EXHIBIT 10.3
EXECUTION COPY
SERVICES AGREEMENT
This Services Agreement ("Agreement") is made and entered into as of the
6th day of April, 2006 (the "Effective Date") by and among ONEOK, Inc., an
Oklahoma corporation ("ONEOK"), Northern Plains Natural Gas Company, LLC, a
Delaware limited liability company ("Northern Plains"), NBP Services, LLC, a
Delaware limited liability company ("NBP Services"), Northern Border Partners,
L.P., a Delaware limited partnership (the "MLP"), and Northern Border
Intermediate Limited Partnership (the "ILP"), a Delaware limited partnership.
Each party is referred to herein individually as a "Party," and collectively as
the "Parties." Capitalized terms used herein and not otherwise defined shall
have the meanings given to them in Section 10.1.
W I T N E S S E T H:
WHEREAS, the MLP and ILP previously contracted for NBP Services to provide
certain services to the MLP and the ILP in connection with the day-to-day
business and affairs of the MLP and ILP pursuant to the Administrative Services
Agreement;
WHEREAS, the Parties desire for the Administrative Services Agreement to
be terminated, superseded and replaced by this Agreement and to have the
services previously provided under that Administrative Services Agreement be
provided under this Agreement;
WHEREAS, Northern Plains, pursuant to certain Operating Agreements, is the
operator of certain interstate natural gas pipelines in which the MLP and the
ILP have an ownership interest;
WHEREAS, the Operating Agreements each provide that Northern Plains may
delegate or cause one or more of its affiliates to fulfill its obligations under
the Operating Agreements;
WHEREAS, certain affiliates of ONEOK own all of the outstanding general
partner interests of each of the MLP and ILP and own a substantial percentage of
the outstanding equity interests in the MLP;
WHEREAS, the Parties have determined that the operations of ONEOK and its
affiliates and the Northern Border Companies can operate more efficiently and
cost effectively if certain common services are combined and shared;
WHEREAS, certain ONEOK Affiliates and Northern Border Companies are
regulated by various governmental entities that require a fair and reasonable
method of allocation for costs incurred for such common services; and
WHEREAS, ONEOK (an affiliate of NBP Services and Northern Plains) desires
to provide or cause the provision of certain services to the Northern Border
Companies, and the Northern Border Companies desire to receive these services,
in accordance with the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the premises and the agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the Parties
hereby agree as follows:
ARTICLE I
SERVICES TO BE PROVIDED
1.1 Services. On the terms and conditions set forth in this Agreement,
ONEOK will provide or cause to be provided to the Northern Border Companies at
least the type and amount of services that it provides or causes to be provided
to ONEOK Affiliates, including but not limited to, executive officers, legal
services, human resources and employee benefits, information technology,
insurance and risk management, purchasing, inventory control, gas supply
services, marketing, pipeline control, right of way management, general
operations and maintenance, measurement, engineering, accounting, contract
administration, SEC reporting, day-to-day supervisory and administrative
services, planning support, budgeting support, technical, treasury services, tax
and internal audit services, and other services required
to be provided pursuant to the partnership agreements of the MLP and ILP, as
amended from time to time, and various other services routinely and customarily
provided to the ONEOK Affiliates (the "Services"). Each Northern Border Company
or permitted successor or assign that receives Services shall be referred to as
a "Purchaser" and collectively as the "Purchasers". ONEOK and the ONEOK
Affiliates that provide Services under this Agreement, including Northern Plains
and NBP Services, shall be collectively referred to as the "Provider."
1.2 Operating Agreement Services. The Parties acknowledge and agree that
Northern Plains will continue to perform its obligations under each of the
Operating Agreements. To the extent Northern Plains requests Services from ONEOK
under this Agreement in order to perform those obligations, ONEOK shall provide
such Services, and Northern Plains shall pay for such Services, under the terms
and conditions set forth in this Agreement. To the extent Northern Plains
receives Services under this Agreement, it will be deemed a "Purchaser" with
respect to such Services.
1.3 Additional Services. Any additional services requested by any
Purchaser will be provided on the basis agreed upon by the Parties in writing.
Unless the context otherwise requires, the term "Services" in this Agreement
shall include any such additional services agreed upon in writing by the
Parties.
1.4 Costs. The costs for the Services provided under this Agreement will
be allocated and billed monthly to the Purchasers in a manner consistent with
the method of allocation of such costs among other ONEOK Affiliates and
consistent with applicable law, including the requirements of the Federal Energy
Regulatory Commission ("FERC"). Direct costs will be allocated to the Purchasers
having activities that give rise to such costs to the extent that such direct
basis can reasonably be determined and allocated. The remaining unallocated
direct costs and all indirect costs will then be allocated on the basis of a
three-factor formula (the "Distrigas Method"), consistent with methods approved
by the FERC. The Distrigas Method provides for the allocation of common costs
based on the average of the percentage of "gross plant and investment",
"operating income" and "labor expense," as such terms are defined in FERC
regulations of each company involved in the calculation. The Provider will
determine an average of those three factors for each Purchaser and for ONEOK and
each ONEOK Affiliate
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that is involved in the calculation. That average will be the allocation ratio
for each such entity (the "Distrigas Allocation Ratio"). The Distrigas
Allocation Ratio for each such entity will then be applied to the total amount
of common costs to determine the amount of common costs that will be allocated
to each such entity. The Distrigas Allocation Ratio will be recalculated
annually, or as required due to acquisitions, divestitures or other similar
types of transactions or regulatory requirements. For the avoidance of doubt,
the costs allocated through the Distrigas Method are based on actual costs
recognized under U.S. generally accepted accounting principles and do not
include a xxxx-up or other element of profit. The Provider is not entitled to
and will not receive any other fee or other compensation for the performance of
the Services other than as set forth in this Section 1.4.
ARTICLE II
SERVICE STANDARD
2.1 Standard of Care; Limited Warranty.
(a) The Provider represents that it will discharge its duties
hereunder in good faith and with reasonable diligence and on a basis
consistent with the standards of service provided to ONEOK Affiliates.
EXCEPT AS SET FORTH IN THE IMMEDIATELY PRECEDING SENTENCE, THE PROVIDER
MAKES NO (AND HEREBY DISCLAIMS AND NEGATES ANY AND ALL) WARRANTIES OR
REPRESENTATIONS WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE
SERVICES. IN NO EVENT SHALL THE PROVIDER BE LIABLE TO THE NORTHERN BORDER
COMPANIES OR ANY OTHER PERSON FOR ANY INCIDENTAL, CONSEQUENTIAL, OR
SPECIAL DAMAGES RESULTING FROM ANY ERROR IN THE PERFORMANCE OF THE
SERVICES, REGARDLESS OF WHETHER THE PROVIDER OR OTHERS MAY BE WHOLLY,
CONCURRENTLY, PARTIALLY, OR SOLELY NEGLIGENT OR OTHERWISE AT FAULT;
PROVIDED HOWEVER, THAT THE PROVIDER SHALL BE LIABLE FOR ANY DAMAGES
ARISING OUT OF ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THE PRECEDING
IS THE ONLY WARRANTY CONCERNING THE SERVICES AND ANY RESULTS, WORK PRODUCT
OR PRODUCTS RELATED THERETO, AND IS MADE EXPRESSLY IN LIEU OF ALL OTHER
WARRANTIES AND REPRESENTATIONS EXPRESSED OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, THE WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE,
MERCHANTABILITY OR NONINFRINGEMENT. THE PARTIES UNDERSTAND, ACKNOWLEDGE
AND AGREE THAT THE LEVEL OF COMPENSATION THE PARTIES HAVE AGREED TO ACCEPT
IS PREDICATED ON THIS LIMITATION OF LIABILITY AND DISCLAIMER OF
WARRANTIES.
(b) The Parties shall agree and communicate regarding (i) any
changes to the Services or (ii) service level expectations related to the
Services. The Provider shall not make any changes to the Services or the
manner in which they are provided without advance notice to the Purchaser.
2.2 Consequences of Breach or Non-Performance. The Purchasers shall
promptly notify the Provider of any failure by the Provider to perform one or
more of the Services in
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accordance with the terms of this Agreement. In the event that the Provider does
not cure such non-performance within thirty (30) business days of the receipt of
such notice, the Purchasers may terminate such Service(s) by delivering notice
to the Provider.
2.3 Relationship of Parties. The Parties hereby acknowledge and agree
that, in providing the Services and otherwise in connection with this Agreement,
the Provider is an independent contractor and is not, and shall not be deemed to
be, an agent, employee or legal representative of the Purchasers or otherwise as
having power or authority to bind the Purchasers, unless specifically delegated
to do so in order to facilitate the Services.
ARTICLE III
TERM AND TERMINATION
3.1 Term. This Agreement shall become effective as of the Effective Date
and shall remain in effect until terminated as herein provided or until Services
are no longer being provided (the "Term").
3.2 Termination of this Agreement. Except as set forth in Section 2.2 of
this Agreement, a Party may not terminate this Agreement during the Term except
under the following circumstances:
(a) The Parties may terminate this Agreement by the execution of a
written agreement signed by authorized representatives of all Parties, in
which event the termination shall be effective on the date specified in
such agreement.
(b) If a transaction is consummated which would cause the Provider
or its Affiliates (other than the Northern Border Companies and their
subsidiaries) to cease to be a general partner of the MLP or the ILP, then
ONEOK or the MLP, as the case may be, shall have the right to terminate
this Agreement upon the execution and delivery of a mutually agreeable
transition services agreement between the Parties.
3.3 Termination of the Administrative Services Agreement. Effective as of
the execution and delivery of this Agreement, the Administrative Services
Agreement is hereby terminated, superseded and replaced by this Agreement;
provided, however, that all amounts due or to become due under that
Administrative Services Agreement shall be paid in full and the Administrative
Services Agreement shall continue in effect with respect thereto until all such
amounts are paid in full.
ARTICLE IV
BILLING AND PAYMENT
4.1 Invoices. The Provider will send one monthly invoice to the ILP
covering all of the Services provided under this Agreement. The monthly invoice
will be sent following completion of the Provider's normal monthly financial
reporting process, including completion of the Distrigas Method calculation. The
ILP shall pay each invoice by wire transfer or other means of immediate payment
within fifteen (15) days of the invoice date without setoff or deduction of any
kind, except as provided in Section 4.2. Any late payment by the ILP shall incur
a late fee of ten percent (10%) per annum, calculated from the due date until
the date of
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payment. In the event that any invoice is based on estimated costs, the Provider
shall make adjustments by increasing or decreasing the costs in the invoice
subsequent to the determination of the actual costs.
4.2 Disputed Amounts. In the event that a dispute arises as to the amount
of any statement or invoice or any portions thereof submitted pursuant to this
Article IV, the Parties will resolve the dispute in accordance with this Section
4.2 and Section 4.3 below. Pending resolution of the dispute, the ILP may
withhold payment of the amounts on an invoice or statement to the extent such
amounts are disputed in good faith, but shall pay all charges on such invoice or
statement that are not so disputed. If the ILP disputes any amount on an invoice
or statement it shall promptly notify the Provider in writing of such disputed
amounts and the reasons each such charge is disputed. The Provider shall provide
the ILP with sufficient records relating to the disputed charge to enable the
Parties to resolve the dispute. In the event the determination is made that the
ILP should have paid the disputed amount, the ILP shall pay the disputed amount,
with interest on the disputed amount at a rate of ten percent (10%) per annum,
calculated from and after the original due date of such invoice until the date
of payment. If the ILP paid the disputed amount, but such disputed amount is
ultimately determined not to have been payable, then the Provider shall refund
to the ILP the disputed amount, with interest on the disputed amount at a rate
of ten percent (10%) per annum, calculated from and after the date the Provider
received the payment to the date of the refund. Payment by the ILP of a disputed
amount shall not be deemed a waiver of the right of the ILP to recoup any
contested portion of any xxxx or statement.
4.3 Dispute Resolution. In the event of a dispute under this Agreement,
the Parties shall, during the fifteen (15) days after notice of such a dispute,
use their commercially reasonable efforts to reach agreement on the disputed
items or amounts. If the Parties are unable to reach agreement within such
period, they shall promptly thereafter cause a nationally recognized accounting
firm agreeable to the Parties (the "Accounting Referee") to review this
Agreement and the disputed items or amounts. The Accounting Referee shall
deliver to the Parties as promptly as practicable (but in any event no later
than thirty (30) days from the date of engagement of the Accounting Referee), a
report setting forth the Accounting Referee's determination of the appropriate
resolution of the dispute. Such determination shall be final and binding upon
the Parties. The cost of such review and report shall be borne equally by each
Party involved in the dispute.
4.4 Audit. The Northern Border Companies and their designated
representatives, after fifteen (15) days notice in writing to the Provider,
shall have the right during normal business hours to audit, at their own
expense, all books and records of the Provider related to the Services. Such
audits shall not be commenced more often than twice each calendar year. The
Northern Border Companies shall have two (2) years after the close of a calendar
year in which to make an audit of the Provider's records for such calendar year.
Absent fraud or intentional concealment or misrepresentation by the Provider or
its employees, the Provider shall neither be required nor permitted to adjust
any item unless a claim therefore is presented or adjustment is initiated within
two (2) years after the close of the calendar year in which the statement
therefore is rendered, and in the absence of such timely claims or adjustments,
the bills and statements rendered shall be conclusively established as correct.
The Provider shall use reasonable
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commercial efforts to obtain similar audit rights from contractors, consultants
and suppliers engaged to perform any of the Services on behalf of the Provider.
ARTICLE V
LIMITATION OF LIABILITY AND INDEMNITIES
5.1 Purchaser's Limitation of Liability. Each of the Northern Border
Companies agrees, with respect to the Services provided to such entity
hereunder, to indemnify, defend and hold harmless the Provider and its
Affiliates (provided that Northern Plains shall not be entitled to indemnity for
any costs, expenses or liabilities incurred by it as a general partner of the
MLP or the ILP), and their respective employees, officers, directors,
representatives and agents harmless from and against all claims, losses, costs,
damages and expenses (including, without limitation, attorneys' fees and
expenses), penalties and liabilities (collectively, "Liabilities") arising out
of the acts (or failure to act) by any such persons or entities in connection
with the performance by such persons or entities of such Services, REGARDLESS OF
WHETHER THE PROVIDER OR SUCH OTHER PERSONS OR ENTITIES MAY BE WHOLLY,
CONCURRENTLY, PARTIALLY OR SOLELY NEGLIGENT OR OTHERWISE AT FAULT IN CONNECTION
THEREWITH; PROVIDED, HOWEVER, THAT NEITHER THE PROVIDER NOR ANY OF SUCH OTHER
PERSONS AND ENTITIES SHALL BE INDEMNIFIED FOR THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF THE PROVIDER OR SUCH OTHER PERSONS OR ENTITIES.
5.2 Provider's Indemnification. The Provider shall indemnify, defend and
hold the Northern Border Companies and their general partners and their
respective employees, directors, policy committee members, officers,
representatives and agents harmless from and against all Liabilities arising out
of the performance of this Agreement and resulting from the gross negligence or
willful misconduct of the Provider or its Affiliates.
5.3 Defense of Claims. It is understood and agreed that in the event that
any Party is made a defendant in any suit, action or proceeding for which it is
entitled to be indemnified pursuant to this Agreement, and the applicable
indemnifying party fails or refuses to timely assume the defense thereof, after
having been notified by the indemnified party to do so, that the indemnified
party may compromise and settle or defend any such claim, and the applicable
indemnifying party shall be bound and obligated to reimburse said indemnified
party for the amount expended by the indemnified party in settling and
compromising any such claim, or for the amount expended by the indemnified party
in paying any judgment rendered therein, together with all reasonable attorneys'
fees and costs incurred by the indemnified party for defense or settlement of
such claim. Any judgment rendered against the indemnified party or amount
expended by the indemnified party in compromising or settling such claim,
together with all reasonable attorneys' fees and costs, shall be conclusive as
determining the amount for which the applicable indemnifying party is liable to
reimburse the indemnified party hereunder.
ARTICLE VI
CONFIDENTIALITY AND OWNERSHIP OF RECORDS
6.1 Confidentiality. The Parties acknowledge that in the course of this
Agreement they may have access to and be in possession of Confidential
Information (as described
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immediately below) of the other Party. Each Party shall protect the other
Parties' Confidential Information in the same manner as it protects its own
confidential information of like kind, which in no event shall be less than
reasonable care. Each Party's access to the Confidential Information of the
other Parties shall be restricted to those of such Party's personnel who have a
need to know in order to perform under this Agreement. The provisions of this
Section shall survive any termination or expiration of this Agreement and shall
not be limited by any limitation of liability contained herein. The term
"Confidential Information" shall mean information regarded by that Party as
proprietary or confidential, including, but not limited to, information relating
to its business affairs, financial information and prospects; future projects or
purchases; proprietary products, materials or methodologies; data; customer
lists; system or network configurations; passwords and access rights; and any
other information marked as confidential or, in the case of information verbally
disclosed, verbally designated as confidential.
6.2 Ownership of Records. The Northern Border Companies shall own the
data, records, information, etc. provided, generated, or otherwise related to
the Services and the business of the Northern Border Companies ("Northern Border
Company Records"), regardless of who prepares or generates such Northern Border
Company Records. The Provider shall maintain on behalf of the Northern Border
Companies all Northern Border Company Records and shall not destroy or delete
any Northern Border Company Records without the prior written consent of the
Northern Border Companies. Additionally, should this Agreement be terminated,
then the Provider shall deliver or cause to be delivered all Northern Border
Company Records to the Northern Border Companies; provided, however, that ONEOK
shall be entitled to retain copies of any such Records.
ARTICLE VII
FORCE MAJEURE
7.1 Force Majeure. Subject to the standards set forth in Article II, if,
by reason of force majeure (as defined in Section 7.2 below), a Party is
rendered unable, wholly or in part, to carry out its obligations under this
Agreement, and if the non-performing Party declaring force majeure gives notice
and reasonable particulars of such force majeure to the Party to whom the
performance is due within a reasonable time after the occurrence of the cause
relied on, upon giving such notice, so far as and to the extent that it is
affected by such force majeure, the non-performing Party declaring force majeure
shall not be liable solely on account of such inability to perform during the
continuance of any inability so caused; provided, however, the non-performing
Party shall use commercially reasonable efforts to recommence performance of the
affected Services as promptly as possible; provided, further, however, that an
event of force majeure shall not excuse payment for Services provided hereunder.
7.2 Definition of Force Majeure. The term "force majeure" as employed in this
Agreement shall mean acts of God; strikes, lockouts or industrial disputes or
disturbances; civil disturbances; arrests and restraints from rulers of people;
interruptions by government, administrative agency or court orders, other than
as a result of a failure to comply with laws; present and future valid orders,
decisions or rulings of any governmental or administrative entity having proper
jurisdiction; acts of a public enemy; wars; acts of terrorism; riots; blockades;
insurrections; inability to secure materials by reason of allocations
promulgated by authorized governmental agencies; epidemics; landslides;
lightning; earthquakes; fire; storm; floods;
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washouts; whether of the kind herein enumerated or otherwise, not reasonably
within the control of the Party claiming force majeure and not caused, in whole
or in part, by the acts or omissions of the Party so affected by force majeure.
ARTICLE VIII
NOTICES AND REPORTS
8.1 Notices. All notices and other communications under this Agreement
shall be in writing and shall be deemed duly given (i) when delivered personally
or by prepaid overnight courier, with a record of receipt, (ii) the fourth day
after mailing, if mailed by certified mail, return receipt requested, or (iii)
the day of transmission, if sent by facsimile or telecopy during regular
business hours, or the day after transmission if sent after regular business
hours (with a copy promptly sent by prepaid overnight courier with record of
receipt or by certified mail, return receipt requested), to the Parties at the
following addresses or telecopy numbers (or to such other address or telecopy
number as a Party may have specified by notice given to the other Party pursuant
to this provision):
If to the Provider(s), to:
ONEOK, Inc.
000 Xxxx 0xx Xxxxxx
Xxxxx, XX 00000
Attn: General Counsel
Facsimile: (000) 000-0000
If to Northern Border Companies:
Northern Border Partners, L.P.
00000 XXX Xxxxxxx
Xxxxx, XX 00000-0000
Attention: General Counsel
Facsimile: (000) 000-0000
ARTICLE IX
MISCELLANEOUS
9.1 Applicable Law. THIS AGREEMENT, THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT, AND ANY CLAIM OR CONTROVERSY DIRECTLY OR
INDIRECTLY BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT (WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER
THEORY), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, SHALL
IN ALL RESPECTS BE GOVERNED BY AND INTERPRETED, CONSTRUED, AND DETERMINED IN
ACCORDANCE WITH, THE APPLICABLE PROVISIONS OF THE BANKRUPTCY CODE AND THE
INTERNAL LAWS OF THE STATE OF OKLAHOMA (WITHOUT REGARD TO ANY CONFLICTS OF LAW
PROVISION THAT WOULD REQUIRE THE APPLICATION OF THE LAW OF ANY OTHER
JURISDICTION).
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9.2 Waiver. The performance of or compliance with a Party's obligation
hereunder may be waived, but only in writing signed by an authorized
representative of the other relevant Party. No waiver or failure of enforcement
by any Party of any default by any other Party in the performance of any
provision, condition or requirement herein shall be deemed to be a waiver of, or
in any manner a release of the defaulting Party from, performance of any other
provision, condition or requirement herein, nor deemed to be a waiver of, or in
any manner a release of the defaulting Party from, future performance of the
same provision, condition or requirement; nor shall any delay or omission of any
non-defaulting Party to exercise any right hereunder in any manner impair the
exercise of any such right or any like right accruing to it thereafter.
9.3 Modification. This Agreement may not be modified, varied or amended
except by an instrument in writing signed by the Parties.
9.4 Headings. The headings to each of the various Articles and Sections in
this Agreement are included for convenience and reference only and shall have no
effect on, or be deemed as part of the text of, this Agreement.
9.5 Third Parties. Except as provided in Article V hereof, this Agreement
is not intended to confer upon any Person not a Party hereto any rights or
remedies hereunder, and no Person other than the Parties hereto is entitled to
rely on or enforce any representation, warranty or covenant contained herein.
9.6 Survival; Limitations Period. Notwithstanding any other provisions in
this Agreement, all indemnities, limitations of liability, and payment
obligations set forth in this Agreement, and the provisions set forth in Section
4.2 and Articles V, VI, VII, VIII, IX, X and XI, shall survive the termination
of this Agreement or the expiration of the Term, in whole or in part. NO PARTY
MAY ASSERT ANY CAUSE OF ACTION AGAINST ANY OTHER PARTY ARISING UNDER OR IN
CONNECTION WITH THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER TERMINATION OF THIS
AGREEMENT.
9.7 Binding Effect Assignment.
(a) Subject to Section 9.7(b) below, no Party hereto may
assign this Agreement, in whole or in part, except with the prior
written approval of each other Party. This Agreement shall inure to
the benefit of, and shall be binding upon, the Parties and their
respective permitted successors and assigns.
(b) The Provider may assign the performance by it of any
Service to an Affiliate (other than the Northern Border Companies
and their subsidiaries) or any subsidiary or any successor in
interest to any such Affiliate or subsidiary. In addition, the
Provider may subcontract or outsource the performance of any Service
to a third party.
9.8 Entire Agreement. This Agreement, including any exhibits, attachments and
schedules hereto, constitutes the entire agreement between the Parties
concerning the subject matter hereof, and supersedes any prior understandings or
written or oral agreements relative to such subject matter. However, this
Agreement in no way changes or amends the terms of the Operating Agreements or
the Administrative Services Agreement or the obligations of NBP
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Services and Northern Plains to any of the Northern Border Companies under any
of those agreements.
9.9 Waiver of Jury Trial. THE PARTIES HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT THAT THEY MAY HAVE TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION, OR IN
ANY LEGAL PROCEEDING, DIRECTLY OR INDIRECTLY BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT (WHETHER BASED ON
CONTRACT, TORT, OR ANY OTHER THEORY). EACH PARTY (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTIES WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
9.10 No Strict Construction. The Parties to this Agreement have
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises with respect
to this Agreement, this Agreement shall be construed as if drafted jointly by
the Parties, and no presumption or burden of proof shall arise favoring or
disfavoring a Party by virtue of the authorship of any of the provisions of this
Agreement.
9.11 Severability. If any provision of this Agreement is invalid or
unenforceable, the balance of this Agreement shall remain in effect.
9.12 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
9.13 Acknowledgement of Applicability of Section 365(n) of the Bankruptcy
Code. The Parties hereby acknowledge that this Agreement is an executory
contract granting rights in intellectual property to the Northern Border
Companies as described in the U. S. Bankruptcy Code, Title 11 Section
365(n)(1)(B), and, as such, the Northern Border Companies may retain their
rights under this Agreement in the event that the Provider or its Affiliates or
its trustee, as applicable, rejects such executory contract or this Agreement
pursuant to, and in accordance with, Section 365(n) of Title 11. Furthermore,
the Parties acknowledge and agree that the execution of this Agreement shall not
impair any of the Provider's rights under title 11 of the United States Code.
ARTICLE X
INTERPRETATION; DEFINITIONS
10.1 Definitions. Capitalized terms used herein and not otherwise defined
shall have the following meanings:
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"Administrative Services Agreement" means the agreement between NBP
Services, LLC, Northern Border Partners, L.P. and Northern Border Intermediate
Limited Partnership effective as of October 1, 1993, as amended.
"Affiliate" means any person or entity that is Controlled By a person. For
purposes of this Agreement, a Provider shall not constitute an Affiliate of any
Purchaser.
"Control" or "Controlled By" 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
written contract or otherwise).
"Northern Border Companies" (each, individually, a Northern Border
Company) means (i) the MLP, (ii) the ILP, (iii) any direct or indirect
subsidiary of the MLP, and (iv) any other entity that directly, or through one
or more intermediaries, is controlled by the MLP, and (v) any entity in which
the MLP or ILP has a direct or indirect ownership interest and NBP Services or
Northern Plains is contractually obligated to provide administrative and/or
operational services.
"ONEOK Affiliates" means any direct or indirect subsidiary of ONEOK or any
entity controlled by ONEOK, but shall exclude any of the Northern Border
Companies.
"Operating Agreements" include (i) the Northern Border Pipeline Project
Operating Agreement between Northern Plains Natural Gas Company and Northern
Border Pipeline Company dated February 28, 1980; (ii) the Midwestern Gas
Transmission Company Operating Agreement between Northern Plains Natural Gas
Company and Midwestern Gas Transmission Company dated May 1, 2001; (iii) the
Viking Gas Transmission Company Operating Agreement between Northern Plains
Natural Gas Company and Viking Gas Transmission Company dated January 17, 2003,
and (iv) the Operating Agreement between Northern Plains Natural Gas Company and
Guardian Pipeline, L.L.C. dated April 5, 2004. Additionally, this definition
shall include any other operating agreement subsequently entered into by
Northern Plains for the purpose of providing similar services to other natural
gas transmission companies or similar services to other entities in the energy
industry.
10.2 Construction and Interpretation. All references herein to agreements
and other contractual instruments shall be deemed to include all exhibits,
attachments and appendices attached thereto and all amendments and other
modifications to such agreements and instruments. Words used herein in the
singular, where the context so permits, shall also apply to words when used in
the plural and visa versa. The term "including" when used in this Agreement will
be by way of example and not considered in any way to be a limitation, and means
"including, without limitation".
ARTICLE XI
LICENSE GRANT
11.1 License. Subject to the terms and conditions of this Agreement, and
subject to the right of ONEOK and the ONEOK Affiliates to do so, ONEOK and the
ONEOK Affiliates (collectively, for purposes of this Article XI, "Licensor")
hereby grant and agree to grant to each Northern Border Company (each, for
purposes of this Article XI, a "Licensee"), under all of Licensor's intellectual
property rights in and to the software programs, object code and source
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code, and documentation related to the Services and licensed patents related
thereto ("Licensed Programs"), a fully paid-up, irrevocable and perpetual
(during the term of this Agreement), worldwide, non-exclusive, transferable,
sublicensable, assignable license to: (i) copy, modify and use the Licensed
Programs and documentation; (ii) use, make, have made, distribute, and sell any
and all products and services of Licensee, its Affiliates, and its sublicensees
(if any) and (iii) engage in the business as conducted by Licensee, its
Affiliates, and sublicensees (if any). The foregoing license shall include the
right for any third party service company or independent contractor retained by
any Licensee or an Affiliate of any Licensee ("Contractor") to install, copy,
modify and/or use the Licensed Programs on behalf of such Licensee and its
Affiliates. The grant of the foregoing licenses with respect to any particular
Licensed Program and related documentation or patents shall be limited to those
Licensed Programs utilized by the Provider to provide the Services to the
Purchasers and shall not include any Licensed Programs subject to agreements
that would be breached by the grant in this paragraph.
11.2 Existing Rights. Except as expressly provided herein, Licensor shall
retain all of its right, title and interest, including, without limitation, all
intellectual property rights, in and to the Licensed Programs, including any and
all copies in whatever form. Licensee acknowledges that all materials provided
by Licensor to Licensee under this provision, including, but not limited to the
Licensed Programs, class libraries, scripts, algorithms, designs, flow-charts,
procedures, processes, systems, methodologies, and information shall remain the
sole and exclusive property of Licensor.
11.3 Hardware and Software Platform. Licensee acknowledges that Licensee's
operation of the Licensed Programs may require, among other things, Licensee's
obtaining rights to use third party hardware and licensed copies of third party
software, and Licensee shall be responsible for obtaining such rights to use
third party hardware and software. Licensor assumes no responsibility or
liability under this license grant or otherwise for obtaining or providing any
such third party hardware or software or for providing any labor support.
Licensor shall provide reasonable assistance in converting Licensee's data files
for use with the Licensed Programs.
(Signature Page Follows)
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their respective officers thereunto duly authorized, all as of the date first
above written.
ONEOK, INC., an Oklahoma corporation
By: /s/ Xxx Xxxxxx
------------------------------------------
Name: Xxx Xxxxxx
Title: Executive Vice President -- Finance and
Administration and Chief Financial Officer
NORTHERN PLAINS NATURAL GAS
COMPANY, LLC, a Delaware limited liability
company
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President, Finance and Treasurer
NBP SERVICES, LLC, a Delaware limited
liability company
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President, Finance and Treasurer
NORTHERN BORDER PARTNERS, L.P.,
a Delaware limited partnership
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial and Accounting Officer
NORTHERN BORDER INTERMEDIATE
LIMITED PARTNERSHIP, a Delaware
limited partnership
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial and Accounting Officer
