Exhibit 10.24
EXECUTION COPY
NORTHERN BORDER TRANSITION SERVICES AGREEMENT
This Northern Border Transition Services Agreement ("Agreement") is made
and entered into as of this 17th day of November, 2004, by and between ONEOK,
Inc., an Oklahoma corporation ("ONEOK"), and CCE Holdings, LLC, a Delaware
limited liability company ("CCE"). ONEOK and CCE are referred to herein
individually as a "Party", and collectively as the "Parties".
W I T N E S S E T H:
WHEREAS, commencing on December 2, 2001, Enron Corp., an Oregon
corporation ("Enron"), and certain of its subsidiaries filed voluntary petitions
for relief under Chapter 11 of the Bankruptcy Code; and
WHEREAS, Enron, Enron Operations Services, LLC, a Delaware limited
liability company, Enron Transportation Services, LLC, a Delaware limited
liability company, EOC Preferred, L.L.C., a Delaware limited liability company
(referred to collectively as the "Enron Parties"), CrossCountry Energy, LLC
("CrossCountry"), CrossCountry Energy Corp., a Delaware corporation, and
CrossCountry Citrus Corp., a Delaware corporation, are parties to that certain
Amended and Restated Contribution and Separation Agreement, dated as of March
31, 2004, as amended on the date hereof (as the same may be amended and
supplemented from time to time, the "Contribution and Separation Agreement");
and
WHEREAS, as a mutual condition to closing under the Contribution and
Separation Agreement, Enron and CrossCountry entered into that certain
Transition Services Agreement (as amended, the "TSA") and that certain
Transition Services Supplemental Agreement (as amended, the "TSSA"), both dated
as of March 31, 2004, as amended on March 31, 2004 and as of the date hereof,
under which Enron and CrossCountry agreed, subject to certain conditions, to
provide and transfer, if appropriate, certain services between Enron and its
Affiliates and CrossCountry and its Affiliates for a specific period of time as
set forth in the TSA and the TSSA; and
WHEREAS, the Enron Parties and CCE entered into a Purchase Agreement,
dated as of June 24, 2004, as amended by that certain Amendment No. 1 to
Purchase Agreement dated September 1, 2004, and Amendment No. 2 to Purchase
Agreement dated November 11, 2004, whereby CCE agreed to purchase 100% of the
membership interests of CrossCountry; and
WHEREAS, CCE and ONEOK entered into a Purchase Agreement, dated as of
September 16, 2004 (the "ONEOK Purchase Agreement"), whereby ONEOK agreed to
purchase the common stock of Northern Plains Natural Gas Company, a Delaware
corporation ("Northern Plains"), and NBP Services Corporation, a Delaware
corporation ("NBP Services"), or the ownership interests in limited liability
companies into which such common stock may be converted; and
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NORTHERN BORDER TRANSITION SERVICES AGREEMENT
WHEREAS, ONEOK agreed to provide, or cause the provision of, certain
transition services to Enron as required by the TSA, TSSA and this Agreement and
to provide, or cause the provision of, certain transition services to CCE; and
WHEREAS, CCE agreed to provide, or cause the provision of, certain
transition services to Northern Plains and NBP Services (referred to
collectively as the "Transfer Group Companies") and the Northern Border
Companies, as required by the TSA, the TSSA and this Agreement; and
WHEREAS, CCE agreed to request, and use commercially reasonable efforts to
have the request honored, that Enron provide all transition services to be
performed for the Transfer Group Companies and/or the Northern Border Companies
as required by the TSA, the TSSA and this Agreement; and
WHEREAS, CCE and ONEOK agreed in the ONEOK Purchase Agreement to
memorialize the understandings regarding the provision of transition services in
agreements entitled Northern Border Transition Services Agreement and Northern
Border Transition Services Supplemental Agreement, however the Parties agree to
memorialize such understandings in this Agreement.
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 hereby agree as follows:
ARTICLE I.
SERVICES TO BE PROVIDED
1.01 Transition Services to Be Provided to the Transfer Group Companies
and the Northern Border Companies.
(a) Subject to Section 2.02(c), CCE will provide, or cause the provision
of, transition services, in the following categories to the Transfer Group
Companies and the Northern Border Companies or their respective successors and
assigns as required by this Agreement during the Term on the terms and
conditions set out in this Agreement including specifically, but not by way of
limitation, the service standard set out in Article II:
(i) Technical, support, pipeline integrity management and other
services as described on Schedule 1.01(a)(i).
(ii) Accounts Payable, including document imaging, invoice
processing, payment voids in SAP, other support and usage of
the Envision system. Usage of the Envision system includes
access to the imaged invoices and documents used in
conjunction with the accounting system. This service includes
the ability to store imaged documents related to payables and
to recall those documents for documentation and research
purposes.
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(iii) Information technology, infrastructure (both hardware and
software), and disaster recovery expertise and assistance,
including the support required for the services and systems
described in Schedule 1.01(a)(i) and otherwise necessary to
provide the services in this Section 1.01(a). The Parties
acknowledge that disaster recovery from HotTap and Operations
environments will not be available during certain periods of
the Term of the Agreement.
(iv) Floor space for servers and other such information technology
equipment and related administrative services, including
operation, management, maintenance services and the floor
space necessary at Planet in Dallas, Texas.
(v) Supervision of outside auditors in completing 2004 testing
requirements of ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 through March 31,
2005.
(vi) Corporate secretary services related to the services provided
in this Section 1.01(a) through December 31, 2004.
(vii) Website support for informational postings and customer
activities.
(viii) Pay and Data Services. Historical employee payroll and
benefits information and reports.
(ix) Notwithstanding Article III, from the date of this Agreement
though March 31. 2005, office space, office equipment and
related services at 4 Houston Center or other facility for any
Transfer Group Companies employees currently located at such
facility, which shall be equivalent in quality to such space,
equipment and related services as currently utilized by such
employee.
(x) All types of IT transition work to transition/migrate from
Enron and CCE to ONEOK, the Transfer Group Companies and the
Northern Border Companies the data, applications, systems and
infrastructure of the Transfer Group Companies and the
Northern Border Companies associated with and supporting the
following areas: Finance and Accounting, Procurement, IT, Tax,
HR, Facilities, Infrastructure, Records Management,
Operations, Commercial, Market Services, Communications,
Regulatory Affairs and Legal. All services under this Section
1.01(a)(x) shall be performed in accordance with Section 1.04
of this Agreement.
(collectively, the "CCE Services").
(b) CCE will request, and use commercially reasonable efforts to have
such request honored, that Enron provide any and all transition services in the
following categories to be performed for the benefit of the Transfer Group
Companies and/or the
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Northern Border Companies or their respective successors and assigns during the
Term on the terms and conditions set out in this Agreement including
specifically, but not by way of limitation, the service standard set out in
Article II:
(i) IT (including Telephony) services, access (e.g., e-mail
service, network access and administrative support, internet
access, and help desk support) and related services including:
- Workstation Image Management
- Security Administration
- Server Support
- Messaging
- Voice Communications (e.g., conference bridge, handsets)
- Network Communications (e.g., VSAT services)
- Video conferencing
- Network Communications - Direct
- EC Outlook
- Administrative/EPSC
- Pass Throughs (e.g., Long Distance, Pagers, 800,
dedicated circuits, WAN)
- Reasonable access for ONEOK, Inc., Northern Plains, NBP
Services, and Pan Border employees, agents and
authorized representatives, to networks, applications
and data center facilities (other than any human
resources information technology) of Enron and its
Affiliates (the "Enron Systems"). The obligation to
provide such access will be subject to the satisfaction
of Enron and CCE, in their sole discretion, that
sufficient firewalls and other systems, procedures and
information technology are in effect to maintain the
security and integrity of the Enron Systems, including
protection against unauthorized access to the
information contained therein. In the event of the
termination of any employee, agent, authorized
representative or designee of ONEOK, Northern Plains,
NBP Services, and Pan Border that was permitted access
to the Enron Systems, ONEOK agrees to promptly, and in
any event no later than twenty-four (24) hours following
such termination, (x) notify CCE and Enron of (i) the
name of such terminated employee, agent, authorized
representative or designee, and (ii) the Enron Systems
to which such terminated employee, agent, authorized
representative or designee had access; and (y) take such
actions as are necessary to prevent unauthorized access
by such terminated employee, agent, authorized
representative or designee to the Enron Systems. ONEOK
agrees to indemnify CCE and its Affiliates from any
failure of ONEOK, Northern Plains, NBP Services and Pan
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Border employees, agents and authorized representatives
to comply with the obligations in the preceding
sentence. Notwithstanding the foregoing, (A) Enron's
obligation to provide ONEOK, Northern Plains, NBP
Services and Pan Border employees, agents, authorized
representatives and designees reasonable access to the
Enron Systems is subject to any limitations or
restrictions contained in any license, software
agreement or similar agreement applicable to the
provision of Enron Services, and (B) such reasonable
access shall be limited to the infrastructure of the
Enron Systems as it currently exists on the date hereof
and as it may be modified from time to time by Enron in
its sole discretion. Enron and CCE shall have no
obligation to enhance the infrastructure of the Enron
Systems (including, but not limited to, enhanced
connectivity or additional communication lines). Any
such enhancement shall be effected by Enron in its sole
discretion and shall be governed by a project work
description to be mutually agreed upon by Enron and CCE.
(ii) SAP Usage and ISC Support. Usage rights and support to the SAP
system and the related accounting systems, 1099 reporting,
accounting services and infrastructure and support features.
(iii) Off-site and on-site storage of the Transfer Group Companies'
and Northern Border Companies' documents and records.
(iv) Floor space for servers and other such information technology
equipment located at the Ardmore Data Center as of the Closing
Date, and related administrative services, including
operation, management and maintenance services.
(v) Cash management services, services related to cash management
as more specifically set forth on Schedule 1.01(b)(vi).
(vi) All types of IT transition work to transition/migrate from
Enron and CCE to ONEOK, the Transfer Group Companies and the
Northern Border Companies the data, applications, systems and
infrastructure of the Transfer Group Companies and the
Northern Border Companies associated with and supporting the
following areas: Finance and Accounting, Procurement, IT, Tax,
HR, Facilities, Infrastructure, Records Management,
Operations, Commercial, Market Services, Communications,
Regulatory Affairs and Legal. All services under this Section
1.01(b)(vi) shall be performed pursuant to Section 1.04 of
this Agreement.
(vii) The use of automated expense reporting on Concur XMS system
for processing expense reports.
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NORTHERN BORDER TRANSITION SERVICES AGREEMENT
(viii) Access to and support of Vertex software.
(collectively, the "Enron Services").
1.02 Transition Services to Be Provided to Enron and CCE. ONEOK will
provide, or cause to be provided, technical expertise and assistance, including
but not limited to pipeline integrity, pipeline safety, environmental
compliance, engineering and construction safety and compliance audits and
related technical support services as described on Schedule 1.02 ("ONEOK
Services") to Enron and CCE or their respective successors and assigns during
the Term on the terms and conditions set out in this Agreement, including
specifically, but not by way of limitation, the service standard set out in
Article II.
1.03 Commitment to Take and Pay for Transition Services. During the Term
of this Agreement, (a) with respect to Transition Services (as defined below)
that are priced on a fixed, monthly basis, the Purchaser (as defined below)
shall take and pay for such Transition Services that were actually made
available by the Provider (as defined below), without any setoff or deduction,
except as provided in Sections 1.05, 4.02 and 4.04 hereof, and (b) with respect
to Transition Services that are priced on a variable or hourly basis, such
Transition Services shall be paid for by Purchaser on an "as requested and
provided" basis according to the rate per hour set forth on Schedule 1.03, plus
out-of- pocket expenses. Each Party taking and paying for Transition Services is
referred to hereinafter as a "Purchaser". Each Party providing a Transition
Service is referred to hereinafter as a "Provider". For the avoidance of doubt,
the definitions of Purchaser, Provider, Party and Parties do not include Enron
or its successors or assigns as permitted under the TSA or the TSSA. The CCE
Services, the Enron Services and the ONEOK Services are collectively referred to
herein as the "Transition Services".
1.04 Additional Transition Services as Requested. After the date hereof,
either Party can request that the other Party provide additional services
according to the rate per hour set forth on Schedule 1.03, plus out-of-pocket
expenses pursuant and subject to the terms and conditions of this Agreement.
Each Party agrees to provide such services as reasonably requested and as
personnel are reasonably available, provided, however, no such request will
result in any obligation of any Party unless and until both Parties sign a
written amendment to this Agreement providing for the requested additional
service. Notwithstanding the foregoing, in the event that ONEOK requests
services in connection with Sections 1.01(a)(x) or 1.01(b)(vi) (as scheduled in
Schedule 1.06(b)) and such services cannot be adequately provided by personnel
involved with providing services hereunder, then the Parties shall cooperate in
good faith in determining the scope, timeline and cost, which upon ONEOK's
agreement shall be at ONEOK's expense, related to such requested services.
1.05 Use of Facilities. The Purchaser acknowledges and agrees that the
use of the Provider's facilities by the Purchaser does not constitute a
leasehold interest in favor of the Purchaser. The Purchaser further agrees that
it shall use the facilities in a reasonably efficient manner. To the extent that
the Purchaser operates the space in a manner that materially increases the
Provider's or Enron's facilities costs, the Purchaser
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NORTHERN BORDER TRANSITION SERVICES AGREEMENT
acknowledges that the Provider reserves the right to seek reimbursement for the
excess costs of such practices. The Purchaser shall keep the Provider's, or
Enron's, as applicable, facilities in reasonably good order, not commit or
permit any material waste or damage to such facilities, not use such facilities
for any unlawful purpose or act and comply with all of the Provider's or
Enron's, as applicable, standard policies and procedures as in effect from time
to time, including procedures for the physical security of the facilities. The
Purchaser shall permit the Provider or Enron and their respective agents to
enter into those portions of the Provider's facilities occupied by the
Purchaser's staff at any time to perform facilities-related services. The
Purchaser shall not make any material improvements or changes involving
structural, mechanical or electrical alterations to the facilities without the
Provider's or Enron's, as applicable, prior written approval. Upon termination
or expiration of this Agreement or all of the facilities-related Transition
Services pursuant to Section 3.02 hereof, the Purchaser shall return the
Provider's or Enron's, as applicable, facilities to the Provider in
substantially the same condition as when the Purchaser began using such
locations, ordinary wear and tear excepted.
1.06 Compensation.
(a) As compensation for the ONEOK Services set forth on
Schedule 1.06(a), CCE will pay ONEOK the Monthly Costs as set forth on Schedule
1.06(a) (the "ONEOK Fee"). Schedule 1.06(a) will contain a list of each
individual ONEOK Service to be provided under Section 1.02.
(b) As compensation for the CCE Services set forth on Schedule 1.06(b),
ONEOK will pay CCE the Monthly Costs as set forth on Schedule 1.06(b) (the "CCE
Fee"). As compensation for the Enron Services set forth on Schedule 1.06(b),
ONEOK will pay CCE the Monthly Costs as set forth on Schedule 1.06(b) under
Enron Services (the "Enron Fee"). Schedule 1.06(b) will contain a list of each
individual CCE Service and Enron Service to be provided under Section 1.01.
(c) The compensation to be paid and the terms of billing and payment for
any additional service agreed upon pursuant to Section 1.04 of this Agreement
shall be included in any written amendment to this Agreement providing for such
additional service.
1.07 W-2s, Labor Distribution, Payroll and Benefit Data. CCE will request
and use its commercially reasonable efforts to have such request honored, that
Enron, at ONEOK's sole cost, provide the data for W-2s, labor distribution,
payroll and benefits for the Transfer Group Companies for all pay periods up to
and including December 31, 2004.
1.08 Indemnification. The provision of CCE Services may require consents,
waivers, or approvals from certain third parties under Permits and Contracts to
which CCE or any of its Affiliates is a party or is otherwise subject to enable
CCE to provide CCE Services to ONEOK, the Transfer Group Companies and/or the
Northern Border Companies (such Permits and Contracts being the "Third Party
Agreements"). Until the
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NORTHERN BORDER TRANSITION SERVICES AGREEMENT
date that is thirty (30) days after the date hereof, at the request and sole
expense of ONEOK, CCE agrees to cooperate reasonably with ONEOK and use
commercially reasonable efforts to seek such consents, waivers or approvals
necessary to allow CCE to utilize the services provided under such Third Party
Agreements to provide CCE Services to ONEOK, or to seek standstill agreements
pursuant to which such third parties would agree not to take any adverse actions
against CCE or any of its Affiliates, or ONEOK or any of its Affiliates, under
the Third Party Agreements as a result of CCE's provision of CCE Services. If
such consents, waivers, approvals, or standstill agreements are not obtained, or
are not reasonably satisfactory to CCE in its sole discretion, then CCE shall
not be obligated to provide the CCE Services to which such consents, waivers,
approvals or standstill agreements relate, effective as of the later of (i) the
date thirty (30) days after the date hereof and (ii) if applicable, the
expiration of a standstill agreement, and in each case CCE shall have no further
liability to ONEOK with regard thereto, notwithstanding anything to the contrary
contained herein. Notwithstanding any limitations on indemnification contained
herein (including, without limitation, the last sentence of Section 11.06) and
in the ONEOK Purchase Agreement (including, without limitation, the provisions
of Article X), ONEOK hereby agrees to indemnify the Seller Indemnified Parties
against, and hold them harmless from, any and all liabilities, losses, damages,
claims, reasonable and documented out-of-pocket costs and expenses (including
reasonable attorneys', accountants' or other fees and expenses), including
consequential, exemplary, special and punitive damages and lost profits,
incurred by the Seller Indemnified Parties and arising, directly or indirectly,
out of CCE's utilization of the services provided under the Third Party
Agreements to provide CCE Services to ONEOK.
ARTICLE II.
SERVICE STANDARD
2.01 Standard of Care; Limited Warranty. Subject to Section 2.02(c), the
CCE Services and ONEOK Services shall be performed with a degree of skill,
diligence and prudence with which the Provider (or its predecessor-in-interest),
its Affiliates and their respective personnel have performed such services for
the Purchaser or Enron, as applicable, subsequent to December 2, 2001 and prior
to March 31, 2004 and shall be of substantially equivalent quality. In addition,
subject to Section 2.02(c), the CCE Services and ONEOK Services shall be
performed with at least the same level of skill, diligence, prudence and quality
as the Provider utilizes in performing similar services for its Affiliates. With
respect to the Enron Services, CCE will request, and use commercially reasonable
efforts to have such request honored, that Enron perform such Enron Services (i)
with a degree of skill, diligence and prudence with which Enron, its Affiliates
and their respective personnel have performed such services for the Transfer
Group Companies subsequent to December 2, 2001 and prior to March 31, 2004 and
that such Enron Services shall be of substantially equivalent quality, and (ii)
with at least the same level of skill, diligence, prudence and quality as Enron
utilizes in performing similar services for its Affiliates. THE PRECEDING IS THE
ONLY WARRANTY CONCERNING THE TRANSITION SERVICES AND ANY RESULTS, WORK PRODUCT
OR PRODUCTS RELATED THERETO, AND IS MADE EXPRESSLY IN LIEU OF ALL OTHER
WARRANTIES AND REPRESENTATIONS EXPRESSED OR
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NORTHERN BORDER TRANSITION SERVICES AGREEMENT
IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF FITNESS FOR A
PARTICULAR PURPOSE, MERCHANTABILITY OR NONINFRINGEMENT. THE PARTIES UNDERSTAND,
ACKNOWLEDGE AND AGREE THAT THE LEVEL OF COMPENSATION THE PARTIES HAVE AGREED TO
ACCEPT IS PREDICATED ON THIS LIMITATION OF LIABILITY AND DISCLAIMER OF
WARRANTIES.
2.02 Consequences of Breach or Non-Performance.
(a) The Purchaser shall promptly notify the Provider of any failure by
the Provider to perform one or more of the Transition Services in accordance
with the terms of this Agreement. In the event that the Provider (a) does not
cure such non-performance within ten (10) Business Days of the receipt of such
notice (the "Cure Period"), or (b) has not performed a particular Transition
Service in accordance with the terms of this Agreement for thirty (30) Business
Days in the aggregate, then the Purchaser may terminate such Transition
Service(s) by delivering notice to the Provider and the Provider shall be
obligated to pay to the Purchaser liquidated damages as set forth in Section
2.03 hereof. No liquidated damages shall be payable by the Provider with respect
to non-performance before or during any Cure Period, however, the Purchaser
shall receive a pro-rata reduction in the fees payable by the Purchaser for the
period of time, including the Cure Period, for which the Provider failed to
perform its obligations.
(b) Notwithstanding anything to the contrary in this Agreement,
including Section 2.02(a) above, ONEOK shall promptly notify CCE of any failure
of Enron or its Affiliates to perform one or more of the Enron Services in
accordance with the terms of this Agreement. CCE shall request, and shall use
commercially reasonable efforts to have such request honored, that Enron cure
such non-performance; provided, however, that CCE shall not be required to cure
such non-performance by Enron or its Affiliates nor shall CCE be liable for any
damages (including any liquidated damages referred to in this Agreement) caused
by such non-performance by Enron or its Affiliates, as long as CCE uses
commercially reasonable efforts to have such requests honored.
(c) Notwithstanding anything to the contrary in this Agreement, and as
long as CCE requests, and uses commercially reasonable efforts to have such
requests honored, that Enron provide the Enron Services, CCE shall not be
required to cure any non-performance of CCE Services to the extent caused by the
failure of Enron and its Affiliates to provide the Enron Services to CCE and its
Affiliates or to the Transfer Group Companies and/or the Northern Border
Companies nor shall CCE be liable for the non-performance of any CCE Services
including any damages (including any liquidated damages referred to in this
Agreement) to the extent caused by the failure of Enron and its Affiliates to
provide the Enron Services set forth in Section 1.01(b) hereof to CCE and its
Affiliates or to the Transfer Group Companies and/or the Northern Border
Companies
2.03 Liquidated Damages. (a) The Parties hereto agree that the economic
injury to the Purchaser caused by unexcused non-performance of the Provider's
obligations under this Agreement will be difficult or impossible to precisely
calculate. Accordingly, the Parties agree that an amount equal to 100% of the
price of the
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applicable Transition Service calculated for the period of such unexcused
non-performance (exclusive of the period before or during any Cure Period), up
to a maximum of ninety (90) days with respect to any Transition Service, shall
be a reasonable, fair and non-punitive approximation of the economic injury
suffered by the Purchaser upon the Provider's unexcused failure to provide such
Transition Service in accordance with the terms of this Agreement. The Purchaser
shall invoice the non-performing Provider, and the Provider shall pay any
applicable liquidated damages pursuant to the terms of Article IV. The remedy
described in this Section 2.03 shall be the Purchaser's sole and exclusive
remedy with respect to a failure by the Provider to perform the Transition
Services in accordance with the terms of this Agreement, and once the Provider
has paid any applicable liquidated damages, the Provider and its Affiliates
shall be fully released and discharged from any liability or obligation
resulting from the non-performance of such Transition Service. No liquidated
damages shall be payable upon and following the termination of any Transition
Service pursuant to Section 3.02 (a), (b) or (c) of this Agreement.
(b) Solely for the purposes of computing liquidated damages as provided
in Section 2.03(a) of this Agreement where the Parties have not agreed upon a
fixed, monthly price for a Transition Service, the Parties agree that the
average of the cost of the applicable Transition Service in the three month
period, or a lesser period if this Agreement shall not have been in effect for
three months, prior to the period of the unexcused non-performance will be
deemed to be the monthly price of the applicable Transition Service.
(c) In the event that CCE is obligated to pay to Enron any liquidated
damages pursuant to the TSA or the TSSA arising from ONEOK's failure to perform
any of the ONEOK Services, then ONEOK promptly will reimburse CCE for such
payment of damages. ONEOK agrees to fully indemnify CCE with respect to any
claims Enron may bring against CCE due to ONEOK's non-performance of any of the
ONEOK Services.
(d) CCE shall not be liable for, any damages as a result of Enron or any
Enron Affiliate's failure to perform the services contemplated by Section
1.01(b) hereof or the failure of CCE or CCE's Affiliates to perform any services
to the extent caused by the failure of Enron and its Affiliates to provide the
services set forth in Section 1.01(b) hereof to CCE and its Affiliates or to the
Transfer Group Companies and/or the Northern Border Companies to the extent CCE
has requested, and used commercially reasonable efforts to have such request
honored, that Enron provide Enron Services.
2.04 Relationship of Parties. It is understood and agreed that in
providing the Transition Services and otherwise in connection with this
Agreement, the Provider is an independent contractor and is not, and shall not
hold itself out as, an agent, employee or legal representative of the Purchaser
or Enron, as applicable, or otherwise as having power or authority to bind the
Purchaser or Enron, as applicable, in any manner.
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ARTICLE III.
TERM
3.01 Term. Subject to Section 11.06, unless earlier terminated as
provided in Section 3.02 of this Agreement, this Agreement shall become
effective as of the closing date of the ONEOK Purchase Agreement (the "Closing
Date") and shall remain in effect for a period of six (6) months thereafter (the
"Term"). The Parties may mutually agree in writing to extend the provision of
any Transition Service beyond the Term.
3.02 Termination. A Party may not terminate this Agreement during the
Term except under the following circumstances:
(a) The Parties may terminate any Transition Service or this Agreement
by the execution of a written agreement signed by authorized representatives of
both Parties, in which event the termination shall be effective on the date
specified in such agreement.
(b) The Provider shall be permitted to terminate any Transition Service
in the event the Purchaser fails to pay the Provider's invoice for such
Transition Service within sixty (60) days of the invoice date, in which event
the termination shall be effective on the date on which the Purchaser receives
notice from the Provider of such termination.
(c) Termination of any Transition Service shall be effective on the date
on which the Provider receives notice of termination pursuant to Section 2.02
hereof.
(d) Except as otherwise may be provided in this Agreement, Purchaser
shall be permitted to terminate any CCE Service or ONEOK Service upon sixty (60)
days' prior written notice to Provider, in which event the termination shall be
effective on the date that is sixty (60) days after Provider receives such
notice.
ARTICLE IV.
BILLING AND PAYMENT
4.01 Exclusive Arrangement. It is the express intent of CCE and ONEOK
that this Agreement shall provide the exclusive means for CCE and ONEOK to
provide Transition Services to one another after the date hereof, and that there
shall be no cost recovery for Transition Services separate from or in addition
to the monthly fees set forth in and billed pursuant to this Agreement.
4.02 Effect of Discontinuance of Purchase of any Transition Service. If
the purchase of a Transition Service is terminated pursuant to Section 3.02
hereof, the Provider shall, upon termination of that Transition Service,
discontinue billing the Purchaser for any fees for such Transition Service;
provided, however, that, subject to Section 2.02 hereof, the Purchaser will be
obligated to pay for Transition Services received up to and through the date of
termination of such Transition Services, on a pro rata basis. Subject to Section
2.02 hereof, Purchaser shall be obligated to pay for the provision of a
Transition Service unless this Agreement or such Transition Service has been
terminated pursuant to Section 3.02 hereof.
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4.03 Invoices. Charges for Transition Services to be performed by the
Parties under this Agreement shall be invoiced to the Purchaser by the Provider
monthly on or before the twenty-third (23rd) Business Day following the calendar
month in which the Transition Services were provided. Invoices shall contain
sufficient detail to permit the Purchaser to determine the basis for the
charges, the specific services and the applicable affiliate(s) of the Purchaser
to which the billed amounts relate. The Purchaser shall pay such invoice by wire
transfer or other means of immediate payment, on or before the tenth (10th)
Business Day after receipt of each invoice without setoff or deduction of any
kind, except as provided in Section 2.02 or 4.04 herein. Any payment by the
Purchaser made more than thirty (30) days after the Purchaser is invoiced shall
incur a late fee of ten percent (10%) per annum, calculated from and after the
expiration of such thirty (30) day period until the date of payment.
4.04 Disputed Amounts. In the event that a good-faith dispute arises as
to the amount of any statement or invoice or any portions thereof submitted by
one Party to the other pursuant to this Article IV, the Party invoiced may
withhold all disputed amounts on such invoice or statement but shall pay all
charges on such invoice or statement that are not disputed. A Party disputing
any amount on an invoice or statement shall promptly notify the Party issuing
the invoice or statement in writing of such disputed amounts and the reasons
each such charge is disputed by the Party invoiced. The Party who submitted the
invoice or statement shall provide the Party disputing the invoice or statement
sufficient records relating to the disputed charge so as to enable the Parties
to resolve the dispute. In the event the determination is that the Party
invoiced should have paid the disputed amount, the Party invoiced shall pay the
disputed amount to the other Party, with interest on the disputed amount at a
rate of ten percent (10%) per annum, calculated from and after the thirtieth
(30th) day following the date of such invoice until the date of payment.
4.05 Billing and Payment. Notwithstanding anything to the contrary set
forth herein, CCE will have no obligation to pay, or any other liabilities with
respect to, any invoices that Enron fails to pay for ONEOK Services. Regardless
of whether Enron invoices CCE for Enron Services received by ONEOK, ONEOK will
be fully responsible for such invoices, and will indemnify CCE for any claims
arising out of ONEOK's failure to satisfy its payment obligations. To the extent
that ONEOK pays CCE for Enron Services, then CCE will indemnify ONEOK for any
claims arising out of CCE's failure to remit such payment to Enron.
ARTICLE V.
ASSET OWNERSHIP AND USAGE RIGHTS
5.01 Other Property. To the extent CrossCountry obtains from Enron
pursuant to the TSA, any rights, title or interests with respect thereto, CCE
shall cause to be conveyed, to ONEOK or its designees at no cost, (a) all of
CrossCountry's right to use (i) all telephone numbers or (ii) circuits used by
the Transfer Group Companies and/or the Northern Border Companies as of the date
of the TSA, and not by CrossCountry, for their respective business operations,
except for those numbers or circuits that are not necessary for the Transfer
Group Companies' and/or the Northern Border Companies' business
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NORTHERN BORDER TRANSITION SERVICES AGREEMENT
operations, and (b) all right, title, and interest obtained by CrossCountry from
Enron pursuant to the TSA to all domain names, trademarks, service marks and
trade names, used by one or more of the Transfer Group Companies and/or the
Northern Border Companies as of the date of the TSA, and not CrossCountry, for
their respective business operations. Notwithstanding the foregoing, CCE may
unplug, dispose of, or otherwise terminate any of such telephone numbers or
circuits in the ordinary course of business. The property to be conveyed to
ONEOK or its designees pursuant to this Section 5.01 and the terms and
conditions for such conveyance shall be set forth on Schedule 5.01.
5.02 Timetable. The transactions contemplated by this Article V shall be
consummated no later than the end of the Term to the extent required by Section
5.01.
5.03 Use of Name. As of the date of this Agreement, none of the Transfer
Group Companies or the Northern Border Companies shall have any right, title or
interest in the name "Enron" or "CrossCountry" (or any variations thereof) or
any trademarks, trade names, logo or symbols related thereto. As soon as
reasonably practicable following the date hereof (and in any event no later than
March 31, 2005), ONEOK shall cause the Transfer Group Companies to, and shall
use commercially reasonable efforts to cause the Northern Border Companies and
their respective subsidiaries to, amend the organizational documents of each
such entity to the extent necessary to remove the "Enron" and "CrossCountry"
names (and any variations thereof) from their names and to remove, at the sole
expense of ONEOK, all trademarks, trade names, logos and symbols related to the
name "Enron" or "CrossCountry" from any properties and assets (including all
signs) that are visible to, or obtainable by, members of the public.
ARTICLE VI.
LIMITATION OF LIABILITY AND INDEMNITIES
6.01 Provider's Limitation of Liability. Except as set forth in Sections
2.02, 2.03, and 6.02 each Purchaser of Transition Services agrees that the
Provider of such services shall not be liable for, and the Purchaser hereby
releases the Provider and its Affiliates, and each officer, director, employee,
agent, representative, permitted successor and assign of the Provider and/or any
of its Affiliates (the "Provider Parties") from any loss, liability, cost,
expense, penalty, damage, claim or cause of action (the "Liabilities") arising
from any act or omission of the Provider in connection with the Transition
Services. Except with respect to the indemnity for third-party claims in Section
6.02, in no event shall any Party (or its Affiliates) be liable to any other
Party (or its Affiliates) for any consequential, exemplary, special, incidental
or punitive damages or expenses (including, without limit, lost data, profits,
revenues, income or savings, cost of capital or loss of business reputation or
opportunity) arising from this Agreement or any breach thereof or breach of
warranty or error in the performance of the Transition Services regardless of
the fault or negligence (whether sole, joint or concurrent, active or passive)
of a Party or its Affiliates even if the other Party has been advised of the
possibility of the occurrence of such damages. EACH RECIPIENT OF TRANSITION
SERVICES HEREUNDER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT THE LEVEL OF
COMPENSATION THE PROVIDER HAS AGREED TO ACCEPT IS
13
NORTHERN BORDER TRANSITION SERVICES AGREEMENT
PREDICATED ON THIS LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES.
6.02 Purchaser's Indemnification.
(a) Subject to the limitations set forth in Article X of the ONEOK
Purchase Agreement and Section 11.06 of this Agreement, the Purchaser, at its
expense, agrees to defend, protect, release, indemnify, and hold harmless the
Provider Parties from and against any and all claims, demands, damages, losses,
liabilities, suits and causes of action of every kind (collectively "Claims")
brought by any Person, other than any Party hereto or its respective Affiliates,
for economic losses, damage to property (tangible or intangible), or injuries or
death of persons, and all reasonable costs and expenses (including the
reasonable costs of investigation and reasonable and necessary attorneys' fees
and all reasonable expenses of litigation and court costs), liabilities, awards,
and judgments incurred by any of the Provider Parties in connection therewith
arising out of, or resulting from, the Transition Services provided under this
Agreement.
(b) The Provider or one of its Affiliates shall give the Purchaser
reasonably prompt notice of any Claim of which it learns. The Purchaser's
obligation of indemnification shall survive even if the Provider or its
Affiliate does not provide the Purchaser with reasonably prompt notice of any
such Claim of which it learns, so long as such failure does not materially
prejudice the Purchaser.
(c) Notwithstanding anything in this Agreement to the contrary, ONEOK,
at its expense, agrees to defend, protect, release, indemnify, and hold harmless
CCE and its Affiliates from and against any and all Claims brought by Enron or
its Affiliates arising out of either the provision of Transition Services by
ONEOK to Enron or ONEOK's receipt of Transition Services from Enron, and all
reasonable costs and expenses (including the reasonable costs of investigation
and reasonable and necessary attorneys' fees and all reasonable expenses of
litigation and court costs), liabilities, awards, and judgments incurred by CCE
in connection therewith.
(d) Notwithstanding anything in this Agreement to the contrary, CCE, at
its expense, agrees to defend, protect, release, indemnify, and hold harmless
ONEOK and its Affiliates from and against any and all Claims brought by Enron or
its Affiliates arising out of either the provision of Transition Services by CCE
to Enron or CCE's receipt of Transition Services from Enron, and all reasonable
costs and expenses (including the reasonable costs of investigation and
reasonable and necessary attorneys' fees and all reasonable expenses of
litigation and court costs), liabilities, awards, and judgments incurred by
ONEOK in connection therewith.
6.03 Defense of Claims. Subject to the limitations set forth in Article X
of the ONEOK Purchase Agreement and Section11.06 of this Agreement, it is
understood and agreed by the Purchaser that in the event any of the Provider
Parties is made a defendant in any suit, action or proceeding for which it is
indemnified pursuant to this Agreement, and the Purchaser fails or refuses to
assume the defense thereof, after having been notified by the Provider Party to
do so, that said Provider Party may compromise and
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NORTHERN BORDER TRANSITION SERVICES AGREEMENT
settle or defend any such Claim, and the Purchaser shall be bound and obligated
to reimburse said Provider Party for the amount expended by the Provider Party
in settling and compromising any such Claim, or for the amount expended by the
Provider Party in paying any judgment rendered therein, together with all
reasonable attorneys' fees incurred by the Provider Parties for defense or
settlement of such Claim. Any judgment rendered against the Provider Parties or
amount expended by the Provider Party in compromising or settling such Claim
shall be conclusive as determining the amount for which the Purchaser is liable
to reimburse the Provider Party hereunder.
ARTICLE VII.
INSURANCE
7.01 Insurance Policies. The following insurance procedures shall apply:
(a) Each of CCE and ONEOK agree to procure and maintain insurance
coverage with reputable insurers for the Term of this Agreement for the
Transition Services provided to the other hereunder. All insurance policies
procured and maintained by either of ONEOK or CCE must be written with insurance
companies authorized to do business in the state where the work will be
performed, and under forms of policies reasonably satisfactory to the other, in
the kinds and amounts set forth in Exhibit A hereto.
(b) It is understood and agreed that the insurance requirements set
forth in this Section 7.01 and Exhibit A hereto shall in no way limit ONEOK's or
CCE's liability or responsibility under this Agreement or be construed to be the
only types and amounts of insurance ONEOK or CCE should maintain to adequately
cover themselves from the hazards of their respective occupations.
(c) All policies of insurance referred to herein must be primary to any
other insurance policies carried by CCE or ONEOK with respect to the Transition
Services provided by ONEOK or CCE respectively. All policies of insurance
referred to herein, held by ONEOK or CCE, as applicable, with the exception of
Workers' Compensation and Employer's Liability, shall name CCE and ONEOK, as
applicable, as additional insureds, only to the extent of the other Party's
indemnity obligations contained herein, covering completed operations, as
respects the services performed and materials provided, and shall contain a
"Cross-Liability" and "Severability of Interest" provision. Further, each of
ONEOK and CCE shall use its best efforts to have all of the above insurance
policies provide for thirty (30) days' written notice by certified mail (return
receipt requested) to the other in the event of cancellation or a material
change.
(d) Except where prohibited by law, all policies of insurance pertaining
to this Agreement which are procured, held or maintained by either of ONEOK or
CCE, whether required by this Agreement or not, shall be endorsed to provide
that the underwriters or insurers waive any and all rights of subrogation
against the Seller Indemnified Parties (as defined in the ONEOK Purchase
Agreement), or the Purchaser Indemnified Parties (as defined in the ONEOK
Purchase Agreement), as applicable.
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NORTHERN BORDER TRANSITION SERVICES AGREEMENT
(e) Upon request of either one of CCE or ONEOK to the other, CCE or
ONEOK, as applicable, shall provide the other with copies of certificates of
insurance for itself signed by an authorized representative evidencing the
coverages, limits, endorsements and extensions required herein and CCE or ONEOK,
as applicable, shall provide the other a copy of its master services agreement
listing the insurance requirements for its subcontractors. Each of ONEOK and CCE
shall duly file all claims with respect to insurance carried and maintained by
it under this Section and shall take all necessary and proper steps to collect
any proceeds. CCE and ONEOK, as applicable, shall promptly notify the other of
any such loss, damage or claim. Each of CCE or ONEOK, as applicable, shall give
prompt notification to the other of each incident or accident that could
reasonably be expected to result in a loss in excess of $250,000 related to
services under this Agreement.
7.02 No Benefit or Release of Insurer. Nothing in this Agreement is
intended to provide or shall be construed as providing a benefit or release to
any insurer or claims service organization of any obligation under any Insurance
Policy. ONEOK and CCE confirm that this Article 7 is not intended to alter in
any manner the rights and obligations of any insurer or contract claims service
company thereunder. Nothing herein shall be construed as creating or permitting
any insurer or contract claims service company the right of subrogation against
any of ONEOK or CCE or any of their respective Affiliates in respect of payments
made by one to the other under any Insurance Policy.
ARTICLE VIII.
CONFIDENTIALITY
8.01 Confidentiality. The obligations of CCE and ONEOK and their agents,
contractors and employees with respect to confidentiality shall be governed by
Section 6.5 of the ONEOK Purchase Agreement.
ARTICLE IX.
FORCE MAJEURE
9.01 Force Majeure. Subject to the standards set forth in Article II, if,
by reason of force majeure, a Party is rendered unable, wholly or in part, to
carry out its obligations under this Agreement, and if the non-performing Party
declaring force majeure gives notice and reasonable particulars of such force
majeure to the Party to whom the performance is due within a reasonable time
after the occurrence of the cause relied on, upon giving such notice, so far as
and to the extent that it is affected by such force majeure, the non-performing
Party declaring force majeure shall not be liable solely on account of such
inability to perform during the continuance of any inability so caused;
provided, however, the non-performing Party shall use commercially reasonable
efforts to recommence performance of the affected services; provided, further,
however, that an event of force majeure shall not excuse payment for Transition
Services provided hereunder.
9.02 Definition of Force Majeure. The term "force majeure" as employed in
this Agreement shall mean acts of God; strikes, lockouts or industrial disputes
or
16
NORTHERN BORDER TRANSITION SERVICES AGREEMENT
disturbances; civil disturbances; arrests and restraints from rulers of people;
interruptions by government, administrative agency or court orders, other than
as a result of a failure to comply with Laws; present and future valid orders,
decisions or rulings of any governmental or administrative entity having proper
jurisdiction; acts of a public enemy; wars; riots; blockades; insurrections;
inability to secure materials by reason of allocations promulgated by authorized
governmental agencies; epidemics; landslides; lightning; earthquakes; fire;
storm; floods; washouts; whether of the kind herein enumerated or otherwise, not
reasonably within the control of the Party claiming force majeure and not
caused, in whole or in part, by the acts or omissions of the Party so affected
by force majeure.
ARTICLE X.
NOTICES AND REPORTS
10.01 Notices. All notices and other communications under this Agreement
shall be in writing and shall be deemed duly given (i) when delivered personally
or by prepaid overnight courier, with a record of receipt, (ii) the fourth day
after mailing if mailed by certified mail, return receipt requested, or (iii)
the day of transmission, if sent by facsimile or telecopy during regular
business hours, or the day after transmission, if sent after regular business
hours (with a copy promptly sent by prepaid overnight courier with record of
receipt or by certified mail, return receipt requested), to the Parties at the
following addresses or telecopy numbers (or to such other address or telecopy
number as a Party may have specified by notice given to the other Party pursuant
to this provision):
If to CCE:
CCE Holdings, LLC
c/o Southern Union Company
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇-▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President and COO
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
And to:
General Electric Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Manager of Operations
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
17
NORTHERN BORDER TRANSITION SERVICES AGREEMENT
And to:
Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to ONEOK:
ONEOK, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇, Chairman, President and Chief Executive
Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
ARTICLE XI.
MISCELLANEOUS
11.01 Applicable Law. THIS AGREEMENT, THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT, AND ANY CLAIM OR CONTROVERSY DIRECTLY OR
INDIRECTLY BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT (WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER
THEORY), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, SHALL
IN ALL RESPECTS BE GOVERNED BY AND INTERPRETED, CONSTRUED, AND DETERMINED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF TEXAS (WITHOUT REGARD TO ANY
CONFLICTS OF LAW PROVISION THAT WOULD REQUIRE THE APPLICATION OF THE LAW OF ANY
OTHER JURISDICTION).
11.02 Waiver. The performance of or compliance with a Party's obligation
hereunder may be waived, but only in writing signed by an authorized
representative of the other Party. No waiver or failure of enforcement by any
Party of any default by any other Party in the performance of any provision,
condition or requirement herein shall be deemed to be a waiver of, or in any
manner a release of the defaulting Party from, performance of any other
provision, condition or requirement herein, nor deemed to be a waiver of, or in
any manner a release of the defaulting Party from, future performance of the
same provision, condition or requirement; nor shall any delay or omission of any
non-
18
NORTHERN BORDER TRANSITION SERVICES AGREEMENT
defaulting Party to exercise any right hereunder in any manner impair the
exercise of any such right or any like right accruing to it thereafter.
11.03 Modification. This Agreement may not be modified, varied or amended
except by an instrument in writing signed by the Parties.
11.04 Headings. The headings to each of the various Articles and Sections
in this Agreement are included for convenience and reference only and shall have
no effect on, or be deemed as part of the text of, this Agreement.
11.05 Third Parties. Except as provided in Article VI hereof, this
Agreement is not intended to confer upon any Person not a Party hereto any
rights or remedies hereunder, and no Person other than the Parties hereto is
entitled to rely on or enforce any representation, warranty or covenant
contained herein.
11.06 Survival; Limitations Period. Notwithstanding any other provisions
in this Agreement, all indemnity, limitation of liability, and payment
obligations (including Sections 2.02, 2.03, 4.03 and 4.04) set forth in this
Agreement and the provisions set forth in Articles VI, VIII, X, XI and XII shall
survive the termination of this Agreement or the expiration of the Term, in
whole or in part. NO PARTY MAY ASSERT ANY CAUSE OF ACTION AGAINST ANY OTHER
PARTY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT MORE THAN SIX (6)
MONTHS AFTER THE EXPIRATION OF THE TERM.
11.07 Binding Effect; Assignment.
(a) Subject to paragraph (b) below, no Party hereto may assign this
Agreement, in whole or in part, except with the prior written approval of each
other Party, which approval shall not be unreasonably withheld; provided,
however, that a Party may assign this Agreement to any successor in interest of
such Party, including the Purchaser of all or substantially all of the assets of
such Party provided, however, that such assignment shall not release the
liability of the assignor under this Agreement. This Agreement shall inure to
the benefit of, and shall be binding upon, the Parties and their respective
permitted successors and assigns.
(b) The Provider may assign the performance by it of any Transition
Service to an Affiliate or subsidiary or any successor in interest to such
Affiliate or subsidiary. In addition, the Provider may subcontract or outsource
the performance of any Transition Service to a third party if necessary to cure
any non-performance pursuant to Section 2.02 hereof.
11.08 Entire Agreement. This Agreement, including any exhibits,
attachments and schedules hereto, constitutes the entire agreement between the
Parties concerning the subject matter hereof, and same supersedes any prior
understandings or written or oral agreements relative to said matter.
19
NORTHERN BORDER TRANSITION SERVICES AGREEMENT
11.09 Submission to Jurisdiction; Consent to Service of Process.
(a) Any and all Actions to enforce the terms of this Agreement and to
decide any claims or disputes which may arise or result from, or be connected
hereby, shall be filed and maintained exclusively in the United States District
Court for the Southern District of Texas sitting in ▇▇▇▇▇▇ County or the Civil
Trial Division of the District Court of the State of Texas sitting in ▇▇▇▇▇▇
County and any appellate court from any thereof, and the Parties hereto consent
to and submit to the jurisdiction and venue of such courts and shall receive
notices at such locations as indicated in Section 10.01; provided, however,
unless the Enron Bankruptcy Cases have closed, any and all Actions to decide any
claims or disputes which may arise or result from, or be connected hereby, and
involving Enron shall be filed and maintained exclusively in the Bankruptcy
Court, and the Parties hereby consent to and submit to the jurisdiction and
venue of the Bankruptcy Court and shall receive notices at such locations as
indicated in Section 10.01.
(b) The Parties hereby unconditionally and irrevocably waive, to the
fullest extent permitted by Applicable Law, any objection which they may now or
hereafter have to the laying of venue or any dispute arising out of or relating
to this Agreement or any of the transactions contemplated hereby brought in any
court specified in paragraph (a) above, or any defense of inconvenient forum of
the maintenance of such dispute. Each of the Parties hereto agrees that a
judgment in any such dispute may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law.
(c) Each of the Parties hereto consents to process being served by any
Party to this Agreement in any suit, Action or proceeding by the mailing of a
copy thereof in accordance with the provisions of Section 10.01.
11.10 Waiver of Jury Trial. THE PARTIES HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT THAT THEY MAY HAVE TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION, OR IN
ANY LEGAL PROCEEDING, DIRECTLY OR INDIRECTLY BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT (WHETHER BASED ON
CONTRACT, TORT, OR ANY OTHER THEORY). EACH PARTY (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTIES WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
11.11 No Strict Construction. The Parties to this Agreement have
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises with respect
to this Agreement, this Agreement shall be construed as if drafted jointly by
the Parties, and no presumption or burden of
20
NORTHERN BORDER TRANSITION SERVICES AGREEMENT
proof shall arise favoring or disfavoring a Party by virtue of the authorship of
any of the provisions of this Agreement.
11.12 Severability. If any provision of this Agreement is invalid or
unenforceable, the balance of this Agreement shall remain in effect.
11.13 Counterparts. This Agreement 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.
11.14 Audit Rights. (a) CCE shall cause its Subsidiaries (other than
Citrus Corp., Citrus Energy Services, Inc., Citrus Trading Corp., Florida Gas
Transmission Company and each of their respective subsidiaries) to permit ONEOK
and any Transfer Group Company, and any Northern Border Company (in each case,
only to the extent such entity is subject to Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act of 2002 (as may be amended from time to time, the "▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act")) and
authorized agents and representatives, including the internal and external
auditors, of any such entity, reasonable access (during normal business hours,
upon reasonable advance notice and in accordance with CCE's or its Affiliates'
policies and procedures, as may be amended from time to time in CCE's sole
discretion) to the internal control structures and procedures of CCE and its
Subsidiaries utilized in connection with the CCE Services provided pursuant to
this Agreement solely for the purpose of such entity complying with Section 404
of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. Notwithstanding the foregoing, neither CCE nor any of
its Affiliates are making any representation whatsoever as to (i) the adequacy
of the internal control structures and procedures or the systems related thereto
of CCE or any of its Affiliates or any other entity, or (ii) compliance with any
requirement of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act (or the rules or regulations related
thereto) to which CCE, ONEOK, and any Transfer Group Company, or any of their
Affiliates or any other entity is or may be subject to, and no such requirement
(or obligation to comply therewith) shall relieve ONEOK of any of its
obligations under this Agreement. CCE agrees to cooperate in good faith with
ONEOK to resolve any issues relating to the adequacy of the internal control
structures and procedures of CCE or any of its Affiliates; provided, that CCE
and its Affiliates shall have no obligation to modify existing internal control
structures and procedures or create additional internal control structures and
procedures, except as CCE may determine in its sole discretion or as may be
required by law applicable to CCE without regard to the provision of CCE
Services; and, provided, further, that any modifications or additions to the
internal control structures and procedures of CCE and its Affiliates made at the
request of ONEOK shall be at the sole cost and expense of ONEOK and subject to
Section 1.04. ONEOK acknowledges and agrees that neither CCE nor any Affiliate
of CCE shall in any way be liable for any Claim arising from or relating to,
directly or indirectly, the access provided to ONEOK or any Transfer Group
Company pursuant to this Section 11.14(a) or the subject matter set forth in
clauses (i) and (ii) of the second sentence of this Section 11.14(a), and ONEOK
shall fully indemnify the Seller Indemnified Parties for any Losses incurred by
any Seller Indemnified Party in connection therewith.
21
NORTHERN BORDER TRANSITION SERVICES AGREEMENT
(b) CCE will request, and use commercially reasonable efforts to have
such request honored, that Enron and its Affiliates permit any Transfer Group
Company, and any Northern Border Company (in each case, only to the extent such
entity is subject to Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (as may be
amended from time to time, the "▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act")) and authorized agents and
representatives, including the internal and external auditors, of any such
entity, reasonable access (during normal business hours, upon reasonable advance
notice and in accordance with Enron's policies and procedures, as may be amended
from time to time in Enron's sole discretion) to the internal control structures
and procedures of Enron and its Affiliates utilized in connection with the Enron
Services provided pursuant to this Agreement solely for the purpose of such
entity complying with Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. Notwithstanding the
foregoing, ONEOK acknowledges that in the performance of the Enron Services,
none of Enron or any of its Affiliates or CCE or any of its Affiliates are
making any representation whatsoever as to (i) the adequacy of the internal
control structures and procedures or the systems related thereto of Enron or any
of its Affiliates or any other entity, or (ii) compliance with any requirement
of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act (or the rules or regulations related thereto) to which
Enron, CCE, ONEOK and any Transfer Group Company or any of their Affiliates or
any other entity is or may be subject to, and no such requirement (or obligation
to comply therewith) shall relieve ONEOK of any of its obligations under this
Agreement. CCE shall request, and use commercially reasonable efforts to have
such request honored that Enron cooperate in good faith with ONEOK and the
Transfer Group Companies to resolve any issues relating to the adequacy of the
internal control structures and procedures of Enron or any of its Affiliates;
provided, that Enron and its Affiliates shall have no obligation to modify
existing internal control structures and procedures or create additional
internal control structures and procedures, except as Enron may determine in its
sole discretion or as may be required by law applicable to Enron without regard
to the provision of Enron Services; and, provided, further, that any
modifications or additions to the internal control structures and procedures of
Enron and its Affiliates made at the request of ONEOK or the Transfer Group
Companies shall be at the sole cost and expense of ONEOK and shall be governed
by the terms and conditions of a project work description to be agreed upon by
Enron and CCE. ONEOK acknowledges and agrees that none of Enron or any of its
Affiliates or CCE or any its Affiliates shall in any way be liable for any Claim
arising from or relating to, directly or indirectly, the access provided to
ONEOK or any Transfer Group Company pursuant to this Section 11.14(b) or the
subject matter set forth in clauses (i) and (ii) of the second sentence of this
Section 11.14(b), and ONEOK shall fully indemnify the Seller Indemnified Parties
for any Losses incurred by any Seller Indemnified Party in connection therewith.
ARTICLE XII.
INTERPRETATION; DEFINITIONS
12.01 Construction and Interpretation. All references herein to agreements
and other contractual instruments shall be deemed to include all exhibits,
attachments and appendices attached thereto and all amendments and other
modifications to such agreements and instruments. Words used herein in the
singular, where the context so permits, shall also apply to words when used in
the plural and visa versa. The term
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NORTHERN BORDER TRANSITION SERVICES AGREEMENT
"including" when used in the Agreement will be by way of example and not
considered in any way to be a limitation, and means "including, without
limitation".
12.02 Definitions. Capitalized terms used in this Agreement and the
attached Exhibits, which are hereby incorporated into and made a part of this
Agreement, but not defined herein or in such Exhibits have the respective
meanings given to them in the ONEOK Purchase Agreement.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be signed in
multiple originals by their respective officers thereunto duly authorized, all
as of the date first above written.
CCE Holdings, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
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NORTHERN BORDER TRANSITION SERVICES AGREEMENT
ONEOK, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chairman of the Board, President
and Chief Executive Officer
24