Exhibit 10.24
AMENDMENT TO
AMENDED AND RESTATED
GAS PURCHASE AGREEMENT
This Amendment is made by and among Oryx Gas Marketing Limited Partnership,
▇▇▇▇-▇▇▇▇▇ Oil & Gas Corporation and ▇▇▇▇-▇▇▇▇▇ Oil & Gas Onshore LP, successor
in interest to Sun Operating Limited Partnership (collectively, "Seller") and
Cinergy Marketing & Trading, LLC ("Buyer").
WHEREAS, Seller and Buyer have entered into that certain Amended and
Restated Gas Purchase Agreement dated July 1, 1998, as amended, whereunder
Seller sells certain gas to Buyer (the "Agreement").
WHEREAS, Seller and Buyer desire to amend the Agreement in the manner set
forth hereinbelow.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
Section 1.4 of Article I, DEFINITIONS, of the Agreement is hereby amended
by deleting same in its entirety.
Section 1.8 of Article I, DEFINITIONS, of the Agreement is hereby amended
by deleting same in its entirety and substituting therefor the following:
1.8 "Contract Price" shall mean the Baseload Price or the Swing Price,
as defined in Section 7.1.
Section 1.20 of Article I, DEFINITIONS, of the Agreement is hereby amended
by deleting same in its entirety and substituting therefor the following:
1.20 "Index" for a particular source of supply in the area where the
applicable Delivery Point(s) is/are located shall be that published
index(es) or pricing component which has been determined by mutual
agreement (or if there is no published index for the relevant Delivery
Point(s), then such other index(es) or pricing component as may be selected
by mutual agreement), to best represent the market price for Gas of like
quantities and quality at the Delivery Point(s), after Index Price
Adjustments and deduction for Costs of Delivery. The Index(es) applicable
to each Delivery Point(s) are set forth on Exhibit A as the Monthly Index
and the Daily Index.
IV.
Section 1.21 of Article I, DEFINITIONS, of the Agreement is hereby amended
by deleting same in its entirety and substituting therefor the following:
1.21 Unless specified to the contrary in Exhibit "A," "Monthly Index"
shall be the price per MMBtu determined from the entry in the Monthly Index
column on Exhibit "A" for the respective Aggregation Area. Unless specified
to the contrary in Exhibit "A," "Daily Index" shall be the price per MMBtu
determined from the entry in the Daily Index column on Exhibit "A" for the
respective Aggregation Area.
V.
Section 1.22 of Article I, DEFINITIONS, of the Agreement is hereby amended
by deleting same in its entirety and substituting therefor the following:
1.22 "Index Price Adjustments" shall mean, with respect to a Baseload
Price ("Monthly Index Price Adjustment") or Swing Price ("Daily Index Price
Adjustment") for any Delivery Point(s), differentials reasonably necessary
to adjust the Monthly Index or Daily Index for Gas to accurately reflect
the market price for Gas (after taking into account Costs of Delivery) of
like quantities and quality at the Delivery Point(s). The Index Price
Adjustments applicable to each Delivery Point(s) are listed on Exhibit "A".
VI.
Section 1.23 of Article I, DEFINITIONS, of the Agreement is hereby amended
by deleting same in its entirety.
VII.
Section 1.32 of Article I, DEFINITIONS, of the Agreement is hereby amended
by deleting same in its entirety and substituting therefor the following:
Section 1.32 "Seller's Estimate" means with respect to each
Aggregation Area, Seller's good faith estimate under Section 3.5 of the
quantity of Committed Gas that seller expects to deliver at all Delivery
Point(s) within an Aggregation Area for the relevant Month and each Day of
the Month.
The term "Baseload Designated Percentage" shall mean the percentage
designated by Seller each quarter, which will be utilized to establish the
Baseload Quantity for all of Seller's gas at all Delivery Points, for all
Aggregation Areas. The term "Swing Designated Percentage" shall mean the
percentage designated by Seller each calendar quarter which will be
utilized to establish in part the Swing Quantity for all of Seller's gas at
all Delivery Points, for all Aggregation Areas. The sum of the Baseload
Designated Percentage and the Swing Designated Percentage for each calendar
quarter shall equal 100%.
The initial Baseload Designated Percentage and Swing Designated
Percentage for Gas delivered in May 2000 shall be:
Baseload Designated Percentage -- 90%; Swing
Designated, Percentage -- 10%.
Seller shall have the right to designate in writing by May 16, 2000 a
different Baseload Designated Percentage and Swing Designated Percentage
for Gas delivered in June 2000. Thereafter, Seller will designate the
Baseload Designated Percentage and the Swing Designated Percentage in
writing to Buyer at least fifteen (15) days before the first day of the
applicable calendar quarter. The Baseload Designated Percentage shall be no
less than 50% and no greater than 90%, with a restriction that the Baseload
Designated Percentage will not vary from the previous calendar quarter's
Baseload Designated Percentage by more than 20 percentage points.
The term "Baseload Quantity" shall mean an amount of gas each Day,
determined for each Aggregation Area separately, equal to the product of
the Baseload Designated Percentage multiplied by the daily quantities set
forth in the initial Seller's Estimate provided by Seller under Section 3.5
each month for all Delivery Points in such Aggregation Area. The term
"Swing Quantity" shall mean all Gas delivered each Day by Seller from an
Aggregation Area that is in excess of the Baseload Quantity for such
Aggregation Area.
VIII.
Section 3.5(c) of ARTICLE III, COMMITMENT OF GAS, is hereby amended by
deleting the same in its entirety and substituting therefor the following:
(c) Estimates of Additional Quantities of Committed Gas. Seller and
Buyer are aware that additional quantities of Committed Gas from new
sources of supply not included in Seller's Estimate will become available
for delivery to Buyer at various times after the first Day of an applicable
Month. At least two Business Days before the Day that Seller wishes to
begin deliveries of such additional quantities of Committed Gas, Seller
shall provide Buyer with a written notice setting forth (i) the Delivery
Point(s) at which Seller shall make such deliveries, (ii) the quantities of
Committed Gas that Seller estimates will be delivered to each such Delivery
Point during the Month in which initial deliveries occur, (iii) the
Index(es) proposed to be applicable to such Delivery Point(s), (iv) any
Index Price Adjustments proposed to be applicable to the price determined
in accordance with such Index(es) and (v) any other information set forth
on Exhibit A. The Contract Price for such additional quantities shall be
determined in accordance with the foregoing information, subject to the
provisions of Article VII, including without limitation the rights of Buyer
to propose other Index(es) or Index Price Adjustments in accordance with
Section 7.4 and identify Costs of Delivery. Buyer shall take such
additional quantities of Committed Gas in accordance with, and subject to
the terms of, Section 4.1, however, all such additional quantities will be
deemed to be Swing Quantity to be priced at the Swing Price for the Month
in which the initial delivery date for such new Gas occurs and, at Seller's
option on a month-by-month basis, the next three (3) succeeding months.
Thereafter, the new Gas will be divided between Baseload Quantity and Swing
Quantity each Month in accordance with Section 1.32.
IX.
Section 4.2(a) of ARTICLE IV, QUANTITY; SCHEDULING AND TRANSPORTATION OF
DAILY VOLUMES, is hereby amended by deleting the same in its entirety and
substituting therefor the following:
(a) Seller Delivery Event. If, during any Day, (i) Seller fails for
any reason (other than Force Majeure as defined in Article X or any other
reason excusing performance of Seller's obligation to deliver Committed Gas
hereunder) to deliver 100% of the Baseload Quantity for each Aggregation
Area (defined as a "Seller Delivery Event"), and (ii) Buyer, acting in a
commercially reasonable manner to mitigate any damages, purchases Gas to
replace such quantities, whether on the Day in question or a subsequent
Day, in order to satisfy Buyer's Contractual Obligations (as defined in
Section 9.2) to third parties for the Day in question existing prior to
Buyer's knowledge of any shortfalls, then Seller shall pay Buyer, in
accordance with the provisions of Article VIII, an amount equal to the
product of (x) the positive difference between (A) the price per MMBtu
actually paid by Buyer for the replacement quantities and (B) the Baseload
Price that Buyer would have paid Seller for the, quantities of Committed
Gas not delivered by Seller and (y) the quantities of such replacement Gas
purchased by Buyer. Seller shall also pay Buyer, in accordance with the
provisions of Article VIII, the amount of any incidental out-of-pocket
costs reasonably incurred by Buyer (including, by way of example rather
than enumeration, brokers' fees and any incremental transportation costs),
less any expenses saved by Buyer, as a result of such Seller Delivery
Event. In the event daily deliveries are incapable of being determined
because the measuring party does not provide daily quantities, then it will
be assumed that Seller delivered on each Day of a Month from an Aggregation
Area a quantity equal to the monthly quantity for the Aggregation Area
divided by the number of days in the Month. Nothing herein shall be
construed as relieving Seller from liability for an Imbalance Charge
arising under Section 11.3. Any amounts due Buyer hereunder shall be paid
in accordance with Article VIII.
X.
Section 7.1 of ARTICLE VII, PRICE, is hereby amended by deleting the same
in its entirety and substituting therefor the following:
7.1 Baseload Price and Swing Price. Buyer shall pay Seller the
applicable "Baseload Price" for the Baseload Quantity delivered on each Day
of each Month from the applicable Aggregation Area and the applicable daily
"Swing Price" for the Swing Quantity delivered on each Day of each Month
from the applicable Aggregation Area. Unless specified to the contrary in
Exhibit "A," "Baseload Price" shall mean the price per MMBtu equal to the
Monthly Index, as designated for the Gas from an Aggregation Area on
Exhibit "A," for the Month of deliveries, (i) plus or minus any Monthly
Index Price Adjustments specified in Exhibit "A" for such Gas, and (ii)
minus the Costs of Delivery for such Gas. In the event more than one
published index is listed on Exhibit "A" for use in determining the Monthly
Index for Gas at a Delivery Point, the Monthly Index will be calculated
using an average of the published indexes with appropriate Monthly Index
Price Adjustments and deductions for Costs of Delivery (hereinafter
referred to as a "Basket Price"). Unless specified to the contrary in
Exhibit "A," "Swing Price" shall mean the price per MMBtu equal to the
Daily Index, as designated for the Gas from an Aggregation Area on Exhibit
"A," attributable to the Day on which the Gas is delivered (however, if the
Gas is delivered at a Delivery Point where a daily quantity is not made
available by the measuring party, then this component of the Swing Price
for the Swing Quantity of Gas delivered at such location on each Day of the
Month of deliveries will be equal to the average of the Daily Indexes for
all Days of the Month attributable to the Gas from an Aggregation Area),
(i) minus $0.02 per MMBtu, (ii) plus or minus any Daily Index Price
Adjustments specified in Exhibit "A" for such Gas, and (iii) minus the
Costs of Delivery for such Gas.
XI.
Section 7.2 of ARTICLE VII, PRICE, of the Agreement is hereby amended by
deleting same in its entirety.
XII.
Section 7.4 of ARTICLE VII, PRICE, of is hereby amended by deleting the
same in its entirety and substituting therefor the following:
7.4 Redetermination of Index(es) and Index Price Adjustments. If, during the
term of this Agreement (a) an Index used to determine the Monthly Index or
Daily Index for any Delivery Point ceases to be available, (b) either party
believes that another Index more accurately reflects existing market
conditions with respect to any Delivery Point(s) than the Index currently
being used with respect to such Delivery Point(s), or (c) either party
believes that the Index Price Adjustments with respect to any Monthly Index
or Daily Index for any Delivery Point(s) no longer accurately reflects all
differentials reasonable necessary to adjust the Monthly Index or Daily
Index for Gas to accurately reflect the market price for Gas of like
quantities and quality at such Delivery Point(s), then either party may
request the other to reconsider the currently-applicable Index or Index
Price Adjustment, in accordance with Section 7.5. The parties shall review
the appropriateness of all Index(es) and Index Price Adjustments used
hereunder not less than annually.
XIII.
The current form of Exhibit "A," however designated, that is in effect
immediately prior to May 1, 2000, is hereby amended by deleting the same and
substituting therefor the attached Exhibit "A-0005," a copy of which is attached
hereto as Attachment "A." Each reference in the Agreement to the phrase,
"Exhibit A," shall be a reference to such Exhibit "A-0005." The parties
acknowledge that they will modify the current version of the Exhibit "A" between
the time that this Amendment is signed and such Exhibit "A-0005" becomes
effective, and that they may need to modify the Exhibit "A-0005" before it
becomes effective to add or delete miscellaneous ▇▇▇▇▇ where necessary.
XIV.
Schedule 3.6 of the Agreement is hereby amended by deleting same in its
entirety and substituting therefor the Schedule 3.6-A attached hereto. Each
reference in the Agreement to the phrase, "Schedule 3.6," shall be a reference
to such Schedule 3.6-A.
XV.
Except as specifically amended hereby, the remaining terms and conditions
of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, this Amendment is executed in multiple originals to be
effective on May 1, 2000.
ORYX GAS MARKETING LIMITED
PARTNERSHIP
By: ▇▇▇▇-▇▇▇▇▇ Oil & Gas Onshore LLC
Its Managing General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇-▇▇▇▇▇ OIL & GAS ONSHORE LP
By: ▇▇▇▇-▇▇▇▇▇ Oil & Gas Onshore LLC
Its Managing General Partner
By: /s/ ▇ ▇ ▇▇▇▇▇
-------------
Name: ▇ ▇ ▇▇▇▇▇
Title: Vice President
▇▇▇▇-▇▇▇▇▇ OIL & GAS CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
CINERGY MARKETING & TRADING, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President