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EXHIBIT 2.2
AMENDMENT AND CLARIFICATION OF PURCHASE AND SALE AGREEMENT,
WAIVER AND CLOSING AGREEMENT
This Amendment and Clarification of Purchase and Sale Agreement, Waiver and
Closing Agreement (the "Agreement"), dated April 9, 1996, is made by and between
Cimarron Gas Holding Company ("Cimarron"), Conoco Inc. ("Conoco") and Enogex
Products Corporation ("Enogex"), collectively referred to as the "Parties."
Capitalized terms not otherwise defined herein shall have the meaning
assigned to them in that certain Purchase and Sale Agreement dated March 26,
1996.
RECITALS
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WHEREAS, the Parties have previously executed that certain Purchase and
Sale Agreement (the "Purchase and Sale Agreement") dated March 26, 1996;
WHEREAS, certain of Cimarron's Oklahoma Assets are subject to exercise of
rights of first refusal provisions;
WHEREAS, certain third parties have elected to exercise their respective
rights of first refusal to purchase certain of Cimarron's Oklahoma Assets;
WHEREAS, the Parties hereto desire to further clarify the Purchase and Sale
Agreement with regards to those assets conveyed from Cimarron to Enogex;
WHEREAS, the Purchase and Sale Agreement provides that Cimarron shall have
obtained all consents
required to assign the Material Contracts and Material
Rights of Way to Conoco and Enogex, respectively;
WHEREAS, Conoco and Enogex desire to waive such requirements with respect
to certain of the Material Contracts and Material Rights of Way as set forth
herein;
WHEREAS, the Parties desire to amend the Purchase and Sale Agreement with
respect to certain reciprocal representations made regarding Assets subject to
tax partnership agreements or similar provisions requiring a partnership income
tax return under Subchapter K of Chapter 1 of Subtitle A of the Internal Revenue
Code, as amended, or any similar state statute; and
WHEREAS, the Parties desire to further clarify the terms of the Purchase
and Sale Agreement and related Post-Closing obligations as provided herein.
NOW, THEREFORE, in consideration of the premises and intending to be
legally bound, for good and valuable consideration, the parties hereby agree as
follows:
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1. The Parties hereto recognize and agree that notwithstanding anything
to the contrary in the Purchase and Sale Agreement or related Exhibits thereto,
the Oklahoma Assets conveyed from Cimarron to Enogex pursuant to the terms of
the Purchase and Sale Agreement are not intended to and do not include those
Assets related to those independent gas gathering systems more commonly known as
the Kouns Farms Pipeline System and the Cottonwood Gathering System.
2. Conoco recognizes and agrees that Cimarron has used good faith efforts
to obtain, prior to Closing, all necessary third party consents and waivers
necessary to effect the proper assignment of Cimarron's interest in the Material
Contracts and the Material Rights of Way to Conoco. In this respect, Conoco
hereby waives the requirement set forth in Section 3.2.1 of the Purchase and
Sale Agreement with respect to obtaining, prior to Closing, consents or waivers
to assignment of those agreements described on the attached Schedule 2.1.
3. Enogex recognizes and agrees that Cimarron has used good faith efforts
to obtain, prior to Closing, all necessary third party consents and waivers
necessary to effect the proper assignment of Cimarron's interest in the Material
Contracts and the Material Rights of Way to Enogex; however, Cimarron has been
unable, as of the date of this Agreement, to obtain the necessary third party
consents with respect to those agreements described on the attached Schedule
2.2. Cimarron and Enogex hereby agree that Enogex shall have the right to
withhold from the Cash Consideration provided at Closing the amount of
$148,722.00; provided, however, that such amount shall be paid by Enogex to
Cimarron with 3 days of receipt of (1) the necessary third party consents with
respect to those agreements described on the attached Schedule 2.2, or (2) the
signing of any new agreement or agreements in substitution of those agreements
described on the attached Schedule 2.2.
4. The Parties hereto agree to amend the Purchase and Sale Agreement by
deleting Section 3.1.7 in its entirety and replacing such Section with the
following:
"3.1.7 Tax Partnerships. Except for assets owned by partnerships governed
by those partnership agreements described on the attached Schedule 3.1.7,
the Assets to be transferred pursuant to this Agreement are not subject to
any tax partnership agreement or provisions requiring a partnership income
tax return to be filed under Subchapter K of Chapter 1 of Subtitle A of the
Internal Revenue Code of 1986, as amended, or any similar state statute."
5. The Parties hereto agree to amend the Purchase and Sale Agreement by
adding the following Section 3.1.8:
"3.1.8 Other Tax Matters. Seller and Buyers acknowledge that this
transaction is subject to the reporting requirements of Section 1060 of the
Internal Revenue Code of 1986, as amended, and that IRS Form 8594, the
Asset Acquisition Statement, is required to be and will be filed for this
transaction. The parties
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hereby agree to cooperate and act in good faith in arriving at a mutually
agreeable allocation and will provide to the other parties any reasonably
requested partnership records, agreements or previously filed tax returns."
6. Cimarron agrees to use good faith efforts to obtain a renewal of that
certain original Surface Lease Agreement dated November 1, 1974, by and among
Claude W. Meadows, Jr., Henry E. Meadows, Sarah M. Meadows Seay and Charles E.
Seay and PGP Gas Products, Inc. (more commonly known as the Ozona Yard
Interconnect with Oasis) and to assign such Surface Lease Agreement to Conoco.
7. Cimarron agrees to use good faith efforts to obtain a renewal of that
certain Easement No. 6552 granted by the University of Texas System and to
assign such Easement to Conoco.
8. Within 10 business days of the Closing Date, Cimarron agrees to
provide to Conoco and Enogex, respectively, all necessary title transfer
documents related to those vehicles more fully described in Exhibit A-Texas,
Schedule 2 and Exhibit A-Oklahoma, Schedule 2.
9. The Parties hereby agree and recognize that Exhibit A to the Purchase
and Sale Agreement, as attached to this Agreement and provided to the Parties at
Closing, shall supercede and replace in its entirety any previous draft of such
Exhibit A provided to the Parties.
10. This document may be executed in multiple counterparts.
IN WITNESS WHEREOF, the undersigned have set their hands on the date first
written above.
CONOCO INC. ENOGEX PRODUCTS CORPORATION
By: /s/ James L. Rockwell By: /s/ Roger A. Farrell
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James L. Rockwell Roger A. Farrell
Manager - Business & Strategic Development Attorney in Fact
Natural Gas & Gas Products
CIMARRON GAS HOLDING COMPANY
By: /s/ Joseph L. von Rosenberg III
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Joseph L. von Rosenberg III
Vice President
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