ROVER Non-Critical Notice
| Notice ID: | 45815 | ||||||||||||||||||||||||||||||
| Notice Type: | GEN | ||||||||||||||||||||||||||||||
| Critical: | N | ||||||||||||||||||||||||||||||
| Notice Status Description: | |||||||||||||||||||||||||||||||
| Reqrd Rsp Desc: | |||||||||||||||||||||||||||||||
| Posting Date/Time: | 2024-07-12 08:01:00.0 | ||||||||||||||||||||||||||||||
| Subject: | Rover Open Season and Notice of Prearranged Deal | ||||||||||||||||||||||||||||||
| Notice Effective Date/Time: | 2024-07-12 08:01:00.0 | ||||||||||||||||||||||||||||||
| Notice End Date/Time: | 2200-01-01 00:00:00.0 | ||||||||||||||||||||||||||||||
| Notice Text: |
Rover Open Season and Notice of Prearranged Deal
July 12, 2024
Rover proposes to construct, install, own, and maintain and operate certain pipeline facilities as necessary to expand the existing Harmon Creek receipt interconnect and upgrade compression at the existing Bulger Compressor Station in Washington County, PA (the “Project”). Rover has secured a binding commitment with a prearranged anchor shipper for the Project. Such commitment will not be subject to pro-rationing and will be considered in determining, in Rover’s discretion, the optimal size and design of the Project. Rover Pipeline is hereby giving notice of the prearranged deal as detailed below, and soliciting binding bids from Shippers interested in acquiring firm transportation capacity for the prearranged deal. The capacity available utilizing Rover’s Firm Transportation Service (Rate Schedule FTS) that meets the following criteria as follows:
Prearranged Deal Parameters:
Primary Receipt Point: Harmon Creek - Markwest
Primary Delivery Points: Trunkline Zone 1A – 50,000 Dth/d Dawn Storage Hub – 200,000 Dth/d
Start Date: Completion of construction of the subject facilities, expected to be Q2 2026.
Term: 15 year Primary Term from the in-service of the expansion construction.
CQ: 250,000 Dth/d
Service: Firm Transportation Service will be during the primary term only, with ROFR rights
Negotiated Rate: $0.75/Dth/d
Any interested party must complete the attached binding bid form and return it to Rover via email or fax as directed below. In addition, any interested party must execute and submit the attached Precedent Agreement as part of its bid without changes to the form of Precedent Agreement other than filling in the blanks. The deadline for submitting bids is 12:01 PM CST on August 12, 2024.
All bids shall be deemed to be binding on Shippers upon the conclusion of the bidding period. Rover reserves the right to reject any and all bids, including non-conforming bids. Bids that do not meet the criteria set forth above, or incomplete or would require changes to the FTS Form of Service Agreement set forth in Rover’s Tariff or the attached form of Precedent Agreement will be deemed non-conforming bids. Rover’s discretion to reject or accept a bid, including any non-conforming bid, shall be exercised on a not unduly discriminatory basis.
After the close of this Open Season, Rover will evaluate all conforming and acceptable bids. Awards of capacity will be governed by GT&C Section 10.10 of Rover’s Tariff and will be subject to Rover’s receipt of necessary regulatory approvals. Regulatory approvals pertaining to potential system modifications must be acceptable to Rover, at its sole discretion.
Please direct questions and bids to: Mark Brocato Account Manager – Marketing & Business Development Phone: (713) 989-7642 Fax: (713) 989-1191 Email: mark.brocato@energytransfer.com
Rover Pipeline Binding Bid Sheet for Available Firm Capacity
Bidder Name & Address (print or type):
Contact Name: Contact Email: Contact Phone: Contact Fax:
Reservation rate is applicable only to Primary Receipt Point(s) and Primary Delivery Point(s) referenced above. Is Shipper willing to accept a pro-rata share of capacity? (yes or no) The deadline to submit bids is 12:01 PM CST, August 12, 2024. Fax or email bids to Mark Brocato at 713-989-1191 or mark.brocato@energytransfer.com
PRECEDENT AGREEMENT
This PRECEDENT AGREEMENT (“Precedent Agreement” or “PA”) is made and entered in this _____ day of _______________ 2024 by and between Rover Pipeline LLC (“Rover” or “Transporter”) and ___________________ (“Shipper”). Transporter and Shipper are sometimes referred to herein individually as a “Party,” or collectively as the “Parties.” WHEREAS, subject to the terms and conditions of this Precedent Agreement, Transporter proposes to construct, install, own, maintain and operate facilities necessary to expand the existing Harmon Creek receipt interconnect and upgrade compression at the existing Bulger Compressor Station in Washington County, PA, (the “Harmon Creek Expansion Project”); WHEREAS, Transporter is willing to proceed with seeking the necessary governmental authorizations to construct and operate the Harmon Creek Expansion Project and provide the firm transportation service contemplated herein, provided that Transporter receives sufficient binding commitments from Shipper for firm transportation service on the Harmon Creek Expansion Project, and subject to the conditions set forth herein; and WHEREAS, Shipper desires to subscribe to firm transportation service in connection with the Harmon Creek Expansion Project pursuant to the terms and subject to the conditions set forth in (i) this Precedent Agreement; (ii) an FTS Service Agreement (as defined in Section 3.A) that is mutually agreeable to the Parties; and (iii) Transporter’s FERC Gas Tariff (the “Tariff”) filed with the Federal Energy Regulatory Commission (“FERC”), as in effect from time to time; NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, Transporter and Shipper agree to the following:
A. This Precedent Agreement shall be considered a binding, conforming bid in Transporter’s Open Season. 2. Government Approvals, Shipper Support and Notification. A. Subject to the terms and conditions of this Precedent Agreement, Transporter agrees to proceed, using commercially reasonable efforts, to obtain from all state and federal governmental and regulatory authorities having competent jurisdiction over the siting, development, construction, and operation of the Harmon Creek Expansion Project, including, but not limited to, state and federal environmental approvals, other state approvals (collectively, the “Rover Approvals”) and FERC authorizations, supplements, amendments and/or exemptions, including, without limitation, certificates of public convenience and necessity authorizing the construction and operation of the Harmon Creek Expansion Project facilities and the firm transportation service contemplated herein (the “FERC Certificates”), that Transporter determines are necessary for Transporter to: construct, install, own, operate, and maintain (or cause to be constructed, installed, owned, operated and maintained) the Harmon Creek Expansion Project as necessary to provide the firm transportation service for Shipper as contemplated herein; and to perform its other obligations as contemplated in this Precedent Agreement. B. Transporter reserves the right to file and to prosecute any and all applications for such Rover Approvals and the FERC Certificates, any supplements or amendments thereto, and, if necessary, any court review, in a manner that is consistent with this Precedent Agreement and that Transporter deems to be in its best interest. C. Subject to the terms and conditions of this Precedent Agreement, as long as Transporter complies with its obligations under this Section 2, Shipper expressly agrees to reasonably support and cooperate with, and to not oppose the efforts of, Transporter to obtain all Rover Approvals and FERC Certificates and the acquisition of right of way if necessary for Transporter to construct, own, operate, and maintain the Harmon Creek Expansion Project and to provide the firm transportation service contemplated in this Precedent Agreement. A. Shipper agrees that no later than ten (10) business days after Transporter’s notice to Shipper that Transporter has satisfied or waived the Conditions Precedent listed in Section 5A(i) below, Shipper will execute (i) the FTS Agreement in a form substantially similar to that set forth in the Tariff and attached hereto as Attachment 1 (the “FTS Service Agreement”) and (ii) the Exhibit C Negotiated Rate Agreement, in a form substantially similar to that attached hereto as Attachment 2 (“Negotiated Rate Agreement”; the FTS Service Agreement and the Negotiated Rate Agreement, collectively, the “FTS Agreement”). 4. Commercial Terms and Rates. The Parties agree that the terms set forth in Attachment 1 hereto shall apply to the FTS Agreement. In addition, Shipper hereby acknowledges and confirms that it has elected to pay a fixed negotiated rate for firm service under the FTS Agreement for the term thereof, rather than the maximum applicable recourse rates under the Tariff. 5. Conditions Precedent to Transporter’s Obligations. A. Transporter’s obligations under this Precedent Agreement and the execution of the FTS Agreement are expressly made, as applicable, subject to the following conditions precedent (each a “Condition Precedent” and collectively as the “Conditions Precedent”), which are solely for the benefit of Transporter and only Transporter shall have the right to waive such Conditions Precedent: i. Transporter’s receipt of internal management approvals to proceed with the Harmon Creek Expansion Project within thirty (30) days following the close of the Open Season; ii. Transporter’s receipt and acceptance of all necessary FERC Certificates related to the Harmon Creek Expansion Project, on terms and conditions acceptable to Transporter in its reasonable discretion, to construct, own, operate and maintain the Harmon Creek Expansion Project, and provide the firm service for Shipper contemplated herein; and iii. Transporter’s procurement of all other remaining Rover Approvals and Transporter’s procurement of all necessary materials, rights-of-way, easements and other surface rights necessary for the construction and operation of the Harmon Creek Expansion Project on terms acceptable to Transporter in its sole discretion. . iv. Receipt by Transporter of evidence of Shipper creditworthiness as set forth in Section 7, below. A. This Precedent Agreement shall be effective on the date hereof and, unless terminated earlier in accordance with the terms hereof, shall remain in effect until the Harmon Creek Expansion Project Effective Date. For avoidance of doubt, any of the contemplated agreements hereunder that are executed in conjunction with this Precedent Agreement and that have become effective shall continue in effect pursuant to the terms thereof. B. If the Condition Precedent set forth in Section 5 A(i) is not fully satisfied or waived by Transporter, Transporter may terminate this Precedent Agreement immediately upon written notice. Otherwise, if any other Condition Precedent set forth in Section 5 above has not been fully satisfied or waived by Transporter or Shipper, as applicable, then the Party in whose favor the condition precedent operates may terminate this Precedent Agreement, without liability of any kind to the other Party by giving thirty (30) days’ advance written notice of such termination. If the relevant Condition Precedent is then satisfied or waived after a Party provides such notice described above, but before such thirty (30-day) period has elapsed, then such termination will not be effective. C. The right of either Party to terminate as a result of the failure of any Condition Precedent shall expire and be deemed to be waived unless the Party in whose favor the Condition Precedent operates provides the notification of termination set forth above within thirty (30) days after the deadline giving rise to such termination right; provided that upon mutual agreement of the Parties, evidenced in writing, the date set forth herein by which the Parties must satisfy or waive the Conditions Precedent may be extended or otherwise modified. 7. Creditworthiness. Contemporaneously herewith, Shipper shall enter into and thereafter comply with, and provide to Transporter sufficient evidence of Shipper’s compliance with, the Credit Agreement under Attachment 3 hereto. Either Party may assign its rights and obligations under, and interests in, this Precedent Agreement to a trustee or trustees or its lenders, individual or corporate, as security for bonds or other financing arrangements, obligations or securities. Otherwise, except with respect to Transporter (who may assign this Agreement to an affiliate without consent) or to Shipper (who may assign this Precedent Agreement to an affiliate without consent, provided that such affiliate meets the creditworthiness requirements or provides credit support in accordance with the Credit Agreement, including executing a Credit Agreement in the same form as attached hereto under Attachment 3), any assignment by either Party shall require the written consent of the other Party, which consent shall not be unreasonably withheld, delayed or conditioned; provided, however, that the intended assignee must also comply with the creditworthiness requirements of Section 7, including executing a Credit Agreement in the same form as attached hereto under Attachment 3. Notwithstanding anything to the contrary herein, Transporter may refuse to provide its consent (and same shall not be deemed unreasonable), if the intended assignee fails to meet the Transporter’s creditworthiness requirements or fails to provide credit support in accordance with the Credit Agreement. For the purpose of this Paragraph, the term “Affiliate” shall mean, an individual, entity, or division that directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with another individual, entity, or division. The terms “controls,” “controlled,” and “control” in the preceding sentence shall mean the possession, direct or indirect, of the power to direct the management and policies of an entity, whether through the ownership of voting securities or otherwise. The assignor shall provide written notice of the assignment to the non-assigning Party to this Precedent Agreement as soon as practicable after such assignment. After execution of the FTS Agreement, any transfer of capacity rights pertaining to the executed FTS Agreement must be accomplished in accordance with the capacity release provisions of the Tariff and FERC regulations or an approved waiver thereof. 9. Third Party Beneficiary. Except as expressly provided for in this Precedent Agreement, nothing herein expressed or implied is intended or shall be construed to confer upon or give to any person not a party hereto any rights, remedies or obligations under or by reason of this Precedent Agreement. 10. Drafting. Each and 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 preparations or drafting thereof. It is expressly agreed that no consideration shall be given or presumption made on the basis of which Party drafted this Precedent Agreement or any specific provision hereof. 11. Notice. Except as herein otherwise provided, any notice, request, demand, statement, or bill provided for in this Precedent Agreement, or any notice which either Party desires to give to the other, must be in writing and will be considered duly delivered only if delivered by hand, by E-mail after receiving a reply confirming receipt, by nationally recognized overnight courier service, or by certified mail (postage prepaid, return receipt requested) to the other Party’s address set forth below: Transporter: Rover Pipeline LLC Attention: Mark Brocato E-Mail: mark.brocato@energytransfer.com ____________________ ____________________ Attention: ____________________ E-Mail: ____________________ or at such other address as either Party designates by written notice. Delivery shall be deemed to occur at the time of actual receipt; provided, however, that if receipt occurs after normal business hours or on a weekend or national holiday, then delivery shall be deemed to occur on the next business day. Except as provided otherwise in this Precedent Agreement, no modification of the terms and provisions of this Precedent Agreement shall be effective unless contained in writing and executed by both Transporter and Shipper. 13. Headings. The headings contained herein are for informational purposes only and shall not affect the meaning or interpretation of this Precedent Agreement. 14. Counterparts. This Precedent Agreement may be executed by electronic means (including by PDF) and in multiple counterparts, each of which, when so executed, shall be deemed an original, but all of which shall constitute one and the same agreement. 15. Severance. If a court of competent jurisdiction declares any provision of this Precedent Agreement unenforceable, then that provision shall be severed from this Precedent Agreement, which shall otherwise remain in full force and effect and be construed as if it did not contain the severed provision; provided, however, that if severing such provision from this Precedent Agreement has a material adverse effect on the rights or obligations of either Party as set forth in this Precedent Agreement, then the Parties agree to negotiate in good faith replacement terms that are consistent with the court’s declaration or directive and that maintain the relative economic positions of, and risks to, the Parties as reflected in this Precedent Agreement as of the date first set forth above; and provided further, that if either party in its sole discretion is unable to agree to any replacement terms or modification, then the Precedent Agreement will terminate upon notice in a form consistent with the notice provisions in Section 11 of this Precedent Agreement. 16. Choice of law. THIS AGREEMENT SHALL BE INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, EXCLUDING ANY CONFLICT OF LAW RULES THAT MAY REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION. ANY SUIT BROUGHT WITH RESPECT TO OR RELATING TO THIS AGREEMENT SHALL BE BROUGHT IN EITHER A STATE DISTRICT COURT OR BUSINESS COURT LOCATED IN DALLAS COUNTY, TEXAS OR, IF APPROPRIATE, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS (DALLAS DIVISION). EACH OF THE PARTIES HERETO HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE AMONG ANY OF THEM ARISING OUT OF, CONNECTED WITH, RELATING TO OR INCIDENTAL TO THE RELATIONSHIP BETWEEN THEM IN CONNECTION WITH THIS PRECEDENT AGREEMENT. 18. WAIVER OF CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL ANY PARTY OR ITS RESPECTIVE AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR REPRESENTATIVES, BE LIABLE HEREUNDER AT ANY TIME FOR EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, REMOTE OR SPECULATIVE DAMAGES OF ANY OTHER PARTY, INCLUDING LOSS OF PROFIT, LOSS OF REVENUE OR ANY OTHER SPECIAL OR INCIDENTAL DAMAGES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. 19. Rules and Regulations. 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 conflict, such laws, rules, orders and regulations of governmental authorities having jurisdiction shall control. 20. No Joint Venture. Except as otherwise set forth herein, nothing in this Precedent Agreement shall be construed to create a joint venture or partnership between the Parties or to constitute one Party as the agent of the other for any purpose. 21. Waiver. Unless otherwise specifically indicated herein (including Section 6B), any waiver, consent or approval of any kind or character by any Party of any term or condition set forth in this Precedent Agreement, or of any breach or default hereunder, shall be given or withheld in the sole discretion of the waiving, consenting or approving Party and all such waivers, consents or approvals shall be in writing. No delay or omission to exercise any right, power or remedy accruing to any Party as the result of any breach or default hereunder shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring, nor shall any waiver of any single breach or default be deemed or otherwise constitute a waiver of any other breach or default theretofore or thereafter occurring. 22. Entire Agreement. The terms and provisions contained in this Precedent Agreement, including the Attachments incorporated herein constitute the entire agreement of the Parties, and there are no prior or contemporaneous agreements, understandings, warranties, representations, covenants, obligations, promises, assurances or conditions precedent or subsequent or otherwise, except those expressly set out in this Precedent Agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this Precedent Agreement to be duly executed by their duly authorized officers as of the day and year first above written. TRANSPORTER: Trunkline Gas Company, LLC
By: _____________________________ Title: SVP – Commercial Operations Date: _______________________
SHIPPER: ______________________
By: _____________________________ Name: ___________________________ Title: ____________________________ Date: ___________________________
RATE SCHEDULE FTS FIRM TRANSPORTATION SERVICE FORM OF SERVICE AGREEMENT “(FIRM TRANSPORTATION SERVICE AGREEMENT”) DATED ____________
CONTRACT NO. ___________
1. SHIPPER: ________________________________________________
2. MDQ shall be stated on Exhibit A attached hereto.
3. TERM: Rover shall provide firm transportation service pursuant to this Service Agreement for the term stated on Exhibit A attached hereto.
4. PRESSURE:
Harmon Creek: Shipper will deliver gas into Transporter’s system at a design pressure of _1050_____ psig at the Harmon Creek Primary Receipt Point.
5. Service will be ON BEHALF OF:
__X__ Shipper _____ Other: _________________________________, a ___________________________
This transportation service shall be provided pursuant to Subpart G of Part 284 of the Federal Energy Regulatory Commission’s regulations.
6. SHIPPER’S ADDRESS:
Notices: ______________________________ Invoices (if different) ______________________________ __________________________ ______________________________ __________________________ Attn: __________________________ Attn: ______________________ Email: _________________________ Email: _____________________
7. OTHER PROVISIONS:
(a) Notifications. Any notice or communication with respect to this Firm Transportation Service Agreement shall be sent to Rover’s address posted under the Contact List on Rover’s informational postings Website or to Shipper at the address stated above or to such other physical or electronic address as may be designated by written or electronic notice.
(b) Nonwaiver of Rights. No delay or failure to exercise any right or remedy accruing to either Rover or Shipper upon breach or default by the other will impair any right or remedy or be construed to be a waiver of any such breach or default, nor will a waiver of any single breach be deemed waiver of any other breach or default.
(c) No Third Party Beneficiaries. This Firm Transportation Service Agreement shall not create any rights in any third parties, and no provision of this Firm Transportation Service Agreement shall be construed as creating any obligations for the benefit of, or rights in favor of, any person or entity other than Rover or Shipper.
(d) Conformance to Law. It is understood that performance hereunder shall be subject to all valid laws, order, rules and regulations of duly constituted governmental authorities having jurisdiction or control of the matters related hereto, including without limitation the Federal Energy Regulatory Commission (“FERC”).
(e) Effect of Tariff. This Firm Transportation Service Agreement shall at all times be subject to all applicable provisions of the Tariff.
(f) GOVERNING LAW. THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT OF THIS TRANSPORTATION AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS, EXCLUDING ANY CONFLICT OF LAW RULE WHICH WOULD REFER ANY MATTER TO THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF TEXAS.
(g) Entire Agreement. This Firm Transportation Service Agreement contains the entire agreement between Rover and Shipper with respect to the subject matter hereof, and supersedes any and all prior understandings and agreements, whether oral or written, concerning the subject matter hereof, and any and all such prior understandings and agreements are hereby deemed to be void and of no effect. No amendments to or modifications of this Firm Transportation Service Agreement shall be effective unless agreed upon in a written instrument executed by Rover and Shipper which expressly refers to this Firm Transportation Service Agreement.
8. The Negotiated Rate Agreement, which is Exhibit C attached hereto and may be revised from time to time by mutual agreement of the Parties, controls this Firm Transportation Service Agreement and is incorporated herein. The attached Exhibits A and B, and C (if applicable), are incorporated by reference and made a part of this Firm Transportation Service Agreement. Shipper shall provide the actual end user purchaser name(s) to Rover if Rover must provide them to the FERC.
Agreed to by:
ROVER PIPELINE LLC SHIPPER: (“ROVER”)
/s/: ___________________________________ /s/: ___________________________________
NAME: _______________________________ NAME: _______________________________
TITLE: ________________________________ TITLE: ________________________________
DATE: ________________________________ DATE: ________________________________ Contract No. ________ Amendment No. _____
EXHIBIT A For Firm Service Under Rate Schedule FTS Between ROVER PIPELINE LLC and _________________________________________
Effective Date: As defined in Section 3 above. Supersedes Exhibit A dated: N/A
_X_ Pursuant to GT&C Section 11.2, Shipper has a contractual right of first refusal to be exercised in accordance with the procedure set forth in GT&C Section 11.2.
Maximum Daily Quantity (“MDQ”) for each specified period of the Agreement:
The Initial MDQ: Effective from the Effective Date through August 31st, 2026 100,000 Dt.
Effective from September 1st, 2026 through October 31st, 2026 175,000 Dt.
The Full MDQ: Effective from November 1st, 2026 through the Primary Term 250,000 Dt.
Agreed to by:
ROVER PIPELINE LLC SHIPPER:
/s/: ___________________________________ /s/: __________________________________
NAME: _______________________________ NAME: _______________________________
TITLE: _______________________________ TITLE: ________________________________
DATE: _______________________________ DATE: ________________________________
Contract No. ________ Amendment No. _____
EXHIBIT A Transportation Agreement For Firm Service Under Rate Schedule FTS
PRIMARY RECEIPT POINT(S):
MDRO (Net of Fuel Seq. No. Point ID Name/Location County State Reimbursement)
From the Effective Date through August 31st, 2026: 1 70005 Harmon Creek Washington PA 100,000 From September 1st, 2026 through October 31st, 2026: 2 70005 Harmon Creek Washington PA 175,000 From November 1st, 2026 through the Primary Term: 3 70005 Harmon Creek Washington PA 250,000
SECONDARY RECEIPT POINT(S): Shipper shall have secondary Points of Receipt as set forth in Section 2.1 of Rover's Rate Schedule FTS. Contract No. ________ Amendment No. _____
EXHIBIT A Transportation Agreement For Firm Service Under Rate Schedule FTS
PRIMARY DELIVERY POINT(S):
Seq. No. Point ID Name/Location County State MDDO From the Effective Date through August 31st, 2026:
1 DA101 Dawn-Rover Hub Lambton Ontario 50,000
2 RA005 Trunkline Zone 1A Panola MS 50,000
From September 1st, 2026 through October 31st, 2026:
1 DA101 Dawn-Rover Hub Lambton Ontario 125,000
2 RA005 Trunkline Zone 1A Panola MS 50,000
From November 1st, 2026 through the Primary Term:
3 DA101 Dawn-Rover Hub 200,000
4 RA005 Trunkline Zone 1A Panola MS 50,000
SECONDARY DELIVERY POINT(S): Shipper shall have secondary Points of Delivery as set forth in Section 2.2 of Rover's Rate Schedule FTS.
Contract No. ________ Amendment No. _____
Transportation Agreement For Firm Service Under Rate Schedule FTS Between ROVER PIPELINE LLC and _________________________________________
CREDIT AGREEMENT
[Attachment 3 of the Precedent Agreement, the Credit Agreement, will be incorporated into the Firm Transportation Service Agreement as its Exhibit B.]
ATTATCHMENT 2 Amendment No. _____
EXHIBIT C Transportation Agreement For Firm Service Under Rate Schedule FTS Between ROVER PIPELINE LLC and _____________________________________________
NEGOTIATED RATE AGREEMENT
This Negotiated Rate Agreement (“Agreement”) between Rover Pipeline LLC (“ROVER” or “Pipeline”) and _________________________ (“Shipper”), incorporated as an exhibit to Rate Schedule FTS Transportation Agreement No. ______ between Rover and Shipper dated _________(“Firm Transportation Service Agreement”), sets forth the rates and charges for the natural gas transportation service to be provided by Rover to Shipper under this Firm Transportation Service Agreement (“Negotiated Rates”), subject to the terms and the requirements of the Federal Energy Regulatory Commission (“FERC”) pertaining to negotiated rate transactions.
ARTICLE 1 NEGOTIATED RATE PARAMETERS
1.1 Negotiated Rate Term. The Negotiated Rates set forth in this Agreement shall remain in effect through the expiration of the Primary Term of the Firm Transportation Service Agreement.
1.2 Primary Term Reservation and Usage Rates. For service provided by ROVER to Shipper from the Eligible Receipt Points to the Eligible Delivery Points, as defined below. Shipper is not entitled to the Negotiated Rate for nominations or transport in excess of the MDQ from any combination of receipt points to any combination of delivery points. During the Primary Term of the Firm Transportation Service Agreement, Shipper shall pay ROVER the following Fixed Negotiated Base Reservation Rate (“Negotiated Rates”):
(a) Fixed Negotiated Reservation Rate: $0.75/Dth/d for the portion of MDQ (as set forth in Exhibit A) with the Primary Delivery Point(s) at the Dawn Hub and for the portion of the Contract MDQ with the Primary Delivery Point(s) at Trunkline Zone 1A.
(b) Negotiated Usage Rate: Shipper shall pay the applicable Rover usage rates pursuant to the Tariff. Additionally, Shipper shall pay the applicable Panhandle Eastern Pipe Line Company, LP (“PEPL”) tariff usage rate and/or Trunkline Gas Company, LLC (“TGC”) usage rate as such rates are assessed to Rover, which rates may change from time to time.
(c) The Fixed Negotiated Reservation Rate and Negotiated Usage Rate shall remain fixed for the Primary Term of the Firm Transportation Service Agreement, regardless of any otherwise applicable maximum or minimum rate set forth in the Tariff.
1.3 Eligible Primary Receipt Points. The Negotiated Rates shall apply to service provided to Shipper from the Primary Receipt Points specified in Exhibit A of this original executed Firm Transportation Service Agreement.
1.4 Eligible Secondary Receipt Points. The Negotiated Rates shall apply to service provided to Shipper on a secondary firm basis from all receipt points in the Supply Zone.
1.5 Eligible Primary Delivery Points. The Negotiated Rates shall apply to service provided to Shipper to the Primary Delivery Points specified in Exhibit A of this original executed Firm Transportation Service Agreement.
1.6 Eligible Secondary Delivery Points. The Negotiated Rates shall apply to service provided to Shipper on a secondary firm basis as follows:
(a) Dawn-Rover Hub Primary Path - The Negotiated Rates shall apply to service provided to Shipper on a secondary firm basis to all delivery points within the Dawn-Rover Hub primary path up to the MDQ of such path.
(b) TGC Zone 1A Pool Path – The Negotiated Rates shall apply to service provided to Shipper on a secondary firm basis to all delivery points within the Supply Zone, Mainline Zone as well as Market Zone South up to the MDQ of such path.
ARTICLE 2 MISCELLANEOUS PROVISIONS
2.1 Applicable Maximum and Minimum Tariff Rates. Unless otherwise expressly provided in this Agreement, the Negotiated Rates shall apply to service provided by ROVER to Shipper for the term of the Firm Transportation Service Agreement, notwithstanding any otherwise applicable maximum or minimum rates set forth in the Tariff, as may be revised from time to time.
2.2 Refunds. In no event shall ROVER be required to refund to Shipper any amounts collected for service to which the Negotiated Rates apply, notwithstanding any otherwise applicable maximum or minimum rate set forth in the Tariff.
[Signature Page(s) to Follow]
Agreed to by:
ROVER PIPELINE LLC Shipper:
/s/: ___________________________________ /s/: _________________________________
NAME: _______________________________ NAME: _______________________________
TITLE: _______________________________ TITLE: ________________________________
DATE: _______________________________ DATE: ________________________________ Contract No. ________ Amendment No. _____ EXHIBIT B For Firm Service Under Rate Schedule FTS Between ROVER PIPELINE LLC and _____________________________________________
CREDIT AGREEMENT
This Credit Agreement, dated as of this __ day of ___, 202[ ], (“Credit Agreement”) is by and between Rover Pipeline LLC (“Transporter”) and _____________________________ (“Shipper”). Transporter and Shipper may sometimes be referred to herein individually as a “Party”, or together as the “Parties”. WHEREAS, contemporaneously herewith, Transporter and Shipper have entered into a Precedent Agreement concerning the construction, installation, ownership, and maintenance of certain pipeline facilities necessary to expand the existing Harmon Creek receipt interconnect and upgrade compression at the existing Bulger Compressor Station in Washington County, Pennsylvania and provide incremental firm natural gas transportation service to Shipper (the “Project”) and pursuant to which the Parties, subject to certain terms and conditions set forth in the Precedent Agreement, will enter into an Firm Transportation Service Agreement(s) (the “FTS Agreement”); and WHEREAS, pursuant to Section 7 of the Precedent Agreement, Shipper is required to comply with the requirements set forth in this Credit Agreement relating to its obligations and the level of expanded capacity subscribed under the Precedent Agreement and the FTS Agreement. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, and intending to be legally bound, Transporter and Shipper agree to the following: 1. Shipper, at all times, must satisfy the creditworthiness criteria, or otherwise provide such Credit Support (as defined in Section 1(B) below), as set forth under this Credit Agreement: (A) Shipper shall be deemed “Creditworthy” hereunder as of the execution of the Precedent Agreement, during the term of the Precedent Agreement, and the FTS Agreement if: (i) its long-term senior unsecured debt securities are not downgraded by Standard & Poor’s Global Ratings or its successor (“S&P”), Fitch Ratings, Inc. or its successor (“Fitch”), or Moody’s Investors Service, Inc. or its successor (“Moody’s”) following the date this Credit Agreement is entered into;
(ii) Transporter in its sole judgment, at such time, deems Shipper creditworthy; or
(iii) its long-term senior unsecured debt securities, at such time, are rated at least ‘BBB-’ by S&P, ‘BBB-‘ by Fitch, and ‘Baa3’ by Moody’s(“Debt Ratings”), provided however, that if Shipper is rated by either S&P, Fitch or Moody’s alone, that Debt Rating alone shall be determinative. If the Shipper has no Debt Ratings, the S&P Issuer Credit Rating and/or Moody’s Long Term Rating will be substituted, and as such, these ratings are included in the defined term, “Debt Ratings”. ”. In the event the Debt Ratings issued by S&P, Moody’s and Fitch are assigned at levels that are not equivalent, the lower Debt Rating shall apply to determine whether such entity is Creditworthy.
For the avoidance of doubt, in the event Shipper does not have Debt Rating(s) assigned by S&P, Fitch or Moody’s at the time of execution of the Precedent Agreement or FTS Agreement, but Shipper subsequently receives a Debt Rating(s), then for purposes of determining creditworthiness pursuant to Section 1(A) above, such Debt Ratings shall serve as original Debt Ratings effective as of the execution of the Precedent Agreement or FTS Agreement.
(B) If Shipper is deemed not Creditworthy at the time of execution of the Credit Agreement or becomes no longer Creditworthy during the term of the Precedent Agreement or FTS Agreement, in either case, pursuant to Section 1(A) above, then Shipper shall thereafter maintain any of the following credit support instruments (Guaranty, cash deposit, Letter of Credit, or cash proceeds thereof, or such other instrument as Transporter in its sole judgment may accept, all individually or collectively, known as “Credit Support”) as set forth below.
(i) an absolute, irrevocable, unconditional guaranty in the form set forth in Exhibit A (“Guaranty”), from a direct or indirect parent or affiliate of Shipper or other third party that is deemed Creditworthy pursuant to Section 1(A) above and that is otherwise acceptable to Transporter, in Transporter’s sole judgment (such third party, “Guarantor”), which Guaranty shall guarantee the full and faithful performance and payment of all of Shipper’s obligations under the Precedent Agreement and the FTS Agreement, including but not limited to damages, and any such Guaranty will remain outstanding for the benefit of the Transporter throughout the term of the Precedent Agreement and FTS Agreement. Such Guaranty shall be provided to Transporter within five (5) business days from the execution date of the Precedent Agreement and Credit Agreement.
(ii) a cash deposit or an irrevocable standby letter of credit that is in the form set forth in Exhibit B hereto (“Letter of Credit”) and issued by a bank which is a U. S. bank or the U.S. branch of a foreign bank with minimum Debt Rating(s) of ‘A-’ as assigned by S&P and ‘A3’ as assigned by Moody’s (together, “Minimum Ratings”) and is otherwise acceptable to Transporter, in Transporter’s sole judgment, in either case securing the full and faithful performance and payment of Shipper’s obligations under the Precedent Agreement and the FTS Agreement in the amounts set forth in this Section 1(B)(ii) and Section 1(B)(iii) below. In either case such cash deposit or Letter of Credit, or any combination thereof, shall equal to the total aggregate dollar value of 12 months of reservation charges due from Shipper for the Contract MDQ under the FTS Agreement. Inasmuch as Shipper [or Shipper’s Guarantor] is not deemed Creditworthy, pursuant to Section 1(A) as of the date hereof, Shipper shall provide a cash deposit and/or Letter of Credit in the amount noted above to Transporter upon execution of the Precedent Agreement and Credit Agreement.
(C) At any time during the term of the Precedent Agreement or the FTS Agreement, if Transporter determines that, as of such time, any bank that issued a Letter of Credit in favor of Transporter no longer conforms to the Minimum Ratings standard, then Transporter may submit a written notice of such determination to Shipper (which notice shall provide Transporter’s basis for such determination). Within five (5) business days after Shipper’s receipt of such notice from Transporter, Shipper shall deliver to Transporter and shall thereafter maintain, Credit Support in the form of a cash deposit and/or Letter of Credit issued by a bank that conforms to the Minimum Ratings standard and is otherwise acceptable to Transporter, in either case, in the amount required by Section 1(B)(ii) or Section 1(B)(iii), as applicable.
(D) For any irrevocable standby Letter of Credit, whether an original or replacement Letter of Credit, that is provided to Transporter, such Letter of Credit shall permit partial draws and shall have an expiry date no earlier than (a) twelve (12) calendar months after issuance thereof and (b) ninety (90) days after the end of the term of the Precedent Agreement and the Primary Term of the FTS Agreement or any extension thereof. With respect to any Letter of Credit, Shipper shall furnish extensions or replacements of such Letter of Credit at least ninety (90) days prior to the expiration thereof, from time to time until the expiration of both the Precedent Agreement and FTS Agreement. All extensions or amendments of the Letter of Credit shall be delivered to Transporter in a form and from a bank assigned Minimum Ratings and otherwise acceptable to Transporter; provided, however, that any automatic renewal or extension of a Letter of Credit in accordance with the terms thereof shall be deemed to satisfy Shipper’s obligation to furnish extensions or replacements of such Letter of Credit. Transporter shall have the right to draw against any outstanding Letter of Credit upon: (a) Shipper’s failure to make any payment when due under either the Precedent Agreement and/or the FTS Agreement; or (b) Shipper’s failure or refusal to timely deliver any applicable extension, amendment or replacement of an outstanding Letter of Credit as provided herein; or (c) the rejection, repudiation, termination or breach of the Precedent Agreement, the FTS Agreement and/or any related agreement under any bankruptcy, insolvency or similar debtor relief law now or hereinafter in effect; or (d) the filing of a petition by or against Shipper seeking to adjudicate Shipper as bankrupt or insolvent or otherwise commencing, authorizing, or acquiescing in the commencement of a case under any bankruptcy, insolvency or similar debtor relief law now or hereafter in effect. If Transporter draws on a Letter of Credit in part or in whole, Shipper shall immediately, and in no event later than five (5) business days thereafter, provide a replacement Letter of Credit in, or increase an existing Letter of Credit to, the amount required by Section 1(B)(ii) or Section 1(B)(iii), as applicable. Any draw made by Transporter under a Letter of Credit shall not relieve Shipper of any liabilities, deficiencies, costs, expenses or damages beyond what is drawn under such Letter of Credit. The Letter of Credit (representing any undrawn portion thereof), to the extent it still remains, or any cash deposit held by Transporter shall be returned to Shipper, at the Transporter’s election, on or before the sixtieth (60th) day after the later to occur of (a) the date on which both the Precedent Agreement and the FTS Agreement have terminated or expired and (b) the date on which all of Shipper’s performance and payment obligations under the Precedent Agreement and the FTS Agreement (including, without limitation, any damages arising from either such agreement) have been fulfilled as determined by the Transporter.
(E) Credit Support in the form of a cash deposit provided pursuant to Section 1(B)(ii) or Section 1(B)(iii) or proceeds from draws under a Letter of Credit may be applied by Transporter, in its sole discretion, against any unpaid invoices due from Shipper, losses, costs, expenses or damages as a result of a breach by Shipper of any of its obligations (including a breach arising out of the rejection, termination, repudiation or breach of either the Precedent Agreement or the FTS Agreement under the U.S. Bankruptcy Code, insolvency or similar debtor relief law now or hereinafter in effect) under either the Precedent Agreement or the FTS Agreement for which Transporter is legally entitled to receive payment. If the application of a cash deposit or proceeds from draws under a Letter of Credit fully extinguishes the cash deposit or Letter of Credit and the Precedent Agreement or the FTS Agreement is still in effect, Shipper shall immediately, and in no event later than five (5) business days thereafter, provide a replacement Letter of Credit or replacement cash deposit in the amount required by Section 1(B)(ii) or Section 1(B)(iii), as applicable. Any application of a cash deposit or proceeds from draws made by Transporter under a Letter of Credit shall not relieve Shipper of any liabilities, deficiencies, costs, expenses or damages beyond what is drawn under such Letter of Credit or application of any cash deposit. (F) Notwithstanding anything in Section 1(B) hereof, in the event Shipper provides Credit Support pursuant to Section 1(B)(i), Section 1(B)(ii) or Section 1(B)(iii) hereof, but Shipper thereafter satisfies Section 1(A), Shipper’s Guaranty, Shipper’s Letter of Credit (representing any undrawn portion thereof, to the extent it still remains), or any cash deposit held by Transporter, as applicable, shall be returned to Shipper’s Guarantor, Shipper’s bank or to Shipper, as applicable, within thirty (30) days after written demand is received by Transporter; provided, however, that the provisions of Section 1(B) shall again apply should Shipper, its Guarantor or its parent company (as circumstances dictate), fail to conform to the Creditworthy standard pursuant to Section 1(A) at any time thereafter. (G) Except to the extent of any amounts paid to the Transporter, the use, application or retention of Credit Support, or any portion thereof, by Transporter shall not (subject to any applicable limitations on damages to which Transporter has agreed in writing) prevent Transporter from exercising any other right or remedy provided under the Precedent Agreement, the FTS Agreement, the Tariff, or which Transporter may have at law or in equity, by statute or regulation, and shall not operate as a limitation on any recovery to which Transporter may otherwise be entitled. For the avoidance of doubt, Transporter shall not be permitted any additional or duplicative recovery for any damages, payments, or other amounts for which Transporter has received payments or other compensation pursuant to the terms of this Credit Agreement or any Credit Support. 2. Notice. Except as herein otherwise provided, all notices, requests, demands and other communications hereunder (herein collectively called “Notice”) shall be in writing and will be deemed to have been duly given when (a) personally delivered to receiving party’s physical address, (b) sent by overnight courier service to receiving party’s physical address; or (c) delivered via electronic transmission (email) with a courtesy copy sent by overnight courier service to the receiving party’s physical address, in each case to the appropriate addresses or email addresses set forth below (or to such other addresses or, email addresses as a party may designate by notice to the other party); provided that any such deliveries received after normal business hours in the place of business of the receiving party shall be deemed to be received on the next business day:
Transporter: Rover Pipeline LLC 1300 Main St. Houston, Texas 77002-6803 Attention: Credit Risk Management Email: creditrisk@energytransfer.com
With copy to: Rover Pipeline LLC 1300 Main St. Houston, Texas 77002-6803 Attention: Office of General Counsel Email: generalcounsel.mailbox@energytransfer.com
Shipper: ______________________________ _______________________________ _______________________________ _______________________________ Email: _________________________ with a copy to:
Attn: ___________________________
Email: _________________________
3. Modifications. Except as provided otherwise in this Credit Agreement, no modification of the terms and provisions of this Credit Agreement shall be effective unless contained in writing and executed by both Transporter and Shipper. 4. Choice of law. THIS CREDIT AGREEMENT SHALL BE INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, EXCLUDING ANY CONFLICT OF LAW RULES THAT MAY REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION. ANY CLAIMS, SUITS, ACTIONS, PROCEEDINGS, OR DISPUTES OF ANY KIND ARISING FROM OR RELATING TO THIS CREDIT AGREEMENT SHALL BE INSTITUTED IN THE FEDERAL DISTRICT COURT OF THE UNITED STATES OF AMERICA OR ANY STATE COURT (DISTRICT OR BUSINESS) OF THE STATE OF TEXAS, IN EACH CASE LOCATED IN DALLAS COUNTY, TEXAS, AND EACH PARTY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION AND EXCLUSIVE VENUE OF SUCH COURTS FOR ANY SUCH CLAIMS, SUITS, ACTIONS, PROCEEDINGS, OR DISPUTES. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS CREDIT AGREEMENT. 6. Rules and Regulations. This Credit 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 conflict, such laws, rules, orders and regulations of governmental authorities having jurisdiction shall control. 7. Counterparts. This Credit Agreement may be executed by facsimile and in multiple counterparts or by other electronic means (including by PDF), each of which when so executed shall be deemed an original, but all of which shall constitute one and the same agreement. [signature page follows]
IN WITNESS WHEREOF, the Parties hereto have caused this Credit Agreement to be duly executed by their duly authorized officers as of the day and year first above written.
ROVER PIPELINE LLC SHIPPER
By: ___________________________ By: _____________________________
Title: __________________________ Title: ____________________________ Date: __________________________ Date: ____________________________
GUARANTY
THIS GUARANTY (this "Guaranty") is, made and entered into and effective as of [DATE], (the “Effective Date”), by _______________, ___________________ ("Guarantor"), in favor of Rover Pipeline LLC, a Delaware limited liability company (“Rover”). WITNESSETH:
WHEREAS, ____________________, has entered into the Precedent Agreement, dated as of __________, 2024 (as such agreement may from time to time be modified, supplemented, amended, or extended, the "PA"). Except as otherwise defined herein, any capitalized term used herein and defined in the PA (as defined above) shall have the meaning given to such term by the PA;
WHEREAS, ______________________ (including its successors and permitted assigns under Section 8 of the PA, "Shipper") is an affiliate of Guarantor;
WHEREAS, the PA contemplates that, subject to the satisfaction of certain conditions specified in the PA, Rover and Shipper will enter into a firm transportation service agreement(s) and a negotiated rate agreement for firm transportation service in accordance with the PA (as such agreements may from time to time be modified, supplemented, amended, or extended, (individually and collectively, the “FTS Agreement”);
WHEREAS, Shipper has certain financial and performance obligations to Rover in connection with the PA and the FTS Agreement (all such obligations of Shipper, including the obligation of Shipper to pay all amounts due under the FTS Agreement, and including, but not limited to, pay any damages that may be incurred or have been incurred by Rover, plus, Guarantor shall pay all reasonable costs and attorneys’ fees and expenses incurred by Rover in the enforcement of or preservation of Rover’s rights under this Guaranty (all of the foregoing, collectively referred to as the "Guaranteed Obligations");
WHEREAS, Rover entered into the PA and entered or will enter into the FTS Agreement with Shipper on the condition that Rover receive certain assurances regarding payment of the Guaranteed Obligations, and Guarantor is willing to provide such assurances in accordance with the terms and conditions of this Guaranty; and
WHEREAS, Guarantor acknowledges that it will be substantially benefited by the execution and delivery of the PA and FTS Agreement. NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein and other good and valuable consideration, the adequacy and receipt of which are hereby acknowledged, Guarantor hereby agrees as follows:
1. Guarantor hereby absolutely, irrevocably, and unconditionally guarantees to Rover the due and punctual payment by Shipper of any and all Guaranteed Obligations, subject to any applicable grace period(s) or extensions to such due date, even if any such payments are deemed to be damages, pursuant to the PA and the FTS Agreement. Except as the same comprise Guaranteed Obligations under the express terms of the PA and the FTS Agreement, Guarantor shall not be liable hereunder for any consequential, incidental, punitive or indirect damages whether in tort or contract. As a condition precedent to each payment under this Guaranty, a demand by Rover for payment hereunder shall be in writing, signed by a duly authorized representative of Rover and delivered to Guarantor pursuant to Section 16 hereof, and shall (a) reference this Guaranty, (b) specifically identify Rover, the nature of the default, and the Guaranteed Obligations to be paid and (c) set forth payment instructions, including bank name, routing number and bank account number. There are no other requirements of notice, presentment, or demand. Guarantor shall pay, or cause to be paid, such Guaranteed Obligations within five (5) business days of receipt of such demand. 2. This Guaranty shall constitute a guaranty of payment and not merely a guaranty of collection. This Guaranty (i) is a continuing guaranty and shall remain in full force and effect until all of the Guaranteed Obligations and other expenses guaranteed pursuant to this Guaranty have been indefeasibly paid in full; and (ii) shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations is rescinded, avoided or rendered void as a preferential transfer, impermissible set-off, fraudulent conveyance or must otherwise be returned or disgorged by Rover upon the insolvency, bankruptcy or reorganization of either Shipper or Guarantor or otherwise, all as though such rescinded, avoided or voided payment had not been made, and notwithstanding any action or failure to act on the part of Rover in reliance on such payment. Any prior release from the terms of this Guaranty shall be reinstated in full force and effect. 3. The liability of Guarantor hereunder is exclusive and independent of any security for or other guaranty of the payment by Shipper of the Guaranteed Obligations, whether executed by Guarantor, any other guarantor or any other party. This Guaranty shall automatically terminate and be of no more force and effect upon the full performance and full, final, and indefeasible payment or satisfaction in full of all Guaranteed Obligations as determined by Rover in its sole reasonable discretion. A rejection of the PA and /or FTS Agreement by Shipper in U.S. Bankruptcy Court shall not release or relieve Guarantor of its Guaranteed Obligations hereunder and this Guaranty shall continue to be fully enforceable under its terms hereunder.
4. Guarantor’s obligations hereunder are independent of the obligations of any other guarantor, and a separate action or actions may be brought and prosecuted against Guarantor whether or not action is brought against any other guarantor and whether or not any other guarantor be joined in any such action or actions; provided, however, neither Guarantor nor Shipper shall be liable for any Guaranteed Obligations already fully and indefeasibly satisfied. If Shipper waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting its liability under the PA, the FTS Agreement and/or the Tariff, Guarantor likewise waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting its liability hereunder or the enforcement thereof. Any payment by Shipper or other circumstance that operates to toll any statute of limitations as to Shipper shall operate to toll the statute of limitations as to Guarantor. Notwithstanding anything herein to the contrary, Guarantor does not waive and retains and reserves to itself all rights, counterclaims and other defenses to which Shipper is or may be entitled to, including those arising from or out of the PA, FTS Agreement, and/or the Tariff, except for defenses arising out of the bankruptcy, receivership, reorganization, insolvency, dissolution, liquidation or similar status of Shipper, the power or authority of Shipper to enter into the PA and FTS Agreement and to perform its obligations thereunder, and the lack of enforceability of Shipper’s obligations under the PA or FTS Agreement or any transactions contemplated thereby (such retained and reserved and not waived or excluded rights, counterclaims and other defenses, the “Retained Defenses”). 5. Guarantor hereby waives notice of acceptance of this Guaranty and notice of any liability to which it may apply, and waives promptness, diligence, presentment, demand of payment, protest, notice of dishonor or nonpayment of any such liabilities, suit or taking of other action by Rover against, and any other notice to, any party liable thereon (including Guarantor or any other guarantor). Guarantor assumes all responsibility for being and keeping itself informed of Shipper's financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks which Guarantor assumes and incurs hereunder, and Guarantor agrees that Rover shall have no duty to advise Guarantor of information known to it regarding such circumstances or risks. 6. Rover, to the extent agreed to by Shipper or otherwise expressly allowed by the PA, the FTS Agreement and/or the Tariff and not restricted by applicable law, may (i) at any time and from time to time; (ii) upon or without any terms or conditions; (iii) in whole or in part; and (iv) without the consent of, but with reasonable prior notice to, Guarantor, without incurring responsibility to Guarantor, and without impairing or releasing the obligations of Guarantor hereunder: (a) make any change, amendment, or modification in the terms of any Guaranteed Obligations, and the Guarantor’s Guaranty herein made shall apply to the Guaranteed Obligations as so changed, amended or modified; (b) take and hold security for the payment of the Guaranteed Obligations, and sell, exchange, release, surrender, impair, realize upon or otherwise deal with, in any manner and in any order, any property by whomsoever at any time pledged or mortgaged to secure, or howsoever securing, the Guaranteed Obligations or any liabilities (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and/or any offset there against, and/or release any person liable for all or any portion of the Guaranteed Obligations; (d) take any other action which would, under otherwise applicable principles of common law, give rise to a legal or equitable discharge of Guarantor from its liabilities under this Guaranty. 8. This Guaranty is a continuing one. All liabilities to which this Guaranty applies, or to which it may apply, under the terms hereof shall be conclusively presumed to have been created in reliance hereon. No failure or delay on the part of Rover in exercising any right, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. The rights and remedies herein expressly specified are cumulative and not exclusive of any rights or remedies which Rover would otherwise have. No notice to or demand on Guarantor in any case shall entitle Guarantor to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of Rover to any other or further action in any circumstances without notice or demand. It is not necessary for Rover to inquire into the capacity or powers of Shipper or the officers, directors, partners, or agents acting or purporting to act on its behalf. 9. Guarantor hereby agrees with Rover that it will not exercise any right of subrogation that it may at any time otherwise have as a result of this Guaranty (whether contractual, under the United States Bankruptcy Code, 11 U.S.C. §§101 et seq., as amended or otherwise), until all Guaranteed Obligations have been fully, finally, and indefeasibly paid or satisfied in full (it being understood that Guarantor is not waiving any right of subrogation that it may otherwise have but is only waiving the exercise thereof as provided above).
10. In order to induce Rover to enter into the PA and FTS Agreement, Guarantor represents, warrants, and covenants that: (a) Status. Guarantor (i) is a duly organized and validly existing corporation, in good standing under the laws of the jurisdiction of its organization, (ii) has the corporate power and authority to own or lease its property and assets and to transact the business in which it is engaged and presently proposes to engage and (iii) is duly qualified and is authorized to do business and is in good standing in each jurisdiction where the conduct of its business requires such qualification, except for failures to be so qualified which, individually or in the aggregate, could not reasonably be expected to have a material adverse effect on the results of operations or financial condition of Guarantor and its subsidiaries, taken as a whole. (b) Power and Authority. Guarantor has the corporate power and authority to execute, deliver and perform the terms and provisions of this Guaranty and has taken all necessary corporate action to authorize the execution, delivery and performance by it of this Guaranty. Guarantor has duly executed and delivered this Guaranty and this Guaranty constitutes the legal, valid and binding obligation of Guarantor enforceable in accordance with its terms, except to the extent that the enforceability hereof and thereof may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and by equitable principles (regardless of whether enforcement is sought in equity or at law). (c) No Violation. Neither the execution, delivery, or performance by Guarantor of this Guaranty, nor compliance by it with the terms and provisions hereof and thereof (i) will contravene any applicable provision of any law, statute, rule, or regulation, or any order, writ, injunction, or decree of any court or governmental instrumentality, (ii) will conflict or be inconsistent with or result in any breach of any of the terms, covenants, conditions, or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any lien upon any of the property or assets of Guarantor or any of its subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust, credit agreement, or loan agreement or any other material agreement, contract, or instrument to which Guarantor or any of its subsidiaries is a party or by which it or any of its property or assets is bound or to which it may be subject, or (iii) will violate any provision of the certificate of incorporation, by-laws or similar documents, instruments, or certificates (including amendments thereto) executed, adopted or filed in connection with the creation, formation, or organization of Guarantor or any of its subsidiaries. (d) Governmental Approvals. No order, consent, approval, license, authorization, or validation of, or filing, recording or registration with (except as have been obtained or made), or exemption by, any governmental or public body or authority, or any subdivision thereof, is required to authorize, or is required in connection with, (i) the execution, delivery, and performance of this Guaranty or (ii) the legality, validity, binding effect, or enforceability of this Guaranty. (e) Litigation. There are no actions, suits, or proceedings pending or, to the current actual knowledge of Guarantor, threatened (i) which purport to affect the legality, validity, or enforceability of this Guaranty or (ii) that could reasonably be expected to have a material adverse effect on the results of operations or financial condition of Guarantor and its subsidiaries, taken as a whole. (f) The signatory party below has full authority to execute this Guaranty and to bind the Guarantor to its obligations herein. 12. Guarantor covenants and agrees that, on and after the date hereof, Guarantor shall take, or will refrain from taking, as the case may be, all material actions that are necessary to be taken or not taken so that Shipper will be in material compliance with any provision, covenant, or agreement of Shipper contained in the FTS Agreement. 13. This Guaranty shall be binding upon Guarantor and the successors and permitted assigns of Guarantor and shall inure to the benefit of and be enforceable by Rover and its successors and permitted assigns. Guarantor may not assign or transfer any of its rights or obligations hereunder without the prior written consent of Rover which consent shall not be unreasonably withheld or delayed (and any such attempted assignment or transfer without such consent shall be null and void). Notwithstanding anything to the contrary herein, Rover may refuse to provide its consent (and the same shall not be deemed unreasonable) if the proposed assignee fails to satisfy or comply with Rover’s financial assurance or credit requirements whether pursuant to a credit agreement or not. 14. Except as otherwise provided herein, neither this Guaranty nor any provision hereof may be changed, waived, discharged, or terminated except with the written consent of Guarantor and Rover. 15. Guarantor acknowledges that an executed (or conformed) copy of the PA and/or the FTS Agreement, if executed at the time of execution of this Guaranty, has been made available to Guarantor and Guarantor is familiar with the contents thereof.
If to Guarantor, to:
SHIPPER ____________________________ ____________________________ ____________________________ Email: ______________________
If to Rover, to:
Rover Pipeline LLC Attn: Credit Risk Management 1300 Main St. Houston, Texas 77002-6803 Email: creditrisk@energytransfer.com
With a copy to:
Rover Pipeline LLC Attn: Office of General Counsel 1300 Main St. Houston, Texas 77002-6803 Email: generalcounsel.mailbox@energytransfer.com
17. Choice of law. THIS GUARANTY SHALL BE INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, EXCLUDING ANY CONFLICT OF LAW RULES THAT MAY REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION. ANY CLAIMS, SUITS, ACTIONS, PROCEEDINGS, OR DISPUTES OF ANY KIND ARISING FROM OR RELATING TO THIS GUARANTY SHALL BE INSTITUTED IN THE FEDERAL DISTRICT COURT OF THE UNITED STATES OF AMERICA OR ANY STATE COURT (DISTRICT OR BUSINESS) OF THE STATE OF TEXAS, IN EACH CASE LOCATED IN DALLAS COUNTY, TEXAS, AND EACH PARTY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION AND EXCLUSIVE VENUE OF SUCH COURTS FOR ANY SUCH CLAIMS, SUITS, ACTIONS, PROCEEDINGS, OR DISPUTES. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY. 18. Guarantor hereby confirms that it is its intention that this Guaranty not constitute a fraudulent transfer or conveyance for purposes of any bankruptcy, insolvency or similar law, the Uniform Fraudulent Conveyance Act or any similar Federal, state or foreign law. To effectuate the foregoing intention, if enforcement of the liability of Guarantor under this Guaranty would be an unlawful or voidable transfer under any applicable fraudulent conveyance or fraudulent transfer law or any comparable law, then the liability of Guarantor hereunder shall be reduced to the maximum amount for which such liability may then be enforced without giving rise to an unlawful or voidable transfer under any such law. 19. Any provision of this Guaranty held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. 20. This Guaranty reflects the whole and entire agreement of the parties and, with the exception of the PA and FTS Agreement, supersedes all prior agreements, understandings and/or guaranties related to the subject matter hereof. 21. In the event this Guaranty or the executed signature page of this Guaranty is delivered by e-mail delivery (including, without limitation, a “.pdf” format data file), such delivery shall create a valid and binding obligation of the Guarantor with the same force and effect as if this Guaranty and/or the executed signature page of this Guaranty were an original thereof.
[signature page follows]
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed and delivered as of the Effective Date.
GUARANTOR:
By:__________________________________
Name:_______________________________
Title:_________________________________
EXHIBIT B
LETTER OF CREDIT FORMAT
IRREVOCABLE STANDBY LETTER OF CREDIT NO. _________
ISSUER: [ISSUING BANK MUST HAVE MINIMUM RATINGS OF A- BY S&P AND A3 BY MOODY’S AND BE HEADQUARTERED IN THE U.S. OR BE THE U.S. BRANCH OF A FOREIGN BANK ]
BENEFICIARY: ROVER PIPELINE LLC ATTN: CREDIT RISK MANAGEMENT 1300 MAIN STREET HOUSTON, TX 77002-6803
APPLICANT: ____________________________
AMOUNT: USD ________________________
EXPIRATION: TWELVE (12) MONTHS FROM ISSUANCE DATE
WE HEREBY ISSUE OUR IRREVOCABLE STANDBY LETTER OF CREDIT IN YOUR FAVOR BY ORDER OF AND FOR THE ACCOUNT OF (INSERT APPLICANT’S NAME) AVAILABLE BY YOUR DRAFT(S) DRAWN ON US AT SIGHT AND ACCOMPANIED BY ONE OR MORE OF THE FOLLOWING STATEMENTS PURPORTEDLY SIGNED BY AN AUTHORIZED REPRESENTATIVE OF BENEFICIARY.
OR
OR
OR
4. “THERE HAS OCCURRED THE FILING OFA PETITION BY OR AGAINST APPLICANT SEEKING TO ADJUDICATE APPLICANT AS BANKRUPT OR INSOLVENT OR OTHERWISE COMMENCING, AUTHORIZING OR ACQUIESCING IN THE COMMENCEMNT OF A CASE UNDER ANY BANKRUPTCY, INSOLVENCY OR SIMILAR DEBTOR RELIEF LAW NOW IN EFFECT. THEREFORE, WE HEREBY DEMAND PAYMENT OF USD$__________.”
SPECIAL CONDITIONS:
· BENEFICIARY SHALL BE NOTIFIED VIA EMAIL TO CREDITRISK@ENERGYTRANSFER.COM WITHIN TWO (2) BUSINESS DAYS OF ISSUING BANK’S RECEIPT OF DRAWING OF ANY DISCREPANCIES NOTED BY ISSUING BANK ON DRAW DOCUMENTS PRESENTED.
· PAYMENT OF ANY AMOUNT DRAWN UNDER THIS LETTER OF CREDIT SHALL BE MADE IN IMMEDIATELY AVAILABLE UNITED STATES DOLLARS BY WIRE TRANSFER TO THE ACCOUNT OF BENEFICIARY IN ACCORDANCE WITH THE INSTRUCTIONS SUBMITTED WITH THE PRESENTATION OF DRAW DOCUMENTS, NO LATER THAN THE THIRD (3rd) BANKING DAY FOLLOWING THE DATE SUCH DEMAND FOR PAYMENT IS PRESENTED, EMAILED OR FAXED IN ACCORDANCE WITH THE LETTER OF CREDIT TERMS.
· THE OBLIGATION OF THE BANK UNDER THIS LETTER OF CREDIT IS THE INDIVIDUAL OBLIGATION OF THE BANK AND IS NO WAY CONTINGENT UPON REIMBURSEMENT WITH RESPECT THERETO, AND/OR UPON THE BANK’S ABILITY TO PERFECT A SECURITY INTEREST OR ANY OTHER REIMBURSEMENT.
· IN THE EVENT OF AN ACT OF GOD, RIOT, CIVIL COMMOTION, INSURRECTION, WAR OR ANY OTHER CAUSE BEYOND THE BANK’S CONTROL THAT INTERRUPTS OUR BUSINESS (COLLECTIVELY, AN “INTERRUPTION EVENT”) AND CAUSES THE PLACE FOR PRESENTATION OF THIS LETTER OF CREDIT TO BE CLOSED FOR BUSINESS ON THE LAST DAY OF PRESENTATION, THE EXPIRY DATE OF THIS LETTER OF CREDIT SHALL BE AUTOMATICALLY EXTENDED WITHOUT AMENDMENT TO A DATE THIRTY (30) CALENDAR DAYS AFTER THE PLACE FOR PRESENTATION RE-OPENS FOR BUSINESS.
· THE ELECTRONIC TRANSMISSION OR FACSIMILE OF THIS LETTER OF CREDIT SHALL SERVE AS THE OPERATIVE INSTRUMENT UNTIL THE ORIGINAL IS RECEIVED BY THE BENEFICIARY.
WE HEREBY ENGAGE WITH YOU THAT DRAFTS DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON PRESENTATION AT OUR COUNTERS WITHIN THE VALIDITY DATE.
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