Exhibit
10.98


 


FIFTH AMENDMENT TO

GAS SALES AGREEMENT


 


This
Fifth Amendment to Gas Sales Agreement (“Amendment”) is executed as of June 30,
2003, by Tipperary Oil & Gas (Australia) Pty Ltd (ACN 077 536 871) of GPO
Box 1100, Brisbane, Queensland, Australia 4001 (“Seller”), and QUEENSLAND
FERTILISER ASSETS LIMITED (ACN 011 062 294) of 76 Arthur Street, Roma,
Queensland, Australia (“Buyer”).


 


WITNESSETH:


 


A.
The Seller and Buyer have previously delivered Gas Sales Agreement dated September 28,
2001, as amended by Amendment to Gas Sales Agreement dated as of May 30, 2002,
Second Amendment to Gas Sale Agreement dated as of September 1, 2002,
Third Amendment to Gas Sale Agreement dated as of January 1, 2003 and
Fourth Amendment to Gas Sale Agreement dated as of March 31, 2003
(collectively, the “Original Agreement”) governing the sale and supply of Gas
to Buyer subject to the terms and conditions set forth therein including,
without limitation, the Seller and the Buyer obtaining necessary financing
commitments, under terms reasonably acceptable to each of them, by June 30,
2003 for (a) Buyer to construct and commission the Plant and the Pipeline
between June 30, 2003 and the Commencement Date and (b) Seller to drill
and complete the number of wells, and install laterals and compressors, as
Seller reasonably deems necessary between June 30, 2003 and the
Commencement Date to deliver the ACQ to the Delivery Point and meet Pipeline
Pressure requirements; and


 


B.
The Seller and Buyer have agreed, subject to the terms and conditions set forth
below, to amend the Original Agreement to (1) extend the date for Seller and
Buyer to obtain their respective financing commitments to December 31,
2003 and (2) otherwise modify the Original Agreement as set forth herein.


 


NOW,
THEREFORE, for a sufficient consideration received by each, the Seller and
Buyer agree to amend the Original Agreement as follows.


 


1.              Definitions. The
definition of Commencement Date in the Original Agreement is hereby amended and
replaced in its entirety as set forth below.


 


“Commencement
Date” means the later of:


 


(a)          1 June 2006; or





















 


(b)         the date after 1 June 2006 on which the
Buyer takes the first delivery of Gas from the Seller under this Agreement
pursuant to the notice given under Clause 2.4;


 


provided
that, if Buyer has
not previously taken the first delivery of Gas from the Seller under
Subparagraph (b) above, the Commencement Date shall be deemed to occur on 1 November 2006.”


 


2.              Sale and Purchase.  Section 2.1,
the preamble of Section 2.2 and Section 2.4 of the
Original Agreement, each stating conditions precedent to Seller’s and Buyer’s
obligations under the Original Agreement, are hereby amended and replaced in
their entirety as set forth below.


 


“2.1
The obligations of the Parties under the Agreement, other than their
obligations under Clauses 17, 20 and 24, are subject to and do not
become binding unless:


 


(a)          Buyer: (i) establishes and maintains its
creditworthiness to the reasonable satisfaction of the Seller, and (ii) the
Buyer has in place the necessary financing commitments, under terms reasonably
acceptable to Buyer and Seller, that will foreseeably allow Buyer to construct
and commission the Plant and the Pipeline between December 31, 2003 and
the Commencement Date. If these conditions precedent are not satisfied by December 31,
2003, then this Agreement will terminate (except for Clauses 17, 20 and 24
and the enforcement of any right or claim which arises thereunder), unless the
Seller agrees in writing to extend the time required to meet these conditions.


 


(b)         Seller has in place the necessary financing
commitments, under terms reasonably acceptable to Buyer and Seller, that will
foreseeably allow Seller to drill and complete the number of wells, to install
laterals and compressors, as Seller reasonably deems necessary between December 31,
2003 and the Commencement Date to deliver the ACQ to the Delivery Point and
meet Pipeline Pressure requirements. If these conditions precedent are not
satisfied by December 31, 2003, then this Agreement will terminate (except
for Clauses 17, 20 and 24 and the enforcement of any right of claim
which arises thereunder), unless Buyer agrees in writing to extend the time
required to meet this condition.”


 


“2.2
In addition to the conditions in Clause 2.1, Buyer shall begin actual
construction of the Plant by June 1, 2004, and diligently prosecute actual
construction of the Plant and the Pipeline thereafter in an orderly and prudent
manner through and until the Commencement Date.”


 


“2.4
The Buyer must deliver written notice to the Seller not less that forty-five
(45) Business Days’ before the Day on which the Buyer intends to 


 


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take
the first delivery of Gas from the Seller under this Agreement; provided
that Seller shall have no obligation to supply Gas to Buyer before 1 March 2006.”


 


3.              Authority, Effect and Governing Law.  Section 20.1 (a), containing a
representation and warranty regarding Seller’s and Buyer’s corporate
proceedings with respect to the Original Agreement, is hereby amended and
replaced in its entirety as set forth below.


 


“20.1
Each Party represents and warrants to the other Party now and at all times
during the Term:


 


(a)
It is a company duly incorporated under the laws of Queensland and has the power
and authority to enter into this Agreement and will have undertaken and
complied with the necessary corporate proceedings to ensure this Agreement is
enforceable and binding on it or before December 31, 2003 (unless
otherwise terminated on or before that date);”


 


4. Annexure 1. Annexure 1 attached to the Original
Agreement, containing the Gas Price formula, is hereby deleted in its entirety
and replaced by Annexure 1 attached to this Amendment.


 


5. Capitalized Terms. All capitalized terms shall have the meaning
assigned to them in the Original Agreement, except as added, amended or
otherwise restated herein or unless the context clearly requires otherwise. In
addition: references in the Original Agreement to the “Agreement,” “hereof”, “herein”
and words of similar import shall be deemed to be references to the Original
Agreement as amended hereby.


 


6. Representations. The Seller and Buyer respectively represent
and warrant that all of the representations and warranties contained in the
Original Agreement (and any certificates and documents executed pursuant
thereto or contemplated thereby) are true and correct in all material respects
on and as of the effective date of this Amendment.


 


7. Conflicts and Continuation. In the event that this Amendment conflicts
or is inconsistent with the Original Agreement, this Amendment shall control.
Except as specifically amended herein, all of the terms and conditions of the
Original Agreement (and any certificates and documents executed pursuant
thereto or contemplated thereby) shall remain in full force and effect in
accordance with their respective terms.


 


8. Severability. In the event any
one or more provisions contained in the Original Agreement or this Amendment
should be held to be invalid, illegal or unenforceable in any respect, the
validity, enforceability and legality of the remaining provisions contained
herein and therein shall not be affected in any


 


3





















 


way
or impaired thereby and shall be enforceable in accordance with their
respective terms.


 


9. Acknowledgment. The Seller and Buyer respectively ratify and
confirm that the Original Agreement (and any certificates and documents
executed pursuant thereto or contemplated thereby) remain in full force and
effect in accordance with their respective terms, except as amended hereby. The
representatives of the Seller and Buyer executing this Amendment each represent
and warrant to the others that they are duly appointed agents or officers of
the party to the Original Agreement as designated in the signature lines below,
they have full power and authority to execute and deliver this Amendment on
behalf of the party to the Original Agreement as designated below, they have
obtained all corporate or other authorizations as may be applicable to each of
them.


 


EXECUTED as an agreement.


 


	
  THE, COMMON SEAL of
  TIPPERARY OIL & GAS (Australia) 

  	
  )

  	
   

  
	
  Pty LTD (ACN 077 536 871
  was duly affixed to this document in 

  	
  )

  	
   

  
	
  accordance with its
  articles of association in the presence of:

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Richard A. Barber

  	
   

  	
   

  	
  /s/ David L. Bradshaw

  
	
  Signature of Secretary

  	
   

  	
   

  	
  Signature of Director

  
	
   

  	
   

  	
   

  
	
  Richard A. Barber

  	
   

  	
   

  	
  David L. Bradshaw

  
	
  Name of Secretary – please
  print

  	
   

  	
  Name of Director – please
  print

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  THE COMMON SEAL OF
  QUEENSLAND

  	
  )

  	
   

  
	
  FERTILIZER ASSETS LIMITED
  (ACN 011 062 294)

  	
  )

  	
   

  
	
  was duly affixed to this
  document in accordance

  	
  )

  	
   

  
	
  with its Articles of
  Association in the presence of:

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ H. J. K. Howes

  	
   

  	
   

  	
  /s/ John F. Babbitt

  
	
  Signature of Secretary

  	
   

  	
  Signature of Director

  
	
   

  	
   

  	
   

  
	
  H. J. K. Howes

  	
   

  	
   

  	
  John F. Babbitt

  
	
  Name of Secretary – please
  print

  	
   

  	
  Name of Director – please
  print

  



 


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ANNEXURE 1


 


GAS PRICE
FORMULA


 


1.               The
Gas Price at the Delivery Point for the first two Contract Years will be [***]
per Gigajoule. Starting with the third Contract Year (but not later than 1 January 2008),
the floor price of Gas delivered to the Delivery Point will be [***] per
Gigajoule, as adjusted herein (“Floor Price”). The Gas Price is as follows
after the first two Contract Years:


 


(a)          If
the average fob price for urea produced and shipped from the Plant in any
calendar quarter starting with the third Contract Year (but not later than 1 January 2008)
and any subsequent calendar quarter thereafter throughout the Term is less than
A$220 per metric ton, the Gas Price is equal to the Floor Price, as adjusted;


 


(b)         If
the average fob price for urea produced and shipped from the Plant in any
calendar quarter starting with the third Contract Year (but not later than 1 January 2008)
and any subsequent calendar quarter thereafter throughout the Term is more than
A$220 per metric ton, the Gas Price shall be as follows, if and only if, it
results in a price higher than Floor Price, as adjusted:


 


Gas Price = [***] {1 + 0.75 (fob urea price -
220)/220} A$/GJ


 


(c)          Buyer
agrees to permit Seller to audit Buyer’s records as may be reasonable or
necessary to validate the average fob price for urea produced and shipped from
the Plant each calendar quarter;


 


(d)         In
addition to adjustments to the Gas Price set forth in Subclauses 1 (a) and
(b) above, the initial Floor Price of [***] will be increased each Contract
Year starting with the third Contract Year (but not later than 1 January 2008)
by either a factor of 2%; or 70% of the CPI; whichever is lower, compounded
each year beginning at 28 September 2003 throughout the Term of the
Contract;


 


(e)          The
Parties agree that if the average market price of coalbed methane in the Bowen
Surat Basin area of Queensland during the fifteenth Contract Year, of the
Agreement has escalated to a level in excess of $A 0.50 per Gigajoule above of
the adjusted Floor Price in effect at the end of the fifteenth Contract Year
under Subclauses 1 (a) and (b), the Floor Price shall increase by
one-half of such excess. If the Parties cannot agree to the average coalbed
methane market price pursuant to Clause 3 below, they shall agree to
appoint an independent arbitrator who shall make such determination.
Furthermore, the Parties agree that beginning with the first day of the
sixteenth Contract Year of the Agreement, the 75% participation factor in urea
pricing per Subclause 1 (b) above, will become 50%; and


 


(f)            For
purposes of this Annexure 1, Subclauses 1 (a), (b) and (d), it is agreed
that the price for urea and the Gas Price are exclusive of Goods and Services
Tax (GST).


 










*** Text has been omitted and filed separately with the Securities and
Exchange Commission. Confidential treatment has been requested under 17 C.F.R. section 240.24b-2.


 





















 


2.               For
purposes of calculating any adjustments and averages in respect the fob price
of urea, it is agreed that:


 


(a)          calendar
quarters shall begin on January, April, July and October of each
Contract Year;


 


(b)         Buyer
shall provide Seller its calculation (and supporting materials reasonably
acceptable to Seller) for the average fob price for urea within ten (10) Days
after the end of each calendar quarter;


 


(c)          Seller
shall utilize Buyer’s calculation of the average fob price for the preceding
calendar quarter to calculate (i) the final Gas Price in effect during the
preceding calendar quarter (and any resulting increases to the amounts
specified in the invoices for each Month during the preceding calendar quarter
and (ii) the estimated Gas Price in effect for each Month during the then
current calendar quarter (which Seller shall utilize for purposes of preparing
invoices for Delivered Gas during the then current calendar quarter, subject to
adjustment at the end of that calendar quarter in a like manner following the Buyer’s
calculation of the average fob price of urea for that calendar quarter), and


 


(d)         Seller
will include charges resulting from an increase or credits resulting from a
decrease in the final Gas Price for the preceding calendar quarter in (i) the
invoice for the first Month of the then current calendar quarter or, (ii) the
first invoice as maybe practicable if the Buyer fails to deliver the
calculation of the average fob price for urea when due, in which case Buyer
shall pay interest at the BB Rate plus two percent (2%) from the date the
additional charge would have become due (if Buyer delivered the average fob
price calculation on time) until the date the charge is paid.


 


3.               For
purposes of calculating adjustments and averages in respect of average coalbed
methane market prices during the fifteenth Contract Year, it is agreed that:


 


(a)          Seller
shall utilize (i) the prices set forth each week/Month during the fifteenth
Contract Year for spot prices for the Bowen Surat Basin area of Queensland
delivered to pipeline as published in a recognized publication utilized by the
gas pipeline industry to establish spot price quotes in the Bowen Surat Basin
area of Queensland, which is reasonably acceptable to Seller and Buyer or (ii)
prices for sales of coalbed methane gas in the Bowen Surat Basin area of
Queensland during that period which are comparable in availability to market,
quality, quantity and time of sale of Delivered Gas (as compiled by Seller
utilizing reasonable commercial endeavours from gas pipeline industry sources
in Queensland, Australia which are reasonably acceptable to Buyer) if a
recognized publication does not then exist;


 





















 


(b)         Seller
shall provide Buyer its calculation (and supporting materials reasonably
acceptable to Buyer) for the average market price of coalbed methane gas during
the fifteenth Contract Year upon request; and


 


(c)          Seller
shall charge, and Buyer shall pay, the Floor Price (as adjusted pursuant to Subclause
1 (e) for all Delivered Gas beginning with the sixteenth Contract Year.


 


4.               Adjustments
to the Gas Price pursuant to Subclauses 1 (a), (b), (d) and (e) shall be
cumulative.


 


5.               Either
Party, at its own expense, shall have the right to examine, copy and audit all
of the books and records of the other Party related to the calculation of the
average fob price of urea, or the average market price of coalbed methane,
which are provided by the other Party for purposes of adjusting the Gas Price
pursuant to this Annexure, as follows:


 


(a)          each
Party shall have the right to audit and copy the books and records of the other
Party after delivering written notice not less than fifteen (15) Business Days
in advance of the date of the proposed audit;


 


(b)         all
examinations and audits shall be conducted at the office of the Party being
audited on one or more consecutive Business Days, during normal business hours.
The Party being audited shall provide access to personnel and relevant records,
as may be reasonable or necessary to assist the auditing Party’s examiner or
auditors to complete the examination or audit as expeditiously as possible;


 


(c)          to
the extent that the auditing Party should take exception to any portion of the
other Party’s relevant books and records, the auditing Party shall provide the
other Party with a written report summarizing reasons for the exceptions taken.
The audit report must be delivered no later than thirty (30) days following the
completion of the examination or audit. The other Party shall have fifteen (15)
days from receipt of the report in which to prepare and submit a written
response to the exceptions taken by the auditing Party. If, after reviewing the
other Party’s response, any disagreements remain, the Parties’ designated
representatives shall meet for the purposes of resolving those disputes. If,
after meeting to discuss the remaining disputes, the representatives are not
able to reach a compromise reasonably acceptable to each, either Party may
request the initiation of arbitration pursuant to this Agreement; and


 


(d)         the
notices from either Party of an audit shall designate the agent or employee
assigned to conduct the examination or audit on their behalf. The auditing
Party shall cause the designated employee to work diligently to complete the
examination or audit in a reasonable and prudent manner.