Exhibit 10.49
PRECEDENT AGREEMENT
FOR FIRM TRANSPORTATION SERVICE
(GREENBRIER PIPELINE PROJECT)
THIS PRECEDENT AGREEMENT dated as of this 1st day of September 2001, by
and between GREENBRIER PIPELINE COMPANY, LLC ("Pipeline") and PIEDMONT NATURAL
GAS COMPANY, INC. ("Customer"), sometimes jointly called "the Parties."
WHEREAS, Pipeline is proposing to construct a large-diameter, high
pressure natural gas pipeline that would stretch from a proposed interconnection
with Dominion Transmission, Inc. in central West Virginia to markets in north
central North Carolina (the "Greenbrier Pipeline Project").
WHEREAS, an "open season" was conducted in the fall of last year
seeking customer interest in the Greenbrier Pipeline Project and Customer has
indicated an interest in entering into an arrangement for the firm
transportation of natural gas pursuant to the terms and conditions as fully
described in this Precedent Agreement.
WHEREAS, subject to the terms and conditions of this Precedent
Agreement, Pipeline is willing to provide such firm transportation service for
Customer as part of the Greenbrier Pipeline Project commencing as soon as all
necessary rights and regulatory approvals are received and accepted by Pipeline
and as the necessary facilities are constructed and ready for service.
NOW, THEREFORE, in consideration of the mutual promises contained in
this Agreement, and intending to be legally bound, Pipeline and Customer agree
as follows:
1. REGULATORY AUTHORIZATIONS
Pipeline shall proceed with due diligence to obtain the governmental
and regulatory authorizations required for the construction and operation of
project facilities, leasing of capacity rights on other pipelines, if necessary,
and the provision of the services contemplated herein. Pipeline, however,
reserves the right to file and prosecute applications for such authorizations,
any supplements or amendments thereto, and, if necessary, any court review, in
such manner as it deems to be in its best interest. Customer agrees to support
all applications for such governmental and regulatory authorizations to the
extent such governmental and regulatory authorizations are consistent with the
terms of this Precedent Agreement.
2. PREPARATIONS FOR CONSTRUCTION
Upon the Parties' execution of this Precedent Agreement, Pipeline
shall, with due diligence and in timely fashion, proceed to seek such contract
rights, property rights, financial arrangements and regulatory approvals and
make other necessary preparations in order to enable Pipeline to provide to
Customer the firm transportation service contemplated by this Precedent
Agreement. Notwithstanding anything to the contrary set forth in this Precedent
Agreement, Pipeline may make contractual arrangements to order or acquire
equipment, materials, and properties, design, construct, and/or lease
facilities, and incur other costs to provide such firm transportation service,
but shall not be under any obligation to do so until Pipeline receives all
necessary certificates and other authorizations required by the FERC and any
other governmental authority.
2
3. TRANSPORTATION SERVICE AGREEMENT
Within thirty (30) days after fulfillment of the conditions precedent
in Paragraph 4, Pipeline and Customer shall enter into a firm transportation
agreement ("Transportation Service Agreement"), provided that this Precedent
Agreement shall not have been previously terminated pursuant to Paragraph 7,
below. The Transportation Service Agreement shall substantially conform to the
form of service agreement that the FERC will approve as part of its action in
granting the necessary authorizations to Pipeline, as referenced in Paragraph 1,
above. The Transportation Service Agreement shall provide for:
a. The maximum quantities of natural gas that Pipeline shall
transport for Customer including the quantities that Pipeline
will receive from Customer at the primary receipt point(s) and
the quantities that Pipeline shall be obligated to redeliver
to Customer at the primary delivery point(s) as set forth in
Exhibit A, attached hereto.
b. Customer to pay the agreed-to negotiated, levelized rate, plus
fuel retention and applicable surcharges (e.g., ACA) all as
described on Exhibit A, attached hereto, and any other
applicable charges, surcharges and penalties set forth in the
approved FERC Gas Tariff.
c. The term of service shall commence on the November 1 or
December 1 first following the date that Pipeline notifies
Customer that it is prepared to transport gas for Customer
under the Transportation Service Agreement ("Commencement
Date"). Service shall not commence earlier than November 1,
2005, nor later than December 1, 2006. Service pursuant to the
Transportation Service Agreement shall continue for the
primary term as set forth in Exhibit A, and from year to year
thereafter; provided
3
however, that either Party may terminate the Transportation Service
Agreement after the primary term, by giving written notice to the other
at least twenty-four (24) months prior to the start of a contract year.
4. CONDITIONS PRECEDENT
Pipeline's and Customer's rights and obligations under this Precedent
Agreement and the Transportation Service Agreement are expressly made subject to
satisfaction or waiver of the following conditions precedent:
A. Only Pipeline shall have the right to determine, in
its reasonable opinion, that the conditions set forth below in this Paragraph
4.A. are satisfactory to it and/or whether to waive any such condition:
(i) the receipt by Pipeline on or before September 1,
2003, of all necessary certificates and other
authorizations from the FERC, and any other
governmental authorities having jurisdiction, to (i)
own, construct, operate and maintain the Greenbrier
Pipeline Project facilities and any necessary related
facilities and (ii) to render the firm transportation
service to Customer pursuant to the rates, terms and
conditions reflected in the proposed tariff,
including the tariff provisions necessary to
authorize the negotiated rates reflected in this
Precedent Agreement, which authorizations are in form
and substance satisfactory to Pipeline;
(ii) the receipt by Pipeline, within thirty days of
Pipeline's acceptance of a Certificate of Public
Convenience and Necessity from the FERC, of the
approval of its Management Committee, to make the
expenditures necessary to enable Pipeline to
construct, own, operate and maintain the necessary
facilities to render the firm transportation service
as contemplated in this Precedent Agreement; and,
(iii) execution by Pipeline of sufficient precedent
agreements and service agreements with customers to
economically justify, in Pipeline's sole opinion,
construction of the Greenbrier Pipeline Project.
4
B. Only Customer shall have the right to determine, in
its reasonable opinion, that the conditions set forth below in this Paragraph
4.B. are satisfactory to it and/or whether to waive any such condition:
(i) the receipt by Customer, on or before January 1,
2002, of any necessary approvals of its Board of
Directors, the Board of Directors of its parent, or
the applicable equivalent management body to enter
into the Transportation Service Agreement upon the
satisfaction or waiver of the other conditions
precedent contained in this Precedent Agreement;
(ii) the receipt by Customer of such approvals, if any,
requested by it from any state regulatory commissions
having jurisdiction over it or this Precedent
Agreement and the ability to recover its costs under
the Transportation Service Agreement in its rates,
any such approvals to be received not later than July
1, 2002, in a form consistent with the terms of this
Precedent Agreement and satisfactory to Customer in
its reasonable opinion; and,
(iii) the approval by the FERC prior to September 1, 2003,
as part of the order granting Pipeline a Certificate
of Public Convenience and Necessity, of Pipeline's
proposal to render firm transportation service to
Customer pursuant to the rates, terms and conditions
reflected in the proposed tariff, including the
tariff provisions necessary to authorize the
negotiated rates reflected in this Precedent
Agreement, which authorizations are in form and
substance satisfactory to Customer.
If any of the conditions precedent set forth in this Paragraph 4 have
not been satisfied or waived by the applicable date set forth herein, either
party shall have the right to provide written notice to the other party of its
intention to terminate this Precedent Agreement. Such notice shall designate all
conditions precedent that have not been satisfied. Unless all such conditions
are satisfied within 30 days after the receipt of such notice, this Precedent
Agreement shall terminate effective upon the expiration of said 30-day period
and shall thereafter be of no further force and effect; provided, however, that
in no event shall a party have the right to terminate this Precedent Agreement
if the failure to satisfy a condition precedent is caused by the failure of such
party to act in a timely manner and/or to use reasonable efforts to satisfy the
condition precedent. If this Precedent Agreement is terminated pursuant to this
Paragraph 4, such termination shall be
5
without liability for damages, costs or expenses of either party to the other
party, or to any of its shareholders, directors, officers, employees, agents,
consultants, representatives, and neither Pipeline nor Customer shall have any
further rights or obligations whatsoever pursuant to this Precedent Agreement.
5. COMMENCEMENT OF TRANSPORTATION SERVICE
After execution of the Transportation Service Agreement by Customer and
Pipeline pursuant to Paragraph 3 above, and Pipeline's receipt and acceptance of
all other necessary contract rights, property rights, financing arrangements and
regulatory approvals, in a form and substance satisfactory to Pipeline in its
sole opinion, Pipeline shall proceed with the construction of the facilities so
as to begin firm transportation service on November 1, 2005. If Pipeline is
unable to complete such construction and place such facilities into operation by
such proposed in service date despite its exercise of due diligence, Pipeline
shall continue to proceed with due diligence to complete such construction,
place such facilities in operation and commence service for Customer at the
earliest practicable date thereafter (but no later than December 1, 2006).
Pipeline shall not be liable in any manner to Customer if despite Pipeline's
exercise of due diligence, Pipeline is unable to complete the construction of
such facilities and commence firm transportation service contemplated herein by
December 1, 2006. Pipeline agrees to provide advance written notice of the
projected in-service date and inform the Customer of its best estimate of any
revisions to the in-service date for the Greenbrier Pipeline Project.
Notwithstanding the foregoing, if the Management Committee shall not have
accepted the FERC Certificate of Public Convenience and Necessity on or before
November 1, 2004, Customer shall have no obligation to take or to pay for any
service prior to November 1, 2006.
6
6. CUSTOMER REIMBURSEMENT OBLIGATION
Should Customer terminate this Precedent Agreement or refuse to sign
the Transportation Service Agreement as provided by Paragraph 3, above, in
either case for any reason other than the failure of the conditions precedent
described in Section 4.B., above, then Customer shall, at the option of
Pipeline, reimburse Pipeline for 17.19% of the actual and verifiable costs
incurred prior to such termination by Pipeline in its efforts to provide the
services proposed as part of the Greenbrier Pipeline Project and not previously
reimbursed. Costs to be incurred by Pipeline shall include, but shall not be
limited to, costs associated with engineering, environmental, regulatory, legal
activities, and internal overhead and administration, and incurred costs
related to pipeline, compression, measurement and regulation material and
equipment, and construction supplies and labor. Pipeline shall use all
reasonable efforts to mitigate any costs incurred, including but not limited
to, reselling any capacity created to which Customer has subscribed in this
Precedent Agreement and employing any assets or work products generated as a
part of the Greenbrier Pipeline Project for other business purposes. The
Parties understand and agree that this provision is intended to reimburse
Pipeline for actual and verifiable costs incurred by Pipeline to meet its
obligation hereunder and is not intended to penalize Customer or otherwise
provide Pipeline with additional revenue or profit above such actual costs
incurred for the Greenbrier Pipeline Project. If this Precedent Agreement is
terminated because of Pipeline's failure to satisfy a condition precedent as
described in Paragraph 4.A., then Customer shall not be obligated to reimburse
Pipeline for any costs incurred to provide the services proposed as part of the
Greenbrier Pipeline Project. Customer's reimbursement obligation to Pipeline
pursuant to this Paragraph 6 shall not exceed the cumulative amount shown on
Exhibit B (attached hereto and made a part hereof for
7
all purposes) for the calendar quarter corresponding to the date on which
Customer terminates the Agreement.
7. CREDITWORTHINESS
Pipeline may terminate this Precedent Agreement if, at any time, it has
a reasonable basis to determine that Customer is no longer creditworthy and may
not be able to carry out its obligations under this Precedent Agreement or the
Transportation Service Agreement. At Pipeline's request, Customer shall provide
Pipeline with financial information relevant to the Pipeline's determination of
creditworthiness.
8. NOTICE
Any notice that either party may desire to give to the other, shall be
in writing and sent to the attention of the appropriate person to the applicable
post office address or telephone fax number set forth below:
Pipeline: Greenbrier Pipeline Company, LLC
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
CUSTOMER: Piedmont Natural Gas Company, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Director-Federal Regulatory & Supply
Planning
Phone:(000) 000-0000
Fax: (000) 000-0000
or any such other address as either party shall designate by formal written
notice.
9. AUTOMATIC TERMINATION
8
This Precedent Agreement shall terminate by its express terms on the
date of commencement under the Transportation Service Agreement, and thereafter
Pipeline's and Customer's respective rights and obligations related to the
transactions contemplated herein shall be determined pursuant to the terms and
conditions of the Transportation Service Agreement and Pipeline's FERC Gas
Tariff as amended from time to time.
10. ASSIGNMENTS
Any individual or entity that shall succeed by purchase, merger or
consolidation of the properties of Pipeline or Customer shall be entitled to the
rights and shall be subject to the obligations of its predecessor in interest
under this Precedent Agreement. Either Party may, without prior consent of the
other Party, pledge, mortgage or assign its rights hereunder as security for its
indebtedness. With respect to the foregoing sentence, Customer and Pipeline
hereby agree to execute and deliver to any pledgee or mortgagee of the other
Party a consent to assignment to the extent such consent does not materially
alter any of the terms and conditions of this Precedent Agreement. Customer may
assign this Precedent Agreement or any of the rights and obligations hereunder
provided that (i) the assignee meets Pipeline's creditworthiness standards and
any other applicable requirements set forth in Pipeline's FERC Gas Tariff as
approved by the FERC, or (ii) Customer remains liable for any and all financial
obligations arising under this Agreement. Any assignment hereof shall be subject
to the receipt and acceptance by Pipeline of any necessary regulatory or
governmental authorizations. This Precedent Agreement shall be binding upon and
shall inure to the benefit of the respective authorized successors and assigns.
11. JOINTLY PREPARED AGREEMENT
9
Every provision of this Precedent Agreement shall be considered as
prepared through the joint efforts of the Parties and shall not be construed
against either Party as a result of the preparation or drafting thereof. It is
expressly agreed that no consideration shall be given or presumption made on the
basis of who drafted this Precedent Agreement or any particular provision
hereof.
12. NO THIRD-PARTY BENEFICIARY
Except as expressly provided in this Precedent Agreement, nothing
herein expressed or implied is intended or shall be construed to confer upon or
to give any person not a Party hereto any rights, remedies or obligations under
or by reason of this Precedent Agreement.
13. RELATED DOCUMENTS
Each Party agrees to execute and deliver all such other and additional
instruments and documents and to do such other acts as may be reasonably
necessary to effectuate the terms and provisions of this Precedent Agreement.
14. GOVERNING LAW
The interpretation and performance of this Precedent Agreement shall be
in accordance with the laws of the State of Delaware.
15. PRECEDENT AGREEMENT IS NOT AN OFFER
The delivery of this Precedent Agreement to Customer for execution does
not constitute an offer. This Precedent Agreement requires execution by both
parties to create a binding contractual commitment. This Precedent Agreement can
be modified only by a written agreement of the parties.
10
16. AGREEMENT SUBJECT TO APPLICABLE LAWS
This Precedent Agreement and the obligations of the parties hereunder
are subject to all applicable laws, rules, orders and regulations of
governmental authorities having jurisdiction and, in the event of a conflict
between the provisions of this Precedent Agreement and such laws, rules, orders
and regulations, such laws, rules, orders and regulations shall control.
17. WAIVER
No waiver of either party of any default by the other party in the
performance of any provision, condition or requirement herein shall be deemed to
be a waiver of, or in any manner release the other party from, future
performance of any other provision, condition or requirement herein, nor shall
such waiver be deemed to be a waiver of, or in any manner release the other
party from, future performance of the same provision, condition or requirement.
Any delay or omission of either party to exercise any right hereunder shall not
impair the exercise of any such right, or any like right, accruing to it
thereafter.
18. REFLECTS THE WHOLE AGREEMENT OF THE PARTIES
This Precedent Agreement reflects the whole and entire agreement of the
parties hereto and supersedes all prior agreements related to the subject matter
hereof.
11
IN WITNESS WHEREOF, the parties hereto have caused this
Precedent Agreement to be duly executed by their proper officers thereunto duly
authorized as of the day and year first above written.
ATTEST GREENBRIER PIPELINE COMPANY, LLC
/s/ Xxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
----------------------------- -------------------------------------
Xxxxxxx X. Xxxxxx
Title: Vice President-Tariff Services
-------------------------------------
PIEDMONT NATURAL GAS COMPANY, INC.
/s/ X. X. Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
----------------------------- -------------------------------------
Xxxxxx X. Xxxxxx
Title: Senior Vice President
-------------------------------------
12
EXHIBIT A
To The Firm Transportation Precedent Agreement
Dated September 1, 2001
Between Greenbrier Pipeline Company, LLC
And Piedmont Natural Gas Company, Inc.
A. Quantities
The maximum quantities of gas that Pipeline shall transport for
Customer shall be a Maximum Daily Transportation Quantity ("MDTQ") of 150,000
Dekatherms ("Dt") per day for the period from November 1 to March 31 of each
year.
B. Point(s) of Receipt
The Primary Point(s) of Receipt and the maximum quantities for such
point shall be as set forth below. Each of the parties will use due care and
diligence to ensure that pressures will be maintained within normal operating
tolerances at the Point(s) of Receipt as reasonably may be required to render
service hereunder. In addition to the quantities specified below, Customer may
increase the quantities furnished to Pipeline at the Point(s) of Receipt, so
long as such quantities, when reduced by the fuel retention percentage specified
in Pipeline's then-effective FERC Gas Tariff, do not exceed the quantity
limitation specified below for the Primary Point(s) of Receipt.
1. Up to 150,000 Dt per day at Pipeline's Xxxxxxxx Receipt Point,
which shall include points of interconnection between the
facilities of Pipeline and Dominion Transmission, Inc. ("DTI")
and between Pipeline and Tennessee Gas Pipeline Company
("Tennessee"), both in Kanawha County, West Virginia.
13
C. Point(s) of Delivery
Each of the parties will use due care and diligence to ensure that
pressures will be maintained within normal operating tolerances at the Point(s)
of Delivery as reasonably may be required to render service hereunder, but
Pipeline shall not be required to deliver gas (or to cause gas to be delivered)
at greater than 850 pounds per square inch gauge. The Primary Point(s) of
Delivery shall be as follows:
Up to 150,000 Dt per day, at a pressure sufficient to enable deliveries
at an existing connection between the facilities of Pipeline and
Transcontinental Gas Pipe Line Corporation in Rockingham County, North Carolina,
known as the Rockingham Connection.
D. Term
The primary term shall be for fifteen (15) years starting on the
Commencement Date.
E. Rates
1. Customer shall pay Pipeline the rates, charges, surcharges,
penalties, and fuel retention percentages pursuant to its approved FERC Gas
Tariff, except that, for service within Customer's MDTQ, Customer shall be
entitled to a negotiated rate consisting of:
a. A reservation charge payable in five monthly
installments of $16.61 per Dt payable over each of
the five winter months (November through March) over
the contract term (equivalent to 55 cents per Dt on a
100% load factor basis).
b. The commodity charge for ACA and other FERC-mandated
surcharges, now $0.0022 per Dt of throughput.
c. Fuel retention: 1.1% of quantities received by
Pipeline.
14
2. The rates in Items a. and c., above, and the overall
negotiated rate structure shall not be subject to change by either Pipeline or
Customer during the primary term of the Transportation Service Agreement, except
as follows:
a. Pipeline agrees to reduce Customer's firm winter-period
reservation charge of $16.61 per Dt if the FERC approves a
year-round firm transportation service recourse reservation
charge for Pipeline that is lower than $9.2572 per Dt. In such
event, Customer's $16.61 per Dt firm winter-period reservation
charge shall be reduced by the same proportion as the
FERC-approved reduction in the year-round firm transportation
service recourse reservation charge from $9.2572 per Dt.
Nothing in this paragraph shall be construed to require
Pipeline to accept a certificate that includes a FERC-mandated
reduction in its filed recourse rate(s).
b. Pipeline agrees to reduce Customer's firm winter-period
reservation charge of $16.61 per Dt if, in any year during the
primary term of the Transportation Service Agreement, a new
shipper, sponsored by Customer, agrees to purchase summer-
period firm capacity from Pipeline for a reservation charge
greater than $4.0049 per Dt. In such event, Customer's firm
winter-period reservation charge for that year, for an MDTQ
equal to that subscribed to by the sponsored summer-period
shipper, shall be reduced to a firm winter-period reservation
charge that would allow Pipeline to collect annual revenues
from such combined winter-period and summer-period MDTQs
equivalent to annual revenues based on a year-round
reservation charge of $9.2572 per Dt. To determine whether the
summer-period firm transportation shipper is "sponsored by
Customer," Pipeline must receive, prior to the start of any
contract year, a written affidavit, executed by such shipper,
attesting that absent the consideration provided by Customer,
shipper would not have paid the reservation charge that it
agreed to for summer-period firm transportation service.
c. Customer shall have a one-time right to convert all or a
portion of its service from a 151-day firm transportation
service to a year-round firm transportation service. The
conversion right may be exercised by Customer at any time
prior to the date that the Parties execute the Transportation
Service Agreement in accordance with Paragraph 3 of this
Precedent Agreement, but the right is contingent upon Pipeline
having the year-round capacity available for sale. The
reservation rate payable for such service shall be $9.2572 per
Dt or 30.43 cents per Dt stated on a 100 percent load factor
basis.
d. Pipeline agrees to reduce Customer's negotiated rates to match
the rates payable by any similarly situated local distribution
company customer if such customer and Pipeline have agreed to
lower rates than reflected in Paragraph E of this Exhibit A.
15
EXHIBIT B
TO THE FIRM TRANSPORTATION PRECEDENT AGREEMENT DATED SEPTEMBER 1,2001
BETWEEN GREENBRIER PIPELINE COMPANY, LLC
AND
PIEDMONT NATURAL GAS COMPANY, INC.
SCHEDULE OF CUSTOMER'S MAXIMUM REIMBURSEMENT OBLIGATION INCLUSIVE OF AFUDC
If Customer terminates on or Total Cumulative Greenbrier Piedmont's Maximum
before the end of the: Pipeline Estimated Capital Reimbursement Obligation
Costs (17.19% of total costs)
---------------------------- --------------------------- ------------------------
Xxxxx Xxxxxxx 0000 $ 4,513,391 $ 775,852
Xxxxxx Xxxxxxx 0000 $ 8,400,853 $ 1,444,107
First Quarter 2002 $ 11,103,482 $ 1,908,689
Second Quarter 2002 $ 12,858,029 $ 2,210,295
Xxxxx Xxxxxxx 0000 $ 14,113,130 $ 2,426,047
Xxxxxx Xxxxxxx 0000 $ 16,284,963 $ 2,799,385
First Quarter 2003 $ 17,441,688 $ 2,998,226
Second Quarter 2003 $ 19,642,709 $ 3,376,582
Xxxxx Xxxxxxx 0000 $ 25,105,263 $ 4,315,595
Xxxxxx Xxxxxxx 0000 $ 28,187,342 $ 4,845,404
First Quarter 2004 $ 35,563,358 $ 6,113,341
Second Quarter 2004 $ 68,652,188 $11,801,311
Xxxxx Xxxxxxx 0000 $118,310,297 $20,337,540
Fourth Quarter 2004 $134,192,028 $23,067,610
First Quarter 2005 $140,547,531 $24,160,121
Second Quarter 2005 $272,812,043 $46,896,390
Third Quarter 2005 $422,060,959 $72,552,278
Fourth Quarter 2005 $494,803,846 $85,056,781
And Following Quarters $497,100,000 $85,451,490
