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EXHIBIT 10.2
AMENDMENT NO. 4
TO
MERGER AND PURCHASE AGREEMENT
THIS AMENDMENT NO. 4 TO MERGER AND PURCHASE AGREEMENT (the "Fourth Amendment")
is made as of the 30th day of March, 1999, among Union Pacific Resources
Company, a Delaware corporation, Union Pacific Fuels, Inc., a Delaware
corporation and a wholly owned subsidiary of Seller, Duke Energy Field
Services, Inc., a Colorado corporation, and DEFS Merger Sub Corp., a Delaware
corporation and a wholly owned subsidiary of Buyer.
WHEREAS, the parties heretofore entered into a Merger and Purchase
Agreement dated November 20, 1998, which was amended by the Amendment No. 1
dated as of February 1, 1999, Amendment No. 2 dated as of March 5, 1999 and
Amendment No. 3 dated as of March 30, 1999 (collectively, the "Amended
Agreement") (capitalized terms not otherwise defined herein have the same
meanings ascribed to such terms in the Amended Agreement);
WHEREAS, the parties hereto desire to amend the Amended Agreement as
described below by entering into this Fourth Amendment;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements, representations, warranties, provisions and covenants herein
contained, the parties hereto hereby agree as follows:
1. Buyer acknowledges and agrees that the transaction evidenced by the
East Texas P&S Agreement has been consummated and that there will be no
reduction in the Merger Price pursuant to Section 2.07 of the Amended
Agreement.
2. Five new sections are added to Article 7 as follows:
SECTION 7.14. EAST TEXAS P&S AGREEMENT. Pursuant to Section 10.9 of
the East Texas P&S Agreement, there is to be a post closing adjustment
for the proration and calculation of income, costs and expenses
between the parties thereto. The parties agree that Seller (or its
Affiliates) shall be responsible for such post closing adjustment and
Seller (or one its Affiliates) shall pay or receive any sums resulting
therefrom.
SECTION 7.15. EMIGRANT TRAIL HEAT EXCHANGER. Seller agrees to bear the
cost of replacing the heat exchanger at the Emigrant Trail Gas Plant
under Purchase Order 982873 with ▇.▇. ▇▇▇▇▇▇▇▇, Inc. and Purchase
Order 991234 with Elkhorn Construction, plus any reasonable and
necessary miscellaneous third party costs incurred by Buyer and
directly related to such replacement. Seller shall have the right to
verify any costs.
SECTION 7.16. WESTERN MARKET CENTER CLAIMS. The Company, through its
wholly owned subsidiary Fuels Pipeline, Inc., doing business as
Overland Trail Transmission Company, is a party to an arbitration
proceeding with The Western Market Center Joint Venture (the
"Venture") concerning the Venture's payment obligations under Article
II of the Payment Agreement dated December 22, 1994, between Overland
Trail Transmission Company and
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the Venture (the "Payment Agreement"). The parties agree that the
claims asserted in the arbitration proceeding, or in any concurrent or
subsequent litigation, including any settlement proceeds therefrom
(the "WMC Claims") will be retained by Seller and the Company and its
Subsidiaries assigns to Seller (i) the benefit of all rights, titles
and interests of the Company (or any Subsidiary) in and to the WMC
Claims and (ii) the benefit of and access to all petitions, pleadings,
exhibits, evidence, filings and orders, briefs, legal research,
attorney or legal assistant work product, books, files, records and
other data and other information in whatever form or medium of the
Company (or any Subsidiary) which relates to the WMC Claims. Seller
shall have the right to settle the WMC Claims on terms and conditions
satisfactory to it in the exercise of its sole discretion, including
without limitation, the termination or modification of the Payment
Agreement and any other agreements with the Venture pertaining to the
Muddy Creek Hub; provided, however, that no settlement by Seller shall
result in or create any obligations or liability to the Buyer, the
Company or its Subsidiaries other than the release of claims.
Following Closing, Buyer shall cause the Company and the Subsidiaries
to (i) take all actions reasonably requested by Seller or its nominees
in connection with the WMC Claims and the rights, titles and interests
beneficially assigned by the Company and its Subsidiaries, (ii)
expressly consent to and waive any conflict regarding the
representation of Seller in connection with the WMC Claims by any
lawyer or law firm which represents the Company (or any Subsidiary) in
connection with the WMC Claims and (iii) otherwise cooperate fully
with and assist Seller in connection with all matters and actions
undertaken by Seller in connection with the WMC Claims, including
without limitation by providing access to records and employees of
Buyer and the Company and the Subsidiaries. Following the Closing,
Seller shall indemnify Buyer and the Company and the Subsidiaries
against any (i) Damages arising out of or relating to the WMC Claims,
and (ii) obligations by the Company and its Subsidiaries to make
payments under the Payment Agreement to the Venture.
SECTION 7.17. ▇▇▇▇ REIMBURSEMENT. Panola Pipe Line, Inc., a Subsidiary
of the Company, has made certain expenditures for a valve station
delivery facility on the Panola Pipeline to allow ▇▇▇▇ Hydrocarbon
Company ("▇▇▇▇") to take NGLs from the line to ▇▇▇▇'▇ Mont Belvieu
Fractionator. ▇▇▇▇ has agreed to reimburse Panola Pipe Line, Inc. for
such expenditures, and Buyer agrees that Seller shall be entitled to
80% of the reimbursement payment made by ▇▇▇▇. If ▇▇▇▇ makes the
reimbursement payment to Seller, Seller agrees to pay 20% of the
amount thereof to Buyer, and if Buyer, the Company or a Subsidiary is
paid by ▇▇▇▇, Buyer shall pay Seller 80% of the amount thereof to
Seller.
SECTION 7.18. CONROE GAS PLANT. With respect to the fire which
occurred at the Conroe Gas Plant office building on March 28, 1999,
Seller shall be obligated to pay for the reasonable, actual costs of
repairing the office building and replacing or repairing any damaged
contents to the building. Seller shall be entitled to all insurance
proceeds and amounts paid by third parties with respect to the fire,
and Seller shall be entitled to seek reimbursement from and make any
claims against third parties with respect to any damages caused by the
fire. Buyer, the Company and any Subsidiaries shall cooperate with
Seller in making any insurance filings or claims with respect to this
matter.
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3. Section 10.02(a)(ix) is deleted in its entirety and the following
substituted in its place:
"(ix) Seller, through its wholly-owned subsidiary, UPR Energy
Services, Inc. shall have entered into an International Swaps and
Derivatives Association Agreement and replacement "Price Risk
Management Contract" covering such transactions referenced in UPR
Energy Services' letter regarding Changes in Control of Union Pacific
Fuels, Inc.: Impact on Price Risk Management Contract and Associated
Transactions, with the Company, in substantially the form attached
hereto as Exhibit H."
3. Section 10.03 is amended by adding the following:
"(viii) Buyer shall have caused Duke Capital Corp. to enter into a
Guaranty in substantially the form of the Guaranty attached as Exhibit
"A" to Schedule to the ISDA Master Agreement which forms a part of
Exhibit H hereto.
4. The last sentence of Section 12.01 (Survival) is deleted in its
entirety and the following substituted in its place: "Notwithstanding the
foregoing, claims for breach of the agreements or representations and
warranties contained in Sections 2.01(b), 2.04(a)(1)-(3), 2.05, 3.13, 3.18,
5.02, 5.03, 5.04, Article 6, Sections 7.01, 7.02, 7.04, 7.05, 7.06, 7.07, 7.08,
7.11, 7.12, 7.13, 7.14, 7.15, 7.16, 7.17, 7.18, 8.01(b), 8.02(d), 8.03, Article
9, Article 11, this Article 12 and Article 14 shall survive for the full period
of any applicable statute of limitations."
5. Exhibit A (Property Schedule) is hereby amended and restated in its
entirety as attached hereto
6. Schedules 1.01(1) (Excluded Businesses and Assets) and 1.01(4)
(Purchased Assets) are hereby amended and restated in their entirety as
attached hereto.
7. This Fourth Amendment is executed, and shall be considered, as an
amendment to the Amended Agreement and shall form a part thereof, and the
provisions of the Amended Agreement, as amended by this Third Amendment, are
hereby ratified and confirmed in all respects.
8. This Fourth Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, and all of which taken
together shall constitute but one and the same instrument. This Agreement shall
become binding only when each party hereto has executed and delivered to the
other parties one or more counterparts.
IN WITNESS WHEREOF, the parties hereto have duly executed this Fourth
Amendment or have caused this Fourth Amendment to be duly executed by their
respective authorized officers as of the day and year first written above.
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UNION PACIFIC RESOURCES COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President, General Counsel
And Corporate Secretary
UNION PACIFIC FUELS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
DUKE ENERGY FIELD SERVICES, INC.
By: /s/ ▇. ▇. ▇▇▇▇
------------------------------------------
Name: ▇. ▇. ▇▇▇▇
Title: President
DEFS MERGER SUB CORP.
By: /s/ ▇. ▇. ▇▇▇▇
------------------------------------------
Name: ▇. ▇. ▇▇▇▇
Title: President
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SCHEDULE 1.01(1)
EXCLUDED BUSINESSES AND ASSETS
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AREA EXCLUDED BUSINESSES AND ASSETS
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EAST TEXAS CJV Gathering
Carthage Compressor Station
Tennessee 16" (owned by UPR, leased to East Texas Plant)
Southeast Carthage Gathering System
Oakhill Gathering System
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GULF COAST Conroe Emissions Credits (available for sale prior to close)
Weesatche Gathering System
Roleta Gathering System
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AUSTIN CHALK Oxy Gathering System (connected to El Paso Plant)
Needmore/Bluewater Gathering System (Brookeland)
▇▇▇▇▇ Plant Site (abandoned)
Texaco Brookeland Plant (idle)
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ROCKIES ▇▇▇▇▇ Treater and Gathering System
Wamsutter Pipeline (except for option to own portion)
Table Rock Unit Gathering System (Non-op)
▇▇▇▇▇▇▇ Rim Unit Gathering System
Painter Plant and Gathering System (Non-op)
Anschutz Plant and Gathering System (Non-op)
Whitney Canyon Plant, Inlet Facility and Gathering (Non-op)
Pineview Plant and Gathering System
Silo Plant and Gathering System
Mt Pearl Plant and Gathering System
▇▇▇▇▇▇▇ Plant and Gathering System
▇▇▇▇▇▇ Ditch Plant (idle) and Gathering System
Church Buttes Gathering System (Non-op)
Frontera Plant (idle) and Gathering System
Arapahoe Plant (idle) and Gathering System
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WEST TEXAS ▇▇▇▇▇▇ Gathering
▇▇▇▇ Ranch Gathering and Compression (except for OGPP
facilities on same pad)
▇▇▇▇▇▇▇▇▇ Gathering System
Davidson Ranch Gathering and Compression
Husdpeth Gathering Line
Rousselot Gathering System (▇▇▇▇▇▇▇▇▇▇ County)
West Packenham Gathering (▇▇▇▇▇▇▇ County)
Rio-Tex JV (Packenham Gathering, ▇▇▇▇▇▇▇ County)
Crawar Gathering System (Winkler, Ward, Lovin Counties)
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AREA EXCLUDED BUSINESSES AND ASSETS
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MARKETING Crude Marketing Business and Assets
LaGrange Crude Oil Terminal
Lockport Crude Oil Storage Agreement (Texaco)
Powersmith Gas Sales Agreement
Lake Interest Holdings (Cogen)
NCP Syracuse, Inc. (Cogen)
Syracuse Investments, Inc. (Cogen)
All Gathering, Processing and Wellhead Sale Contracts with
Third Party Plants, which contracts are not related to
the Assets.
Wellhead Sale Agreements in the Roleta and ▇▇▇▇▇▇ Fields, and
with respect to the ▇▇▇▇▇▇▇ ▇#▇, ▇▇▇▇▇▇▇ 3#1,
Brousserd 2#1 and ▇▇▇▇▇ #1, ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇
east of Masters Creek.
Subscription Agreement for Additional Transportation Capacity,
dated April 1, 1995 between Lone Star Gas Company and
Union Pacific Fuels, Inc.
Transportation Agreement, dated December 15, 1989, between
Kern River Transportation Company and Union Pacific
Fuels, Inc.
CiG System Supply contracts for sour and sweet gas in the
Table Rock/▇▇▇▇▇▇▇ area.
South Jersey Resources Group LLC
All gas sales contracts and transactions between Union Pacific
Fuels, Inc. and Chesapeake Utilities
Corporation/Delaware (excluding any executed asset
management contracts between Union Pacific Fuels,
Inc. and Chesapeake Utilities Corporation/Maryland or
Chesapeake Utilities Corporation/Delaware)
Gas Purchase Contract between Union Pacific Resources
Company and Castle Texas Production Limited
Partnership, including the Gas Purchase Contract
between Castle Texas Production Company Limited
Partnership and MG Natural Gas Corp.
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Other
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SCHEDULE 1.01(4)
PURCHASED ASSETS
East Texas Plant Complex, Fractionator and Gathering System (including the MSV
Pipeline)
Ozona Gas Plant, Fractionator and Gathering System
Ozona NGL Pipeline