EX-10.1



 






Exhibit
10.1




Contract #410259R1 FT-APT




FIRM TRANSPORTATION AGREEMENT

(For Use Under Rate Schedules FT-A and FT-GS)



THIS AGREEMENT is made, entered into and effective as of this 27th day of
April, 2006, by and between East Tennessee Natural Gas,
LLC, a Tennessee limited liability company hereinafter referred to as “Transporter”, and CNX Gas
Company, LLC, a Virginia limited liability company, hereinafter referred to as “Shipper”.
Transporter and Shipper shall be referred to herein individually as “Party” and collectively as
“Parties.”




ARTICLE I — DEFINITIONS



The definitions found in Section 1 of Transporter’s General Terms and Conditions are
incorporated herein by reference.




ARTICLE II — SCOPE OF AGREEMENT



Transporter agrees to accept and receive daily, on a firm basis, at the Receipt Point(s)
listed on Exhibit A attached hereto, from Shipper such quantity of gas as Shipper makes available
up to the applicable Maximum Daily Transportation Quantity stated on Exhibit A attached hereto and
deliver for Shipper to the Delivery Point (s) listed on Exhibit A attached hereto an Equivalent
Quantity of gas. The Rate Schedule applicable to this Agreement shall be stated on Exhibit A.




ARTICLE III — RECEIPT AND DELIVERY PRESSURES





Shipper shall deliver, or cause to be delivered, to Transporter the gas to be
transported hereunder at pressures sufficient to deliver such gas into Transporter’s system
at the Receipt Point(s). Transporter shall deliver the gas to be transported hereunder to
or for the account of Shipper at the pressures existing in Transporter’s system at the
Delivery Point(s) unless otherwise specified on Exhibit A.



ARTICLE IV — QUALITY SPECIFICATIONS AND STANDARDS FOR MEASUREMENTS





For all gas received, transported, and delivered hereunder, the Parties agree to the
quality specifications and standards for measurement as provided for in Transporter’s
General Terms and Conditions. Transporter shall be responsible for the operation of
measurement facilities at the Delivery Point(s) and Receipt Point(s). In the event that
measurement facilities are not operated by Transporter, the responsibility for operations
shall be deemed to be Shipper’s.



ARTICLE V — FACILITIES





The facilities necessary to receive, transport, and deliver gas as described herein
are in place and no new facilities are anticipated to be required.



ARTICLE VI — RATES FOR SERVICE





	 	6.1	 	Rates and Charges — Commencing on the date of implementation of this Agreement
under Section 10.1, the compensation to be paid by Shipper to Transporter shall be in
accordance with Transporter’s effective Rate Schedule FT-A or FT-GS, as specified on
Exhibit A. Where applicable, Shipper shall also pay the Gas Research Institute
surcharge and Annual Charge Adjustment surcharge as such rates may change from time to
time. Except as provided to the






 









 








Contract #410259R1 FT-APT




FIRM TRANSPORTATION AGREEMENT

(For Use Under Rate Schedules FT-A and FT-GS)





	 	 	 	contrary in any written or electronic agreement(s) between Transporter and Shipper
in effect during the term of this Agreement, Shipper shall pay Transporter the
applicable maximum rate(s) and all other applicable charges and surcharges specified
in the Notice of Rates in Transporter’s FERC Gas Tariff and in this Rate Schedule.
Transporter and Shipper may agree that a specific discounted rate will apply only to
certain volumes under the Agreement. Transporter and Shipper may agree that a
specified discounted rate will apply only to specified volumes (MDRO, MDDO, MDTQ,
commodity volumes or Authorized Overrun volumes) under the Agreement; that a
specified discounted rate will apply only if specified volumes are achieved (with
the maximum rates applicable to volumes above the specified volumes or to all
volumes if the specified volumes are never achieved); that a specified discounted
rate will apply only during specified periods of the year or over a specifically
defined period of time; and/or that a specified discounted rate will apply only to
specified points, zones, markets or other defined geographical areas. Transporter
and Shipper may agree to a discounted rate pursuant to the provisions of this
Section 6.1 provided that the discounted rate is between the applicable maximum and
minimum rates for this service.
	 
	 	6.2	 	Changes in Rates and Charges — Shipper agrees that Transporter shall have the
unilateral right to file with the appropriate regulatory authority and make changes
effective in (a) the rates and charges stated in this Article, (b) the rates and
charges applicable to service pursuant to the Rate Schedule under which this service
is rendered and (c) any provisions of Transporter’s General Terms and Conditions as
they may be revised or replaced from time to time. Without prejudice to Shipper’s
right to contest such changes, Shipper agrees to pay the effective rates and charges
for service rendered pursuant to this Agreement. Transporter agrees that Shipper may
protest or contest the aforementioned filings, or may seek authorization from duly
constituted regulatory authorities for adjustment of Transporter’s existing FERC Gas
Tariff as may be found necessary to assure Transporter just and reasonable rates.





ARTICLE VII — RESPONSIBILITY DURING TRANSPORTATION



As between the Parties hereto, it is agreed that from the time gas is delivered by Shipper to
Transporter at the Receipt Point (s) and prior to delivery of such gas to or for the account of
Shipper at the Delivery Point (s). Transporter shall be responsible for such gas and shall have
the unqualified right to commingle such gas with other gas in its system and shall have the
unqualified right to handle and treat such gas as its own. Prior to receipt of gas at Shipper’s
Receipt Point(s) and after delivery of gas at Shipper’s Delivery Point (s), Shipper shall have
sole responsibility for such gas.




ARTICLE VIII — BILLINGS AND PAYMENTS



Billings and payments under this Agreement shall be in accordance with Section 16 of
Transporter’s General Terms and Conditions as they may be revised or replaced from time to time.




ARTICLE IX — RATE SCHEDULES AND GENERAL TERMS AND CONDITIONS



This Agreement is subject to the effective provisions of Transporter’s FT-A or FT-GS Rate
Schedule, as specified in Exhibit A, or any succeeding rate schedule and Transporter’s General
Terms and Conditions on file with the Commission, or other duly constituted authorities having
jurisdiction, as the same may be changed or superseded from time to time in accordance with the
rules and regulations of the Commission, which Rate Schedule and General




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Contract #410259R1 FT-APT




FIRM TRANSPORTATION AGREEMENT

(For Use Under Rate Schedules FT-A and FT-GS)



Terms and Conditions are incorporated by reference and made a part hereof for all purposes.




ARTICLE X — TERM OF CONTRACT





	10.1	 	This Agreement shall be effective as of the date that Transporter’s
Jewell Ridge Lateral is completed and placed in service, and shall
remain in force and effect for a primary term of three (3) years
(“Primary Term”); provided, however, that if the Primary Term is one year or more, then the
contract shall remain in force and effect and the contract term will automatically
roll-over for additional five year increments (“Secondary Term”) unless Shipper, one year
prior to the expiration of the Primary Term or a Secondary Term, provides written notice to
Transporter of either (1) its intent to terminate the contract upon expiration of the then
current term or (2) its desire to exercise its right-of-first-refusal in accord with
Section 7.3 of Transporter’s General Terms and Conditions. Provided further, if the
Commission or other governmental body having jurisdiction over the service rendered
pursuant to this Agreement authorizes abandonment of such service, this Agreement shall
terminate on the abandonment date permitted by the Commission or such other governmental
body.
	 
	10.2	 	In addition to any other remedy Transporter may have, Transporter shall
have the right to terminate this Agreement in the event Shipper fails
to pay all of the amount of any bill for service rendered by
Transporter hereunder when that amount is due, provided Transporter
shall give Shipper and the Commission thirty days notice prior to any
termination of service. Service may continue hereunder if within the
thirty day notice period satisfactory assurance of payment is made in
accord with Section 16 of Transporter’s General Terms and Conditions.





ARTICLE XI — REGULATION





	11.1	 	This Agreement shall be subject to all applicable governmental
statutes, orders, rules, and regulations and is contingent upon the
receipt and continuation of all necessary regulatory approvals or
authorizations upon terms acceptable to Transporter and Shipper. This
Agreement shall be void and of no force and effect if any necessary
regulatory approval or authorization is not so obtained or continued.
All Parties hereto shall cooperate to obtain or continue all necessary
approvals or authorizations, but no Party shall be liable to any other
Party for failure to obtain or continue such approvals or
authorizations.
	 
	11.2	 	Promptly following the execution of this Agreement, the Parties will
file, or cause to be filed, and diligently prosecute, any necessary
applications or notices with all necessary regulatory bodies for
approval of the service provided for herein.

	 
	11.3	 	In the event the Parties are unable to obtain all necessary and
satisfactory regulatory approvals for service prior to the expiration
of two (2) years from the effective date hereof, then, prior to receipt
of such regulatory approvals, either Party may terminate this Agreement
by giving the other Party at least thirty (30) days prior written
notice, and the respective obligations hereunder, except for the
reimbursement of filing fees herein, shall be of no force and effect
from and after the effective date of such termination.






	11.4	 	The transportation service described herein shall be provided subject
to the provisions of the Commission’s Regulations shown on Exhibit A
hereto.





ARTICLE XII — ASSIGNMENTS





	12.1	 	Either Party may assign or pledge this Agreement and all rights and obligations hereunder
under the provisions of any mortgage, deed of trust, indenture or other instrument that it
has executed or may




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Contract #410259R1 FT-APT




FIRM TRANSPORTATION AGREEMENT

(For Use Under Rate Schedules FT-A and FT-GS)





execute hereafter as security for indebtedness; otherwise, Shipper shall not assign this
Agreement or any of its rights and obligations hereunder, except as set forth in Section
17 of Transporter’s General Terms and Conditions.




	12.2	 	Any person or entity that shall succeed by purchase, transfer, merger, or consolidation to
the properties, substantially or as an entirety, of either Party hereto shall be entitled to
the rights and shall be subject to the obligations of its predecessor in interest under this
Agreement.





ARTICLE XIII — WARRANTIES



In addition to the warranties set forth in Section 22 of Transporter’s General Terms and
Conditions, Shipper warrants the following:





	13.1	 	Shipper warrants that all upstream and downstream transportation
arrangements are in place, or will be in place, as of the requested
effective date of service, and that it has advised the upstream and
downstream transporters of the receipt and delivery points under this
Agreement and any quantity limitations for each point as specified on
Exhibit A attached hereto. Shipper agrees to indemnify and hold
Transporter harmless for refusal to transport gas hereunder in the
event any upstream or downstream transporter fails to receive or
deliver gas as contemplated by this Agreement.
	 
	13.2	 	Shipper agrees to indemnify and hold Transporter harmless from all suit
actions, debts, accounts, damages, costs, losses, and expenses
(including reasonable attorney’s fees) arising from or out of breach of
any warranty, by the Shipper herein.
	 
	13.3	 	Shipper warrants that it will have title or the right to
acquire title to the gas delivered to Transporter under this Agreement.
	 
	13.4	 	Transporter shall not be obligated to provide or continue service
hereunder in the event of any breach of warranty; provided, Transporter
shall give Shipper and the Commission thirty days notice prior to any
termination of service. Service will continue if, within the thirty
day notice period, Shipper cures the breach of warranty.





ARTICLE XIV — MISCELLANEOUS





	 	14.1	 	Except for changes specifically authorized pursuant to this
Agreement, no modification of or supplement to the terms and
conditions hereof shall be or become effective until Shipper has
submitted a request for change via LINK® and Shipper has been
notified via LINK® of Transporter’s agreement to such change.
	 
	 	14.2	 	No waiver by any Party of any one or more defaults by the other
in the performance of any provision of this Agreement shall
operate or be construed as a waiver of any future default or
defaults, whether of a like or of a different character.
	 
	 	14.3	 	Except when notice is required via LINK®, pursuant to
Transporter’s FT-A or FT-GS Rate Schedule, as applicable, or
pursuant to Transporter’s General Terms and Conditions, any
notice, request, demand, statement or bill provided for in this
Agreement or any notice that either Party may desire to give to
the other shall be in writing and mailed by registered mail to
the post office address of the Party intended to receive the
same, as the case may be, to the Party’s address shown on Exhibit
A hereto or to such other address as either Party shall designate
by formal written notice to the other. Routine communications,
including monthly statements and payments, may be mailed by
either registered or ordinary mail. Notice shall be deemed given
when sent.




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Contract #410259R1 FT-APT




FIRM TRANSPORTATION AGREEMENT

(For Use Under Rate Schedules FT-A and FT-GS)





	 	14.4	 	THE INTERPRETATION AND PERFORMANCE OF THIS AGREEMENT SHALL BE IN
ACCORDANCE WITH AND CONTROLLED BY THE LAWS OF THE STATE OF
TENNESSEE, WITHOUT REGARD TO CHOICE OF LAW DOCTRINE THAT REFERS
TO THE LAWS OF ANOTHER JURISDICTION.
	 
	 	14.5	 	The Exhibit (s) attached hereto is/are incorporated herein by
reference and made a part of this Agreement for all purposes.
	 
	 	14.6	 	If any provision of this Agreement is declared null and void, or
voidable, by a court of competent jurisdiction, then that
provision will be considered severable at Transporter’s option;
and if the severability option is exercised, the remaining
provisions of the Agreement shall remain in full force and
effect.






	14.7	 	As of the effective date provided for in Section 10.1, this Agreement supersedes and cancels
the Gas Sales and Transportation Agreement(s) between Shipper and Transporter dated N/A and
N/A, respectively.




IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed as of the
date first hereinabove written.




	 	 	 	 	 
	EAST TENNESSEE NATURAL GAS, LLC	 	 
	 
	 	 	 	 
	BY

	 	/s/ D. Patrick Whitty
 

D. Patrick Whitty
	 	 
	 

	 	Vice President	 	 
	 

	 	East Tennessee Natural Gas, LLC	 	 






	 	 	 	 	 
	CNX GAS COMPANY, LLC	 	 
	 
	 	 	 	 
	BY:

TITLE:

	 	/s/ Ronald E. Smith
 

President
	 	 






 









 






	 	 	 	 	 	 	 
	 	 	Contract #410259R1 FT-APT
	 
	 	 	 	 	 	 
	 

	 	Date:	 	The date that transporter’s
Jewell Ridge Lateral is completed and placed in service.






EXHIBIT A TO THE

FIRM TRANSPORTATION AGREEMENT

DATED April 27, 2006




Shipper: CNX GAS COMPANY, LLC

Rate Schedule: FT-A

Maximum Daily




     Transportation Quantity: 40,000 DTH



Proposed Commencement Date: THE DATE THAT TRANSPORTER’S JEWELL RIDGE LATERAL IS COMPLETED AND
PLACED IN SERVICE 


Termination
Date: PRIMARY TERM OF THREE (3) YEARS



Transportation Service will be provided under Part 284, Subpart G of the Commission’s Regulations.




Primary

Receipt Point (s):




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Interconnect	 	Location
	Name	 	Meter No.	 	MDRO	 	Party	 	County, State
	MAINLINE JEWELL

RIDGE

	 	 	50092	 	 	40,000 DTH
	 	EAST TENNESSEE

NATURAL GAS, LLC
	 	SMYTH, VA






Primary

Delivery Point (s):




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Interconnect	 	Location
	Name	 	Meter No.	 	MDDO	 	Party	 	County, State
	TRANSCO — CASCADE
CREEK (DELIVERY)

	 	 	59204	 	 	40,000 DTH
	 	TRANSCONTINENTAL

GAS PIPELINE

CORPORATION
	 	ROCKINGHAM, NC






Name of entity(s) to deliver gas to Transporter:

EAST TENNESSEE NATURAL GAS, LLC



 


 




 


 





Name of entity(s) to receive gas from Transporter:

CNX GAS COMPANY, LLC



 


 




 

 







 




			
	*	 	Transporter shall not be obligated to deliver more cubic feet of gas to any Shipper than the
quantity calculated using 1.03 dth per million cubic feet.




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Contract #410259R1 FT-APT




EXHIBIT A TO THE

FIRM TRANSPORTATION AGREEMENT

DATED April 27, 2006



Notices not made via LINK® shall be made to:




	 	 	 
	 

	 	Shipper
	 

	 	CNX Gas Company, LLC 
	 

	 	4000 Brownsville Rd. 
	 

	 	South Park, PA 15129-9545
	 

	 	Attn: Director, Marketing
	 

	 	Invoices
	 

	 	CNX Gas Company, LLC 
	 

	 	4000 Brownsville Rd. 
	 

	 	South Park, PA 15129-9545 
	 

	 	Attn: Gas Accounting





(This Exhibit A supersedes and cancels Exhibit A dated N/A to the Firm Transportation Agreement dated (N/A.)




	 	 	 	 	 	 	 	 	 	 	 
	EAST TENNESSEE NATURAL GAS, LLC	 	 	 	CNX GAS COMPANY LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	BY:

TITLE:

	 	/s/ D. Patrick Whitty
 

D. Patrick Whitty
	 	 
	 	BY:

TITLE:
	 	/s/ Ronald E. Smith
 

President
	 	 
	 

	 	Vice President	 	 	 	 	 	 	 	 






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