Exhibit 2.2
FIRST AMENDMENT TO CONTRIBUTION AGREEMENT
This FIRST AMENDMENT TO CONTRIBUTION AGREEMENT (this "Amendment") is
entered into as of the 6th day of April, 2006 by and among ONEOK, Inc., an
Oklahoma corporation ("ONEOK"), Northern Border Partners, L.P., a Delaware
limited partnership ("Northern Border"), and Northern Border Intermediate
Limited Partnership ("NBILP", and together with Northern Border, the "NBP
Partnerships") (each a "Party" and collectively, the "Parties"). Capitalized
terms used in this Amendment but not defined shall have the respective meanings
given to such terms in the Contribution Agreement.
WITNESSETH
WHEREAS, the Parties entered into that certain Contribution Agreement
dated as of February 14, 2006 (the "Contribution Agreement"), pursuant to which
ONEOK agreed to contribute to the NBP Partnerships all of the issued and
outstanding Equity Interests in the Companies; and
WHEREAS, ONEOK Bushton Processing, Inc. ("OBPI") is an indirect wholly
owned subsidiary of ONEOK and is included in the Contribution Agreement as a
Company Subsidiary; and
WHEREAS, in lieu of contributing OBPI to the NBP Partnerships, the
Parties desire for ONEOK to retain OBPI (through a dividend prior to Closing of
all outstanding Equity Interests in OBPI to ONEOK), and to cause OBPI to enter
into a processing and services agreement with one of the NBP Partnerships or a
Subsidiary thereof that will provide to the NBP Partnerships substantially the
same economic effect as if OBPI had been contributed to the NBP Partnerships;
and
WHEREAS, the parties also desire for OBPI prior to Closing to dividend
to ONEOK Field Services Company, L.L.C. ("OFS") all OBPI assets that are not
subject to the Bushton Equipment Leases (as defined below) or otherwise used in
the operation of the Bushton plant.
NOW, THEREFORE, in consideration of the premises and mutual agreements
and covenants herein contained, and intending to be legally bound hereby, the
Parties hereto agree as follows:
1. The Closing.
(a) Section 1.3(b)(vi) of the Contribution Agreement is hereby
deleted in its entirety and replaced with the following:
"(vi) An executed copy of a Processing and Services Agreement (the
"Processing and Services Agreement") between ONEOK Bushton
Processing, Inc. ("OBPI") and
one of the NBP Partnerships or a Subsidiary thereof substantially
in the form attached hereto as Schedule 1.3(b)(vi)."
(b) Section 1.3(c)(iii) of the Contribution Agreement is hereby
deleted in its entirety and replaced with the following:
"(iii) Intentionally Omitted."
(c) Section 1.3(c)(iv) of the Contribution Agreement is hereby
deleted in its entirety and replaced with the following:
"(iv) An executed copy of the Processing and Services Agreement."
2. Definitions. The term "Company Subsidiary" in the Contribution
Agreement and this Amendment shall exclude OBPI. Except as otherwise
specifically provided in this Amendment, the terms "Entity" or "Entities" in the
Contribution Agreement and this Amendment shall include OBPI, including for
purposes of the representations and warranties contained in Section 2 of the
Contribution Agreement.
3. Representations and Warranties of ONEOK. The following Section 2.24
is added to the Contribution Agreement:
"2.24 No Transfer to ONEOK. Except in connection with Sections 6.7
and 6.10 of this Agreement, and except as fully reflected in the
working capital adjustment described in Section 1.5 of this
Agreement, from the close of business on March 31, 2006 until
Closing, no Entity (including OBPI) has distributed, dividended or
otherwise transferred any cash or assets to ONEOK, any other Entity
or any other Affiliate of ONEOK, other than as permitted by Section
4.1 of this Agreement."
4. Covenants of ONEOK. Section 4.1 is hereby amended by adding the
following language to the end of that Section 4.1:
"Notwithstanding the foregoing, ONEOK shall have the right, in any
order, to 1) convert OBPI into a corporation, 2) cause OBPI prior to
Closing to dividend to ONEOK Field Services Company, L.L.C. ("OFS")
all property, equipment and other assets of OBPI that are not
subject to the Bushton Equipment Leases or otherwise used in the
operation of the Bushton plant, and 3) cause OFS prior to Closing to
distribute all of the issued and outstanding ownership interests of
OBPI to ONEOK."
5. Books and Records. Section 5.1(a) is hereby deleted in its entirety
and replaced with the following:
"(a) No later than ten (10) days after Closing, ONEOK will make
available to the NBP Partnerships or their designee, at ONEOK's sole
cost and expense, originals of all files, records, information and
data (in all formats) owned by or primarily relating to the Entities
that are in the possession or control of ONEOK or its Affiliates,
except that ONEOK will retain all such originals items with respect
to OBPI and instead provide copies thereof, at ONEOK's sole cost and
expense, to the NBP Partnerships. In addition, with respect to the
Entities other than OBPI, ONEOK will make available to the NBP
Partnerships all ONEOK's and its Affiliate's contractual rights to
request other such files, records, information and data from any
third party."
6. Intercompany Accounts. Section 6.7 is hereby deleted in its entirety
and replaced with the following:
"6.7 Intercompany Accounts. Except for amounts related to normal
operational sales and cost of sales and fuel, prior to Closing, but
effective as of the close of business on the last day of the month
immediately preceding the Closing Date, ONEOK will settle all
Intercompany Accounts and intercompany arrangements between any
Entity, on the one hand, and ONEOK and its Affiliates (other than an
Entity), on the other hand, and the Entities will not have any
Liability whatsoever with respect to such settled intercompany
arrangements and Intercompany Accounts. ONEOK shall be solely liable
for any contractual or other Liabilities, express or implied,
arising out of the termination, cancellation and elimination of any
of the foregoing."
7. Indebtedness for Borrowed Money. Section 6.10 is hereby deleted in
its entirety and replaced with the following:
"6.10 Indebtedness for Borrowed Money. Prior to the Closing, but
effective as of the close of business on the last day of the month
immediately preceding the Closing Date, (i) ONEOK shall repay or
otherwise settle any Indebtedness due to the Entities from ONEOK or
its Affiliates (other than the Entities) and (ii) ONEOK shall cause
the repayment or settlement of any Indebtedness due
from the Entities to ONEOK or its Affiliates (other than the
Entities), in each case, including interest and other amounts
accrued thereon or due in respect thereof, other than any
Indebtedness fully reflected in the Closing Working Capital. The
Parties acknowledge and agree that ONEOK has loaned certain amounts
to the Entities after the close of business on March 31, 2006 to
fund working capital requirements of the Entities after such date
and that such amounts will be repaid by the NBP Partnerships to
ONEOK in the ordinary course of business or through the working
capital adjustment described in Section 1.5 of this Agreement."
8. ONEOK Marks. The second sentence of Section 6.9 is hereby amended by
adding the following language to the beginning of that sentence:
"Except with respect to OBPI, "
9. Dividend of Certain OBPI Assets to OFS. The following Section 6.15
is added to the Contribution Agreement:
"6.15 Dividend of Certain OBPI Assets to OFS. Prior to Closing,
ONEOK shall cause OBPI to dividend to OFS all property, equipment
and other assets of OBPI that are not subject to the Bushton
Equipment Leases or otherwise used in the operation of the Bushton
plant. The term "Bushton Equipment Leases" means those certain
leases dated November 26, 1991 entitled: "Equipment Lease --
Undivided Interest (Bushton Equipment Trust 1991-A)", "Equipment
Lease -- Undivided Interest (Bushton Equipment Trust 1991-B)",
"Equipment Lease -- Undivided Interest (Bushton Equipment Trust
1991-C)", "Equipment Lease -- Undivided Interest (Bushton Equipment
Trust 1991-D)", and "Equipment Lease -- Undivided Interest (Bushton
Equipment Trust 1991-E)", originally by and between The First
National Bank of Chicago, not in its individual capacity, but solely
as trustee under the Trust Agreements that create the trusts
described above, as Lessor, and Enron Gas Processing Company (now
known as ONEOK Bushton Processing, Inc.) as Lessee."
10. Conditions to Closing. Section 7.1(k) and Section 7.2(m) of the
Contribution Agreement (regarding Bushton Consents) are hereby deleted from the
Contribution Agreement in their entirety.
11. Indemnification. Section 9.2(c) is hereby deleted in its entirety
and replaced with the following:
"(c) To the extent that ONEOK or its Affiliates (other than the
Entities, but including OBPI) has the right to seek indemnification
from third parties for the benefit of the Entities (other than OBPI)
or their assets, and the Entities (other than OBPI) are not entitled
to seek such indemnification on their own accord, ONEOK, upon
Northern Border's written request, shall assign such indemnification
rights to Northern Border or, if such rights cannot be assigned,
assert (at Northern Border's cost) a claim relating to such matter
against such third party on behalf of the applicable Entities (other
than OBPI), and provide to Northern Border all benefits of such
indemnification as, when and if provided by such third party.
Notwithstanding the foregoing, neither ONEOK nor its Affiliates
shall be obligated to make any additional payments or to take any
action that would cause them to incur or be subject to any
additional liabilities or costs with respect to any actions taken
under this Section 9.2(c)."
12. No Contribution. Section 9.5 is hereby deleted in its entirety and
replaced with the following:
"9.5 No Contribution. ONEOK shall not have and shall not exercise or
assert (or attempt to exercise or assert), any right of
contribution, right of indemnity or other right or remedy against
any Entity (other than OBPI) in connection with any indemnification
obligation or any other Liability to which it may become subject
under or in connection with this Agreement."
13. Tax Matters. For purposes of Section 10 (Tax Matters) of the
Contribution Agreement, and the corresponding definitions to the extent used in
such Section 10, the term "Entities" shall be deemed to exclude OBPI.
14. Certain Definitions.
(a) Section 11.18 of the Contribution Agreement is hereby amended to
replace each of the following definitions:
" "Converting Companies" means each of ONEOK Xxxxx Storage Company,
OkTex Pipeline Company, ONEOK Field Services Company and Mid
Continent Market Center, Inc."
" "Northern Border Indemnitees" means the NBP Partnerships and their
respective Affiliates (including, without limitation, the Entities,
but excluding OBPI) and their respective Representatives."
(b) Section 11.19 of the Contribution Agreement is amended to add
the following defined terms in the appropriate alphabetical order:
"Bushton Equipment Leases 6.15
OFS 4.1
OBPI 1.3(b)(vi)
Processing and Services Agreement 1.3(b)(vi)"
15. Exhibits and Schedules.
(a) Exhibit A to the Contribution Agreement is hereby replaced in
its entirety by Exhibit A to this Amendment.
(b) Schedule 1.3(b)(vi) to the Contribution Agreement is hereby
replaced in its entirety by Schedule 1.3(b)(vi) to this Amendment.
(c) The first page to Schedule 1.5 to the Contribution Agreement is
hereby replaced in its entirety by Schedule 1.5 to this Amendment.
(d) Schedule 2.1(e)(iii) to the Contribution Agreement is hereby
amended in its entirety to read as follows:
"Software vendor/licensor consents as may be necessary."
(e) Schedule 2.4(b) is hereby amended by adding the following
language to the end of that Schedule:
OFS will distribute to ONEOK, prior to Closing of the Agreement,
all of the outstanding equity interests of OBPI."
16. Further Assurances. The Parties agree to make such additional
amendments or modifications to the Contribution Agreement, and to execute and
deliver such additional documents and take such other and further action, as may
reasonably be necessary to effect the restructuring of the Contribution
Agreement as described in this Amendment.
17. Ratification. Except as expressly set forth herein, all other terms
and conditions of the Contribution Agreement shall remain unmodified and in full
force and effect, and the Parties hereby confirm and ratify such terms and
conditions and agree to perform and comply with the same.
18. Severability. If any provision of this Amendment is invalid or
unenforceable, the balance of this Amendment shall remain in effect.
19. Counterparts. This Amendment may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
20. Governing Law. This Amendment shall be construed under and governed
by the internal laws of the State of Delaware without regard to its conflict of
laws provisions.
IN WITNESS WHEREOF the parties hereto have caused this Amendment to be
executed as of the date set forth above by their duly authorized
representatives.
ONEOK, INC.
By: /s/ Xxxxx X. Xxxx
---------------------------------------
Name: Xxxxx X. Xxxx
Title: Chairman of the Board, President and
Chief Executive Officer
NORTHERN BORDER PARTNERS, L.P.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
NORTHERN BORDER INTERMEDIATE
LIMITED PARTNERSHIP
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
EXHIBIT A TO CONTRIBUTION AGREEMENT
(COMPANIES/COMPANY SUBSIDIARIES)
COMPANIES:
STATE OF
INCORPORATION OWNERSHIP
NAME TYPE OF ENTITY OR FORMATION PERCENTAGE
-------------------------------------------------- ----------------------- -------------------- --------------------
Mid Continent Market Center, Inc. Corporation Kansas 100%
-------------------------------------------------- ----------------------- -------------------- --------------------
OkTex Pipeline Company Corporation Delaware 100%
-------------------------------------------------- ----------------------- -------------------- --------------------
ONEOK Field Services Company Corporation Oklahoma 100%
-------------------------------------------------- ----------------------- -------------------- --------------------
ONEOK Gas Gathering, L.L.C. Limited Liability Oklahoma 100%
Company
-------------------------------------------------- ----------------------- -------------------- --------------------
ONEOK Gas Storage, L.L.C. Limited Liability Oklahoma 100%
Company
-------------------------------------------------- ----------------------- -------------------- --------------------
ONEOK Gas Storage Holdings, L.L.C. Limited Liability Delaware 100%
Company
-------------------------------------------------- ----------------------- -------------------- --------------------
ONEOK Gas Transportation, L.L.C. Limited Liability Oklahoma 100%
Company
-------------------------------------------------- ----------------------- -------------------- --------------------
ONEOK Midstream Gas Supply, L.L.C. Limited Liability Oklahoma 100%
Company
-------------------------------------------------- ----------------------- -------------------- --------------------
ONEOK Sayre Storage Company Corporation Delaware 100%
-------------------------------------------------- ----------------------- -------------------- --------------------
COMPANY SUBSIDIARIES:
STATE OF
INCORPORATION OWNERSHIP
NAME TYPE OF ENTITY OR FORMATION PERCENTAGE
-------------------------------------------------- ----------------------- --------------------- -------------------
ONEOK WesTex Transmission, L.P. Limited Partnership Delaware 100%
-------------------------------------------------- ----------------------- --------------------- -------------------
Potato Hills Gas Gathering System Joint Venture Oklahoma 51%
-------------------------------------------------- ----------------------- --------------------- -------------------
Sycamore Gas System General Partnership Oklahoma 48.445%
-------------------------------------------------- ----------------------- --------------------- -------------------
ONEOK XXXXX Holdings, L.L.C. Limited Liability Delaware 100%
Company
-------------------------------------------------- ----------------------- --------------------- -------------------
Notes:
1. The outstanding membership interests in ONEOK Field Services Holdings, L.L.C. were transferred by
ONEOK Field Services Company to ONEOK, Inc. prior to execution of the Contribution Agreement.
2. ONEOK Field Services Company (one of the Companies listed above) owns 50% of the outstanding equity
interests in Fox Plant, L.L.C., a
Delaware limited liability company. However, since ONEOK does not
control Fox Plant, L.L.C., the ownership interest for that company is listed on Schedule 2.4(b),
rather than on this exhibit.
3. ONEOK XXXXX Holdings, L.L.C. (one of the Company Subsidiaries listed above) owns 10.1765% of the
outstanding interests in Venice Energy Services Company, L.L.C., a
Delaware limited liability company.
However, since ONEOK does not control Venice Energy Services Company, L.L.C., the ownership interest
for that company is listed on Schedule 2.4(b), rather than on this exhibit.
4. ONEOK Field Services Company, L.L.C. will distribute to ONEOK, Inc. prior to the Closing of the
Contribution Agreement all of the outstanding stock of ONEOK Bushton Processing, Inc.
Schedule 1.3(b)(vi)
Processing and Services Agreement
SCHEDULE 1.5
AGREED PRINCIPLES
For purposes of determining Net Working Capital, the following principles shall
be used:
o GAAP: Net Working Capital shall be determined in accordance with
GAAP, except as set forth below.
o Reference Statement: The accounts listed on Exhibit D (the
"Reference Statement") shall be used in determining Net Working
Capital, except for those adjustments shown on the Reference
Statement.
o Gas in Storage and Commodity Exchange: The value of the accounts
entitled "Gas in Storage" and "Commodity Exchange" on the Reference
Statement shall be determined at market as set forth in Annex 1.5.
o Closing Working Capital and Effective Time. The same principles
used to calculate Target Working Capital (including those set forth
in this Schedule 1.5 and Annex 1.5 and as reflected in the
Reference Statement) shall be used to calculate Closing Working
Capital, except that the "Effective Time" for purposes of
calculating Target Working Capital shall be close of business on
the date of the Reference Statement and the "Effective Time" for
purposes of calculating Closing Working Capital shall be close of
business on the last day of the month immediately preceding the
Closing Date; provided that natural gas and natural gas liquids
shall be measured and valued as of 7:00 a.m. on each of such dates,
rather than as of the close of business.
