CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT (the "Agreement") is entered into as of the
___ day of _____________, 2012, by and between Sunoco Pipeline L.P., a Texas limited
partnership, with offices in Sugar Land, Texas ("SPLP") and ____________, a ____________,
with its principal offices located at _______________ (“Customer”). SPLP and Customer
sometimes are referred to herein as a “Party” and collectively, as the “Parties.”
WHEREAS, the parties are evaluating a potential transaction (the “Proposed
Transaction”) pursuant to which SPLP would provide transportation services to Customer on
certain of its pipelines and Customer would agree to ship on such pipeline(s) pursuant to and in
accordance with a Transportation Services Agreement (a “TSA”) entered into pursuant to an
open season held by SPLP with respect to such pipeline(s). In connection with the Proposed
Transaction, SPLP may provide to Customer and Customer may provide to SPLP certain of its
confidential and proprietary information to allow the other Party to evaluate whether to enter into
a binding contractual commitment to support such pipeline(s), subject to the conditions and
limitations set forth herein.
THEREFORE, the Parties hereby agree as follows:
1.
Customer shall hold in strictest confidence all information ("Confidential
Information") received from or sent on behalf of SPLP or any of its affiliates or their respective
directors, officers, employees, agents, auditors, counsel or advisers. For purposes of this Agreement,
the term "Confidential Information" shall mean and include (i) all draft and execution TSAs, (ii) all
open season documents, (iii) any information whether received before or after the date of this
Agreement, and whether oral, written or electronic and regardless of whether or not it is specifically
identified as "confidential," that in any way concerns or relates to the pipelines or the business,
financial condition, operations, assets, liabilities, finances, plans or prospects of SPLP or its
affiliates, and (iv) any password and identification number or code provided to Customer to permit
electronic access to any of the foregoing information. Confidential Information may be tangible or
intangible and may be disclosed to Customer orally, electronically or in writing. Confidential
Information shall also include any portion of any notes, analyses, compilations, studies or other
documents prepared by Customer or its Representatives which contain, reflect or are based upon
any Confidential Information.
2.
The term "Confidential Information" subject to the above obligation of
confidentiality shall not be deemed to include:
(a)
information that is on the date hereof or hereafter becomes generally
available to the public other than as a result, directly or indirectly, of a breach of this Agreement
(including, but not limited to, disclosure in violation of this Agreement by Customer or its
Representatives);
(b)
information that was or becomes available to Customer on a nonconfidential basis from a source other than SPLP, its affiliates or representatives, which source
Customer reasonably believes was not itself bound by an obligation of confidentiality in favor of
SPLP or its affiliates; or
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(c)
information that Customer can affirmatively demonstrate was
independently developed by Customer without reliance on any Confidential Information or
without violating this Agreement.
3.
Customer agrees not to divulge the Confidential Information to any person other
than (i) as permitted by Paragraph 5 and (ii) to Customer's directors, officers, employees, lenders,
agents, auditors, counsel and advisers to the extent that such persons need to know such information
for the purpose of evaluating the Proposed Transaction (any such persons to whom Customer has
provided the Confidential Information collectively "Representatives"), and not to use or permit the
use of Confidential Information for any purpose whatsoever other than the evaluation of the
Proposed Transaction. Customer shall advise its Representatives of the obligations under this
Agreement and shall cause its Representatives to treat the Confidential Information in a confidential
manner and in accordance with the use restriction set forth in this Paragraph 3 and the other terms of
this Agreement. Customer shall be responsible for any breach of this Agreement by Customer or its
Representatives.
4.
Customer understands and agrees that the disclosure of Confidential Information by
or on behalf of SPLP shall not constitute any type of partnership, joint venture or similar
undertaking between SPLP and Customer, and further understands that this Agreement does not
obligate SPLP to provide any specific information to Customer, to negotiate with Customer or to
enter into any agreement with Customer, to proceed with the open season or to negotiate or execute
a TSA with Customer. Customer understands and agrees that no contract or agreement providing
for any transaction involving the Parties shall be deemed to exist between the Parties and/or any of
their affiliates unless and until a definitive agreement has been fully executed and delivered by the
Parties (which either Party may, in its sole discretion, refuse to execute at any time regardless of any
prior meeting of the minds of any parties). Neither SPLP nor any of its affiliates or representatives
makes any representations or warranties regarding the accuracy or completeness of the Confidential
Information nor the adequacy thereof for Customer's purposes, and neither SPLP nor any of its
affiliates or representatives shall have any liability to Customer or any of its Representatives for any
information contained herein. Only those representations and warranties which are made by SPLP
in a final definitive agreement regarding the Proposed Transaction when, as and if executed, will
have legal effect.
5.
In the event Customer or any of its Representatives becomes legally compelled (by
deposition, interrogatory, requests for documents, subpoena, civil investigative demand or
regulatory or similar process) to disclose any of the Confidential Information, or Customer or any of
its Representatives reasonably determines in good faith that it or its Representatives is obligated by
statute or governmental regulation to disclose any of the Confidential Information, Customer or its
Representatives such as the case may be shall, to the extent legally possible in advance of such
disclosure, provide SPLP with prompt notice of such requirement so that SPLP may seek, at its sole
cost and expense, a protective order or other appropriate remedy available and/or waive compliance
with the terms of this Agreement, and, at SPLP's request, Customer shall use commercially
reasonable efforts to assist SPLP in seeking a protective order or other appropriate remedy. In the
event that such protective order or other appropriate remedy is not obtained, Customer agrees to
furnish only that portion of the Confidential Information which it reasonably believes it is legally
required to furnish and to cooperate with SPLP's reasonable efforts to obtain assurance that
confidential treatment will be accorded such Confidential Information.
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6.
Customer agrees to destroy or return all Confidential Information to SPLP promptly
upon request by SPLP and to destroy any portion of any summaries, extracts, analyses and other
documents or materials prepared by Customer or any of its Representatives based thereon (in
whatever media such Confidential Information and materials based thereon may exist, including,
without limitation, all copies contained on any computer tapes, computer disks or any other form of
electronic or magnetic media), without retaining any copies or other reproductions thereof. In such
event, Customer will continue to be bound by the terms and conditions of this Agreement for the
term hereof. Customer agrees that the Confidential Information disclosed hereunder shall remain
the property of SPLP and may not be reproduced by Customer without the consent of SPLP.
Customer agrees to confirm in writing to SPLP its compliance with this paragraph upon request.
Notwithstanding the foregoing, Customer may retain and shall not be required to destroy: (1) one
hard copy of the Confidential Information it receives pursuant to this Agreement in the files of its
legal counsel solely for the purpose of defending any claims against it with respect to this
Agreement; (2) one copy of any documents or notes prepared in connection with its review of the
Confidential Information as necessary to comply with Customer’s corporate governance policies
(established in writing prior to the date hereof) and (3) any electronic media may be retained to the
extent that any Confidential Information which is contained on Customer’s servers or the servers of
any affiliates pursuant to the ordinary back-up operations, provided that such copies remain subject
to this Agreement; and provided further that in any case in which Confidential Information is so
retained, it shall be maintained in strict accordance with the provisions of this Agreement for the
period in which Customer remains obligated hereunder, notwithstanding any termination of this
Agreement.
7.
Without the consent of SPLP, neither Customer nor its Representatives will disclose
to any person (as hereinafter defined), the fact that the Confidential Information has been made
available to Customer or that Customer inspected any portion of the Confidential Information, the
fact that these discussions are taking place or other facts with respect to these discussions, including
the status thereof. The term "person" as used in this Agreement shall be broadly interpreted to
include, without limitation, any corporation, limited liability company, partnership, trust or other
entity, including, without limitation, any governmental entity, or individual.
8.
Customer acknowledges and agrees the agreements and covenants set forth in this
Agreement are reasonable and necessary for the protection of SPLP's business interests and that
irreparable injury may result to SPLP if Customer breaches any of the terms of this Agreement, and
that in the event of Customer's actual or threatened breach of any of the agreements and covenants
set forth in this Agreement, SPLP may have no adequate remedy at law. Therefore, Customer
agrees that in the event of any actual or threatened breach by Customer of any of the agreements or
covenants set forth in this Agreement, SPLP will be entitled to seek immediate injunctive and other
equitable relief, without bond or other security and without the necessity of showing actual
monetary damages. Nothing in this Paragraph 8 shall be construed as prohibiting SPLP from
pursuing, in addition, any other remedies available to it for the breach or threatened breach,
including, without limitation, the recovery of damages that it is able to prove.
9.
In the event that Customer provides SPLP with information that is proprietary and
confidential, including without limitation any of the types of information enumerated in Paragraph 1
and such information is marked by Customer as “confidential”; then the provisions of this
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Agreement applicable to Customer regarding Confidential Information shall apply to SPLP
regarding such confidential information and such confidential information shall be subject to the
provisions of this Agreement.
10.
If any legal action or other proceeding is brought by a Party to this Agreement
because of an alleged dispute, breach, default or misrepresentation in connection with any provision
of this Agreement, the prevailing party shall be entitled to seek to recover its reasonable attorneys'
fees, court costs and all expenses actually incurred in the action or proceeding, including, without
limitation, all such fees, costs and expenses incident to arbitration, mediation, appellate, bankruptcy,
receivership and post-judgment proceedings.
11.
Notwithstanding the foregoing, neither Party shall be liable in any action initiated by
one against the other for special, indirect or consequential damages resulting from or arising out of a
breach of this Agreement, including, without limitation, loss of profit or business interruptions,
however same may be caused.
12.
This Agreement constitutes the entire understanding between the Parties as to the
subject matter hereof and merges all prior discussions between them relating thereto. No
amendment or modification of this Agreement shall be valid or binding on the parties unless made
in writing and signed on behalf of the Parties by their respective duly authorized officers or legal
representatives.
13.
This Agreement and any dispute arising hereunder or in connection with the matters
contemplated hereby, whether in contract, tort or otherwise, shall be governed in all respects by the
internal laws of the State of Texas, without giving effect to Texas principles or rules of conflict of
laws to the extent such principles or rules would require or permit the application of the laws of
another jurisdiction.
14.
Customer shall and shall cause its Representatives to safeguard the Confidential
Information with at least the same level of care as Customer exercises in the protection of its own
confidential and proprietary information.
15.
No failure or delay by either Party hereto in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
16.
In the event any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions of this
Agreement shall not in any way be affected or impaired thereby.
17.
This Agreement may be executed in multiple counterparts, each of which shall be an
original and all of which together shall constitute one and the same Agreement. Executed
counterparts may be delivered by facsimile transmission.
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18.
This Agreement and the obligations, restrictions and agreements set forth in this
Agreement shall automatically terminate and expire upon the earlier of (i) one year after the date
hereof or (ii) the completion of a transaction between the parties related to the Proposed
Transaction, unless earlier terminated or superseded in writing by the Parties.
19.
Customer has had ample opportunity to retain and consult with its own counsel
regarding this Agreement, the terms of this Agreement, and the subject matter of this Agreement.
20.
Any notice required or permitted to be given hereunder shall be in writing and shall
be properly given if hand delivered or telecopied with telephone confirmation, and addressed to the
Party for whom intended, at its address listed below or such address as may be specified by the
Party by notice given to the other Party:
Sunoco Pipeline L.P.
Attn: Manager, Business Development, Crude Pipelines
One Fluor Daniel Blvd., Building A, Level 3
Sugar Land, Texas 77478
Fax: (866) 328-1603
[Customer]
Attn: [________________]
[________________]
[________________]
Fax: [_______________]
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have each caused this Confidentiality
Agreement to be duly executed by their legally authorized representatives, effective as of the
date first above written.
SUNOCO PIPELINE L.P.
By: Sunoco Logistics Partners Operations GP LLC, its general partner
By:
Name:
Title:
[CUSTOMER]
Company Name:_______________________
By:
Name:
Title:
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