Exhibit 2.4
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
This FIRST AMENDMENT TO PURCHASE AND SALE 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 Purchase Agreement.
WITNESSETH
WHEREAS, ONEOK and Northern Border entered into that certain Purchase
and Sale Agreement dated as of February 14, 2006 (the "Original Purchase
Agreement"), pursuant to which ONEOK agreed to sell to Northern Border all of
the issued and outstanding Equity Interests in the Companies;
WHEREAS, the Parties entered into that certain Assignment of Purchase
Right dated April 6th, 2006, pursuant to which, among other things, Northern
Border assigned its right to purchase the Companies to NBILP, and NBILP assumed
the obligation to pay the purchase price to ONEOK (the Original Purchase
Agreement, as assigned by the Assignment of Purchase Right, is referred to as
the "Purchase Agreement"); and
WHEREAS, the Parties desire to amend certain terms of the Purchase
Agreement.
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. Representations and Warranties of ONEOK. The following Section 2.23
is added to the Purchase Agreement:
"2.23 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 1.4 of this
Agreement, from the close of business on March 31, 2006 until
Closing, no Entity has distributed, dividended or otherwise
transferred any cash or assets to ONEOK, any other Entity or any
other Affiliate of ONEOK."
2. Intercompany Accounts. Section 6.7 of the Purchase Agreement 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."
3. Indebtedness for Borrowed Money. Section 6.10 of the Purchase
Agreement 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
shall be repaid by the NBP Partnerships to ONEOK in the ordinary
course of business or through the working capital adjustment
described in Section 1.4 of this Agreement."
4. Schedule 1.4. The first page to Schedule 1.4 to the Purchase
Agreement is hereby replaced in its entirety by Schedule 1.4 to this Amendment.
5. Ratification. Except as expressly set forth herein, all other terms
and conditions of the Purchase 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.
6. Severability. If any provision of this Amendment is invalid or
unenforceable, the balance of this Amendment shall remain in effect.
7. 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.
8. 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.
[Remainder of Page Intentionally Left Blank]
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/ David L. Kyle
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Name: David L. Kyle
Title: Chairman of the Board, President
and Chief Executive Officer
NORTHERN BORDER PARTNERS, L.P.
By: /s/ William R. Cordes
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Name: William R. Cordes
Title: Chief Executive Officer
NORTHERN BORDER INTERMEDIATE
LIMITED PARTNERSHIP
By: /s/ William R. Cordes
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Name: William R. Cordes
Title: Chief Executive Officer
SCHEDULE 1.4
(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 1.4.
o Closing Working Capital and Effective Time. The same principles used
to calculate Target Working Capital (including those set forth in
this Schedule 1.4 and Annex 1.4 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.