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EXHIBIT 10.19(b)
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THROUGHPUT AGREEMENT
This Throughput Agreement is being executed and entered into by Tengasco
Pipeline Corporation ("TPC"), and Nick Nishiwaki ("Nishiwaki") this 16 day of
August, 2000.
Pursuant to that certain Loan Agreement between TPC and Nishiwaki dated
as of August 16, 2000, and related documents as the same may be amended from
time to time ("Loan Agreement"), Nishiwaki and other similarly situated persons
are making available to TPC, a wholly owned subsidiary of Tengasco, Inc., a loan
in the aggregate principal amount of 5.6 million dollars, a portion of which is
being loaned by Nishiwaki and that portion being referred to herein as the
"Loan," to provide financing for the construction of TPC's Swan Creek-Kingsport
natural gas pipeline ("Pipeline"). As an additional consideration for
Nishiwaki's agreement to make the Loan to TPC, TPC has agreed that Nishiwaki
shall be entitled to participate in the revenue associated with the operation of
the Pipeline to the extent described in this Agreement.
NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the receipt and sufficiency of which are acknowledged
hereby, TPC agrees as follows:
Throughput Revenue Participation. Effective as of the commencement of
operations by the Pipeline, and each month thereafter until the Loan is paid in
full, TPC shall be liable for the payment to Nishiwaki of Nishiwaki's
Proportional Part of a total Throughput Fee of ten cents ($0.10) per MMBtu of
natural gas delivered through the Pipeline. The Proportional Part of the total
ten-cent Throughput Fee that Nishiwaki is entitled to receive under this
Agreement is that portion of the ten-cent fee equal to the ratio of the Loan
being made by Nishiwaki to the total of all amounts loaned to TPC for this
pipeline financing, currently $5.6 million. The volumes delivered through the
Pipeline shall be determined on a monthly basis and shall equal the sum of all
volumes delivered at delivery points on the pipeline, net of line losses and
fuel.
Default. In the event of any failure by TPC to perform, or cause the
performance of, any of its obligations under this Agreement, in addition to any
and all other remedies available to Nishiwaki under this Agreement, the failure
will constitute an Event of Default under the Loan Agreement.
Enforcement Action. In the event Nishiwaki is required to take legal
action against TPC to enforce their right to any payments due under this
Agreement or to enforce the performance by TPC of any other obligations under
this Agreement, Nishiwaki shall be entitled to recover from TPC all of the costs
and expenses of such legal action including without limitation attorneys fees
and court costs.
Term. Unless earlier terminated by Nishiwaki in its sole discretion, this
Agreement shall continue in full force and effect for so long as the Loan
remains unpaid. When at any time the Loan is paid, this Agreement shall
terminate without any further action by TPC or by Nishiwaki and Nishiwaki shall
release all liens upon the Pipeline in accordance with the Loan Agreement.
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Notices and Payments. Unless changed by written notice, all payments,
volume information, notices or other communications to Nishiwaki shall be sent
to the following address:
Nick Nishiwaki
SO E. Hartsdale Avenue, #8F
Hartsdale, NY 10530
Miscellaneous.
(a) Successors. The provisions of this Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
legal representatives, successors, and assigns. Nishiwaki may not assign
this Agreement without written consent of TPC, which consent may not be
unreasonably withheld.
(b) Rights Cumulative; No Waiver. The rights granted Nishiwaki under this
Agreement or the Loan Agreement or allowed by law or equity shall be
cumulative and may be exercised at any time and from time to time. No
failure on the part of Nishiwaki to exercise, and no delay in exercising,
any right shall be construed or deemed to be a waiver thereof, nor shall
any single or partial exercise by Nishiwaki of any right preclude any
other future exercise thereof or the exercise of any other right.
(c) Severance. If any provision of this Agreement or any application of
any provision shall have been declared invalid, illegal or unenforceable
by any court or agency of competent jurisdiction, such declaration shall
not affect or impair the validity, legality and enforceability of any
other provisions of this Agreement or of the Loan Agreement or any other
application of such provisions.
(d) Amendment. This Agreement may not be amended, modified or changed,
nor shall any waiver of any provision hereof be effective, except by an
instrument in writing signed by the party against whom enforcement of the
amendment, modification, change, or waiver is sought.
(e) Choice of Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Tennessee.
(f) Interpretation. All terms not otherwise defined in this Agreement
shall have the meanings ascribed to them in the Loan Agreement.
(g) Counterparts. This document may be executed in counterparts, all of
which executed counterparts shall together constitute a single document.
Signature and acknowledgment pages may be detached from the counterparts
and attached to a single copy of this document to physically form one
document.
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IN WITNESS WHEREOF, Nishiwaki and TPC have executed this agreement as of
the day and year first above written.
TENGASCO PIPELINE CORPORATION
BY: /s/ Robert M. Carter
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Robert M. Carter, President
/s/ Nick Nishiwaki
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Nick Nishiwaki
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