EXHIBIT 10.2
CONTRIBUTION, CONVEYANCE
AND
ASSUMPTION AGREEMENT
DATED AS OF ______ __, 1999
TABLE OF CONTENTS
1. DEFINITIONS................................................................1
2. CONTRIBUTION OF INTERESTS IN NORTHERN BORDER PIPELINE......................1
3. CONTRIBUTION OF INTERESTS IN ILP...........................................2
4. TRANSFER OF INTERESTS IN MLP AND ILP TO GP; UNDERWRITERS' OVER-
ALLOTMENT OPTION.....................................................3
5. CONDITIONS TO CLOSING AND EFFECTIVENESS OF INDEMNIFICATION.................3
6. CLOSING....................................................................4
7. INDEMNIFICATION............................................................4
7.1 EXCULPATION AND INDEMNIFICATION BY THE TRANSFERORS...............4
7.2 EXCULPATION AND INDEMNIFICATION BY THE ILP.......................5
7.3 SPECIFIC INDEMNIFICATION ISSUES..................................5
7.4 NOTICE AND PAYMENT OF CLAIMS.....................................6
7.5 DEFENSE OF THIRD PARTY CLAIMS....................................7
7.6 COOPERATION AND PRESERVATION OF RECORDS..........................8
8. ARBITRATION................................................................9
9. MISCELLANEOUS..............................................................10
9.1 HEADINGS; REFERENCES; INTERPRETATION.............................10
9.2 SUCCESSORS AND ASSIGNS...........................................11
9.3 NO THIRD PARTY RIGHTS............................................11
9.4 COUNTERPARTS.....................................................11
9.5 GOVERNING LAW....................................................11
9.6 SEVERABILITY.....................................................11
9.7 DEED; XXXX OF SALE; ASSIGNMENT...................................11
9.8 AMENDMENT OR MODIFICATION........................................11
9.9 INTEGRATION......................................................11
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This CONTRIBUTION, CONVEYANCE AND ASSUMPTION AGREEMENT (this
"Agreement"), dated as of ______ __, 1999, is entered into by and among
TRANSCANADA BORDER PIPELINE LTD., a Nevada corporation ("TRANSCANADA BORDER
PIPELINE"), TRANSCAN NORTHERN LTD., a Delaware corporation ("TRANSCAN NORTHERN"
and together with TransCanda Border PipeLine, the "TRANSFERORS"), TRANSCANADA
PIPELINES LIMITED, a Canadian corporation ("TRANSCANADA"), TC PIPELINES, LP, a
Delaware limited partnership (the "MLP"), TC PIPELINES INTERMEDIATE LIMITED
PARTNERSHIP, a Delaware limited partnership (the "ILP"), and TC PIPELINES GP,
INC., a Delaware corporation (the "GP").
RECITALS
TransCanada Border PipeLine owns a 6% general partner interest
(the "TRANSCANADA BORDER PIPELINE INTEREST") in Northern Border Pipeline
Company, a Texas general partnership ("NORTHERN BORDER PIPELINE").
TransCan Northern owns a 24% general partner interest (the
"TRANSCAN NORTHERN INTEREST," and together with the TransCanada Border PipeLine
Interest, the "TRANSFERRED INTERESTS") in Northern Border Pipeline.
The parties hereto desire to set forth their mutual agreement
regarding the Transferred Interests and related matters.
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the parties hereto, the parties
hereto agree as follows:
1. DEFINITIONS.
Any capitalized term used herein but not defined shall have
the meaning given such term in that certain Amended and Restated Agreement of
Limited Partnership of TC PipeLines, LP dated __________, 1999 (the "MLP
PARTNERSHIP AGREEMENT").
2. CONTRIBUTION OF INTERESTS IN NORTHERN BORDER PIPELINE.
On the date hereof (the "EFFECTIVE DATE"), the following
transactions shall occur:
(a) TransCanada Border PipeLine hereby conveys, contributes,
transfers, assigns and delivers as a capital contribution to the ILP (and the
ILP accepts and agrees to be admitted with), a general partner interest in
Northern Border Pipeline representing a 6% "Partner's Percentage" (which term
shall, for purposes of this
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SECTION 2, have the meaning assigned to it in the Northern Border Pipeline
Partnership Agreement) in Northern Border Pipeline, and in exchange therefor,
the ILP hereby issues to TransCanada Border PipeLine (i) a 1.0101% general
partner interest in the ILP and (ii) an 18.9899% limited partner interest in the
ILP representing a combined 20% partner interest in the ILP; and
(b) TransCan Northern hereby conveys, contributes, transfers,
assigns and delivers as a capital contribution to the ILP (and the ILP accepts
and agrees to be admitted with), a general partner interest in Northern Border
Pipeline representing a 24% Partner's Percentage in Northern Border Pipeline,
and in exchange therefor, the ILP hereby issues to TransCan Northern an 80%
limited partner interest in the ILP.
TO HAVE AND TO HOLD the above described interests in Northern
Border Pipeline unto the ILP, its successors and assigns, forever, subject,
however, to the terms and conditions stated in this Agreement. Each of
TransCanada Border PipeLine and TransCan Northern acknowledges and agrees that
the foregoing contribution by it of such general partner interest in Northern
Border Pipeline is intended to, and shall be construed as, a contribution by
such party of all of its interest as a general partner in Northern Border
Pipeline (including, without limitation, all of its rights of every kind and
character in and to Northern Border Pipeline and under the Northern Border
Pipeline Partnership Agreement).
3. CONTRIBUTION OF INTERESTS IN ILP.
Upon completion of the transactions in SECTION 2 of this
Agreement on the Effective Date, the following transactions shall occur:
(a) The MLP shall issue and sell 14,300,000 Common Units to
the Underwriters in a public offering as described in the Underwriting Agreement
(the "PUBLIC OFFERING");
(b) TransCanada Border PipeLine hereby conveys, contributes,
transfers, assigns and delivers to the MLP, as a capital contribution, an
18.9899% limited partner interest in the ILP, and in exchange therefor, the MLP
hereby issues to TransCanada Border PipeLine (i) a 1.0% general partner interest
in the MLP, (ii) a limited partner interest in the MLP consisting of 14,286
Common Units and 3,200,000 Subordinated Units, and (iii) the Incentive
Distribution Rights; and
(c) TransCan Northern hereby conveys, contributes, transfers,
assigns and delivers to the MLP, as a capital contribution, an 80% limited
partner interest in the ILP, and in exchange therefor, the MLP hereby issues to
TransCan Northern a limited partner interest in the MLP consisting of 14,285,714
Common Units.
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TO HAVE AND TO HOLD the above described limited partner
interests in the ILP unto the MLP, its successors and assigns, forever, subject,
however, to the terms and conditions stated in this Agreement. Each of
TransCanada Border PipeLine and TransCan Northern acknowledges and agrees that
the foregoing contribution by it of such limited partner interest in the ILP is
intended to, and shall be construed as, a contribution by such party of all of
its interest as a limited partner in the ILP (including, without limitation, all
of its rights of every kind and character as a limited partner in and to the ILP
and under the ILP Partnership Agreement).
4. TRANSFER OF INTERESTS IN MLP AND ILP TO GP; UNDERWRITERS'
OVER-ALLOTMENT OPTION.
(a) Upon completion of the transactions in SECTION 3 of this
Agreement on the Effective Date, the following transactions shall occur:
(i) The MLP shall use the proceeds of the Public Offering,
after underwriting discounts and commissions and payment of expenses, to
redeem all of the Common Units of the MLP issued to TransCanada Border
PipeLine and TransCan Northern under SECTION 3 of this Agreement; and
(ii) TransCanada Border PipeLine hereby conveys,
contributes, transfers, assigns and delivers to the GP as a contribution to
capital (i) the 1.0% general partner interest in the MLP, (ii) the 1.0101%
general partner interest in the ILP, (iii) the limited partner interest in
the MLP consisting of 3,200,000 Subordinated Units and (iv) the Incentive
Distribution Rights.
(b) If the over-allotment option is exercised by the
Underwriters pursuant to the Underwriting Agreement:
(i) The MLP shall issue and sell up to an additional
2,145,000 Common Units (the "OVERALLOTMENT UNITS") to the Underwriters in
the Public Offering in respect of any portion of the over-allotment option
exercised by the Underwriters; and
(ii) The MLP shall use the proceeds received from the
issuance and sale of the Overallotment Units to redeem Subordinated Units
held by the GP on a one-for-one basis equal to the number of Common Units
issued upon exercise of the over-allotment option.
5. CONDITIONS TO CLOSING AND EFFECTIVENESS OF INDEMNIFICATION.
(a) The obligations of each party to close the transactions
contemplated by this Agreement shall be subject to the prior satisfaction of
each of the following conditions:
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(i) There shall not be in effect any injunction or
restraining order issued by a court of competent jurisdiction barring the
consummation of any of the transactions contemplated by this Agreement; and
(ii) All of the conditions under the Underwriting
Agreement (other than those conditions relating to the consummation of the
transactions contemplated by this Agreement) shall have been (or the MLP
believes on the Effective Date, as defined in SECTION 6, will be) satisfied
or waived and the Underwriting Agreement shall be in full force and effect,
enforceable against the Underwriters in accordance with its terms (subject
to the consummation of the transactions contemplated by this Agreement).
(b) SECTION 7 shall become operative upon the closing of the
transactions contemplated by this Agreement.
6. CLOSING.
Subject to the satisfaction of the conditions in SECTION 5 of this
Agreement, the closing of the transactions contemplated by this Agreement shall
take place on the Effective Date at the offices of Fried, Frank, Harris, Xxxxxxx
& Xxxxxxxx, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (or at such other place
as the parties may agree).
7. INDEMNIFICATION.
7.1 EXCULPATION AND INDEMNIFICATION BY THE TRANSFERORS. Subject to
SECTION 7.3, the Transferors and their Affiliates shall, without any further
responsibility or liability of, or recourse to, the MLP or the ILP, absolutely
and irrevocably be solely liable and responsible for (i) their respective
federal, state, local and foreign income tax and corporate franchise tax
liabilities of the Transferors and their Affiliates (including all federal,
state, local and foreign income tax liabilities attributable to ownership of the
Transferred Interests prior to the Effective Time), including any such income
tax liabilities of the Transferors and their Affiliates that may result from the
consummation of the transactions contemplated by this Agreement, and (ii) any
and all claims, liabilities and obligations of the Transferors and their
Affiliates (whether accruing or arising before, on or after the Effective Date)
which primarily arise out of or relate to any property, operations or business
of the Transferors or their Affiliates other than with respect to the
Transferred Interests (the items in (i) and (ii), collectively the "EXCLUDED
LIABILITIES"). The MLP or the ILP shall not be liable to any of the Transferors
and their Affiliates or any third parties for any reason whatsoever on account
of any of the Excluded Liabilities.
For purposes of this Agreement, "AFFILIATES" of the Transferors include
TransCanada but shall exclude the MLP, the ILP, Northern Border Pipeline and
their respective Subsidiaries.
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The Transferors and TransCanada shall indemnify, defend, save and hold
harmless the MLP and the ILP from and against all claims, liabilities,
obligations, losses, costs, costs of defense (as and when incurred), including
expenses, fines, charges, penalties, allegations, demands, damages (including
but not limited to actual, punitive or consequential, foreseen or unforeseen,
known or unknown), settlements, awards or judgments of any kind or nature
whatsoever and reasonable outside attorneys' and consultants' fees, to the
extent arising out of (a) the Excluded Liabilities, or (b) the breach by the
Transferors or TransCanada of any of their respective obligations under this
Agreement, all of which are hereinafter collectively referred to as the
"TRANSFEREE DAMAGES".
Transferee Damages with respect to which, but only to the extent that,
any proceeds are received by, or on behalf of, the MLP, the ILP or any of their
Affiliates, from any third party insurance policy (and are non-reimbursable by
the MLP, the ILP or any of their Affiliates), shall not be the subject of
indemnification under this Agreement.
7.2 EXCULPATION AND INDEMNIFICATION BY THE ILP. Subject to SECTION 7.3,
the ILP shall, without any further responsibility or liability of, or recourse
to, any of the Transferors and their Affiliates, absolutely and irrevocably
assume and be solely liable and responsible for any and all claims, liabilities
and obligations (whether accruing or arising before, on or after the Effective
Date) which primarily arise out of or relate to the Transferred Interests, other
than Excluded Liabilities (the "ASSUMED LIABILITIES"). None of the Transferors
and their Affiliates shall be liable to the ILP or any third parties for any
reason whatsoever on account of any of the Assumed Liabilities.
The ILP shall indemnify, defend, save and hold harmless each of the
Transferors and their Affiliates from and against all claims, liabilities,
obligations, losses, costs, costs of defense (as and when incurred), including
expenses, fines, charges, penalties, allegations, demands, damages (including
but not limited to actual, punitive or consequential, foreseen or unforeseen,
known or unknown), settlements, awards or judgments of any kind or nature
whatsoever and reasonable outside attorneys' and consultants' fees, to the
extent arising out of (a) the Assumed Liabilities or (b) the breach by the ILP
of any of its obligations under this Agreement, all of which are hereinafter
collectively referred to as the "TRANSFEROR DAMAGES".
Transferor Damages with respect to which, but only to the extent that,
any proceeds are received by, or on behalf of, the Transferors, or by any of
their Affiliates, from any third party insurance policy (and are
non-reimbursable by the Transferors or any of their Affiliates), shall not be
the subject of indemnification under this Agreement.
7.3 SPECIFIC INDEMNIFICATION ISSUES. (a) In the event a claim, demand,
action or proceeding is brought by a third party in which the liability as
between the Transferors and their Affiliates, on the one hand, and the ILP, on
the other hand, is determined after
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trial in any judgment, award or decree to be joint or concurrent or in which the
entitlement to indemnification hereunder is not readily determinable, the
parties shall negotiate in good faith in an effort to agree, as between the
Transferors and their Affiliates, on the one hand, and the ILP, on the other
hand, on the proper allocation of liability or entitlement to indemnification,
as well as the proper allocation of the costs of any joint defense or settlement
pursuant to SECTION 7.5(D) of this Agreement, all in accordance with the
provisions of, and the principles set forth in, this Agreement. In the absence
of any such agreement, such allocation of liability, entitlement to
indemnification and allocation of costs shall be subject to ultimate resolution
between the Transferors and their Affiliates, on the one hand, and the ILP, on
the other hand, pursuant to SECTION 8 of this Agreement.
(b) It is acknowledged that after the Effective Time, the
parties may have various business relationships, which relationships will be
described in contracts, agreements and other documents entered into by the
relevant parties. Such documents may include agreements by the parties and their
affiliates to supply, after the Effective Time, credit or services. Such
business relationships shall not be subject to the indemnity provisions hereof,
unless the parties expressly agree to the contrary in the agreements governing
such relationships.
7.4 NOTICE AND PAYMENT OF CLAIMS. (a) If any person entitled to a
defense and/or indemnification under this Agreement (the "INDEMNIFIED PARTY")
determines that it is or may be entitled to a defense or indemnification by the
ILP or any of the Transferors or their Affiliates, as the case may be (the
"INDEMNIFYING PARTY"), under this Agreement:
(i) The Indemnified Party shall deliver promptly to the
Indemnifying Party a written notice and demand for a defense or
indemnification, specifying the basis for the claim for defense and/or
indemnification, the nature of the claim, and if known, the amount for
which the Indemnified Party reasonably believes it is entitled to be
indemnified. Nothing in this subparagraph shall be interpreted to
invalidate any claim by the Indemnified Party to be entitled to
indemnification, except to the extent the failure of the Indemnified Party
to deliver such notice resulted in actual prejudice.
(ii) The Indemnifying Party shall have 30 days from
receipt of the notice requesting indemnification within which to either:
(A) assume the defense of such litigation or claim; (B) pay the claim in
immediately available funds; (C) reserve its rights pending resolution
under SECTION 7.5(D); or (D) object in accordance with CLAUSE (B) of this
SECTION 7.4. This 30-day period may be extended by agreement of the
parties. Nothing in this subparagraph shall be interpreted to abrogate or
delay a party's obligation to provide the other with a defense under this
Agreement.
(b) The Indemnifying Party may object to the claim for defense
and/or indemnification set forth in any notice; PROVIDED, HOWEVER, that if the
Indemnifying Party
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does not give the Indemnified Party written notice setting forth its objection
to such claim (or the amount thereof) and the grounds therefor within the same
30-day period (or any extended period), the Indemnifying Party shall be deemed
to have acknowledged its liability to provide a defense or to pay the amount of
such claim and, subject to SECTION 8 of this Agreement, the Indemnified Party
may exercise any and all of its rights under applicable law to collect such
amount or obtain such defense. Any objection to a claim for a defense or
indemnification shall be resolved in accordance with SECTION 8 of this
Agreement.
(c) To the extent provided in the last sentence of SECTION 7.1
of this Agreement or the last sentence of SECTION 7.2 of this Agreement, the
right to a defense or indemnification under this Agreement applies only insofar
as defense and indemnification are not provided for by insurance (whether
through a third party or otherwise). Nevertheless, the potential availability of
insurance coverage to the Transferors, their Affiliates, or the ILP shall not
relieve the other party of its obligations for defense or indemnification
hereunder, or delay either party's obligation to the other to assume a defense
or pay any sums due hereunder.
(d) Payments due to be made to any Indemnified Party under
this SECTION 7 shall bear interest from the date on which the Indemnified Party
paid any amount or actually suffered a loss in respect of Transferee Damages or
Transferor Damages, as the case may be, to but excluding the date of actual
payment (whether before or after judgment) at the prime rate announced by
Chemical Bank for its corporate customers during such period.
(e) Payments due to be made under this Agreement shall be free
and clear of all deductions, withholdings, set-offs or counterclaims whatsoever,
except as may be required by law.
7.5 DEFENSE OF THIRD PARTY CLAIMS. (a) If the Indemnified Party's claim
for indemnification is based, under this Agreement, on a claim, demand,
investigation, action or proceeding, judicial or otherwise, brought by a third
party, and the Indemnifying Party does not object under SECTION 7.4(B) of this
Agreement, the Indemnifying Party shall, within the 30 day period (or any
extended period) referred to in SECTION 7.4(A) of this Agreement, assume the
defense of such third-party claim at its sole cost and expense and shall
thereafter be designated as the "CASE HANDLER." Any such defense shall be
conducted by attorneys employed by the Indemnifying Party. The Indemnified Party
may retain attorneys of its own choosing to participate in such defense at the
Indemnified Party's sole cost and expense.
(b) If the Indemnifying Party assumes the defense of any such
third-party claim, the Indemnifying Party may settle or compromise the claim
without the prior consent of the Indemnified Party so long as all present and
future claims relating to the
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compromised claim against the Indemnified Party are irrevocably and
unconditionally released in full.
(c) The Indemnifying Party shall pay to the Indemnified Party
in immediately available funds the amount for which the Indemnified Party is
entitled to be indemnified within 30 days after the settlement or compromise of
such third-party claim or the judgment of a court of competent jurisdiction (or
within such longer period as agreed to by the parties). If the Indemnifying
Party does not assume the defense of any such third-party claim, the
Indemnifying Party shall be bound by the result obtained with respect thereto by
the Indemnified Party, except that the Indemnifying Party has the right to
contest that it is obligated to the Indemnified Party under the terms of this
Agreement, provided the Indemnifying Party shall have raised its objection in a
timely manner under SECTION 7.4 of this Agreement.
(d) In the event a claim, demand, action or proceeding is
brought by a third party in which the liability as between the ILP and the
Transferors and their Affiliates is alleged to be joint or in which the
entitlement to indemnification hereunder is not readily determinable, the
parties shall cooperate in a joint defense. Such joint defense shall be under
the general management and supervision of the party which is expected to bear
the greater share of the liability, and which will be considered the Case
Handler, unless otherwise agreed; PROVIDED, HOWEVER, that neither party shall
settle or compromise any such joint defense matter without the consent of the
other. The costs of such joint defense, any settlement and any award or judgment
(unless the award or judgment specifies otherwise) shall be borne as the parties
may agree; or in the absence of such agreement, such costs shall be borne by the
party incurring such costs, subject to ultimate resolution between the ILP and
the Transferors pursuant to SECTION 8 of this Agreement.
7.6 COOPERATION AND PRESERVATION OF RECORDS. (a) The ILP and the
Transferors and their Affiliates shall cooperate with one another fully and in a
timely manner in connection with the defense of any litigation and claims
pending as of the Effective Date or brought, threatened or alleged after the
Effective Date, against the ILP and/or the Transferors and their Affiliates.
(b) Such cooperation shall include, without limitation, making
available to the other party, during normal business hours and upon reasonable
notice, all books, records and information ("LITIGATION RECORDS"), officers and
employees (without substantial interruption of employment) necessary or useful
in connection with any actual or threatened claim, investigation, audit, action
or proceeding.
(c) Each party shall maintain the Litigation Records, or at
the request of the other party, shall issue, notices exempting from destruction
any Litigation Records which the requesting party represents may be necessary to
the defense of, or required to be produced in discovery in connection with, any
such claim, investigation, audit, action
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or proceeding and shall refrain from destroying any such Litigation Records
until authorized by the requesting party. The requesting party shall notify the
other party promptly when the Litigation Records are no longer required to be
maintained.
(d) The party requesting access to Litigation Records or
officers and employees pursuant to CLAUSE (B) hereof or preservation of
Litigation Records pursuant to CLAUSE (C) hereof shall bear all reasonable
out-of-pocket expenses (except reimbursement of salaries, employee benefits and
general overhead) incurred by the other party in connection with providing such
Litigation Records or officers and employees.
(e) The party providing Litigation Records hereunder may
elect, upon a reasonable basis and within a reasonable time, to designate all or
a portion of the Litigation Records as confidential or proprietary. If
Litigation Records are so designated, the party receiving them will treat them
as it would its own confidential or proprietary information and will take all
reasonable steps to protect and safeguard the Litigation Records while in its
own custody and will attempt to shield such information from disclosure by
motions to quash, motions for a protective order, redaction or other appropriate
actions.
8. ARBITRATION.
Resolution of any and all disputes arising from or in
connection with this Agreement, whether based on contract, tort, statute or
otherwise, including but not limited to, disputes over arbitrability and
disputes in connection with claims by third parties (collectively, "DISPUTES"),
shall be exclusively governed by and settled in accordance with the provisions
of this SECTION 8; PROVIDED, HOWEVER, that nothing contained herein shall
preclude any party from seeking or obtaining (a) injunctive relief or (b)
equitable or other judicial relief, in each case to preserve the status quo,
pending resolution of Disputes hereunder. Any party may commence proceedings
hereunder by delivering a written notice to any other party providing reasonable
description of the Dispute to the other, and expressly requesting arbitration
hereunder. The parties hereby agree to submit all Disputes to arbitration under
the terms hereof, which arbitration shall be final, conclusive and binding upon
the parties, their successors and assigns. The arbitration shall be conducted in
Houston, Texas, by a single arbitrator (the "ARBITRATOR") selected by agreement
of the parties not later than ten (10) days after delivery of the Demand or,
failing such agreement, appointed pursuant to the commercial arbitration rules
of the American Arbitration Association, as amended from time to time (the "AAA
RULES"). If the arbitrator so selected becomes unable to serve, his or her
successor shall be similarly selected or appointed. The arbitration shall be
conducted pursuant to the Federal Arbitration Act and such procedures as the
parties involved in any Dispute may agree, or, in the absence of or failing such
agreement, pursuant to the AAA Rules. Notwithstanding the foregoing: (i) each
party shall have the right to audit the books and records of each other party
that are reasonably related to the Dispute; (ii) each party shall provide to
each
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other Party involved in the applicable Dispute, reasonably in advance of any
hearing, copies of all documents which such party intends to present in such
hearing; and (iii) each party shall be allowed to conduct reasonable discovery
through written requests for information, document requests, requests for
stipulation of fact and depositions, the nature and extent of which discovery
shall be determined by the Arbitrator, taking into account the needs of the
parties and the desirability of making discovery expeditious and cost effective.
All hearings shall be conducted on an expedited schedule, and all proceedings
shall be confidential. Any party may, at its expense, make a stenographic record
thereof. The Arbitrator shall complete all hearings not later than ninety days
after its selection or appointment, and shall make a final award not later than
thirty days thereafter. The award shall be in writing and shall specify the
factual and legal basis for the award. The Arbitrator shall apportion all costs
and expenses of arbitration, including the Arbitrator's fees and expenses and
fees and expenses of experts, between the prevailing and non-prevailing Party as
the Arbitrator deems fair and reasonable. Notwithstanding the foregoing, in no
event may the Arbitrator award multiple, punitive or exemplary damages. Any
arbitration award shall be binding and enforceable against each Party involved
in the particular Dispute and judgment may be entered thereon in any court of
competent jurisdiction.
9. MISCELLANEOUS.
9.1 HEADINGS; REFERENCES; INTERPRETATION. All article and section
headings in this Agreement are for convenience only and shall not be deemed to
control or affect the meaning or construction of any of the provisions hereof.
All references herein to articles and sections shall, unless the context
requires a different construction, be deemed to be references to the articles
and sections of this Agreement. All personal pronouns used in this Agreement,
whether used in the masculine, feminine or neuter gender, shall include all
other genders, and the singular shall include the plural and vice versa. The use
herein of the word "including" following any general statement, term or matter
shall not be construed to limit such statement, term or matter to the specific
items or matters set forth immediately following such word or to similar items
or matters, whether or not nonlimiting language (such as "without limitation,"
"but not limited to," or words of similar import) is used with reference
thereto, but rather shall be deemed to refer to all other items or matters that
could reasonably fall within the broadest possible scope of such general
statement, term or matter. Except as otherwise expressly provided herein, any
reference in this Agreement to any document shall mean such document as amended,
restated, supplemented or otherwise modified from time to time.
9.2 SUCCESSORS AND ASSIGNS. The Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and assigns.
9.3 NO THIRD PARTY RIGHTS. The provisions of this Agreement are not
intended to and do not create rights in any other person or confer upon any
other person any
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benefits, rights or remedies and no person is or is intended to be a third party
beneficiary of any of the provisions of this Agreement.
9.4 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which together shall constitute one agreement binding on
the parties hereto.
9.5 GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the internal the laws of the State of Texas without regard
to the conflicts of law principles thereof.
9.6 SEVERABILITY. If any of the provisions of this Agreement are held
by any court of competent jurisdiction to contravene, or to be invalid under,
the laws of any political body having jurisdiction over the subject matter
hereof, such contravention or invalidity shall not invalidate the entire
Agreement. Instead, this Agreement shall be construed as if it did not contain
the particular provision or provisions held to be invalid, and an equitable
adjustment shall be made and necessary provision added so as to give effect to
the intention of the parties as expressed in this Agreement at the time of
execution of this Agreement.
9.7 DEED; XXXX OF SALE; ASSIGNMENT. To the extent required by
applicable law, this Agreement shall also constitute a "deed", "xxxx of sale" or
"assignment" of the Transferred Interests.
9.8 AMENDMENT OR MODIFICATION. This Agreement may be amended or
modified, or any provision waived or rescinded, from time to time only by the
written agreement of the Parties directly bound by, or benefited from, the
provisions in respect of which such amendment, modification, waiver or
rescission is sought.
9.9 INTEGRATION. This Agreement supersedes all previous understandings
or agreements between the parties, whether oral or written, with respect to its
subject matter. This Agreement constitutes an integrated agreement which contain
the entire understanding of the parties with respect to the subject matter
hereto. No understanding, representation, promise or agreement, whether oral or
written, is intended to be or shall be included in or form part of this
Agreement unless it is contained in a written amendment hereto executed by the
parties hereto after the date of this Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed by
the parties hereto as of the date first above written.
TRANSCANADA BORDER PIPELINE LTD.
By: ________________________________
Name:
Title:
TRANSCAN NORTHERN LTD.
By: _______________________________
Name:
Title:
TRANSCANADA PIPELINES LIMITED
By: ________________________________
Name:
Title:
TC PIPELINES, LP
By: TC PIPELINES GP, INC.
its general partner
By: ________________________________
Name:
Title:
TC PIPELINES INTERMEDIATE LIMITED
PARTNERSHIP
By: TC PIPELINES GP, INC.
its general partner
By: ________________________________
Name:
Title:
-12-
TC PIPELINES GP, INC.
By: ________________________________
Name:
Title:
-13-
