Gas Tariff, and of its Service

Agreement incorporating its bid terms. In accordance with the terms of the

release, the Replacement Shipper shall pay or be liable for the usage charges

(plus all applicable surcharges, Fuel Reimbursement, taxes, penalties, etc.)

applicable under the relevant Rate Schedule attributable to its usage of the

released capacity. Freebird shall continue

to bill the Releasing Shipper all applicable charges under its existing

Service Agreement, excluding usage charges (plus all applicable surcharges,

Fuel Reimbursement, taxes, penalties, etc.) billed to the Replacement Shipper

and attributable to its usage of the released capacity. Invoices sent to the

Releasing Shipper shall reflect a credit equal to any Storage Reservation

Charges (plus all surcharges applicable thereto) being billed to the

Replacement Shipper for the released capacity rights, or as otherwise agreed.

If the Replacement Shipper fails to pay when due all or part of the amounts

credited to the Releasing Shipper, Freebird shall pursue payment from the

Replacement Shipper by notifying such Shipper by registered letter, return

receipt requested, that it has five (5) days from receipt of such letter to

pay the amount due including any applicable interest. If the Replacement

Shipper fails to pay such amount by the end of the fifth day, Freebird shall

reverse the credit and bill the Releasing Shipper for such past due amounts,

plus applicable interest.


 

4.11 Rights and Obligations of the Parties.

(a) The Service Agreement between the Releasing Shipper and Freebird shall

remain in full force and effect, with the Releasing Shipper to receive a

credit to its invoice as described in Section 4.10 above. If the Replacement

Shipper fails to pay all or part of the amounts credited to the Releasing

Shipper after the five-day notification period specified in Section 4.10,

Freebird shall reverse the credit and bill the Releasing Shipper for such past

due amounts, plus applicable interest. The Service Agreement executed by the

Replacement Shipper shall be fully effective and enforceable by and against

the Replacement Shipper. The Replacement Shipper may also release capacity

pursuant to this Section, and in such event and for such purposes, shall be

considered the Releasing Shipper.


 

(b) Freebird shall accept nominations, schedule service, afford priority of

service and interrupt service based on instructions and communications from

the Releasing Shipper and the Replacement Shipper which are consistent with

one another and with the terms and conditions of Freebird’s FERC Gas Tariff

and their respective Service Agreements. In the event that instructions or

nominations from the Releasing Shipper and Replacement Shipper are, in

Freebird’s opinion, inconsistent or conflicting, Freebird shall comply with

the instructions of the Releasing Shipper; provided, however, that such

instructions must not be inconsistent with Freebird’s FERC Gas Tariff or the

terms of either the Releasing Shipper’s or Replacement Shipper’s Service

Agreement. The Releasing Shipper will indemnify Freebird against any claim or

suit by the Replacement Shipper, its successors or assigns, arising from any

action taken by Freebird in reliance upon the Releasing Shipper’s nominations

and instructions, and will hold Freebird harmless for any action taken by

Freebird in reliance upon the nominations and scheduling instructions of the

Replacement Shipper; provided, however, that the Releasing Shipper shall not

be liable for the Replacement Shipper’s failure to pay the usage charges (plus

all applicable surcharges, Fuel Reimbursement, taxes, penalties, etc.) billed

to the Replacement Shipper and attributable to its usage of the released

capacity. The Replacement Shipper will indemnify Freebird against any claim

or suit by the Releasing Shipper, its successors or assigns, arising from any

action taken by Freebird in reliance upon the nominations and scheduling

instructions of the Replacement Shipper and will hold Freebird harmless for

any actions taken by Freebird in reliance upon the instructions of the

Releasing Shipper.


 

4.12 Marketing Fee. If Freebird and the Releasing Shipper so agree, Freebird

may receive a negotiated fee for its marketing efforts