Exhibit 10.9.2


 


SECOND AMENDMENT
OF OPERATING AGREEMENT


 


THIS SECOND
AMENDMENT OF OPERATING AGREEMENT (“Second Amendment”), is entered into this
10th day of February, 2010 and is effective January 1, 2010 (the “Effective
Date”), by and between Northern Border Pipeline Company, a Texas general
partnership (“Partnership”), and TransCanada Northern Border Inc., a Delaware
corporation.


 


RECITALS


 


WHEREAS, the Partnership
and TransCan Northwest Border Ltd. (now known as “TransCanada Northern Border
Inc.”) entered into an Operating Agreement dated April 6, 2006, as amended
by Amendment No. 1 effective as of April 22, 2008 (the “Operating
Agreement”); and


 


WHEREAS, pursuant to the
terms of that Operating Agreement, TransCanada Northern Border Inc. is the
Operator of the Line (as defined herein) and has located certain of the
departments and operating functions that provide day-to-day operations of the
Line in Omaha, Nebraska and Calgary, Alberta; and


 


WHEREAS, TransCanada
Northern Border Inc. desires to relocate certain of the departments and
operating functions that provide day-to-day operations of the Line from Omaha,
Nebraska and Calgary, Alberta to Houston, Texas (the “Relocation”); and


 


WHEREAS, the Partnership
agrees to such Relocation provided that the Operator agrees to be solely liable
for certain costs and expenses more specifically described below resulting from
the Relocation and that the Operator agrees, in lieu of the reimbursements of
costs and expenses, to accept a fixed fee payment structure from the Partnership
for those departments and operating functions subject to the Relocation as more
specifically described below; and


 


WHEREAS, it is the intent
of the Parties that all those departments and operating functions subject to
the Relocation be covered by the Fixed Fee Arrangement (defined below) in a
manner such that the Partnership shall not bear any of the expense associated
with the Relocation, but shall not share in any cost savings resulting from the
Relocation, if any, during the term of the Fixed Fee Arrangement.


 


NOW THEREFORE, in
consideration of the representation, covenants and premises hereinafter set
forth the parties agree as follows:


 


ARTICLE 1 — DEFINITIONS


 


The following words and
terms shall have the meanings set forth herein:


 


(a)                      The phrase “Accounting Procedure” means
the accounting procedure set forth in Exhibit “A” to the Operating
Agreement.


 


(b)                     The term “Fixed Fee Time Period” means the time period
commencing January 1, 2010 and ending December 31, 2011.


 


(c)                      The term “General Partnership Agreement”
shall refer to the First Amended and Restated General Partnership Agreement of
Northern Border Pipeline Company dated April 6, 2006.


 


(d)                     The word “Line” shall mean the interstate gas pipeline
and related facilities owned by the Partnership, extending from the United
States-Canada border near Port of Morgan, Montana to its terminus near North
Hayden, Indiana, and any laterals, extensions, expansions, additions,
improvements or replacements thereof.


 

















 


(e)                      The term “Omaha Building Lease” shall
refer to the Office Lease between NDCWD, L.L.C. and Northern Border Pipeline
Company dated October 11, 2002, as amended.


 


(f)                        The term “Operation of the Line” or “Operate
the Line” shall refer to the obligations or the performance by Operator of the
obligations related to the Line as set forth in the General Partnership
Agreement and the Operating Agreement.


 


ARTICLE 2 — RELOCATION
COSTS OF OPERATOR


 


Operator shall be solely
responsible for and shall not be reimbursed by the Partnership for any severance
costs, costs related to the relocation of personnel, computer equipment,
computer systems and records, or any other costs of any nature resulting from
the Relocation.


 


ARTICLE 3 — FIXED FEE
PAYMENT STRUCTURE


 


3.1                     Notwithstanding anything to the contrary in the
Operating Agreement or the General Partnership Agreement (including but not
limited to Section 8.4.9 of the General Partnership Agreement), during the
Fixed Fee Time Period the Operator shall not be reimbursed in the manner set
forth in the Accounting Procedure by the Partnership for costs and expenses
incurred by the Operator in connection with the Operation of the Line for the
following items:


 


(a)                                              Rentals pursuant to Section 3.01 of Article III
of the Accounting Procedure for the following:


 


(i)                                     Omaha Building Lease, or


(ii)                                  any other rent, costs, expenses, or
allocated depreciation related to facilities for the departments listed in Section 3.1(b) below.


 


Notwithstanding
the foregoing, to the extent Operator is able to sublease all or a portion of
the Omaha Building Lease, Operator shall provide the Partnership with a dollar
for dollar reduction in the fixed fee commensurate with the amounts received
pursuant to such sublease.


 


(b)                                             Labour Costs pursuant to Section 3.02
and Reimbursable Expenses of Employees pursuant to Section 3.03 of Article III
of the Accounting Procedure for the following departments located in Omaha
prior to the Relocation:


 


(i)                                     Management


(ii)                                  Commercial/Customer Service


(iii)                               Regulatory


(iv)                              Customer and Employee Services


(v)                                 Accounting


(vi)                              Regulatory Law/ Corporate Secretary


(vii)                           IS Services


(viii)                        Risk Management


 


(c)                                              Labour Costs pursuant to Section 3.02
and Reimbursable Expenses of Employees pursuant to Section 3.03 of Article III
of the Accounting Procedure for the Gas Control department located in Calgary
prior to the Relocation.


 


(d)                                             Labour Costs pursuant to Section 3.02
and Reimbursable Expenses of Employees pursuant to Section 3.03 of Article III
of the Accounting Procedure for the direct distribution of costs and expenses
related to the Operation of the Line from the following departments located in


Houston after the
Relocation:


 


(i)                                     Management


(ii)                                  Commercial/Customer Service


(iii)                               Regulatory


(iv)                              Customer and Employee Services


 

















 


(v)                                 Accounting


(vi)                              Regulatory Law/ Corporate Secretary


(vii)                           IS Services


(viii)                        Risk Management


(ix)                                Gas Control


 


(e)                                              Rentals pursuant to Section 3.01 of Article III
of the Accounting Procedure and allocated depreciation and facility services
for the departments listed in Section 3.1(d) above.


 


(f)                                                All overhead, administrative and general
expenses, including salaries and benefits and expenses of personnel pursuant to
Section 3.11 of Article III of the Accounting Procedure to the extent
such personnel are subject to the Relocation.


 


3.2                     During the Fixed Fee Time Period the Partnership shall
pay an aggregate of twenty-two million six hundred thousand dollars
($22,600,000.00), payable in twenty-three monthly installments in the amount of
nine hundred forty-one thousand six hundred sixty-seven dollars ($941,667.00)
and one monthly installment in the amount of nine hundred forty-one thousand
six hundred fifty-nine dollars ($941,659.00) payable on the 1st of each month
commencing January 1, 2010 (the “Fixed Fee Arrangement”).


 


ARTICLE 4 — MISCELLANEOUS


 


4.1                     This Second Amendment shall only be amended by an
instrument in writing executed by both parties.


 


4.2                     A waiver by a party at any time of its rights with
respect to a default under this Second Amendment, or with respect to any other
matter in connection with this Second Amendment, shall not be deemed a waiver
with respect to any other or subsequent default or matter.


 


4.3                     If any provision of this Second Amendment shall be
invalid or unenforceable to any extent, the remainder of this Second Amendment
shall not be affected thereby and shall be enforced to the greatest extent
permitted by law.


 


4.4                     This Second Amendment is subject to all valid orders, rules and
regulations of any governmental body having jurisdiction over the parties
hereto, or this Second Amendment.


 


4.5                     For the purpose of interpreting this Second Amendment,
the Recital shall be considered incorporated herein as if set forth in full.


 


4.6                     This Second Amendment shall be construed and
interpreted under the laws of the State of Texas.


 


4.7                     Should any litigation be commenced between the parties
concerning any provision of this Second Amendment or the rights and duties
hereunder, the party prevailing in such litigation shall be entitled, in
addition to such other relief as may be granted in such proceeding, to a
reasonable sum as and for their attorneys’ fees in such litigation, which sum
shall be determined in such litigation or in a separate action for such
purpose.


 


4.8                     This Second Amendment may be executed in one or more
counterparts, each of which, when delivered, shall be deemed an original, but
all of which together constitute one and the same instrument.


 


4.9                     Except as expressly amended herein, the parties hereby
ratify and reaffirm, all of the other terms and conditions of the Operating
Agreement.  The Operating Agreement, as
amended herein, shall remain in full force and effect.


 


4.10               In the event there is any conflict between this Second
Amendment and the Operating Agreement or the General Partnership Agreement,
this Second Amendment shall be deemed controlling.


 

















 


	
  TRANSCANADA
  NORTHERN BORDER INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Dean Ferguson

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  Dean Ferguson

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Kelly J. Jameson

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  Kelly J. Jameson

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  Secretary

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  NORTHERN
  BORDER PIPELINE COMPANY

  
	
  By:
  ONEOK PARTNERS INTERMEDIATE LIMITED PARTNERSHIP

  
	
   

  	
   

  
	
  By:
  ONEOK ILP GP, L.L.C., its General Partner

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Curtis L. Dinan

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  Curtis L. Dinan

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  EVP, CFO and Treasurer

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:
  TC PIPELINES INTERMEDIATE LIMITED PARTNERSHIP,

  
	
  General
  Partner

  
	
  By:
  TC PipeLines GP, Inc., its General Partner

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Mark Zimmerman

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  Mark Zimmerman

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Donald J. DeGrandis

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  Donald J. DeGrandis

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  Secretary