EXHIBIT 10-3
SECTION(S) MARKED WITH "***" ARE REDACTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT THAT WAS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
TRANSPORTATION CAPACITY RELEASE AGREEMENT
This Transportation Capacity Release Agreement (this "AGREEMENT") is
entered into as of this 9th day of January, 2002, by and between NJR Energy
Services Company, a New Jersey corporation ("NJRES"), and eCORP Marketing, LLC,
a Delaware limited liability company and successor by merger to eCORP Marketing,
LLC, a Delaware limited liability company ("eCORP MARKETING").
RECITALS:
A. Each of Central New York Oil and Gas Company, L.L.C., a New York
limited liability company ("CNYOG"), and eCORP Marketing is a wholly owned
subsidiary of Stagecoach Holding, LLC, a Delaware limited liability company.
CYNOG is the owner of the Stagecoach Natural Gas Storage Project located in
Tioga County, New York.
B. CNYOG and eCORP Marketing have entered into a Precedent Agreement
dated November 17, 1999, which provides for the purchase of firm storage
services by eCORP Marketing from CNYOG.
C. eCORP Marketing and Tennessee Gas Pipeline Company ("TENNESSEE")
have entered into a Gas Transportation Agreement dated June 7, 2001 (the "300
LINE GTA") providing for transportation of natural gas on a firm basis in
accordance with the Federal Energy Regulatory Commission ("FERC") order issued
on February 23, 2001 in Docket No. CP00-65-000. The 300 Line GTA has a primary
term of 10 years. The primary receipt point thereunder is Tennessee Station No.
319 and the primary delivery point thereunder is Tennessee Clinton Roads, meter
number 020608 in Sussex County, New Jersey (collectively, the "PRIMARY POINTS").
D. eCORP Marketing and NJRES have agreed to effectuate a long-term
prearranged release of all of the capacity under the 300 Line GTA to NJRES.
NOW, THEREFORE, in consideration of the agreements and benefits set
forth herein and other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto hereby agree as follows:
1. Annual Capacity Releases.
(a) Commencing with an effective date of April 1, 2002, and continuing
through March 31, 2012, unless earlier terminated as provided herein, NJRES and
eCORP Marketing shall undertake to effectuate a prearranged annual release to
eCORP Marketing on Tennessee's electronic bulletin board of 90,000 Dth per day
at a monthly demand rate *** (or such lesser amount as is necessary to ensure
that the total consideration for such capacity not exceed the maximum lawful
rate, if any, applicable to the capacity). Each such annual release shall be
effective on April 1 of each year (commencing April 1, 2002) and shall remain in
effect until March 31 of the following year.
(b) eCORP Marketing shall not be permitted to change either of the
Primary Points during the term of any annual release pursuant to this Section 1.
(c) eCORP Marketing shall satisfy and perform all of the shipper's
obligations (including without limitation payment obligations) under the 300
Line GTA and Tennessee's FERC Gas Tariff, including rate schedule FT-A and the
General Terms and Conditions, Fifth Revised No. 1 as on file, as may be amended
from time to time ("Tennessee's Gas Tariff"), with respect to all capacity
released pursuant to this Section 1. In the event eCORP Marketing fails to
satisfy or perform such obligations, NJRES shall have the right to recall such
released capacity.
(d) In addition to the terms and conditions applicable to the
prearranged releases described above, the parties agree that NJRES shall have
the right to recall all or any portion of the capacity released pursuant to this
Agreement in the event that the Amended and Restated Natural Gas Storage
Marketing and Management Agreement executed by and between NJRES and eCORP
Marketing as of January 9, 2002 ("M&M Agreement") is terminated for any reason.
(e) Termination of capacity release obligation. In the event the M&M
Agreement is terminated for any reason, NJRES's obligation to release capacity
to eCORP pursuant to this Agreement shall also terminate.
2. Scope of Agreement. This Agreement shall be subject to the effective
provisions of the 300 Line GTA and Tennessee's Gas Tariff, as may be amended
from time to time.
3. Indemnity by eCORP Marketing. eCORP Marketing agrees to and does
hereby indemnify and hold harmless NJRES and its successors, assigns, officers,
directors, agents and employees from and against any and all losses, damages,
liabilities, injuries, costs and expenses (including without limitation
attorneys' fees) due to or arising out of any breach of this Agreement by eCORP
Marketing.
4. Indemnity by NJRES. NJRES agrees to and does hereby indemnify and
hold harmless eCORP Marketing and its successors, assigns, officers, directors,
agents and employees from and against any and all losses, damages, liabilities,
injuries, costs and expenses (including without limitation attorneys' fees) due
to or arising out of any breach of this Agreement by NJRES.
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5. Notices. Except as otherwise specifically provided herein, any
notice or other communication required or permitted to be given hereunder shall
be in writing and shall be mailed by certified mail, return receipt requested,
or by Federal Express, Express Mail or similar overnight delivery or courier
service or delivered (in person or by telecopy, telex or similar
telecommunications equipment) against receipt to the party to whom it is to be
given,
If to eCORP Marketing:
eCORP Marketing, LLC
10,000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: X. X. Xxxxxxx
Facsimile No. (000) 000-0000
If to NJRES:
NJR Energy Services Company
0000 Xxxxxxx Xxxx
Xxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile No. (000) 000-0000
or (iv) in any case, to such other address as the party shall have furnished in
writing in accordance with the provisions of this Section 5. Any notice or other
communication given by certified mail shall be deemed given at the time of
certification thereof, except for a notice changing a party's address which
shall be deemed given at the time of receipt thereof. Any notice given by other
means permitted by this Section 5 shall be deemed given at the time of receipt
thereof.
6. Agreement Binding on Successors. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided that no party hereto may assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of the other party.
7. Headings. The headings in this Agreement are solely for convenience
of reference and shall be given no effect in the construction or interpretation
of this Agreement.
8. Counterparts. This Agreement may be executed in counterparts, all of
which taken together shall constitute a single document.
9. Governing Law. This Agreement has been negotiated and shall be
consummated in the State of New York and shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to
conflict of laws.
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10. Regulatory Matters. This Agreement shall be subject to all valid
applicable federal, state and local laws and to the orders, rules and
regulations of any duly constituted federal or state regulatory body or
authority having jurisdiction. Should either party hereto, by force of any such
law or regulation, be ordered or required to do any act inconsistent with the
provisions of this Agreement or prohibited from performing any act required
under this Agreement or should its performance under this Agreement become
commercially impracticable as a result of such law or regulation, then the
parties shall negotiate in good faith to reform this Agreement so as to give
effect to the original intention of the parties. In the event that such
reformation is not possible, then the affected party shall have the right to
terminate this Agreement upon 10 days' written notice to the other party, which
notice shall be given within 30 days after the party giving notice becomes aware
of the facts or circumstances giving rise to this right to terminate. If the
right to terminate is not exercised by either party, then the Agreement shall
continue but shall be deemed modified to conform to the requirements of such law
or regulation.
11. Entire Agreement. This Agreement and the other documents referred
to herein set forth the entire understanding of the parties with respect to the
subject matter hereof, supersede all existing agreements among them concerning
such subject matter and may be modified only by a written instrument duly
executed by the party or parties against whom enforcement thereof is or could be
sought.
12. Expenses and Attorneys' Fees. Each of the parties shall bear their
own expenses incurred with respect to this Agreement and the transactions
contemplated hereby.
13. Waiver of Trial by Jury. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
NJRES AND ECORP MARKETING HEREBY IRREVOCABLY WAIVE ALL RIGHT OF TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT.
14. Jurisdiction. Any legal action or proceeding with respect to this
Agreement and any action for enforcement of any judgment in respect thereof
shall be brought in the courts of the State of New York or of the United States
of America for the Southern District of New York, and, by execution and delivery
of this Agreement, each of NJRES and eCORP Marketing hereby accepts for itself
and in respect of its property, generally and unconditionally, the exclusive
jurisdiction of the aforesaid courts and appellate courts from any appeal
thereof. Each of NJRES and eCORP Marketing irrevocably consents to the service
of process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to each of NJRES and eCORP Marketing at its notice address
provided pursuant to Section 5. hereof. Each of NJRES of eCORP Marketing hereby
irrevocably waives any objection which it may now or hereafter have to the
laying of venue of any of the aforesaid actions or proceedings arising out of or
in connection with this Agreement brought in the courts referred to above and
hereby further irrevocably waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum. Nothing herein shall affect the right of
either party hereto or its designees to serve process in any other manner
permitted by law.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties as
of the date first above written.
NJR ENERGY SERVICES COMPANY
By: /S/ XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
eCORP MARKETING, LLC
By: /S/ XXXX X. XXXXXX
Name: Xxxx X. Xxxxxx
Title: Manager
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