FIFTH AMENDMENT TO SECOND AMENDED AND RESTATED CONSTRUCTION AND FIELD GATHERING AGREEMENT
Exhibit 10.1
Execution Version
FIFTH AMENDMENT TO SECOND AMENDED AND RESTATED
CONSTRUCTION AND FIELD GATHERING AGREEMENT
CONSTRUCTION AND FIELD GATHERING AGREEMENT
This Fifth Amendment (this "Amendment") to the Second Amended and Restated Construction and Field Gathering Agreement is dated as of July 26, 2022 (the "Execution Date") but made effective as of July 1, 2022, by and between Ironwood Shiner Pipeline, LLC, as successor to Nuevo Dos Gathering and Transportation, LLC, as successor to Republic Midstream, LLC ("Gatherer") and Penn Virginia Oil & Gas, L.P. ("Shipper"). Xxxxxxxx and Xxxxxxx may hereinafter be referred to singularly as a "Party" and, together, as the "Parties".
RECITALS
WHEREAS, Republic Midstream, LLC and Penn Virginia Oil & Gas, L.P. entered into that certain Second Amended and Restated Construction and Field Gathering Agreement effective as of August 1, 2016 (the "Original Gathering Agreement");
WHEREAS, the Original Gathering Agreement was amended (as so amended, the “Gathering Agreement”) by that certain First Amendment to Second Amended and Restated Construction and Field Gathering Agreement, dated as of April 13, 2017, Second Amendment to Second Amended and Restated Construction and Field Gathering Agreement, dated as of July 2, 2018, Third Amendment to Second Amended and Restated Construction and Field Gathering Agreement, dated as of December 14, 2018, and Fourth Amendment to Second Amended and Restated Construction and Field Gathering Agreement, dated as of May 21, 2020; and
WHEREAS, the Parties desire to further amend the Gathering Agreement as provided in this Amendment;
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions herein contained, together with other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties, for themselves and for their successors and assigns, do hereby mutually covenant and agree as follows:
1.Amendment of Definitions in the Gathering Agreement. Article I of the Gathering Agreement is hereby amended by:
(a) adding the following definitions in appropriate alphabetical order
"Xxxx Xxxx Pad Connection Pipe” means an Additional Segment consisting of an approximately 2,038 feet low gravity (below 45 API) pipeline that will permit Crude Oil produced from the Xxxx Xxxx Pad Xxxxx and Tremolite Pad Xxxxx to be delivered to Gatherer under the Agreement.
"Xxxx Xxxx Pad Well Fee” has the meaning given such term in Section 9.2(e).
"Xxxx Xxxx Pad Xxxxx” means the Xxxx Xxxx 12H, 13H, 22H & 28H xxxxx.
"Tremolite Pad Xxxxx” means the Tremolite A1H & Tremolite B2H xxxxx.
(b)deleting the word “and” before clause (c) of the definition of “Dedication Area” and adding the following before the period at the end of such definition:
“, and (d) the Xxxx Xxxx Pad Xxxxx and the Tremolite Pad Xxxxx.”
2.Waiver of Construction Notice and Installation of Xxxx Xxxx Pad Facilities. Gatherer hereby waives the obligation set forth in Section 3.3(a) of the Gathering Agreement for Shipper to deliver a Construction Notice for the Xxxx Xxxx Pad Connection Pipe, and hereby agrees and elects, at its sole cost and expense, to construct, install, own and operate an Additional Segment consisting of the Xxxx Xxxx Pad Connection Pipe, and a LACT/ACT Unit at the interconnection of the Xxxx Xxxx Pad Connection Pipe and the Xxxx Xxxx Pad Xxxxx (such interconnection point is referred to in this Amendment as the “Xxxx Xxxx Pad Interconnection Point”). Shipper shall, at its sole cost and expense, construct, install, own and operate all facilities upstream of the Xxxx Xxxx Pad Interconnection Point that are reasonably necessary to deliver Crude Oil from the Xxxx Xxxx Pad Xxxxx and the Tremolite Pad Xxxxx to the Xxxx Xxxx Pad Interconnection Point.
3.Receipt Point. The Xxxx Xxxx Pad Interconnection Point shall be a Receipt Point under the Gathering Agreement.
747972963.5
4.Fees.
(c)Sections 9.2(a) and 9.2(b) of the Gathering Agreement are hereby amended by deleting the parenthetical in such sections and replacing it in its entirety with “(other than from the Excluded Units, Outside Units, Other Xxxxx, Future Xxxxx, Xxxx Xxxx Pad Xxxxx and Tremolite Pad Xxxxx)”;
(d)Section 9.2(e) of the Gathering Agreement is hereby deleted and replaced in its entirety with the following:
“(e) A gathering fee on all of Shipper's Oil delivered at the Delivery Points via the Gathering System from all Future Xxxxx equal to $1.00 per Barrel during such Month (the "Future Well Fee"), and from all Xxxx Xxxx Pad Xxxxx and Tremolite Pad Xxxxx equal to $1.00 per Barrel during such Month (the "Xxxx Xxxx and Tremolite Pad Well Fee");” and
(e)Sections 9.2(f), 9.2(g) and 9.2(h) of the Gathering Agreement are hereby amended by deleting the parenthetical in such sections and replacing it in its entirety with “(which shall in no event include Shipper's Oil from the Other Xxxxx, Future Xxxxx, Xxxx Xxxx Pad Xxxxx and Tremolite Pad Xxxxx except as otherwise agreed by Shipper)”.
5.Fee Adjustment. Section 9.4 of the Gathering Agreement is hereby amended by adding the following parenthetical after the phrase “aggregate Monthly Fees” each time it appears in such Section:
“(other than the portion of such aggregate Monthly Fees that consist of Xxxx Xxxx and Tremolite Pad Well Fees)”
For the avoidance of doubt, Xxxxxxx's Oil delivered at the Delivery Points via the Gathering System from the Xxxx Xxxx Pad Xxxxx and the Tremolite Pad Xxxxx will be (i) charged the Transportation Fee (as defined in the TSA) under the TSA, (ii) charged the Marketing Fee (as defined in the Marketing Agreement) under the Marketing Agreement, and (iii) credited towards the first 20,000 bpd minimum volume commitment specified in the Gathering Agreement, TSA and Marketing Agreement during the respective terms of the applicable agreement.
6.Ratification; Primacy. Except as expressly amended by this Amendment, all of the terms, provisions, covenants and conditions contained in the Gathering Agreement remain in full force and effect; provided, if there is ever any conflict between the Gathering Agreement and this Amendment, the terms, provisions, covenants and conditions contained in this Amendment shall govern. The terms and provisions of the Gathering Agreement as amended by this Amendment are binding upon and inure to the benefit of the Parties, their representatives, successors and assigns. As amended by this Amendment, the Gathering Agreement is ratified and confirmed by the Parties, and declared to be a valid and enforceable contract between them.
7.Counterparts. This Amendment may be executed in as many counterparts as deemed necessary. When so executed, the aggregate counterparts shall constitute one agreement and shall have the same effect as if all Parties signing counterparts had executed the same instrument.
8.Amendment; Waiver. Neither this Amendment nor the Gathering Agreement may be amended or modified except pursuant to a written instrument signed by all of the Parties. Each Party may waive on its own behalf compliance by any other Party with any term or provision hereof; provided, however, that any such waiver shall be in writing and shall not bind the non-waiving Party. The waiver by any Party of a breach of any term or provision shall not be construed as a waiver of any subsequent breach of the same or any other provision.
9.Joint Preparation. The Parties agree and confirm that this Amendment was prepared jointly by all Parties and not by any one Party to the exclusion of the other.
10.No Third Party Beneficiaries. This Amendment is not intended to confer upon any person not a party hereto any rights or remedies hereunder, and no person other than the Parties is entitled to rely on or enforce any provision hereof.
11.Miscellaneous Provisions. The provisions of Articles XVII, XIX, XX and XXI of the Gathering Agreement are incorporated herein by this reference as if set out fully herein and shall apply in all respects to this Amendment.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Amendment has been executed by the Parties effective as of the Execution Date.
IRONWOOD SHINER PIPELINE, LLC
By: Ironwood Midstream Energy Partners II, LLC,
Its sole member
By: /s/ Xxxxxx Xxxxxxx______________
Name: Xxxxxx Xxxxxxx
Title: CCO & CFO
PENN VIRGINIA OIL & GAS, LP
By: /s/ Xxxx X. Xxxxxx________________
Name: Xxxx X. Xxxxxx
Title: VP, Land and Marketing
Signature Page to
Fifth Amendment to the Second Amended and Restated Construction and Field Gathering Agreement