TRADEMARK LICENSE AGREEMENT
EXHIBIT
10.9
This
Trademark License Agreement (“Agreement”) is
entered into on the 7th day of April, 2009, to be effective as of 11:59 PM CDT
on March 31, 2009 (“Effective Date”) by
and between SemGroup, L.P., an Oklahoma limited partnership (“SemGroup”) and
SemMaterials, L.P., an Oklahoma limited partnership (“SemMaterials”)
(SemGroup and SemMaterials, collectively, “Licensor”), on the
one hand, and SemGroup Energy Partners, L.P., a Delaware limited partnership
(“Licensee”),
on the other hand. Licensor and Licensee are hereinafter referred to
as the “Parties” or
individually, as applicable, as the “Party”.
RECITALS
WHEREAS, SemGroup owns U.S. Trademark
Registration Nos. 3,555,972, 3,291,763 and 3,291,764 and pending U.S. Trademark
Application Serial Nos. 77/692,475 and 77/257,081 for the Licensed Marks (as
defined below);
WHEREAS, Licensor and Licensee are
parties to that certain Amended and Restated Omnibus Agreement dated as of
February 20, 2008 (the “Omnibus Agreement”),
pursuant to which, among other things, Licensor granted to Licensee a
non-exclusive license to use the Licensed Marks in accordance with the terms and
conditions of the Omnibus Agreement;
WHEREAS, Licensor, together with
certain of its subsidiaries, are parties to the chapter 11 cases commenced by
such entities on July 22, 2008, jointly administered under Case No. 08-11525
(BLS) and the chapter 11 case commenced by SemGroup Holdings, L.P. (a
wholly-owned subsidiary of Licensor) on October 22, 2008 under Case No. 08-12504
(BLS) (the “Bankruptcy
Cases”);
WHEREAS, the Bankruptcy Cases are under
the jurisdiction of the United States Bankruptcy Court for the District of
Delaware (the “Bankruptcy
Court”);
WHEREAS, on March 12, 2009, the
Bankruptcy Court approved the terms of a global settlement by and among
Licensor, Licensee and certain other parties (the “Settlement”);
and
WHEREAS, pursuant to the Settlement,
Licensor and Licensee have agreed (i) that Licensor will reject the Omnibus
Agreement in the Bankruptcy Cases and (ii) to enter into this Agreement to set
forth the terms and conditions of Licensee’s continued use of the Licensed
Marks.
NOW, THEREFORE, in consideration of the
premises and of the mutual covenants, representations, warranties and agreements
herein contained, and intending to be legally bound hereby, the Parties hereby
agree as follows:
I. DEFINITIONS
1.1 “Affiliate” (and, with
a correlative meaning “affiliated”) means,
with respect to any Party, any direct or indirect subsidiary of such Party, and
any other entity that directly, or through one or more intermediaries, controls
or is controlled by or is under common control with such first
Party. As used in this definition, “control” (including
with correlative meanings, “controlled by” and
“under common control
with”) means possession, directly or indirectly, of power to direct or
cause the direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise). For purposes of this Agreement, (i) Licensee, Licensee’s
general partner, and Licensee’s and Licensee’s general partner’s respective
subsidiaries shall not be deemed to be Affiliates of Licensor and (ii) SemGroup,
SemMaterials, and SemGroup’s and SemMaterial’s respective subsidiaries (other
than Licensee, Licensee’s general partner, and Licensee’s and Licensee’s general
partner’s respective subsidiaries) shall not be deemed to be Affiliates of
Licensee.
1.2 “Licensed Marks” means
the Marks set forth on Exhibit A attached
hereto.
1.3 “Marks” means
trademarks, service marks, trade names, corporate names, d/b/a names, fictitious
names, service names, taglines, slogans, industrial designs, brand names, brand
marks, trade dress, Internet domain names, identifying symbols, logos, emblems,
signs or insignia, including all goodwill associated with any of the
foregoing.
1.4 “Material” means any
item or material of Licensee or any of Licensee’s Affiliates (excluding
Products) that bears or contains any of the Licensed Marks (including any
marketing or promotional materials, packaging, labeling, supplies, invoices,
letterhead, envelopes, business cards, web sites, web pages and any similar
items or materials).
1.5 “Product” means any
product of Licensee or any of Licensee’s Affiliates that bears or contains (or
the packaging, labeling or inserts for which bears or contains) any of the
Licensed Marks.
1.6 “Service” means any
service developed, designed, marketed, promoted, used, offered for sale, sold,
provided and/or otherwise exploited by Licensee or any of Licensee’s Affiliates
under any of the Licensed Marks.
1.7 “Standards of Quality”
means at least the same standards of quality that are observed immediately prior
to the Effective Date by Licensee and Licensee’s Affiliates with respect to
Products, Services and Materials bearing any of the Licensed Marks or in
connection with which any of the Licensed Marks is used.
II. LICENSE
GRANT
2.1 License. Subject
to the terms and conditions of this Agreement, Licensor hereby grants to
Licensee and Licensee’s Affiliates, under Licensor’s rights in and to the
Licensed Marks, a limited, non-exclusive, worldwide, non-transferable,
non-sublicensable, royalty-free, fully paid-up license, during the Term (as
defined in Section
7.1 below), solely to (a) use the Licensed Marks on or in connection with
any Products, Services and Materials to market, promote, use, offer for sale,
sell, distribute and/or otherwise exploit such Products or Services, and (b) use
“SemGroup” or “SemMaterials” as part of any corporate name being used by
Licensee or any of Licensee’s Affiliates as of the Effective Date for Licensee
or such Affiliate.
The sole
purpose of the foregoing license is to allow Licensee and Licensee’s Affiliates
a reasonable period of time to transition from and phase out use of the Licensed
Marks. Licensee and Licensee’s Affiliates shall use commercially
reasonable efforts to complete such transition and phase out as reasonably
practical and feasible by the end of the Term, except with respect to any
Assigned Xxxx (as defined in Section 5.6 below)
that is assigned by Licensor to Licensee in accordance with Section 5.6
below.
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2.2 Compliance by
Affiliates. Licensee shall cause each of its Affiliates to
comply with the terms and conditions of this Agreement and such Affiliate’s
obligations as set forth in this Agreement, and shall be responsible for any
breach of this Agreement by any of its Affiliates. Licensor shall
cause each of its Affiliates to comply with such Affiliate’s obligations as set
forth in this Agreement, and shall be responsible for any breach of such
obligations by its Affiliates.
III. QUALITY
CONTROL
3.1 Quality
Standards. In order to preserve the inherent value of the
Licensed Marks, Licensee and Licensee’s Affiliates shall ensure that the quality
of all Products and Services meets the Standards of Quality. In order
to assure adherence to the Standards of Quality and for the purpose of
protecting and maintaining the goodwill associated with the Licensed Marks and
the reputation of Licensor, Licensor shall have the right to obtain from
Licensee and Licensee’s Affiliates reasonable information as to the quality of
the Products and Services and the manner in which the Licensed Marks are used by
Licensee or any of Licensee’s Affiliates and the samples described in Section 3.2
below.
3.2 Samples. For
the purpose of protecting and maintaining the goodwill associated with the
Licensed Marks and verifying that the Products and Services meet the Standards
of Quality, Licensee and Licensee’s Affiliates shall furnish to Licensor, from
time to time as reasonably requested in writing by Licensor, (a) representative
samples of Products and any packaging therefor and Materials related thereto and
(b) representative samples showing other uses of any of the Licensed Marks by
Licensee or any of Licensee’s Affiliates.
3.3 Nonconforming Products and
Services. If, at any time, any Products or Services fail, in
the reasonable and good faith judgment of Licensor, to conform to the Standards
of Quality, Licensor shall notify Licensee of such failure in
writing. Licensee and Licensee’s Affiliates shall take all necessary
steps to bring such Products or Services into conformity with the Standards of
Quality. If Licensee and Licensee’s Affiliates fail to so bring such
Products or Services into conformity within sixty (60) days (or such longer time
period as may be mutually agreed upon by the Parties in writing) after
Licensee’s receipt of written notice of such nonconformity, then Licensee and
Licensee’s Affiliates shall immediately cease all exploitation of such
nonconforming Products or Services under any of the Licensed Marks until such
nonconformity is cured.
IV. USE
OF LICENSED TRADEMARKS
4.1 Trademark Usage
Guidelines. Licensee and Licensee’s Affiliates shall use the
Licensed Marks in compliance with the SemGroup, L.P. Logo Identity Standards and
Usage Guidelines (the current version of which is attached hereto as Exhibit B), as may be
modified by Licensor from time to time (the “Standards and
Guidelines”). Without limiting the generality of the
foregoing, Licensee and Licensee’s Affiliates shall use correctly the trademark
symbol (TM), the
service xxxx symbol (SM) or the
registration symbol (®), as
applicable, with every use of the Licensed Marks. Licensee and
Licensee’s Affiliates shall submit all Materials and Products (except press
releases regarding Licensee’s or any of Licensee’s Affiliates’ business and
Licensee’s and Licensee’s Affiliates’ general business documents, in each case,
that include only “SemGroup” or “SemMaterials” as part of a corporate name of
Licensee or any of Licensee’s Affiliates in accordance with Section 2.1(b) and no
other use of any Licensed Marks) to Licensor for approval prior to using such
Materials or exploiting such Products, which approval shall not be unreasonably
withheld or delayed. All Materials and Products being exploited by
Licensee or its Affiliates as of the Effective Date are hereby approved for
purposes of this Section
4.1. Any appearance or manner of use of any of the Licensed
Marks not provided for by the Standards and Guidelines may only be adopted by
Licensee or any of Licensee’s Affiliates upon Licensor’s prior written consent,
which consent shall not be unreasonably withheld or delayed.
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4.2 Changes to Trademark Usage
Guidelines. In the event Licensor proposes to change the
Standards and Guidelines, Licensor shall notify Licensee of the proposed changes
as soon as reasonably practicable, but in no event less than fifteen (15) days
in advance of implementing such changes. Licensee and Licensee’s
Affiliates shall be allowed a commercially reasonable period of time to
implement any such changes.
4.3 Restrictions. Licensee
and Licensee’s Affiliates shall not (a) use any of the Licensed Marks in a
manner that causes, or has the likelihood of causing, confusion as to the
ownership of the Licensed Marks, (b) do or cause to be done any act or thing
that damages, disparages, disputes, attacks, challenges, impairs, dilutes or
otherwise xxxxx any of the Licensed Marks or the reputation or goodwill
associated with Licensor or any of Licensor’s Affiliates or any of the Licensed
Marks, (c) use or register in any jurisdiction any Marks confusingly similar to,
or consisting in whole or in part of, any of the Licensed Marks without the
prior written consent of Licensor or (d) register any of the Licensed Marks in
any jurisdiction without the prior written consent of Licensor.
4.4 Infringement or Dilution of
Third Party Marks. Licensee and Licensee’s Affiliates shall
cease use of any of the Licensed Marks within a commercially reasonable period
of time after receiving written notice from Licensor that, in the reasonable and
good faith opinion of Licensor’s counsel, the use of such Licensed Xxxx xxx
result in potential trademark infringement or trademark dilution liability to
any third party on the part of Licensor or Licensee or any of their respective
Affiliates. Licensee and Licensee’s Affiliates shall comply with all
written guidelines that may be adopted from time to time by Licensor for the
purpose of addressing any such potential trademark liability within a
commercially reasonable period of time following Licensee’s receipt of such
written guidelines from Licensor.
4.5 Third Party
Claims. If Licensee or any of Licensee’s Affiliates is named
as a defendant in any action based on its use of any of the Licensed Marks,
Licensee shall immediately notify Licensor in writing. Licensor shall
have the right, but not the obligation, to intervene in any such action and to
control and direct the defense thereof (including the right to select defense
counsel); provided, that, with
respect to any such action and if Licensee and Licensee’s Affiliates have
complied with all of the terms and conditions of this Agreement, (a) if Licensor
chooses to control and direct the defense of such action, Licensee may, at its
sole cost and expense, retain legal counsel of its choosing to monitor such
action, (b) if Licensor chooses not to control and direct the defense of such
action, Licensor shall reimburse Licensee for the reasonable, out-of-pocket
costs of Licensee’s defense of such action to the extent based on any of the
Licensed Marks and (c) Licensor shall indemnify Licensee against all damages
arising from such action to the extent such damages are based on any of the
Licensed Marks.
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V. OWNERSHIP
OF LICENSED TRADEMARKS
5.1 Ownership by
Licensor. Licensee and Licensee’s Affiliates acknowledge and
agree that, as between the Parties, ownership of the Licensed Marks and the
goodwill relating thereto shall remain vested in Licensor during the Term and
thereafter. Any rights relating to the Licensed Marks not granted to
Licensee and Licensee’s Affiliates in this Agreement are reserved by and for
Licensor. Licensee and Licensee’s Affiliates acknowledge and agree
that any use of the Licensed Marks by Licensee or any of Licensee’s Affiliates
shall exclusively inure to the benefit of Licensor. If Licensee or
any of Licensee’s Affiliates obtains any right or interest in any of the
Licensed Marks (other than as granted or provided under this Agreement or in
accordance with Section 5.6 below),
Licensee or such Affiliate shall transfer such right or interest to Licensor at
Licensor’s cost immediately upon Licensor’s written request.
5.2 Ownership by
Licensee. Licensor and Licensor’s Affiliates acknowledge and
agree that, as between the Parties, ownership of the Xxxx “SGLP” (in word form
or stylized form) and the goodwill relating thereto (the “SGLP Xxxx”) shall
remain vested in Licensee during the Term and thereafter. Licensor
and Licensor’s Affiliates acknowledge and agree that any use of the SGLP Xxxx by
Licensee or any of Licensee’s Affiliates shall exclusively inure to the benefit
of Licensee. If Licensor or any of Licensor’s Affiliates obtains any
right or interest in the SGLP Xxxx, Licensor or such Affiliate shall transfer
such right or interest to Licensee at Licensee’s cost immediately upon
Licensee’s written request.
5.3 No
Challenges.
(a) By
Licensee. Licensee covenants and agrees, and shall cause its
Affiliates to covenant and agree, not to challenge, contest or question the
validity of Licensor’s ownership of the Licensed Marks or any registrations or
applications therefor. Licensee shall not, and shall cause its
Affiliates not to, in any manner represent that it has any ownership in any of
the Licensed Marks (or any registrations or applications therefor).
(b) By
Licensor. Licensor covenants and agrees, and shall cause its
Affiliates to covenant and agree, not to challenge, contest or question the
validity of Licensee’s ownership of the SGLP Xxxx or any registrations or
applications therefor. Licensor shall not, and shall cause its
Affiliates not to, in any manner represent that it has any ownership interest in
the SGLP Xxxx (or any registrations or applications therefor).
5.4 Prosecution of Licensed
Marks. As between the Parties, Licensor shall control the
prosecution and maintenance of the Licensed Marks. Licensee and
Licensee’s Affiliates agree to reasonably assist Licensor to the extent
necessary in the procurement of any registration, extension or renewal for, or
to protect any of Licensor’s rights to, any of the Licensed Marks, at Licensor’s
expense.
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5.5 Policing of Licensed
Marks. Licensee shall inform Licensor of any use, infringement
(or potential infringement) or imitation of the Licensed Marks that come to the
attention of Licensee or any of Licensee’s Affiliates. As between the
Parties, Licensor shall have the sole right to determine whether or not any
action shall be taken with respect to any such use, infringement or
imitation. Licensee and Licensee’s Affiliates shall reasonably assist
Licensor in connection with any action Licensor determines to take with respect
to any such use, infringement or imitation (including by providing documents and
information as may be necessary or helpful in connection therewith), at
Licensor’s expense.
5.6 Right to Acquire Licensed
Marks. If, during the Term, Licensor determines that it and
its Affiliates no longer need one or more of the Licensed Marks as their
principal trade names or logos, then Licensor shall provide written notice to
Licensee of such determination and the applicable Licensed Marks (such Licensed
Marks, the “Assigned
Marks”). If Licensee desires to acquire such Assigned Xxxx(s),
Licensee shall provide written notice of such desire to Licensor, and the
Parties agree to negotiate in good faith the terms and conditions of an
agreement for the assignment of such Assigned Xxxx(s) to Licensee at no cost (or
such other arrangement with respect to such Assigned Xxxx(s) as may be necessary
or desirable to preserve the value of the Licensed Marks).
VI. RELEASE
OF CLAIMS
6.1 Licensor,
on its own behalf and on behalf of its Affiliates, successors and assigns and
bankruptcy estate (collectively, the “Licensor Releasors”),
hereby releases and forever discharges Licensee, Licensee’s Affiliates and
Licensee’s and Licensee’s Affiliates’ respective members, officers, directors,
employees, successors and assigns (collectively, the “Licensee Releasees”)
from any and all claims, whether vested or contingent and whether known or
unknown, in law or in equity, existing prior to or as of the Effective Date that
any Licensor Releasor may have for trademark infringement based upon the use by
Licensee or any of Licensee’s Affiliates of any of the Licensed Marks prior to
the Effective Date.
VII. TERM
7.1 Term. This
Agreement shall commence as of the Effective Date and, subject to Section 7.2 below,
shall continue until December 31, 2009 (the “Term”).
7.2 Termination.
(a) Termination for Licensee’s
Breach. If Licensee or any of Licensee’s Affiliates breaches
any material provision of this Agreement and fails to cure such breach within
sixty (60) days after Licensee receives written notice from Licensor specifying
such breach, Licensor may terminate this Agreement upon written notice to
Licensee.
(b) Termination for Licensee’s
Acquisition of Licensed Marks. If Licensor assigns any
Licensed Xxxx(s) to Licensee pursuant to Section 5.6 above,
this Agreement shall terminate solely with respect to such Licensed Xxxx(s) or
shall terminate in its entirety if all of the Licensed Marks are so assigned,
effective as of the effective date of such assignment(s).
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7.3 Effect of Expiration or
Termination. Upon the expiration or any termination of this
Agreement, (a) all rights granted to Licensee and Licensee’s Affiliates shall
revert to Licensor, (b) Licensee and Licensee’s Affiliates shall refrain from
further use of or reference (whether direct or indirect) to any of the Licensed
Marks, except with the consent of Licensor in writing and in compliance with any
written instructions provided by Licensor with respect to such further use or
reference, (c) Licensee and Licensee’s Affiliates shall have a period of ninety
(90) days within which to sell or otherwise dispose of any Products existing as
of the effective date of such expiration or termination of this Agreement,
subject to all of the terms and conditions of this Agreement, and (d) Section 4.3, Section 5.1, Section 5.2, Section 5.3, Article VI, Section 7.3, Article VIII, Article IX, Article X and Article XI will
survive such termination or expiration. Notwithstanding the foregoing
in this Section
7.3, subclauses (a), (b) and (c) of this Section 7.3 shall not
apply to any termination of this Agreement pursuant to Section 7.2(b)
above.
VIII. WARRANTY
DISCLAIMER
THE PARTIES ACKNOWLEDGE AND AGREE THAT
(a) THE LICENSED MARKS ARE LICENSED “AS-IS” AND “WHERE-IS” AND (b) SUBJECT TO
LICENSOR’S INDEMNIFICATION OBLIGATIONS SET FORTH IN THE PROVISO IN THE LAST
SENTENCE IN SECTION
4.5 ABOVE, LICENSEE AND LICENSEE’S AFFILIATES ASSUME ALL RISKS AND
LIABILITY ARISING FROM OR RELATING TO THEIR USE OF AND RELIANCE UPON THE
LICENSED MARKS, AND LICENSOR MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT
THERETO. LICENSOR HEREBY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND
WARRANTIES REGARDING THE LICENSED MARKS, WHETHER EXPRESS OR IMPLIED, INCLUDING
ANY REPRESENTATION OR WARRANTY IN REGARD TO QUALITY, PERFORMANCE,
NONINFRINGEMENT, COMMERCIAL UTILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
IX. LIMITATION
OF LIABILITY
NOTWITHSTANDING ANYTHING ELSE TO THE
CONTRARY CONTAINED IN THIS AGREEMENT OR OTHERWISE, IN NO EVENT SHALL LICENSOR,
LICENSEE OR ANY OF THEIR RESPECTIVE AFFILIATES BE LIABLE WITH RESPECT TO ANY
SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT
LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY (a) CONSEQUENTIAL,
INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES (PROVIDED THAT ANY
LOSSES, DAMAGES OR LIABILITIES OF LICENSOR OR ANY OF LICENSOR’S AFFILIATES
ARISING OUT OF, BASED UPON OR RESULTING FROM THE DEGRADATION OF ANY OF THE
LICENSED MARKS, TO THE EXTENT SUCH DEGRADATION IS CAUSED BY ANY ACTS OF, OR
FAILURE TO ACT BY, LICENSEE OR ANY OF LICENSEE'S AFFILIATES, SHALL BE CONSIDERED
DIRECT DAMAGES) OR (b) LOST PROFITS OR LOST BUSINESS, IN THE CASE OF EACH OF (a)
AND (b), EVEN IF THE REMEDIES PROVIDED FOR IN THIS AGREEMENT FAIL OF THEIR
ESSENTIAL PURPOSE AND EVEN IF LICENSOR OR LICENSEE OR ANY OF THEIR RESPECTIVE
AFFILIATES IS ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH
DAMAGES.
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X. INDEMNIFICATION
10.1 Indemnification by
Licensee. Subject to Licensor’s indemnification obligations
set forth in the proviso in the last sentence of Section 4.5 above,
Licensee agrees to indemnify and hold harmless Licensor and Licensor’s
Affiliates and their respective owners, members, directors, officers, employees,
agents, representatives, successors and assigns and bankruptcy estate
(collectively, the “Licensor Indemnified
Parties”) from and against any and all damages, losses, liabilities,
claims, suits or other expenses (including reasonable attorneys’ fees)
whatsoever arising out of or resulting from any use of the Licensed Marks or any
marketing, promotion, use, offer for sale, sale, distribution or other
exploitation of any Products, Services or Materials by or for Licensee or any of
Licensee’s Affiliates.
10.2 Indemnification
Procedure. Licensor shall give reasonably prompt written
notice to Licensee of any claim for which any of the Licensor Indemnified
Parties seeks indemnification under Section 10.1
above. Failure to give such reasonably prompt written notice shall
not limit or otherwise affect the rights of the Licensor Indemnified Parties
under Section
10.1 above, except and solely to the extent that Licensee can demonstrate
actual material loss and prejudice as a result of such failure. The
relevant Licensor Indemnified Party shall have the right to be represented by
counsel of its choice and, in its sole discretion, to take over and control the
defense, negotiation, settlement or other resolution of such
claim. If such Licensor Indemnified Party takes over and controls the
defense of any such claim, then Licensee shall reimburse such Licensor
Indemnified Party for the expenses of defending such claim upon submission of
periodic bills to Licensee. Each Party agrees to provide reasonable
access to the other Party to documents and information in such Party’s
possession or control as may reasonably be requested in connection with the
defense, negotiation, settlement or other resolution of any such
claim. Notwithstanding anything in this Section 10.2 to the
contrary, if such Licensor Indemnified Party determines not to take over and
control the defense of any such claim, Licensee shall not settle such claim
without such Licensor Indemnified Party’s prior written consent if any such
settlement (a) requires that any of the Licensor Indemnified Parties make any
payment or bear any other obligations, (b) includes any admission of wrongdoing
or liability on the part of any of the Licensor Indemnified Parties, (c) does
not include a full release of all of the Licensor Indemnified Parties and/or (d)
includes any manner of injunctive or other equitable relief.
XI. MISCELLANEOUS
11.1 Assignment. 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, delayed or conditioned; provided, however, that a Party
may assign, without the prior written consent of each other Party, this
Agreement or their respective rights and obligations hereunder, in whole or in
part, to an Affiliate or any purchaser of or successor to all or substantially
all of the crude oil assets or business of such Party. This Agreement
will inure to the benefit of the Parties hereto and their respective successors
and permitted assigns.
11.2 Confidentiality. Licensor
and Licensee acknowledge and agree that any confidential information exchanged
by the Parties or their respective Affiliates under this Agreement shall be
subject to the terms and conditions of the confidentiality agreement between
Licensor and Licensee, dated as of October 14, 2008, and the confidentiality
agreement between Licensor and Licensee, dated as of December 9,
2008.
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11.3 Governing
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 NEW YORK (WITHOUT REGARD TO ANY
CONFLICT OF LAWS PROVISION THAT WOULD REQUIRE THE APPLICATION OF THE LAW OF ANY
OTHER JURISDICTION).
11.4 Submission to
Jurisdiction.
(a) Without
limiting any Party’s right to appeal any order of the Bankruptcy Court, (i) the
Bankruptcy Court shall retain exclusive jurisdiction to enforce the terms of
this Agreement and to decide any claims or disputes which may arise or result
from, or be connected with, this Agreement, any breach or default hereunder, or
the transactions contemplated hereby, and (ii) any and all actions related to
the foregoing shall be filed and maintained only 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 11.10;
provided, however, that if a
plan of reorganization in the Bankruptcy Cases has become effective, the Parties
agree to and hereby unconditionally and irrevocably submit to the exclusive
jurisdiction of any federal or state court in United States District Court for
the Southern District of New York sitting in New York County or the Commercial
Division, Civil Branch of the Supreme Court of the State of New York sitting in
New York County and any appellate court from any thereof, for the resolution of
any such claim or dispute.
(b) The
Parties hereto 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 of 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 for 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 hereby 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 11.10; provided, however, that such
service shall not be effective until the actual receipt thereof by the Party
being served.
11.5 Waiver of Jury
Trial. THE PARTIES HERETO 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 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 PARTY 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
IN THIS AGREEMENT.
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11.6 Injunctive
Relief. Licensee acknowledges that any breach by Licensee or
any of Licensee’s Affiliates of this Agreement will result in immediate and
irreparable damage to Licensor. Licensee acknowledges and agrees that
there is no adequate remedy at law for such breach, and Licensee acknowledges
and agrees that in the event of any such breach Licensor shall be entitled to
equitable relief by way of temporary and permanent injunctions and such other
further relief as any court with jurisdiction may deem just and
proper.
11.7 Amendment and
Waiver. No provision of this Agreement may be amended or
modified except by a written instrument signed by both Parties to this
Agreement. No waiver by any Party of any provision of this Agreement
shall be effective unless explicitly set forth in writing and executed by both
Parties. The waiver by any Party of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any other or
subsequent breach.
11.8 Entire
Agreement. Except as otherwise expressly provided in this
Agreement, this Agreement constitutes the entire agreement of the Parties hereto
with respect to the subject matter of this Agreement and supersedes all prior
agreements (including the Omnibus Agreement) and undertakings, both written and
oral, between or on behalf of the Parties hereto with respect to the subject
matter of this Agreement.
11.9 Severability. If
any term or provision of this Agreement is invalid, illegal or incapable of
being enforced by Law or public policy, all other terms and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the
legal and economic substance of the Agreement is not affected in any manner
materially adverse to any Party. Upon such determination that any
term or provision is invalid, illegal or incapable of being enforced, the
Parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the Parties as closely as possible in an
acceptable manner in order that the transactions contemplated by this Agreement
are consummated as originally contemplated to the greatest extent
possible.
11.10 Notices. All
notices, requests, claims, demands and other communications under this Agreement
shall be in writing and shall be given or made (and shall be deemed to have been
duly given or made upon receipt) by delivery in person, by overnight courier
service, by facsimile or electronic transmission with receipt confirmed
(followed by delivery of an original via overnight courier service) or by
registered or certified mail (postage prepaid, return receipt requested) to the
respective Parties at the following addresses (or at such other address for a
Party as shall be specified in a notice given in accordance with this Section
11.10):
10
If to
Licensor:
SemGroup,
L.P.
Two
Xxxxxx Place
0000 X.
Xxxx Xxxxxx, Xxxxx 000
Xxxxx,
Xxxxxxxx 00000
Phone: (000)
000-0000
Fax: (000)
000-0000
Attention:
Chief Financial Officer
SemMaterials,
L.P.
Two
Xxxxxx Place
0000 X.
Xxxx Xxxxxx, Xxxxx 000
Xxxxx,
Xxxxxxxx 00000
Phone: (000)
000-0000
Fax: (000)
000-0000
Attention: Chief Financial
Officer
With a
copy to:
Weil,
Gotshal & Xxxxxx LLP
000
Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
Attention: Xxxxxxx
X. Xxxxxx, Esq.
If to
Licensee:
Two
Xxxxxx Place
0000 X.
Xxxx Xxxxxx, Xxxxx 000
Xxxxx,
Xxxxxxxx 00000
Phone:
(000) 000-0000
Fax: (000)
000-0000
Attention:
Chief Financial Officer
With a
copy to:
Xxxxx
Xxxxx L.L.P.
0000 Xxxx
Xxxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Phone: (000)
000-0000
Fax: (000)
000-0000
Attention:
Xxxx Xxxxxxx, Esq.
11
11.11 Independent
Contractor. Each Party hereto is acting as, and shall be
considered, an independent contractor, and no relationship of partnership, joint
venture, employment, franchise, agency or similar arrangement is being created
pursuant to or by virtue of this Agreement. In no event shall either
Party have any authority to negotiate or enter into any contract or commitment
for or on behalf of, or in the name of, the other Party. Neither
Party shall represent itself as having any such authority, express or implied,
from the other Party.
11.12 No Third Party
Beneficiaries. Except as expressly provided in this Agreement,
this Agreement is for the sole benefit of the Parties to this Agreement and
their successors and permitted assigns.
11.13 Headings. The
headings included in this Agreement are for convenience of reference only and
shall not affect or be utilized in construing or interpreting this
Agreement.
11.14 Counterparts. This
Agreement may be executed in any number of counterparts, each of which, when so
executed and delivered (including by facsimile or electronic mail transmission),
will be deemed an original, but all of which together will constitute one and
the same instrument.
11.15 Interpretation. The
words “include”, “includes” and “including” shall be deemed to be followed by
the phrase “without limitation”. The words “hereof”, “herein” and “hereunder”
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
Section and Exhibit references are to this Agreement unless otherwise
specified. The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such
terms.
[The
remainder of this page is intentionally left blank.]
12
IN
WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their
respective duly authorized officers on the date first written above to be
effective as of the Effective Date.
SEMGROUP,
L.P.
By: SemGroup
G.P., L.L.C.
Its General Partner
By: /s/ Xxxxxxxx
Xxxxx
Name:
Xxxxxxxx Xxxxx
Title: President
& CEO
SEMMATERIALS,
L.P.
By: SemOperating
G.P., L.L.C.
Its General Partner
By: /s/ Xxxxxxxx
Xxxxx
Name:
Xxxxxxxx Xxxxx
Title: President
& CEO
By: SemGroup
Energy Partners G.P., L.L.C.
Its
General Partner
By: /s/ Xxxx X.
Xxxxxxxxx
Name: Xxxx
X. Xxxxxxxxx
Title: Chief
Financial Officer and Secretary
EXHIBIT
A
Licensed
Xxxxx
|
Xxxx
|
Registration
Number/ Application Number
|
Jurisdiction
|
|
SEMGROUP
|
Reg.
No. 3,555,972
|
U.S.
|
|
SSS
SEMGROUP & Design
|
App.
Serial No. 77/692,475
App.
Serial No. 77/257,081
|
U.S.
U.S.
|
|
SEMMATERIALS
|
Reg.
No. 3,291,764
|
U.S.
|
|
SSS
SEMMATERIALS & Design
|
Reg.
No. 3,291,763
|
U.S.
|
EXHIBIT
B
Standards and
Guidelines
Attached
