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Exhibit
10.25
AMENDMENT NO. 1 TO
ASSET PURCHASE
AGREEMENT
by and between
KOCH PIPELINE COMPANY,
L.P.
and
ONEOK, INC.
for the sale of the
Mid-Continent NGL Assets
This Amendment No. 1 to
Asset Purchase Agreement (the “ Amendment ”),
dated June 28, 2005, is made by and between Koch Pipeline
Company, L.P., a Delaware limited partnership (“
Seller ”), and ONEOK, Inc., an Oklahoma corporation
(“ Purchaser ” and, together with Seller, the
“ Parties ”). Capitalized terms used herein but
not defined shall have the meaning set forth in the Purchase
Agreement, as defined below.
WITNESSETH:
WHEREAS, Seller and Purchaser
entered into that certain Asset Purchase Agreement, dated
May 9, 2005 (the “ Purchase Agreement ”
and, as amended by this Amendment, the “ Agreement
”), relating to the sale and transfer of certain assets and
liabilities by Seller to Purchaser;
WHEREAS, Purchaser desires to
restructure the transactions, among other things, so that
(a) the Purchased Assets are in a separate legal entity for
operational purposes and for ease of potential future transfer, and
(b) Purchaser has the benefit of a separate legal entity
potentially to insulate Purchaser from liabilities arising from the
future operations of the Purchased Assets; and
WHEREAS, Seller, at the
request of Purchaser, has agreed to cooperate in the transfer of
the Purchased Assets to KPL NGL (as defined herein) prior to the
Closing Date, at no cost, risk, expense or liability to Seller, so
that Purchaser may acquire the Equity Interests (as defined herein)
rather than the Purchased Assets, pursuant to the express terms of
this Amendment.
NOW THEREFORE, in
consideration of the premises and the agreements contained herein,
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, the Parties agree as follows:
1. Certain Definitions
.
(a) Section 1.1(a) of
the Purchase Agreement is amended to add the following definition
in appropriate alphabetical order:
“ “ Transfer
Companies ” means, collectively, KPL Gas Storage
Holdings, LLC, a Delaware limited liability company (“ KPL
LLC ”), KPL NGL Pipeline, LP, a Delaware limited
partnership (“ KPL NGL ”) and KPL Holdings, LLC,
a Delaware limited liability company (“ KPL Holdings
”).”
(b) Section 1.1(b) of
the Purchase Agreement is amended to add the following defined
terms in appropriate alphabetical order:
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“Act
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6.7 |
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Equity Interests
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2.1 |
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KPL Cayman
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2.1 |
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KPL Holdings
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1.1 (in
the definition of Transfer Companies) |
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KPL LLC
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1.1 (in
the definition of Transfer Companies) |
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KPL NGL
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1.1 (in
the definition of Transfer Companies)” |
2. Purchase and Sale of
Assets . Subject to Seller having completed the transactions
contemplated by Section 7.18 of the Agreement pursuant to
paragraph 11 of this Amendment and effective as of the completion
of such transactions, the first sentence of Section 2.1 of the
Purchase Agreement shall be deleted in its entirety and replaced
with the following:
“On the terms and
subject to the conditions set forth in this Agreement, at the
Closing, Purchaser shall purchase, acquire and accept from KPL
Cayman Ltd., a Cayman Islands limited company (“ KPL
Cayman ”), and Seller shall cause KPL Cayman to sell,
transfer, assign, convey and deliver to Purchaser 100% of the
member interests (the “ Equity Interests ”) in
KPL Holdings.”
3. Excluded Assets .
Subject to Seller having completed the transactions contemplated by
Section 7.18 of the Agreement pursuant to paragraph 11 of this
Amendment and effective as of the completion of such transactions,
Section 2.2 of the Purchase Agreement shall be amended by
replacing “Purchaser” with “KPL NGL” each
time such term appears therein.
4. Assumption of
Liabilities . Subject to Seller having completed the
transactions contemplated by Section 7.18 of the Agreement
pursuant to paragraph 11 of this Amendment and effective as of the
completion of such transactions:
(a) the first sentence of
Section 2.3 of the Purchase Agreement shall be deleted in its
entirety and replaced with the following:
“On the terms and
subject to the conditions set forth in this Agreement, at the
Closing, Purchaser and KPL NGL shall jointly and severally assume,
effective as of the Effective Time, and shall timely perform and
discharge in accordance with their respective terms, all
Liabilities arising under, related to, or in connection with, the
Business or the Purchased Assets whether arising on, before or
after the Closing Date, other than the Retained Liabilities
(collectively, the “ Assumed Liabilities ”),
including the following Liabilities:”
(b) Section 2.3(d) of
the Purchase Agreement shall be deleted in its entirety and
replaced with the following:
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“except as set forth in
Section 2.4(b) , all transfer Taxes and all other Taxes
applicable to the transfer of the Purchased Assets or the transfer
of the Equity Interests and all Taxes imposed upon or arising from
the Purchased Assets or the Equity Interests, including but not
limited to all ad valorem, property and similar
Taxes;”
(c) Section 2.3(f) of
the Purchase Agreement shall be deleted in its entirety and
replaced with the following:
“all other Liabilities
with respect to the Business, the Purchased Assets, the Equity
Interests or the Transferred Employees; and”
5. Retained
Liabilities . Subject to Seller having completed the
transactions contemplated by Section 7.18 of the Agreement
pursuant to paragraph 11 of this Amendment and effective as of the
completion of such transactions, the first sentence of
Section 2.4 of the Purchase Agreement shall be deleted in its
entirety and replaced with the following:
“None of the Purchaser
or the Transfer Companies will assume or be liable for any Retained
Liabilities.”
6. Further Conveyances
. Subject to Seller having completed the transactions contemplated
by Section 7.18 of the Agreement pursuant to paragraph 11 of
this Amendment and effective as of the completion of such
transactions, Sections 2.5(b) and (c) of the Purchase
Agreement shall be deleted in their entirety and replaced with the
following:
“(b) From time to time
after the Closing, at Purchaser’s sole cost and expense,
Seller and Purchaser shall, and shall cause their respective
Affiliates to, execute, acknowledge and deliver all such further
conveyances, notices, assumptions, releases and acquaintances and
such other instruments, and shall take such further actions, as may
be reasonably necessary or appropriate to assure fully to KPL NGL
and its respective successors or assigns, all of the properties,
rights, titles, interests, estates, remedies, powers and privileges
intended to be conveyed to KPL NGL in the transfer of the Purchased
Assets by Seller to KPL NGL prior to Closing.
(c) Nothing in this Agreement
nor the consummation of the transactions contemplated hereby shall
be construed as an attempt or agreement to assign any Purchased
Asset, including any Contract, Permit, certificate, approval,
authorization or other right, which by its terms or by Law is
nonassignable without the consent of a third party or a
Governmental Body or is cancelable by a third party in the event of
an assignment (“ Nonassignable Assets ”) unless
and until such consent shall have been obtained. Seller shall, and
shall cause its Affiliates to, use commercially reasonable efforts
to cooperate with Purchaser and the Transfer Companies,
at
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Purchaser’s request for
up to 180 days after the Closing Date in endeavoring to obtain any
consents with respect to Material Contracts, Real Property Leases,
Personal Property Leases or Permits where consents have not been
obtained before the Closing Date; provided , however
, that such efforts shall not require Seller or any of its
Affiliates to incur any expenses or Liabilities or provide any
financial accommodation or to remain secondarily or contingently
liable for any Assumed Liability to obtain any such consent.
Purchaser and Seller shall, and shall cause their Affiliates to,
use their respective commercially reasonable efforts to obtain, or
cause to be obtained, any consent, substitution, approval or
amendment required to novate all Liabilities under any and all
Purchased Contracts or other Liabilities that constitute Assumed
Liabilities or to obtain in writing the unconditional release of
Seller and its Affiliates so that, in any such case, Purchaser and
the Transfer Companies shall be jointly and severally liable for
such Liabilities. To the extent permitted by applicable Law, in the
event consents to the assignment thereof cannot be obtained, such
Nonassignable Assets shall be held, as of and from the Closing
Date, by Seller or the applicable Affiliate of Seller for KPL NGL
and the covenants and obligations thereunder shall be performed by
KPL NGL or its Affiliates in Seller’s or such
Affiliate’s name and all benefits and obligations existing
thereunder shall be for KPL NGL’s account. Seller shall take
or cause to be taken at Purchaser’s expense such actions in
its name or otherwise as Purchaser may reasonably request so as to
provide KPL NGL with the benefits of the Nonassignable Assets and
to effect collection of money or other consideration that becomes
due and payable under the Nonassignable Assets, and Seller or the
applicable Affiliate of Seller shall promptly pay over to KPL NGL
all money or other consideration received by it in respect of all
Nonassignable Assets. As of and from the Closing Date, Seller on
behalf of itself and its Affiliates authorizes KPL NGL, to the
extent permitted by applicable Law and the terms of the
Nonassignable Assets, at Purchaser’s expense, to perform all
the obligations and receive all the benefits of Seller or its
Affiliates under the Nonassignable Assets and appoints KPL NGL its
attorney-in-fact to act in its name on its behalf or in the name of
the applicable Affiliate of Seller and on such Affiliate’s
behalf with respect thereto, and Purchaser agrees to indemnify and
hold Seller and its Affiliates, agents, successors and assigns
harmless from and against any and all Liabilities and Losses based
upon, arising out of or relating to KPL NGL’s performance of,
or failure to perform, such obligations under the Nonassignable
Assets.”
7. Consideration .
Subject to Seller having completed the transactions contemplated by
Section 7.18 of the Agreement pursuant to paragraph 11 of this
Amendment and effective as
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of the completion of such transactions,
Section 3.1 of the Purchase Agreement shall be deleted in its
entirety and replaced with the following:
“3.1
Consideration . The aggregate consideration for the Equity
Interests shall be an amount in cash equal to FOUR HUNDRED MILLION
DOLLARS ($400,000,000.
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