EXHIBIT 10.43
AMENDMENT OF GAS PURCHASE CONTRACT
WHEREAS, Panda-▇▇▇▇▇▇▇▇ Corporation, a Delaware
corporation and Natural Gas Clearinghouse, a Colorado
general partnership ("Seller") entered into a certain Gas
Purchase Contract dated April 12, 1990, providing for the
delivery and sale of natural gas to a certain cogeneration
facility located in Roanoke Rapids, North Carolina (the
"Contract"); and
WHEREAS, pursuant to a certain Consent to Assignment,
Delegation and Assumption Agreement dated January 6, 1992,
Panda ▇▇▇▇▇▇▇▇ Corporation assigned all of its rights under
the Contract to Panda-Rosemary, L.P., dba Panda-▇▇▇▇▇▇▇▇
Limited Partnership, a Delaware limited partnership
("Buyer"), and Buyer assumed all of the obligations under
the Contract, and Seller consented to such assignment and
assumption; and
WHEREAS, Buyer and Seller desire to amend and
supplement the terns and conditions of the Contract.
NOW THEREFORE, in consideration of the mutual covenants
and agreements set forth in the Contract and in this
Amendment, the parties hereby amend and supplement the
Contract as follows:
1. Section 1.01 of the Contract is deleted and Sections 1.02
through and including ,.10 are renumbered Sections 1.01
through 1.09.
2. A new Section 1.10 is added to the Contract :
1.10 "FTNT Agreement" shall mean the firm
transportation agreement dated October 22, 1991 executed by
Buyer and Transcontinental Gas Pipeline Corporation.
3. Section 1.14 of the Contract is deleted and
replaced by a new Section 1.14:
1.14 "Maximum Daily Quantity" shall be Buyer's Total
Contract Quantity (TCQ) as established in the FTNT
Agreement.
4. Delete Section 1.15 of the Contract and Sections
1.16 and l. 17 are renumbered Sections 1.15 and 1.16.
5. Delete Section 2.03 of the Contract and substitute
a new Section 2.03:
2.03 Nomination. on or before ten (10) business
Days prior to the beginning of each Month, Buyer shall
designate the minimum volume of Gas it anticipates taking
and purchasing from Seller each Day during the following
Month ("Minimum Daily Quantity"), which will constitute
Buyer's nomination of Gas for that Month. Unless the parties
agree otherwise, Seller will deliver the Minimum Daily
Quantities at the Delivery Points designated as "Primary
Points" under Item No. 1 on Exhibit A to this Agreement.
Following Buyer's nomination of the Minimum Daily Quantity,
and upon no less than twenty-four hours advance notice to
Seller, Buyer may reduce its nomination to as low as zero or
increase its nomination to the Maximum Daily Quantity,
provided that any reduction must be the result of a
reduction in Buyer' s consumption of Gas and not the result
of Buyer replacing Gas nominated under this Contract with
Gas purchased from a third party supplier. Seller's
obligation to deliver and Buyer's obligation to purchase
quantities of Gas in excess of the Minimum Daily Quantity is
subject to agreement on the price to be paid for the excess
quantities, as set forth in Section 4.02(c) of this
Contract. Unless the parties agree otherwise, quantities of
Gas in excess of the Minimum Daily Quantity will be
delivered at the Delivery Points designated as "Secondary
Points" under Item No. 1 on Exhibit A to this Agreement.
Notwithstanding the foregoing notice deadline, the parties
shall use their best efforts to implement changes in Buyer'
s nomination communicates} to Seller later than the twenty-
four hour advance notice deadline.
6. Delete Section 4.02 of the Contract and substitute a
new Section 4.02:
4.02 Gas Price for Subsequent Years.
a. Beginning on October 1, 1991 and continuing through
October 31, 1992, the price payable to Seller for quantities
of Gas delivered to Buyer shall be the arithmetic average of
the Gas prices reported for the Months October 1990 through
September 1991 in first monthly issue of Inside FERC's gas
Market Report in the table titled "Prices of Spot Gas
Delivered to Pipelines" under the heading "Texas Gas
Transmission Corp." in the column labeled "Index Price" plus
twenty-four and seven-tenths cents ($0. 247) per Tutu.
b. Beginning November 1, 1992 and continuing until
termination of the Contract, the price payable to Seller for
Gas delivered to Buyer in volumes up to the Minimum Daily
Quantity shall be the Index Price applicable during the
Month of delivery plus four cents ($0. 04) per MMBtu. The
Index Price shall vary according to the Delivery Point and
shall be as follows:
i. Carthage, Texas Delivery Point - the price
reported in the first monthly issue of Inside FERC's Gas
Market Report in the table titled "Prices of Spot Gas
Delivered to Pipelines" under the heading "Texas Gas
Transmission Corp. Zone 1" in the column labeled "Index
Price".
ii. Ada, Louisiana Delivery Point - the Texas
Gas Transmission Corp. Zone 1 Index Price described in
subpart i. of this Section.
iii. Eunice, Louisiana Delivery Point the - price
reported in the first monthly issue of Inside FERC's Gas
Market Report in the table titled "Prices of Spot Gas
Delivered to Pipelines" under the heading "Texas Gas
Transmission Corp. Zone SL" in the Column labeled "Index
Price".
iv. ▇▇▇▇▇ Hub - Delivery Point - the price
reported in the first monthly issue of Inside FERC's Gas
Market Report in the entry titled "▇▇▇▇▇ Hub Cash Price".
c. Beginning November 1, 1992 and continuing until
termination of the Contract, the price payable to Seller for
Quantities of Gas in excess of the Minimum Daily Quantity
nominated by Buyer in accordance with Section 2.03 of this
Contract shall equal Seller's actual cost incurred in
acquiring the excess gas plus an administrative fee of 50.04
per MMBtu.
7. Delete Section 4.03 of the Contract and substitute a
new Section 4.03:
4.03 Transportation Options and Charges. Seller shall,
upon Buyer's request or requests from time to tine,
transport the Gas to the Receipt Point utilizing Buyer's
FTNT Agreement or the lowest priced transportation
available from various pipelines Seller utilizes to deliver
the Gas to that Receipt Point. If Buyer requests deliveries
to the Receipt Point, then Buyer and Seller shall enter into
a mutually acceptable agreement naming Seller as agent under
Buyer's firm or interruptible transportation agreements.
Seller shall invoice Buyer for all transportation costs
incurred by it in transporting the Gas from the Delivery
Point to the Receipt Point at the same time as it invoices
Buyer for Gas purchases and Buyer shall pay the
transportation costs at the same time that it pays for said
Gas purchases.
a. Delete Section 4.04 of the Contract and substitute
a new Section 4.04:
4.04 Buyer's Failure to Purchase. Should Buyer fail to
purchase the Minimum Daily Quantity it nominates prior to
the beginning of the Month of delivery in accordance with
Section 2.03 of this Contract, and such failure is not
excused under Article XI of the Contract, Buyer shall pay
Seller an amount equal to $0.14 per MMBtu of Gas Buyer
failed to purchase as liquidated damages. It is expressly
stipulated by the parties that, in the event Seller does not
resell the Gas Buyer failed to purchase prior to the date
designated above, the actual amount of damages resulting
from Buyer's failure to purchase the Gas would be difficult
if not impossible to determine accurately because of the
unique nature of this Contract, the unique needs and
obligations of Seller, the uncertainties of the gas market
and differences of opinion with respect to such matters, and
that the liquidated damages provided for in this Section are
a reasonable estimate by the parties of such damages.
9. Delete Section 4.05 of the Contract and
substitute a new Section 4.05:
4.05 The rules, guidelines, and policies of the
pipeline(s) actually transporting gas hereunder to the
Delivery Point(s), as may be changed from time to time, shall
define and set forth the manner in which gas purchased and
sold under this Agreement is transported. Buyer and Seller
recognize that the receipt and delivery on the pipeline's
facilities of gas purchased and sold under this Agreement
shall be subject to the operational procedures of the
pipeline. In the event the pipeline elects to transport in
accordance with the General Terms and Conditions of its then
effective Federal Energy Regulatory Commission Gas Tariff
which may allow the pipeline to impose scheduling fees,
penalties, cash-out costs or similar charges for imbalances
(imbalance charges), Buyer and Seller shall be obligated to
use their best efforts to avoid imposition of such charges.
If during any month Buyer or Seller receives an invoice from
the pipeline which includes an imbalance charge, both
parties shall be obligated to use their tees efforts to
determine the Fragility as well as the cause of such
imbalance charge. If the parties determine that the iota
▇▇▇▇▇ charge was imposed as a result of Buyer's actions
(which shall include, but shall not be limited to, Buyer's
failure to accept a daily quantity of gas equal to Buyer's
nomination of its daily volume requirements), then Buyer
shall pay for such imbalance charge. If the parties
determine that the imbalance charge was imposed as a result
of Seller's actions (which shall include, but not be
limited to, Seller's failure to deliver a daily quantity of
gas equal to Buyer's nomination of its daily volume
requirements), then Seller shall pay such imbalance charge.
10. Delete Section 4.08 of the Contract and substitute
a new Section 4.08:
4.08 Substitute Index Price. In the event that the
index used to compute the Index Price is discontinued or if
at any time becomes unresponsive to the actual price of Gas
available for sale to and purchase and use by the facility,
the parties shall mutually agree upon a substitute index;
provided that, if such an agreement is not reached within
thirty (30) Days after commencement of negotiation to select
a new index, then the matter shall be submitted to
arbitration as provided in Article XII hereof. The parties
shall continue to perform under the Contract during the
period prior to the arbitrators' decision under the pricing
and other conditions in effect immediately prior to either
party's invocation of arbitration. The decision of the
arbitration panel shall be made retroactive to the date that
arbitration was invoked and appropriate adjustments in the
amount paid for Gas delivered under this Contract shall be
made in order to give full effect to the retroactive
decision.
11. Delete Section 7.02 of the Contract and substitute
a new Section 7.02:
7.02 Buyer's Early Termination Privilege. Buyer may
wish to purchase gas reserves for the purpose of supplying
Gas to the Facility and, if it does so, and Buyer intends
that such reserves will replace the supply of gas furnished
by Seller under this Agreement, then Buyer shall have the
right at any time, to terminate this Contract by tendering
written notice to Seller not less than one hundred and
twenty (120) Days prior to the effective date of such
termination. If Buyer exercises such privilege, then this
Contract shall be ended and the rights and duties of the
parties hereto, excepting any claims arising prior to the
effective date of the early termination, shall cease to
exist.
12. Delete Exhibit A to the Contract and substitute
the "Revised Exhibit A" attached to this Amendment.
13. Other than as amended and supplemented by the terms
and conditions of this Amendment, the original terms and
conditions of the Contract remain in full force and effect.
14. This Amendment shall not be effective until Buyer
has obtained the consent of the Fuji Bank and Trust Company,
"Collateral Agent" as provided for in the certain Consent
and Agreement dated April 12, 1990, executed by Seller and
the collateral Agent.
BUYER:
PANDA-▇▇▇▇▇▇▇▇, L.P. by its
General Partner
PANDA-▇▇▇▇▇▇▇▇ CORPORATION
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
SELLER:
NATURAL GAS CLEARINGHOUSE
By:
Title: Vice President