Exhibit 10.31


 


Contract #410098


 


REDACTED


 


GAS TRANSPORTATION AGREEMENT

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


 


This Agreement is made,
entered into and effective as of this 17 day of December, 2002 by and between
EAST TENNESSEE NATURAL GAS COMPANY, a Tennessee Corporation, hereinafter
referred to as “Transporter” and Duke Energy Murray, LLC, a Delaware
corporation, hereinafter referred to as “Shipper.” Transporter and Shipper
shall be referred to herein individually as the “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 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.


 


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ARTICLE VI


 


RATES AND CHARGES FOR GAS TRANSPORTATION


 


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 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 (MDQ, TQ,
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.


 


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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 FERC, 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 FERC, which
Rate Schedule and General 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 first above written. Subject to Paragraph 5 of the
Precedent Agreement, service under this Agreement shall commence on the later
of: (i) May 1, 2003; or (ii) the date that all of the conditions precedent set
forth in Paragraph 8 of the Precedent Agreement are satisfied and construction
of the facilities necessary to provide the firm transportation service
contemplated herein are completed and available for service. After service
commences under this Agreement, this Agreement shall continue in effect until
and including the later of: (i) April 30, 2023; or (ii) the last day of the
month in which the twentieth (20th) anniversary of the commencement
of service under this Agreement occurs (“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 FERC or other governmental body
having jurisdiction over the service rendered pursuant to this Agreement
authorizes abandonment of such service, this Agreement shall


 


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terminate on the
abandonment date permitted by the FERC or such other governmental body. In the
event that the Precedent Agreement is terminated for any reason other than
commencement of service under this Agreement, then service under this Agreement
shall not commence and this Agreement shall be null and void.


 


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 FERC 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
FERC Regulations shown by Shipper 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


 


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that it has executed or
may 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 attorneys 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 FERC
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 through Transporter’s
Electronic Bulletin Board and Shipper has been notified through Transporter’s
Electronic Bulletin Board 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


 


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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 through Transporter’s Electronic Bulletin Board, 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.


 


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.


 


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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
options;  and if the severability option
is exercised, the remaining provisions of the Agreement shall remain in full
force and effect.


 


14.7             This Agreement
supersedes and cancels the Gas Sales and Transportation Agreement(s) between Shipper
and Transporter dated (not applicable) and (not applicable) 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 COMPANY


 


	
  BY:

  	
  /s/ C. Gregory Harper

  	
   

  
	
   

  	
  C. Gregory Harper

  Vice President,

  East Tennessee Natural Gas

  	
   

  
	
  DATE:

  	
  Dec 17, 2002

  	
   

  
				



 


 


DUKE ENERGY MURRAY, LLC


 


	
  BY:

  	
  /s/ LON C. MITCHELL

  	
   

  
	
  TITLE:

  	
  LON C. MITCHELL

  SENIOR VICE PRESIDENT &

  CHIEF FINANCIAL OFFICER

  	
   

  
	
  DATE:

  	
   

  	
   

  
				



 


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EXHIBIT A TO THE

FIRM TRANSPORTATION AGREEMENT

DATED: May 1, 2003

BETWEEN

EAST TENNESSEE NATURAL GAS COMPANY

AND 

DUKE ENERGY MURRAY, LLC


Shipper: DUKE ENERGY
MURRAY, LLC


Rate Schedule:  FT-A [***]


Transportation Quantity:
[***]


Proposed Commencement
Date:  the later of:  (i)May 1, 2003; or (ii) the date that all of
the conditions precedent set forth in Paragraph 8 of the Precedent Agreement
are satisfied and construction of the facilities necessary to provide the firm
transportation service contemplated herein are completed and available for
service. Termination Date:  the later of:
(i) April 30, 2023; or (ii) the last day of the month in which the twentieth
(20th) anniversary of the commencement of service under this Agreement
occurs


 


Primary Receipt Point(s):


 


	
   

  	
   

  	
  Meter

  	
   

  	
  Max.D.

  	
   

  	
  Inter.

  	
   

  	
  Location

  	
   

  
	
  Name

  	
   

  	
  No.

  	
   

  	
  Qt.

  	
   

  	
  Party

  	
   

  	
  CO. , ST

  	
   

  
	
   

  	
   

  	
  TBD

  	
   

  	
  [***]

  	
   

  	
   

  	
   

  	
  Robertson Co., NC

  	
   

  



 


Primary Delivery
Point(s):


 


	
   

  	
   

  	
  Meter

  	
   

  	
  Max.D.

  	
   

  	
  Inter.

  	
   

  	
  Location

  	
   

  
	
  Name

  	
   

  	
  No.

  	
   

  	
  Qt.

  	
   

  	
  Party

  	
   

  	
  CO. , ST

  	
   

  
	
  VS 3214

  	
   

  	
  50008

  	
   

  	
  [***]

  	
   

  	
   

  	
   

  	
  Bradley Co., TN

  	
   

  



 






*                            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.


 


Notices not made through
the LINK system shall be made to:


 


Shipper


 


NOTICES: [***]


 


INVOICES: [***]


 


_________


*** Certain information on this page has
been omitted and filed separately with the SEC. Confidential treatment has been
requested with respect to the omitted portions.


 


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  New Facilities
  Required:

  	
   

  	
  As set forth in the
  Precedent Agreement dated July 19, 2001.

  
	
  New Facilities Charge:

  	
   

  	
  Not applicable

  



 


(This Exhibit A
supersedes and cancels Exhibit A dated (not applicable) to the Firm
Transportation Agreement dated (not applicable).


 


	
  EAST TENNESSEE NATURAL
  GAS CO.

  	
   

  	
  DUKE ENERGY MURRAY, LLC

  
	
   

  	
   

  	
   

  
	
  BY:

  	
  /s/ C. Gregory Harper

  	
   

  	
   

  	
  BY:

  	
  /s/ LON C. MITCHELL

  	
   

  
	
  C. Gregory Harper

  Vice President,

  East Tennessee Natural Gas

  	
   

  	
   

  	
  TITLE:

  	
  LON C. MITCHELL

  SENIOR VICE PRESIDENT &

  CHIEF FINANCIAL OFFICER

  	
   

  
	
   

  	
   

  	
   

  
	
  DATE:

  	
      Dec
  17, 2002

  	
   

  	
   

  	
  DATE:

  	
   

  	
   

  
										



 


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