provide, at no charge or rental, a mutually acceptable and
recordable right-of-way or easement. By executing this Agreement, Customer
grants the right of ingress and egress, and permission for all appurtenances for
the installation, operation, maintenance and replacement of Transporter's
equipment for as long as Customer requires service from Transporter.
Force Majeure: If either Party is rendered unable, wholly or in part, by
reason of Force Majeure to carry out its obligations under this Agreement, it
shall give notice to the other Party of the event of Force Majeure with
reasonably full particulars; whereupon, the obligations of a Party claiming
Force Majeure so far as they are affected by the Force Majeure shall be
suspended during, but not longer than, the continuance of the Force Majeure. The
claiming Party shall use all possible diligence to remove the Force Majeure as
quickly as possible. However, the requirement to remedy shall not require the
settlement of strikes, walkouts, or other labor difficulty; all such
difficulties shall be resolved entirely by the sole discretion of the claiming
Party. The obligation to make monetary payments under this Agreement shall not
be suspended by reason of any event of Force Majeure.
Severability: Any provision of this Agreement which is determined to be
invalid or unenforceable will be ineffective to the extent of such determination
without invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such remaining provisions.
Survival: The indemnification, warranties, liability and financial
assurance provisions set forth herein shall survive any termination of this
Agreement.
Amendments: Modifications or amendments to this Agreement shall only be
valid and enforceable when made in writing and executed by both Parties hereto.
Waiver: No waiver by either Party with respect to any breach or default, or
of any right or remedy, shall be deemed to constitute a continuing waiver of any
other breach or default, or of any such right or remedy, unless such waivers be
expressed in writing signed by the Party to be bound.
Entire Agreement: The entire Agreement is contained herein, and no
statement or agreements, oral or written, made prior to or at the signing
hereof, shall vary or modify the written terms hereof. The terms of this
Agreement shall not be varied, modified, explained or supplemented by evidence
of usage of trade or course of performance or dealing.
Binding Agreement: Exchange by facsimile transmission of this signed
Agreement or Appendix, Schedule, Exhibit, or any amendment hereto shall
constitute evidence of a binding agreement which is legally enforceable.
Regulatory Modifications: To the extent that the Transportation Service
that is the
subject of this Agreement during the Term should become subject to regulation by
any state or federal department, agency or other duly constituted authorities
having jurisdiction, including any designated by the State of Nebraska, all
terms and provisions contained or incorporated by reference into this Agreement
and the Negotiated Rate Agreement, including the appendices thereto, will become
subject to the provisions of any Transportation Service Agreement Rate Schedule
and any of the General Terms and Conditions on file with such department, agency
or other duly constituted authorities having jurisdiction, and as the same may
be legally amended or superseded, and any Rate Schedules and General Terms and
Conditions are by this reference made a part hereof. In the event of an action
of any regulatory agency having jurisdiction over the subject matter of this
Agreement, which (a) was unanticipated by either party to this Agreement; (b)
directly affects the activities of the parties with regard to their obligations
pursuant to this Agreement; (c) would result in actual, substantial and
demonstrable cash loss to a party hereto, directly rendering that party's
continued performance under this Agreement commercially impracticable, then, and
in such event, the impacted party shall give notice to the other party with full
particulars of such actions or events, including specific explanation and detail
of the asserted commercial impracticality and cash loss. In the event of such
notice, Customer and Transporter agree to negotiate in good faith in an effort
to amend this Agreement to reasonably accommodate the impacted party. If the
parties are unable to reach agreement notwithstanding such good faith
negotiations within ninety (90) days from receipt of the aforesaid notice, then
the impacted party shall have the right to terminate this Agreement and the
Negotiated Rate Agreement upon ninety (90) days written notice to the other
party.