Exhibit 99.5
AGREEMENT FOR INDEMNIFICATION
THIS AGREEMENT FOR INDEMNIFICATION ("Agreement") is made and entered into
as of the 21st day of June 2002, by and among TEXAS BORDER GAS COMPANY, a
Delaware corporation ("Corporation"), and Xxxxxx X. Xxxxxxxx, a director of the
Corporation ("Indemnitee").
RECITALS
A. The Corporation and the Indemnitee understand and agree that
interpretations of statutes, regulations, court opinions and the Corporation's
Certificate of Incorporation and Bylaws, are too uncertain to provide the
Corporation's directors with adequate or reliable advance knowledge or guidance
with respect to the legal risks and potential liabilities to which they may
become exposed personally as a result of performing, in good faith, their duties
as directors of the Corporation.
B. The Corporation and the Indemnitee are aware of the substantial
increase in the number of litigation matters filed against corporate directors.
C. The Corporation and the Indemnitee are aware that the cost of
defending those litigation matters, whether or not those litigation matters are
meritorious, may be in excess of the financial resources of the directors of the
Corporation or may significantly exceed the limited benefits derived by persons
serving as directors of the Corporation.
D. The Corporation and the Indemnitee are aware that the legal risks and
potential director liabilities, or the very threat thereof, and the resulting
substantial time endured, and fees and expenses incurred, in defending against
such litigation matters have no reasonable logical relationship to the amount of
compensation received by the Corporation's directors. These factors (i) cause a
significant deterrent to, and (ii) induce increased reluctance on the part of,
experienced and capable persons to serve as directors of the Corporation.
E. The Corporation has investigated the availability and deficiency of
liability insurance to provide its directors with adequate protection against
the foregoing legal risks and potential liabilities. The Corporation has
concluded that such insurance does not provide adequate protection to the
Corporation's directors. Therefore, the Corporation believes it will be in the
best interests of the Corporation and its shareholders for the Corporation to
agree with the Corporation's directors, including the Indemnitee, to indemnify
those directors, to the most complete extent permitted by law, against personal
liability for actions taken in the good faith performance in their duties to the
Corporation.
F. Section 145 of the Delaware General Corporation Law ("Law") specifies
the circumstances regarding the mandatory and permissive indemnification by a
Delaware corporation of the officers, directors, employees and agents of that
corporation, and those provisions (i) require indemnification in certain
circumstances, (ii) permit indemnification in other circumstances, and (iii)
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prohibit indemnification in some circumstances.
G. The members of the Board of Directors of the Corporation have
determined, after careful consideration and investigation of the various options
available, that the provisions of this Agreement are reasonable, prudent, and
necessary to promote and ensure the best interests of the Corporation and its
shareholders. The provisions of the Agreement are intended to (i) induce and
encourage significantly experienced and capable persons such as the Indemnitee
to serve as directors of the Corporation; (ii) encourage such persons to resist
what they consider to be unjustifiable litigation matters and claims made
against them regarding the good faith performance of their duties to the
Corporation, secure in the knowledge that certain expenses, costs, and
liabilities incurred by them in their defense of such litigation matters will be
borne and paid by the Corporation and that they will receive the maximum
protection against such risks and liabilities as legally may be made available
to them; and (iii) encourage directors of the Corporation to exercise their best
business judgment regarding matters which will be submitted to them for
consideration, without undue concern for the risk that claims may be made
against them because they are directors of the Corporation.
H. The Corporation desires to cause the Indemnitee to continue to serve
as a director of the Corporation free from concern for unpredictable,
inappropriate, or unreasonable legal risk and personal liabilities by reason of
his acting in good faith in the performance of his duties to the Corporation.
The Indemnitee desires to serve as a director of the Corporation; provided,
however, and on the express condition, that he is furnished with the
indemnification specified by the provisions of this Agreement.
NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING RECITALS, PREMISES, PROMISES,
COVENANTS, AGREEMENTS AND UNDERTAKINGS SPECIFIED BY THE PROVISIONS OF THIS
AGREEMENT AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND
SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, WITH THE INTENT TO BE OBLIGATED
LEGALLY AND EQUITABLY, THE PARTIES TO THIS AGREEMENT AGREE WITH EACH OTHER AS
FOLLOWS:
1. Definitions. For the purposes of this Agreement, the following words
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and terms shall be defined as follows:
(a) The term "Proceeding" does and shall include any threatened, pending
or completed action, inquiry, lawsuit, litigation matter or
proceeding, whether commenced in the name of the Corporation, or
otherwise, and whether civil, criminal, administrative or
investigative in nature, including, but not limited to, actions,
inquiries, investigations, litigation matters or proceedings commenced
pursuant to or predicated on the provisions of the Securities Act of
1933, as amended; the Securities Exchange Act of 1934, as amended;
their respective state and provincial counterparts; and any rule or
regulation promulgated pursuant thereto, in which the Indemnitee may
be, or may have been involved as a party, or otherwise (other than as
plaintiff against the Corporation), because of (i) the fact that the
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Indemnitee is or was a director of the Corporation, (ii) any action
taken by the Indemnitee, or (iii) any inaction by the Indemnitee while
he is or was functioning as a director of the Corporation.
(b) The term "Expenses" includes, but is not limited to, expenses of
investigations, judicial or administrative proceedings or appeals,
court costs, attorneys' fees and disbursements, and any expenses of
establishing a right to indemnification pursuant to applicable law or
the provisions of Paragraph 7 of this Agreement.
(c) References to "other enterprise" does and shall include each entity of
and for which the Corporation is the managing agent and references to
"serving at the request of the Corporation" does and shall include any
service by the Indemnitee as a director of the Corporation which
imposes duties on, or involves services by the Indemnitee while
functioning as such a director with respect to any such entity, its
members, partners or beneficiaries; and if the Indemnitee acts in good
faith and in a manner he reasonably believes to be in the best
interests of the members, partners and beneficiaries of such entity,
the Indemnitee shall be deemed to have acted in a manner "not opposed
to the best interests of the Corporation," as that phrase is
contemplated by the provisions of this Agreement.
(d) For the purposes of this Agreement, the Indemnitee shall be deemed to
have been acting as an "Agent" if he was functioning in his capacity
as (i) a director of the Corporation, or (ii) a representative or
agent of any other enterprise at the request of the Corporation,
whether or not he is functioning in such capacity at the time any
liability or expense is incurred for which indemnification or
reimbursement can be provided pursuant to the provisions of this
Agreement.
(e) The term "Applicable Standard" means that the Indemnitee acted in good
faith and in a manner that the Indemnitee reasonably believed to be in
the best interests of the Corporation; except that in a criminal
proceeding, the Indemnitee must also have had no reasonable cause to
believe that the Indemnitee's conduct was unlawful. The termination of
any Proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or any equivalent procedure shall not, of
itself, create any presumption, or establish, that the Indemnitee did
not satisfy the "Applicable Standard."
(f) "Independent Legal Counsel" shall include any law firm selected by the
regular counsel for the Corporation from a list of law firms which
satisfy reasonable criteria established by the Board of Directors of
the Corporation; provided, however, such law firm has not represented
the Corporation, the Indemnitee or any person controlled by the
Indemnitee within the preceding 24 calendar months.
(g) The term "Estate" shall include the following (or similar) terms as
those are understood in Delaware law:
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(1) The duly appointed and qualified executor, executrix,
administrator, administratrix, administrator with the Will
annexed or administratrix with the Will annexed, of the estate of
a decedent;
(2) The surviving joint tenant of a decedent, when shares of capital
stock issued by the Corporation are owned by a decedent and a
person who is not active in the business of the Corporation as
joint tenants;
(3) Any other person who, because of the community property or other
law of any jurisdiction, may acquire, by reason of the death of
such decedent, and without formal probate proceedings, any right,
title or interest in or to shares of capital stock issued by the
Corporation to such decedent; or
(4) An irrevocable living or grantor's trust for the benefit of a
deceased shareholder of the Corporation.
2. Agreement to Serve. The Indemnitee shall serve or continue to serve as
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a director of the Corporation at the will of the Corporation's shareholders, or
pursuant to the provisions of separate agreement, as the case may be, for such
time as he is duly elected or appointed, and until such time as he tenders his
resignation in writing or he is removed.
3. Indemnity in Third Party Proceedings. The Corporation shall indemnify
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the Indemnitee, if the Indemnitee is made a party to or threatened to be made a
party to, or otherwise involved in, any Proceeding (other than a Proceeding
which is an action by or in the right of the Corporation to procure a judgment
in its favor), because of the fact that the Indemnitee is or was an Agent of the
Corporation. The indemnification contemplated by the provisions of this
Paragraph 3 shall apply, and be limited, to and against all Expenses, judgments,
fines, penalties, settlements and other amounts, actually and reasonably
incurred by the Indemnitee in connection with the defense or settlement of any
such Proceeding; provided, however, it is determined pursuant to the provisions
of Paragraph 7 of this Agreement or by the court in which such Proceeding is or
was pending that the Indemnitee satisfied the Applicable Standard.
4. Indemnity in Proceedings By or In the Name of the Corporation. The
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Corporation shall indemnify the Indemnitee, if the Indemnitee is made a party
to, or threatened to be made a party to, or otherwise involved in, any
Proceeding which is an action by or in the right of the Corporation to procure a
judgment in the Corporation's favor because the Indemnitee is or was an Agent of
the Corporation. The indemnification contemplated by the provisions of this
Paragraph 4 shall apply, and be limited, to and against all Expenses actually
and reasonably incurred by the Indemnitee in connection with the defense or
settlement of such Proceeding, but only if:
(a) the Indemnitee satisfies the Applicable Standard (except that the
Indemnitee's belief regarding the best interests the Corporation or
other enterprise need not have been reasonable);
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(b) the Indemnitee acted with such care, including reasonable inquiry, as
an ordinarily prudent person in a similar circumstance would use; and
(c) the Proceeding is settled or otherwise disposed of with approval of
the Corporation.
No indemnification shall be made pursuant to the provisions of this
Paragraph 4 for any claim, issue or matter as to which the Indemnitee shall have
been adjudged to be liable to the Corporation in the performance of the
Indemnitee's duty to the Corporation, unless, and only to the extent that, the
court in which such Proceeding is or was pending shall determine upon
application that, considering all the circumstances of such Proceeding, the
Indemnitee is fairly and reasonably entitled to indemnification for the
Expenses, which such court shall determine.
5. Expenses of Successful Indemnitee. Notwithstanding any other provision
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of this Agreement, to the extent that the Indemnitee has been successful on the
merits in defense of any Proceeding or in defense of any claim, issue or matter
in such Proceeding, the Indemnitee shall be indemnified by the Corporation from
and against all Expenses actually and reasonably incurred in connection with
such Proceeding.
6. Advances of Expenses. The Expenses incurred by the Indemnitee in any
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Proceeding shall be advanced by the Corporation prior to the final disposition
of such Proceeding at the written request of the Indemnitee, but only if the
Indemnitee shall undertake to repay such advances, unless and to the extent that
it is ultimately determined that the Indemnitee is entitled to indemnification.
Any advance required pursuant to the provisions of this Paragraph 6 shall be
deemed to have been approved by the members of the Board of Directors of the
Corporation to the extent the provisions of this Agreement have been approved by
the members of that Board of Directors. In determining whether or not to make an
advance pursuant to the provisions of this Paragraph 6, the ability of the
Indemnitee to repay any such advance shall not be a factor. In a Proceeding
commenced by the Corporation directly, in its own right (as distinguished from a
Proceeding commenced derivatively or by any receiver or trustee), the
Corporation shall have the discretion not to make the advance contemplated by
the provisions of this Paragraph 6, if independent counsel advises the
Corporation in writing that the Corporation has probable cause to believe, and
the Corporation does, in fact, believe, that the Indemnitee did not act in good
faith with regard to the subject matter of such Proceeding or a material portion
of such Proceeding.
7. Right of the Indemnitee to Indemnification Upon Application; Procedure
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Upon Application. Any indemnification or advance contemplated by the provisions
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of this Agreement shall be made no later than 30 calendar days after receipt by
the Corporation of a written request by the Indemnitee for such advance or
indemnification and which request shall be provided in accordance with the
provisions of Paragraph 11 of this Agreement. In all other situations,
indemnification shall be made by the Corporation only if authorized in the
specific situation, upon a determination that indemnification of the Indemnitee
is proper according to the circumstances and the provisions of this Agreement
by:
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(a) a majority vote of a quorum of the members of the Board of Directors
of the Corporation (or a duly constituted committee of that Board of
Directors), consisting of directors who are not parties to the
Proceeding at issue;
(b) approval of a majority in interest of the issued and outstanding
voting capital stock of the Corporation, and any shares of the
Corporation's voting capital stock entitled to vote therefor held by
the Indemnitee shall not be entitled to vote regarding such
indemnification;
(c) the court in which the Proceeding at issue is or was pending, upon
application made by the Corporation or made by (i) the Indemnitee or
(ii) any person rendering services in connection with the Indemnitee's
defense, whether or not the Corporation opposes such application; or
(d) to the extent permitted by law and as expressed by independent legal
counsel in a written opinion.
The right to indemnification or advances contemplated by the provisions of
this Agreement shall be enforceable by the Indemnitee in any court of competent
jurisdiction. The burden of proving that such indemnification or advances is
appropriate shall be on the Indemnitee. Neither the failure of the Corporation
(including the members of its Board of Directors or independent legal counsel)
to make a determination prior to the commencement of any action to determine
whether such indemnification or advances is appropriate in the particular
circumstances because the Indemnitee has satisfied the Applicable Standard, nor
a determination by the Corporation (including the members of its Board of
Directors or independent legal counsel) that the Indemnitee has not satisfied
such Applicable Standard, shall be a defense to such action or create a
presumption that the Indemnitee has not satisfied the Applicable Standard. The
Indemnitee's Expenses incurred in connection with successfully establishing his
right to such indemnification or advances, in whole or in part, in any
Proceeding shall also be indemnified by the Corporation; provided, however, that
if the Indemnitee is only partially successful, only an equitably allocated
portion of such Expenses shall be indemnified by the Corporation.
If the Indemnitee is entitled to indemnification by the Corporation for
some or a portion of the Expenses, judgments, fines or penalties actually and
reasonably incurred by the Indemnitee in the investigation, defense, appeal or
settlement of any Proceeding but not, however, for the total amount of those
Expenses, judgments, fines or penalties the Corporation shall nevertheless
indemnify the Indemnitee for the portion (determined on an equitable basis) of
those Expenses, judgments, fines or penalties to which the Indemnitee is
entitled.
The Corporation's obligations to advance or indemnify the Indemnitee
pursuant to the provisions of this Agreement shall be deemed satisfied to the
extent of any payments made by an insurer for or on behalf of the Corporation or
the Indemnitee.
8. Indemnification Pursuant to this Agreement Is Not Exclusive. The
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indemnification contemplated by the provisions of this Agreement shall not be
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deemed exclusive of any other rights to which the Indemnitee may be entitled
pursuant to the provisions of the Articles of Incorporation or Bylaws of the
Corporation, or any agreement, vote of shareholders, officers or disinterested
directors, the Business Corporation Act of the State of Delaware, or otherwise,
as to action in his official capacity as a director of the Corporation and any
other capacity while serving as a director of the Corporation. The
indemnification contemplated by the provisions of this Agreement shall continue
as to the Indemnitee although he may have ceased to be an Agent of the
Corporation and shall inure to the benefit of the heirs and personal
representatives of the Indemnitee, including the Estate of the Indemnitee.
9. Limitations. The Corporation shall not be obligated pursuant to the
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provisions of this Agreement to make any payment in connection with any claim
made against the Indemnitee:
(a) for which payment is made to the Indemnitee pursuant to the provisions
of a valid and collectible insurance policy, except with respect to
any excess beyond the amount of payments pursuant to the provisions of
such policy;
(b) for which the Indemnitee is indemnified by the Corporation otherwise
than pursuant to the provisions of this Agreement;
(c) based upon or attributable to the Indemnitee gaining any personal
profit or advantage to which he was not legally entitled;
(d) for an accounting of profits made from the purchase or sale by the
Indemnitee of securities of the Corporation within the meaning of
Section 16(b) of the Securities Exchange Act of 1934 and amendments
thereto or similar provisions of any state statutory law or common
law;
(e) resulting from or contributed to by the active and deliberate
dishonesty of the Indemnitee; provided, however, the Indemnitee shall
be indemnified by the Corporation to the extent otherwise specified by
the provisions of this Agreement as to any claims for which a
litigation action may be commenced against the Indemnitee because of
any alleged dishonesty on his part, unless a judgment or other final
adjudication of such litigation action adverse to the Indemnitee shall
establish that he committed acts of active and deliberate dishonesty
with an actual dishonest purpose and intent, which acts were material
to the litigation action so adjudicated;
(f) for omissions or acts committed in bad faith or which involve
intentional misconduct or a knowing violation of law;
(g) for any omission or act that the Indemnitee believed at the time of
his action to be contrary to, or inconsistent with, the best interests
of both the Corporation and its shareholders; or
(h) for any transaction from which the Indemnitee derived an improper
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personal economic benefit in a capacity other than as a shareholder of
the Corporation.
10. Severability. In the event any part of this Agreement, for any reason,
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is determined to be invalid, such determination shall not affect the validity of
any remaining portion of this Agreement, which remaining portion shall remain in
complete force and effect as if this Agreement had been executed with the
invalid portion of this Agreement eliminated. It is hereby declared the
intention of the parties that the parties would have executed the remaining
portion of this Agreement without including any such part, parts or portion
which, for any reason, hereafter may be determined to be invalid.
11. Notices. The Indemnitee shall, as a condition precedent to his right
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to be indemnified pursuant to the provisions of this Agreement, provide to the
Corporation notice in writing within 20 calendar days after he becomes aware of
any claim made against him for which he believes, or should reasonably believe,
indemnification will or could be sought pursuant to the provisions of this
Agreement. All notices, requests, demands and other communications
(collectively, "notices") contemplated or required by the provisions of this
Agreement shall be in writing (including communications by telephone, telex, or
telecommunication facilities providing facsimile transmission) and mailed
(postage prepaid and return receipt requested), telegraphed, telexed,
transmitted or personally served to each party at the address for such party
specified below such party's signature to this Agreement or at such other
address as such party may designate in a written notice to the other party in
compliance with the provisions of this paragraph. All notices shall be effective
when received; provided, however, receipt shall be deemed to be effective (i) 2
business days of any properly addressed notice having been deposited in the
mail, (ii) 24 hours from the time electronic transmission was made, or (iii)
upon actual receipt of electronic delivery, whichever occurs first.
12. Parties in Interest. No provision of this Agreement is intended to,
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nor shall any such provision confer any right or remedies pursuant to or by
reason of the provisions of this Agreement to any persons other than the parties
to this Agreement and their respective successors and assigns, including the
Estate of the Indemnitee, nor is any provision of this Agreement intended to
relieve or discharge the obligation or liability of any third party to any party
to this Agreement. No provision of this Agreement shall provide any third person
any right of subrogation or action against any party to this Agreement.
13. Successors and Assigns. This Agreement shall inure to the benefit of
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and obligate the undersigned parties and their respective successors and
assigns. Whenever, in this Agreement, a reference to any party is made, such
reference shall be deemed to include a reference to the successors and assigns
of such party; provided, however, neither this paragraph nor any other portion
of this Agreement shall be interpreted to constitute a consent to any assignment
or transfer other than pursuant to and in accordance with the other provisions
of this Agreement. Neither party shall assign, transfer or delegate that party's
rights, responsibilities, duties or obligations created by the provisions of
this Agreement to any other person without the prior written consent of the
other party.
14. Captions and Interpretation. Captions of the paragraphs of this
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Agreement are for convenience and reference only, and the words specified in
those captions shall in no way be held to explain, modify, amplify or aid in the
interpretation, construction or meaning of the terms, conditions and provisions
of this Agreement. The language and all parts to this Agreement, in all cases,
shall be construed in accordance with the fair meaning of that language and
those parts and as if that language and those parts were prepared by both
parties and not strictly for or against any party. The rule of construction,
which requires a court to resolve any ambiguities against the drafting party,
shall not apply in interpreting the provisions of this Agreement.
15. Number and Gender. Whenever the singular number is used in this
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Agreement, and when required by the context, the same shall include the plural,
and vice versa; the masculine gender shall include the feminine and the neuter
genders, and vice versa; and the word "person" shall include corporation, firm,
trust, estate, joint venture, governmental agency, sole proprietorship,
political subdivision, organization, fraternal order, club, league, joint stock
company, society, municipality, association, partnership or other form of
entity.
16. Execution in Counterparts. This Agreement shall be prepared and
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forwarded to the Indemnitee for execution. Counsel for the Corporation shall
cause the executed Agreement to be filed in the principal office of such
counsel.
17. Entire Agreement. This Agreement is the final written expression and
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the complete and exclusive statement of all the agreements, conditions,
promises, representations, warranties and covenants between the parties with
respect to the subject matter of this Agreement, and this Agreement supersedes
all prior or contemporaneous agreements, negotiations, representations,
warranties, covenants, understandings and discussions by and between and among
the parties, their respective representatives, and any other person, with
respect to the subject matter specified in this Agreement. This Agreement may be
amended only by an instrument in writing which expressly refers to this
Agreement and specifically states that that instrument is intended to amend this
Agreement and is signed by each of the parties. Nothing specified in any exhibit
attached to this Agreement shall supersede or annul the terms and provisions of
this Agreement, unless the matter specified in such exhibit shall expressly so
provide to the contrary, and in the event of any ambiguity in meaning or
understanding between this Agreement proper and the appended exhibits, the
provisions of this Agreement shall prevail and control. Each of the parties
represents, warrants and covenants that in executing this Agreement that party
has relied solely on the terms, conditions and provisions specified in this
Agreement. Each of the parties additionally represents, warrants and covenants
that in executing and delivering this Agreement such party has placed no
reliance whatsoever on any statement, representation, warranty, covenant or
promise of the other party, or any other person, not specified expressly in this
Agreement, or upon the failure of any party or any other person to make any
statement, representation, warranty, covenant or disclosure of any nature
whatsoever. The parties have included this paragraph to preclude (i) any claim
that any party was in any manner whatsoever induced fraudulently to enter into,
execute and deliver this Agreement, and (ii) the introduction of parol evidence
to vary, interpret, supplement or contradict the terms, conditions and
provisions of this Agreement.
18. Governing Law. This Agreement shall be deemed to have been entered
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into in the State of Delaware, and all questions concerning the validity,
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interpretation or performance of any of the terms, conditions and provisions of
this Agreement or of any of the rights or obligations of the parties shall be
governed by, and resolved in accordance with, the laws of the State Delaware,
without regard to conflicts of law principles.
19. Government Regulations. The transactions and relationship contemplated
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by the provisions of this Agreement are, and shall remain, subject to any and
all present and future orders, rules and regulations of any duly constituted
authority or agency having jurisdiction of those transactions and that
relationship.
20. Further Assurances. The parties shall from time to time sign and
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deliver any further instruments and take any further actions as may be necessary
to effectuate the intent and purposes of this Agreement.
21. All Consents in Writing. In any instance in which any party shall be
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requested to consent to or approve of any matter with respect to which that
party's consent or approval is required by any of the provisions of this
Agreement, such consent or approval shall be furnished in writing.
22. Attorneys' Fees. In the event any party shall institute any action or
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proceeding to enforce any provision of this Agreement to seek relief from any
violation of this Agreement, or to otherwise obtain any judgment or order
relating to or resulting from the subject matter of this Agreement, the
prevailing party shall be entitled to receive from the losing party such
prevailing party's actual attorneys' fees and costs incurred to prosecute or
defend such action or proceeding, including, but not limited to, actual
attorneys' fees and costs incurred preparatory to such prosecution and defense.
Moreover, while a court of competent jurisdiction may assist in determining
whether or not the fees actually incurred are reasonable under the circumstances
then existing, that court is not to be governed by any judicially or
legislatively established fee schedule, and such fees and costs are to include
those as may be incurred on appeal of any issue and all of which fees and costs
shall be included as part of any judgment, by cost xxxx or otherwise, and where
applicable, any appellate decision rendered in or resulting from such action or
proceeding. For purposes of this Agreement, in any action or proceeding
instituted by a party, the prevailing party shall be that party in any such
action or proceeding (i) in whose favor a judgment is entered, or (ii) prior to
trial, hearing or judgment any other party shall pay all or any portion of
amounts claimed by the party seeking payment, or such other party shall
eliminate the condition, cease the act, or otherwise cure the act of commission
or omission claimed by the party initiating such action or proceeding.
23. Reservation of Rights. The failure of any party at any time or times
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hereafter to require strict performance by any other party of any of the
warranties, representations, covenants, terms, conditions and provisions
specified in this Agreement shall not waive, affect or diminish any right of
such party failing to require strict performance to demand strict compliance and
performance therewith and with respect to any other provisions, warranties,
terms and conditions specified in this Agreement. Any waiver of any default
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shall not waive or affect any other default, whether prior or subsequent
thereto, and whether the same or of a different type. None of the
representations, warranties, covenants, conditions, provisions and terms
specified in this Agreement shall be deemed to have been waived by any act or
knowledge of any party, its agents, trustees, officers or employees and any such
waiver shall be made only by an instrument in writing, signed by the waiving
party and directed to any non-waiving party specifying such waiver, and each
party reserves such party's rights to insist upon strict compliance herewith at
all times.
24. Purpose of Covenants. All covenants made by each party shall be deemed
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made for the purpose of inducing the other party to enter into and execute this
Agreement. The representations, warranties and covenants specified in this
Agreement shall survive any investigation by either party whether before or
after the execution of this Agreement.
25. Concurrent Remedies. No right or remedy specified in this Agreement
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conferred on or reserved to the parties is exclusive of any other right or
remedy specified in this Agreement or by law or equity provided or permitted;
but each such right and remedy shall be cumulative of, and in addition to, every
other right and remedy specified in this Agreement or now or hereafter existing
at law or in equity or by statute or otherwise, and may be enforced concurrently
therewith or from time to time. The termination of this Agreement for any reason
whatsoever shall not prejudice any right or remedy which any party may have,
either at law, in equity or pursuant to the provisions of this Agreement.
26. Force Majeure. If any party is rendered unable, completely or
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partially, by the occurrence of an event of "force majeure" (hereinafter
defined) to perform such party's obligations created by the provisions of this
Agreement, such party shall give to the other party prompt written notice of the
event of "force majeure" with reasonably complete particulars concerning such
event; thereupon, the obligations of the party giving such notice, so far as
those obligations are affected by the event of "force majeure," shall be
suspended during, but no longer than, the continuance of the event of "force
majeure." The party affected by such event of "force majeure" shall use all
reasonable diligence to resolve, eliminate and terminate the event of "force
majeure" as quickly as practicable. The term "force majeure," as contemplated by
the provisions of this Paragraph 26 means any act of God, strike, lockout or
other industrial disturbance, act of terrorism, act of any unlawful combatant,
act of the public enemy, war, blockade, public riot, lightening, fire, storm,
flood explosion, governmental action, earthquake, governmental delay, restraint
or inaction, unavailability or equipment, and any other cause or event, whether
of the nature enumerated specifically herein, or otherwise, which is not within
the control of the party claiming such suspension.
27. Consent to Agreement. By executing this Agreement, each party, for
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itself, represents such party has read or caused to be read this Agreement in
all particulars, and consents to the rights, conditions, duties and
responsibilities imposed upon such party as specified in this Agreement. Each
party represents, warrants and covenants that such party executes and delivers
this Agreement of its own free will and with no threat, undue influence, menace,
coercion or duress, whether economic or physical. Moreover, each party
represents, warrants, and covenants that such party executes this Agreement
acting on such party's own independent judgment and upon the advice of such
party's counsel.
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IN WITNESS WHEREOF the parties have executed this Agreement for
Indemnification on the date specified in the preamble of this Agreement.
TEXAS BORDER GAS COMPANY,
a Delaware corporation
By: /s/ B. Xxxxx Xxxxxx, III /s/ Xxxxxx X. Xxxxxxxx
------------------------------- -------------------------------
B. Xxxxx Xxxxxx, III Xxxxxx X. Xxxxxxxx
Its: President
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxxx
Its: Secretary
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