Exhibit 10.11


 


Form of


 


Marketing
and Administrative Services Agreement


 


This
Marketing and Administrative Services Agreement (“Agreement”) is
effective as of [                      ],
2008 (“Effective Date”)
between OGE Energy Resources, Inc., an Oklahoma corporation (“OERI”),
and Enogex Inc., an Oklahoma corporation (“Enogex”).


 


Whereas,
prior to the Effective Date, OERI was a wholly-owned Subsidiary of Enogex, OERI
provided certain marketing and other services to Enogex and its Subsidiaries,
and OERI received certain administrative services from Enogex;


 


Whereas,
on the Effective Date, Enogex distributed all of the capital stock of OERI to
OGE Energy Corp., an Oklahoma corporation (“OGE”), upon the occurrence
of which OERI became a wholly-owned Subsidiary of OGE;


 


Whereas,
during the term of this Agreement, OERI will provide certain marketing and
other services to the Enogex Group (as defined in this Agreement), and OERI
will receive certain administrative services from Enogex;


 


Now, therefore, OERI and
Enogex agree as follows:


 


1. Definitions.  As used in this Agreement, the following
capitalized terms have the meanings set forth below:


 


“Administrative
Services” is defined in Section 4.1.


 


“Affected Party”
is defined in Section 12.


 


“Affiliate” means,
with respect to any legal entity, (a) any other legal entity directly or
indirectly controlling, controlled by, or under common control with such legal
entity and (b) any other legal entity under the joint control, directly or
indirectly, of such legal entity.  “Control”
means the direct or indirect ownership of more than fifty percent (50%) of the
outstanding capital stock or other equity interest having ordinary voting power
or the power to direct the management or policies of a legal entity.


 


“Agreement” is
defined in the preamble.


 


“Back-to-Back
Transactions” means a transaction between OERI and a third party that is
executed concurrently with a similar transaction between OERI and any member of
the Enogex Group in order to facilitate such transaction between OERI and the
member of the Enogex Group.


 


“Business Day”
means any day on which Federal Reserve member banks in Oklahoma City, Oklahoma
are open for business.


 


“Confidential
Information” means, with respect to any member of the Enogex Group, any
information regarding a member of the Enogex Group’s natural gas positions,
natural gas liquids positions, trading positions, trading strategies, hedging
strategies, and counterparties; and with respect to OERI, any information
regarding OERI’s natural gas positions, natural gas liquids positions, trading
positions, trading strategies, hedging strategies, and counterparties.


 

















 


 


“Damages” is
defined in Section 10.1.


 


“Effective Date”
is defined in the preamble.


 


“Enogex” is
defined in the preamble.


 


“Enogex Group”
means OGE Enogex GP LLC, OGE Enogex Partners L.P., Enogex Inc., their
respective Subsidiaries, whether now existing or hereafter created or acquired,
and their respective successors and assigns.


 


“Extension” is
defined in Section 6.1.


 


“Financial Transaction”
is defined in Section 2.2(c).


 


“Fixed-Price
Transaction” is defined in Section 2.2(b).


 


“Force Majeure”
means an event or circumstance that prevents a Party from performing its
obligations under this Agreement, but only if the event or circumstance: is not
within the reasonable control of the affected Party; is not the result of the
fault or negligence of the affected Party; and could not, by the exercise of
due diligence, have been overcome or avoided. 
“Force Majeure” excludes: lack of a market; unfavorable market
conditions; and economic hardship.


 


“Implementation
Agreements” means: the ISDA Master Agreement between Enogex and OERI, dated
as of December 1, 1998, as amended or succeeded; the NAESB Base Contract
for Sale and Purchase of Natural Gas between Enogex and OERI, dated as of November 8,
2007, as amended or succeeded; and any other ISDA Master Agreement, NAESB Base
Contract for Sale and Purchase of Natural Gas, or similar agreement between
OERI and any Enogex Group member.


 


“Indemnified Party”
is defined in Section 10.4.


 


“Indemnifying Party”
is defined in Section 10.4.


 


“Index Transaction”
is defined in Section 2.2(a).


 


“Initial Term” is
defined in Section 6.1.


 


“Law” means any
and all applicable federal, state, and local codes, constitutions, decrees,
directives, laws, licenses, ordinances, injunctions, orders, permits,
regulations, requirements, rules, and statutes.


 


“Marketing Services”
is defined in Section 2.1.


 


“Mid-Market Price”
means a price equal to the midpoint of the bid and ask prices on the relevant
pricing index.


 


“OERI” is defined
in the preamble.


 


“OGE” is defined
in the recitals.


 


“Party” means
either OERI or Enogex, and “Parties” means both OERI and Enogex.


 


“Subsidiary” means
with respect to a corporation, limited liability company, partnership (whether
general or limited), or other legal entity: (a) a corporation of which more than 50%
of the voting power of shares entitled (without regard to the occurrence of any
contingency) to vote in the election of directors or other governing body of
such corporation is owned, directly or indirectly, at the date of
determination, by such legal entity, by one or more Subsidiaries of such legal
entity, or a combination 


 


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thereof,
(b) a partnership (whether general or limited) in which such legal entity
or a Subsidiary of such legal entity is, at the date of determination, a
general or limited partner of such partnership, but only if more than 50% of
the partnership interests of such partnership (considering all of the
partnership interests of the partnership as a single class) is owned, directly
or indirectly, at the date of determination, by such legal entity, by one or
more Subsidiaries of such legal entity, or a combination thereof, or (c) any
legal entity (other than a corporation or a partnership) in which such legal
entity, one or more Subsidiaries of such legal entity, or a combination
thereof, directly or indirectly, at the date of determination, has (i) at
least a majority ownership interest or (ii) the power to elect or direct
the election of a majority of the directors or other governing body of such legal
entity.


 


2. Marketing Services.


 


2.1 Scope of Marketing
Services.  OERI will provide, or will
cause to be provided, to the members of the Enogex Group, certain marketing hedging,
and risk management services, such as (a) entering into transactions for the
purchase and sale of natural gas, (b) entering into transactions for the
hedging of natural gas and natural gas liquids positions, (c) preparing reports
on natural gas and natural gas liquids markets and pricing, (d) performing
price discovery for natural gas, natural gas liquids, and natural gas storage,
and (e) maintaining and providing the Enogex Group with access to
documentation regarding the foregoing services, that are substantially identical in nature
and quality to the services of such type previously provided by or on behalf of
OERI to the Enogex Group during the twelve (12) month period immediately
preceding the Effective Date (“Marketing Services”).


 


2.2 Transactions.  Without limiting the foregoing, at any Enogex
Group member’s request, OERI will enter into the following types of
transactions as part of the Marketing Services:


 


a. Index Transactions.
OERI will enter into transactions to purchase natural gas from, or to sell
natural gas to, any member of the Enogex Group at a Mid-Market Price (“Index
Transactions”).  OERI will be
obligated to enter into an Index Transaction at an Enogex Group member’s reasonable
request when an applicable index price and an applicable basis differential for
natural gas is being traded for the applicable month of the transaction.  OERI and the relevant Enogex Group member
will document each Index Transaction in accordance with the applicable
Implementation Agreement.


 


b. Fixed-Price Transactions.  OERI will enter into transactions to purchase
natural gas from, or to sell natural gas to, any member of the Enogex Group at
a fixed price to be determined mutually at the time of the transaction (“Fixed-Price
Transactions”).  OERI will use
commercially reasonable efforts to enter into a Fixed-Price Transaction at an
Enogex Group member’s request.  OERI may execute
a Back-to-Back Transaction concurrently with a Fixed-Price Transaction, and, if
so, the price and other material terms and conditions of the Fixed-Price Transaction
will correspond to such terms and conditions in the Back-to-Back Transaction.  OERI and the relevant Enogex Group member will
document each Fixed-Price Transaction in accordance with the applicable
Implementation Agreement.


 


c. Financial
Transactions. OERI will enter into financial and derivative transactions
with any member of the Enogex Group to protect the Enogex Group against
fluctuations in the price of natural gas and natural gas liquids (“Financial
Transactions”).  OERI will use
commercially reasonable efforts to enter into a Financial Transaction at an
Enogex Group member’s request.  OERI may execute
a Back-to-Back Transaction concurrently with a Financial Transaction, and, if
so, the material terms and conditions of the Financial Transaction will correspond
to such terms and conditions in the Back-to-Back Transaction.  OERI and the relevant Enogex Group member 


 


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will document each
Financial Transaction in accordance with the applicable Implementation
Agreement.


 


2.3 Reports.  Without limiting the foregoing, OERI will
prepare and provide the Enogex Group the following reports as part of the
Marketing Services:


 


a. Marks.  On a weekly basis, OERI will prepare and
provide the Enogex Group a written report on index marks and basis mark substantially identical in nature and
quality to the report of such type provided by or on behalf of OERI to the Enogex
Group during the twelve (12) month period immediately preceding the Effective
Date.  OERI will, upon reasonable
request, prepare and provide verbal updates to such report.


 


b.
Market View. On a monthly basis, OERI will prepare and provide
the Enogex Group a written report on market view substantially identical in nature and quality to the report of such
type provided by or on behalf of OERI to the Enogex Group during the twelve
(12) month period immediately preceding the Effective Date.  OERI will, upon reasonable request, prepare
and provide verbal updates to such report.


 


c.
Price Forecast. On a quarterly basis, OERI will prepare and
provide the Enogex Group a report on price forecast substantially identical in nature and quality
to the report of such type provided by or on behalf of OERI to the Enogex Group
during the twelve (12) month period immediately preceding the Effective
Date.  OERI will, upon reasonable
request, prepare and provide written updates to such report each month.


 


2.4 Compensation for
Marketing Services. OERI will receive the following compensation from
Enogex for the Marketing Services:


 


a. Reimbursement for
Marketing Services. Enogex
will reimburse OERI for all direct and indirect expenses and expenditures that
OERI incurs or payments it makes on behalf of Enogex for the Marketing Services.  For clarity, the reimbursement obligation in
this Section 2.4(a) excludes expenses and expenditures for the
Credit Support Services provided pursuant to Section 3 but includes
general and administrative expenses.


 


b.
Mid-Point Price Risk. Enogex will pay OERI a fee of $0.02 per MMBtu of
natural gas that OERI sells to or purchases from any member the Enogex Group at
a Mid-Market Price.


 


2.5 Standards of
Performance for Marketing Services. OERI will:


 


a.  Perform the Marketing Services with the same
standard of care as it would perform such services for its own account and for
the account of other parties for whom it is performing the same or similar
services, including: (i)  obtaining prices (except as otherwise provided
in this Agreement regarding any required Mid-Market Price) and other material
terms and conditions for the members of the Enogex Group that are no less
favorable than the prices and other material terms and conditions that it would
obtain for its own account and for the account of other parties for whom it is
performing the same or substantially similar services; and (ii) using
commercially reasonable efforts to maximize the economic value associated with
the Marketing Services to the Enogex Group Members; and


 


b.  Not violate any Law applicable in the
performance of the Marketing Services, including by directly or indirectly
using or employing any manipulative or deceptive device or contrivance as those
terms are used in the Energy Policy Act of 2005.


 


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3. Credit Support Services.


 


3.1 Scope of Credit
Support Services.  Enogex
acknowledges that OERI will obtain credit support for Back-to-Back Transactions
in the form of guarantees and letters of credit from OGE and that OGE may be
required to post margin for Back-to-Back Transactions in the form of cash
collateral and letters of credit provided by OGE  (collectively, “Credit Support Services”).


 


3.2 Reimbursement for
Credit Support Services. Enogex will reimburse OERI for all direct and indirect expenses that
OGE incurs in providing the Credit Support Services.  For clarity,
the reimbursement obligation in this Section 3.2 will not require Enogex
to reimburse OGE for cash collateral posted as margin under Back-to-Back Transactions,
but only for OGE’s expenses incurred in posting cash collateral.


 


4. Administrative Services.


 


4.1 Scope of
Administrative Services. Enogex will provide, or cause to be provided, to OERI certain certain
general and administrative services, such as accounting, contracts
administration, legal, health-safety-environmental, and human resources, that
are substantially identical in nature and quality to the services of such type
previously provided by or on behalf of Enogex in connection with the management
and operation of OERI during the twelve (12) month period immediately preceding
the Effective Date (“Administrative
Services”).


 


4.2 Reimbursement for
Administrative Services. OERI will reimburse Enogex for all direct and indirect expenses and
expenditures that Enogex incurs or payments they make on behalf of OERI for the
Administrative Services.


 


5. Invoicing and Payment.


 


5.1 Invoicing. As
soon as practicable after the end of each month, each Party will provide the
other Party with an invoice stating the payment obligations incurred hereunder during
the preceding month and providing reasonable detail supporting the calculations
for such payment obligations.


 


5.2 Netting and
Payment. The Parties net payment obligations incurred hereunder (whether
such amounts are due for the current month or otherwise), so that any amounts
owed by each Party to the other Party under this Agreement will be setoff and that
only the excess amount will be paid by the Party who owes it.


 


5.3 Exclusion.  Amounts due under any transaction that has
been entered into as part of the Marketing Services will be governed by the
applicable Implementation Agreement, and will not be subject to Section 5.1
or 5.2.


 


6. Term and Termination.


 


6.1 Term.  The initial term of this Agreement will be
for a period of three (3) years, commencing on the Effective Date and
ending on December 31, 2010 (“Initial Term”).  At the conclusion of the Initial Term, the
term of this Agreement will automatically extend from year-to-year (each, an “Extension”).


 


6.2 Termination for
Convenience.  Either Party may
terminate this Agreement at any time by providing the other Party with at least
one hundred eighty (180) days’ notice of its election to terminate the
Agreement.


 


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6.3 Termination for
Cessation of Affiliation.  If a Party
ceases to be an Affiliate of OGE, the other Party may terminate this Agreement immediately
upon notice of its election to terminate this Agreement.


 


6.4 Termination for
Default.


 


a. Default. 
A Party will be in default if:


 


i. the Party fails to perform any of its material obligations set forth
in this Agreement and such failure is not cured within ten (10) Business
Days after notice thereof is received by such Party;


 


ii. the Party (A) files a petition or otherwise commences,
authorizes or acquiesces in the commencement of a proceeding or cause of action
under any bankruptcy, insolvency, reorganization or similar Law, or has any
such petition filed or commenced against it, (B) makes an assignment or
any general arrangement for the benefit of creditors, (C) otherwise
becomes bankrupt or insolvent (however evidenced), (D) has a liquidator,
administrator, receiver, trustee, conservator or similar official appointed
with respect to it or any substantial portion of its property or assets, or (E) is
generally unable to pay its debts as they fall due;


 


iii. an event of default or termination event with respect to the Party
(or, for Enogex, with respect to any member of the Enogex Group) occurs under
any Implementation Agreement for which one of the remedies is the acceleration,
termination or liquidation of all transactions under such Implementation
Agreement; or


 


iv. any representation or
warranty of the Party in this Agreement is incorrect in any material respect
when made and such defect is not cured within seven (7) Business Days
after notice thereof is received by such Party.


 


b. Termination. If a
Party is in default as described in Section 6.4(a), the
non-defaulting Party may: (i) terminate this Agreement upon notice to the
defaulting Party; (ii) withhold any payments due to the defaulting Party
under this Agreement; and (iii) pursue any other remedy at law or in
equity.


 


6.5 Effect of Termination.  Upon termination of this Agreement, all
rights and obligations of the Parties under this Agreement will terminate;
provided, however: termination will not affect or excuse the performance of
either Party under any provision of this Agreement that by its terms survives
termination; and termination will not affect or excuse the performance of
either Party under any transaction that has been entered into as part of the
Marketing Services, which transactions will continue to be governed by the
Implementation Agreements.  Despite the
termination of this Agreement, Enogex will continue to reimburse OERI for
Credit Support Services as described in Section 3 for so long as
any Back-to-Back Transactions continue to be outstanding, and the payment of
such reimbursement will be governed by Section 5.  The following provisions of this Agreement
will survive the termination of this Agreement indefinitely: Section 9,
Section 10, Section 11, and Section 13.


 


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7. Representations and
Warranties.


 


7.1 Representations
and Warranties of OERI.  OERI
represents and warrants that:


 


a. As of the Effective Date and the first day of each Extension:


 


i. It is duly formed, validly existing and in good standing under the Laws
of the state of its formation;


 


ii. This Agreement constitutes a legal, valid and binding obligation
enforceable against it in according with its terms, except as enforceability
may be limited by (A) applicable bankruptcy, insolvency, reorganization,
moratorium or similar Laws affecting the rights of creditors generally and (B) general
principles of equity;


 


iii. The execution, delivery and performance of this Agreement have
been duly authorized by all requisite action and does not and will not conflict
with or result in the violation of: (i) any provisions of its
organizational documents, (ii) any Law to which it is subject, or (iii) any
material agreement or instrument to which it is a party or by which it, its
property or its assets are bound or affected;


 


b. At all times during the term hereof:


 


i. It is a producer of, processor of, commercial user of, or merchant
handling any “commodity” (as such term is defined in the Commodities Exchange
Act, as amended) that may be the subject of any option entered into between the
Parties, and it has entered into this Agreement solely for purposes related to
its business as such; and


 


ii. It is an “eligible contract participant” within the meaning of Section 1a(12)
of the Commodity Exchange Act, as amended.


 


7.2 Representations
and Warranties of Enogex.  Enogex
represents and warrants that:


 


a. As of the Effective Date and the first day of each Extension:


 


i. It is duly formed, validly existing and in good standing under the
laws of the state of its formation;


 


ii. This Agreement constitutes a legal, valid and binding obligation
enforceable against it in according with its terms, except as enforceability
may be limited by (A) applicable bankruptcy, insolvency, reorganization,
moratorium or similar Laws affecting the rights of creditors generally and (B) general
principles of equity;


 


iii. The execution, delivery and performance of this Agreement have
been duly authorized by all requisite action and does not and will not conflict
with or result in the violation of: (A) any provisions of its
organizational documents, (B) any Law to which it is subject, or (C) any
material agreement or instrument to which it is a party or by which it, its
property or its assets are bound or affected;


 


 


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b. At all times during the term hereof:


 


i. It is a producer of, processor of, commercial user of, or merchant
handling any “commodity” (as such term is defined in the Commodities Exchange
Act, as amended) that may be the subject of any option entered into between the
Parties, and it has entered into this Agreement solely for purposes related to
its business as such; and


 


ii. It is an “eligible contract participant” within the meaning of Section 1a(12)
of the Commodity Exchange Act, as amended.


 


8. Relationship of the Parties.  This Agreement does not form a partnership or
joint venture between the Parties.  This
Agreement does not make OERI an agent or a legal representative of any member
of the Enogex Group, and this Agreement does not make Enogex an agent or a
legal representative of OERI.  OERI will
not assume or create any obligation,
liability, or responsibility, expressed or implied, on behalf of or in the name
of any member of the Enogex Group,
and Enogex will not assume or create any obligation, liability, or
responsibility, expressed or implied, on behalf of or in the name of OERI.


 


9. Audit.  OERI will maintain in good order any and all
books and records regarding the Marketing Services, including the Back-to-Back
Transactions, and Enogex will maintain in good order any and all books and
records regarding the Administrative Services. 
Each Party may audit, or cause to be audited, the books and records of
the other Party related to this Agreement, upon ten (10) Business Days’
notice to the other Party, to verify compliance with the provisions of this
Agreement and to verify the accuracy of any amounts invoiced under this
Agreement.  Any Party who is subject to
an audit under this Section 9 will make available its relevant
books and records and use commercially reasonable efforts to assist the
auditing Party conduct such audit.


 


10. Indemnification.


 


10.1 Indemnification
by OERI. OERI will indemnify, defend and hold harmless the Enogex Group
from and against any and all damages, suits, actions, liabilities, legal
proceedings, claims, demands, penalties, fines, losses, costs and expenses of
whatsoever kind or character including reasonable attorneys’ fees and expenses
(collectively, “Damages”) arising out of this Agreement and resulting
from (i) the breach of any term, condition, representation or warranty of
this Agreement by OERI, and (ii) the negligence or willful misconduct of
OERI, its subcontractors, or their respective agents or employees.


 


10.2 Indemnification
by Enogex.  Enogex will indemnify,
defend and hold harmless OERI from and against any and all Damages arising out
of this Agreement and resulting from (i) the breach of any term,
condition, representation or warranty of this Agreement by Enogex, and (ii) the
negligence or willful misconduct of Enogex, its subcontractors, or their respective
agents or employees.


 


10.3 Concurrent
Liability. When any indemnity, defense, or hold harmless obligation results
from joint or concurrent negligence, willful misconduct, or breach of this
Agreement of both Enogex and OERI, each Party’s indemnity, defense, and hold
harmless obligations will be in proportion to its allocable share of
negligence, willful misconduct, or breach of this Agreement.


 


10.4 Indemnification
Procedures.


 


a. If a Party is entitled
to indemnification under this Agreement (“Indemnified Party”), it will
within a reasonable period of time after it becomes aware of facts giving rise
to a claim for indemnification provide notice to the other party (“Indemnifying
Party”) specifying the nature of and the specific basis for such claim.


 


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b. The Indemnifying Party
will have the right to control all aspects of the defense of (and any
counterclaims with respect to) any claims brought against the Indemnified Party
that are covered by the indemnification set forth in this Agreement, including
the selection of counsel, determination of whether to appeal any decision of
any court or similar authority, and the settling of any such matter or any
issues relating thereto; provided, however, that no such settlement will be
entered into without the consent (which consent will not be unreasonably
withheld, conditioned, or delayed) of the Indemnified Party unless it includes
a full release of the Indemnified Party for such matter or issues, as the case may
be.


 


c. The Indemnified Party
will cooperate fully with the Indemnifying Party with respect to all aspects of
the defense of any claims covered by the indemnification set forth in this
Agreement, including the prompt furnishing to the Indemnifying Party of any
correspondence or other notice relating thereto that the Indemnified Party may
receive, permitting the names of the Indemnified Party to be utilized in
connection with such defense, the making available to the Indemnifying Party of
any files, records, or other information of the Indemnified Party that the
Indemnifying Party considers relevant to such defense and the making available
to the Indemnifying Party of any employees of the Indemnified Party; provided,
however, that in connection therewith the Indemnifying Party agrees to use
reasonable efforts to minimize the impact thereof on the operations of the
Indemnified Party.  The obligation of the
Indemnified Party to cooperate with the Indemnifying Party will not be
construed as imposing an obligation on the Indemnified Party to hire and pay
for counsel in connection with the defense of any claims covered by the
indemnification set forth in this Agreement. 
Without limiting the right of the Indemnifying Party to control all
aspects of the defense, the Indemnified Party may, at its own option, cost, and
expense, hire and pay for counsel in connection with such defense, which such
counsel the Indemnifying Party will keep reasonably informed as to the status
of any such defense.


 


11. Limitation of Liability.
Neither Party will be liable for any consequential, incidental, punitive,
special, or other indirect damages incurred by the other Party or its
Affiliates in connection with this Agreement. The foregoing limitation of
liability for consequential, incidental, punitive, special, and other indirect
damages is not intended to limit a Party’s liability under the release,
indemnity, defense, and hold harmless obligations in this Agreement for
consequential, incidental, punitive, special, and other indirect incurred by
anyone other than a Party or its Affiliates.


 


12. Force Majeure.  To the extent either Party
is prevented by Force Majeure from performing its obligations, in whole or in
part, under this Agreement, and if such Party (“Affected Party”) gives notice
and details of the Force Majeure to the other Party as soon as reasonably
practicable, then Affected Party will be excused from the performance with
respect to any such obligations (other than the obligation to make
payments).  Each notice of Force Majeure
sent by an Affected Party to the other Party will specify the event or
circumstance of Force Majeure, the extent to which the Affected Party is unable
to perform its obligations under this Agreement, and the steps being taken by
the Affected Party to mitigate and to overcome the effects of such event or
circumstances.  The non-Affected Party
will not be required to perform its obligations to the Affected Party
corresponding to the obligations of the Affected Party excused by Force
Majeure.  A Party prevented from
performing its obligations due to Force Majeure will use commercially
reasonable efforts to mitigate and to overcome the effects of such event or
circumstances and will resume performance of its obligations as soon as
practicable.


 


13. Information.


 


13.1 Confidentiality. Enogex will hold in confidence any
Confidential Information disclosed to it by OERI, and OERI will hold in
confidence any Confidential Information disclosed to it by any member of the
Enogex Group; provided, however, the foregoing confidentiality obligations are
subject to the 


 


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following
exceptions: (a) disclosures necessary for a Party to enforce its rights
under this Agreement; (b) disclosures that may be necessary or reasonably
appropriate for a Party (i) to respond (A) in any legal proceeding
(including, without limitation, any deposition, interrogatory, subpoena, or
civil investigative demand) or (B) to any request by any commodities exchange,
securities exchange, the Federal Energy Regulatory Commission, the Commodity
Futures Trading Commission, the Securities and Exchange Commission, or any
other regulatory authority or (ii) to comply with any applicable Law,
order, regulation or ruling (including without limitation any rule or
regulation issued by any commodities exchange, securities exchange, or the
Federal Energy Regulatory Commission or Commodity Futures Trading Commission or
any other regulatory authority); (c) disclosures authorized by the other
party in writing; (d) disclosures of information that (i) is or
becomes generally available to the public other than as a result of a
disclosure by the Party or its representatives, (ii) becomes available to
the Party on a non-confidential basis from a source that does not have an
obligation to maintain its confidentiality, or (iii) was known to the
party on a non-confidential basis prior to the Effective Date; or (v) disclosures
to the Party’s Affiliates, directors, officers, employees, auditors, attorneys,
or other advisors who have a need to know the information for the
administration or enforcement of this Agreement and who are informed of the
confidential nature of the information, provided that such Party will be
responsible for any breach of the confidentiality provisions hereunder by any
of the foregoing to whom such Party has disclosed such information.


 


13.2 Compliance.  In the performance of this Agreement, such as
in the exchange or disclosure of information between and among OERI any Enogex
Group Member concerning an entity’s own operations, contractual or
transactional data (actual or under consideration) or non-public knowledge of a
third party’s operations, contractual or transactional data (actual or under
consideration) to which a Party may have access, each Party will act in strict
conformance with federal and state statutory and regulatory requirements or
restrictions on such exchange or disclosure.


 


14. Notices.
Notices must be in writing, directed to the representative at address set forth
below, and delivered in person, by a nationally recognized overnight courier
service, by certified U.S. mail return receipt requested, or by fax confirmed by
certified U.S. mail return receipt requested. 
Notices will be deemed delivered: on the day of delivery when delivered
in person; on next Business Day after sending when delivered by overnight
courier; on the day sent when delivered by fax before 5:00 PM Central Time on a
Business Day; and on the next Business Day when delivered by fax after 5:00 PM
Central Time on a Business Day; or on the next Business Day when delivered by
fax on a day other than a Business Day.  Each
Party may change its representative or address for notices by providing the
other Party with notice of the change at least ten (10) days in advance of
the effective date of the change.


 


	
  If to OERI:

  	
   

  	
  If to Enogex:

  
	
   

  	
   

  	
   

  
	
  OGE Energy Resources
  Inc.

  	
   

  	
  Enogex Inc.

  
	
  Attn: President

  	
   

  	
  Attn: Chief Financial
  Officer

  
	
  515 Central Park Drive,
  E       

  	
   

  	
  515 Central Park Drive,
  E       

  
	
  Oklahoma City, OK 73105
  

  	
   

  	
  Oklahoma City, OK 73105

  
	
  Fax: (405)
        -      

  	
   

  	
  Fax: (405)
        -      

  



 


15. Miscellaneous.


 


15.1 No Waiver. No
waiver by either Party of any right hereunder at any time will serve to waive
of the same right at any future date.


 


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15.2 Amendment. No
amendment to this Agreement will be effective unless made in writing and signed
by both Parties.


 


15.3 Severability.
If a provision of this Agreement is unenforceable under applicable Law, that
provision will be enforced to the maximum extent permitted by applicable Law,
and the remaining provisions of this Agreement will continue in full force and
effect.


 


15.4 Assignment.  Neither Party may assign this Agreement, in
whole or in part, without the prior written consent of the other Party, and any
purported assignment in violation if this provision will be void.  For purpose of clarity, the Parties
acknowledge that the merger of Enogex into a Delaware corporation and
subsequent conversion into a limited liability corporation will not be
considered an assignment.  The Parties
further acknowledge that it is the intention of both Parties that Enogex LLC
succeed to and be bound by all of the rights and obligations of Enogex
hereunder.


 


15.5 Further
Assurances. Each Party will, at the request of the other Party, do all such
acts and things, including the execution and delivery of further documents and
instruments, as the other Party may reasonably require in order to carry
through to completion the provisions of, and intentions expressed in, this
Agreement.


 


15.6 Counterparts.
This Agreement may be executed in one or more counterparts, each of which will
be deemed an original and part of one and the same document.


 


15.7 Construction.
The following rules of construction will govern the interpretation of this
Agreement: (a) “days,” “months,” and “years” will mean calendar days,
months and years unless otherwise indicated;  
(b) “including” does not limit the preceding word or phrase; (c) section
titles do not affect interpretation; (d) “hereof,” “herein,” and “hereunder”
and words of similar meaning refer to this Agreement as a whole and not to any
particular provision of this Agreement; and (e) no rule of
construction interpreting this Agreement against the drafter will apply.


 


15.8 Entire Agreement.  This Agreement represents the entire
agreement of the Parties with respect to the matters contemplated herein.


 


[Signatures
of the Parties follow on the next page.]


 


11

















 


In witness whereof, this
Agreement has been executed by the authorized representatives of the Parties:


 


	
   

  	
  OGE
  Energy Resources Inc.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Enogex
  Inc.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Acknowledged:

  
	
   

  	
   

  
	
   

  	
  OGE
  Energy Corp.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
												



 


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