SERVICES AGREEMENT
THIS SERVICES AGREEMENT is entered into on, and effective as of,
July 1, 2000 (the "Effective Date") by and among DIAMOND SHAMROCK REFINING AND
MARKETING COMPANY, a Delaware corporation ("DSRMC"), SHAMROCK LOGISTICS, L.P.
(the "Partnership"), SHAMROCK LOGISTICS OPERATIONS, L.P. (the "Operating
Partnership"), and their general partner RIVERWALK LOGISTICS, L.P. (the "General
Partner"), all Delaware limited partnerships (collectively, the "Partnership
Entities"), and Riverwalk Logistics, L.P.'s general partner, SHAMROCK LOGISTICS
GP, LLC ("Shamrock GP"). The Partnership Entities and the General Partner will
sometimes be referred to herein as the "Entities".
R E C I T A L S:
WHEREAS, Shamrock GP, as the general partner of the General
Partner, manages all activities of the Partnership Entities;
WHEREAS, DSRMC will provide, and will cause certain of DSRMC's
Affiliates (including, but not limited to, the Affiliates listed on Exhibit A
hereto) to provide, on behalf of Shamrock GP, certain services to the Entities,
for which they will be compensated as provided herein; and
WHEREAS, DSRMC and the Entities desire by their execution of this
Agreement to evidence their understanding concerning the provision of those
services by DSRMC to the Entities;
NOW, THEREFORE, in consideration of the premises and the
covenants, conditions, and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. SERVICES.
(i) CORPORATE, GENERAL, AND ADMINISTRATIVE SERVICES. During
the term of this Agreement, in consideration for the fee set forth in Section
4(i) herein, DSRMC agrees to provide, or cause certain of its Affiliates
(including, but not limited to, those listed on Exhibit A hereto) to provide to
the Entities the services set forth on EXHIBIT B hereto (the "Corporate,
General, and Administrative Services").
(ii) OTHER SERVICES. During the term of this Agreement, in
consideration for reimbursement as set forth in Section 4(ii) herein, DSRMC
agrees to provide, or cause certain of its Affiliates (including, but not
limited to, those listed on Exhibit A hereto) to provide to the Entities the
services and personnel necessary to operate and maintain the Entities and their
assets, relating to the items set forth on EXHIBIT C hereto (the "Other
Services" and, together with the Corporate, General, and Administrative
Services, the "Services").
(iii) USE OF THIRD-PARTY SERVICE PROVIDERS. DSRMC may cause one
or more third party contractors to provide any of the Other Services (with any
such Other Services so provided by a third party contractor being referred to
herein as an "Outsourced Service"); PROVIDED, HOWEVER, that (a) any Outsourced
Service provided solely for the benefit of the Entities shall require approval
by the General Partner, and (b) except as expressly provided in this Agreement,
any Outsourced Services shall be subject to the provisions of this Agreement the
same way an Other Service that is not an Outsourced Service is subject to the
provisions of this Agreement. If, from time to time, DSRMC determines to publish
a request for proposal for a third party to provide as Outsourced Services any
one or more of the Other Services then being provided under this Agreement,
DSRMC shall give the Entities at least ten days prior written notice of such
decision and shall promptly advise the Entities of the terms of any winning bid.
The Entities shall hold confidential the terms of any proposal disclosed to them
pursuant to the foregoing sentence. The Entities shall advise DSRMC in writing
within seven business days after receipt of notice of the terms whether or not
the Entities desire to participate in the Outsourced Services at the level of
service set out in the winning bid (the "Agreed Level of Service") and, in the
case of an Outsourced Service provided solely for the benefit of the Entities
(a "Direct Outsourced Service"), that the General Partner, on behalf of the
Entities, has approved the contractor and the terms and conditions of such
Outsourced Service. In the case of a Direct Outsourced Service, the General
Partner has the option to contract directly with the provider of such Direct
Outsourced Service. In the event the Entities decide to terminate the Other
Service contemplated to become an Outsourced Service, such Other Service shall
be terminated effective as of the effective date of the new contract between
DSRMC (or any of its Affiliates, as applicable) and the third party providing
the Other Service. If the Entities desire to continue to be provided with such
Other Service, they shall be obligated to reimburse DSRMC (or any of its
Affiliates, as applicable) for their proportionate share of the costs incurred
by DSRMC (or any of its Affiliates, as applicable) under the agreement between
DSRMC (or any of its Affiliates, as applicable) and the third party provider of
the Outsourced Service (up to the Agreed Level of Service). No agreement entered
into by DSRMC (or any of its Affiliates, as applicable) after the Effective Date
shall give to any third party a preferential right to provide the Entities with
services following the expiration of this Agreement.
2. CANCELLATION OR REDUCTION OF SERVICES.
Except as provided below in this Section 2, the Entities may
terminate or reduce the level of any Other Service on 30 days' prior written
notice to DSRMC; provided that if the provisions of any third party agreement
for an Outsourced Service require more than 30 days' prior written notice for
the termination of such agreement, the Entities shall be required to provide the
same notice as required in such agreement. Should the Entities terminate any
Other Service being provided hereunder, DSRMC shall have no liability to the
Entities for the Entities' failure or inability to replace such terminated Other
Services except that no Direct Charges (as defined in Section 4(ii)) shall be
incurred (or the amount of the Direct Charges in respect of the Services shall
be reduced in the case of a reduction in the level of Service) pursuant to
Section 4(ii). Further, if the Entities terminate any Other Service, the
Entities agree that DSRMC shall not be required to provide the terminated Other
Service to the Entities in the future.
-2-
3. NATURE/QUALITY OF SERVICES. The nature and quality of the
Services shall be substantially identical to those provided to other
subsidiaries and Affiliates of DSRMC. Outsourced Services will be of the nature
and quality provided in the agreement with the third party provider.
4. PAYMENT.
(i) CORPORATE, GENERAL, AND ADMINISTRATIVE SERVICES. In
consideration of the Corporate, General, and Administrative Services, the
General Partner shall pay DSRMC $5,200,000 annually (the "Administrative Fee"),
which amount shall be paid in twelve equal monthly installments in arrears, the
first such payment being made with respect to the month ended July 31, 2000;
provided, however, that the Administrative Fee may be increased at the request
of DSRMC and subject to the approval and consent of the Conflicts Committee of
Shamrock GP, as follows:
(a) for each year during the term of this agreement, beginning
with the year that starts on the first anniversary of the Effective Date, an
increase not to exceed 1.5% per year plus an additional percentage not to exceed
the percentage increase in the Consumer Price Index for Urban Wage Earners and
Clerical published by the United States Department of Labor Bureau of Labor
Statistics for the preceding calendar year; and
(b) in connection with expansions of the Partnership's operations
through acquisition or construction of new assets that require additional
Corporate, General, and Administrative Services.
The Administrative Fee shall be decreased (a) on a pro rata basis
if one or more of the Corporate, General, and Administrative Services are for
any reason no longer provided under this Agreement, whether on a temporary or
permanent basis, for such time as such Services are not provided or (b) if the
level of any Corporate, General and Administrative Service is reduced for any
reason.
(ii) OTHER SERVICES. In consideration of the Other Services, the
General Partner Partnership shall reimburse DSRMC for (i) all out-of-pocket
expenses incurred by DSRMC exclusively to provide the Other Services to the
Entities, (ii) the actual cost of any item purchased by DSRMC exclusively for
the use of the Entities, and (iii) all expenses actually incurred by DSRMC for
Outsourced Services and allocable to the Entities consistent with Section 1(iii)
of this Agreement (the amounts referred to in (i), (ii), and (iii) being
collectively referred to as the "Direct Charges"); provided, however, that in no
event shall Direct Charges include expenses or costs incurred for the provision
of Corporate, General, and Administrative Services, and provided further that
the General Partner shall not be invoiced for or required to pay Direct Charges
in connection with an Other Service that is not being provided under this
Agreement for any reason, whether on a temporary or permanent basis, for such
time as such Other Services are not provided.
(iii) TAXES. If the compensation for the Services does not include
sales, use, excise, value added or similar taxes, if any such taxes are imposed
on the Services, and if under
-3-
applicable laws any such taxes are to be collected and remitted to the
appropriate authorities by DSRMC, the General Partner shall pay or reimburse
DSRMC for any such taxes.
5. INVOICING FOR DIRECT CHARGES.
(i) DSRMC shall invoice, or cause its Affiliates to invoice,
the General Partner on the last business day of each month for all Direct
Charges with respect to the preceding month and any adjustments that may be
necessary to correct prior invoices. All invoices shall reflect in reasonable
detail a description of the Other Services performed during the preceding month,
and shall be due and payable within 30 days of the date of the invoice. In the
event of default in payment by the General Partner, upon 30 days' written notice
to the General Partner, delivered as provided below, DSRMC may terminate this
Agreement as to those Other Services which relate to the unpaid portion of the
invoice if it has not received payment within such 30 days. In the event of a
dispute as to the propriety of invoiced amounts (a "Dispute"), the General
Partner shall pay all undisputed amounts on each invoice, but shall be entitled
to withhold payment of any amount in dispute and shall notify DSRMC within 10
business days from receipt of the disputed invoice of the disputed amount and
the reasons each such charge is disputed. DSRMC shall provide the General
Partner with records relating to the disputed amount so as to enable the parties
to resolve the Dispute. If the Dispute cannot be resolved by mutual agreement of
the Chief Financial Officer of DSRMC and the Chief Financial Officer of Shamrock
GP within 15 days of DSRMC's receiving such notification, any party may initiate
arbitration proceedings in the manner provided for by Section 5(iii). So long as
the parties are attempting in good faith to resolve the Dispute, DSRMC shall not
be entitled to terminate the Other Services related to and by reason of the
disputed charge.
(ii) Any statement or payment not disputed in writing by either
party within one year of the date of such statement or payment shall be
considered final and no longer subject to adjustment. The General Partner shall
not be obligated to pay for any Direct Charges for which statements for payment
are submitted more than one year after the termination of this Agreement.
(iii) Resolution of Disputes shall be exclusively governed by
and settled in accordance with the provisions of this Section 5(iii); PROVIDED
HOWEVER, that nothing contained herein shall preclude any party from seeking or
obtaining (i) injunctive relief or (ii) equitable or other judicial relief, in
each case to preserve the status quo, pending resolution of Disputes hereunder.
DSRMC or any of the Entities may commence proceedings hereunder by delivering
written notice to the other party expressly requesting arbitration hereunder
after a Dispute has remained unresolved for the period of time specified under
Section 5(i) hereof. The parties hereby agree to submit all Disputes to
arbitration hereunder, which arbitration shall be final, conclusive, and binding
upon the parties, their successors and assigns. The arbitration shall be
conducted in San Antonio, Texas by a sole arbitrator selected by mutual
agreement of the parties not later than ten (10) days after delivery of such
notice, or, failing such agreement, appointed pursuant to the commercial
arbitration rules of the American Arbitration Association, as amended from time
to time ("AAA Rules"). The arbitrators shall be generally knowledgeable about
the pipeline and terminal operating industry and the nature of the issues to be
arbitrated and shall be qualified by education, experience, and training to
render a decision upon the issues
-4-
to be arbitrated. If the arbitrator selected becomes unable to serve, his or her
successor shall be similarly selected or appointed. The arbitration shall be
conducted in accordance with the AAA Rules to the extent such rules do not
conflict with the terms of this agreement. Notwithstanding the foregoing: (i)
each party shall have the right to audit the books and records of any other
party that are reasonably related to a Dispute; (ii) each party shall provide to
the other parties involved in a Dispute, reasonably in advance of any hearing,
copies of all documents which such party intends to present at such hearing; and
(iii) each party shall be allowed to conduct reasonable discovery through
written requests for information, document requests, requests for stipulation of
fact, and depositions, the nature and extent of which discovery shall be
determined by the arbitrator, taking into account the needs of the parties and
the desirability of making discovery expeditious and cost effective. All
hearings shall be conducted on an expedited schedule, and all proceedings shall
be confidential. Any party may, at its expense, make a stenographic record
thereof. The arbitrator shall complete all hearings not later than sixty days
after his or her selection or appointment and shall make a final award not later
than thirty days thereafter. All claims presented for arbitration shall be
particularly identified, and the parties to the arbitration shall each prepare a
written statement of their position and their proposed course of action. These
written statements of positions and proposed courses of action shall be
submitted to the arbitrator. In making his or her decision, the arbitrator must
accept in its entirety the position of one party or the other and make an
arbitration award based on that party's proposed course of action. The
arbitrator shall not be empowered in reaching his or her decision to equitably
adjust the scope of the written statements. All costs and expenses of
arbitration, including the fees and expenses of the arbitrator or of any
experts, shall be borne equally between the prevailing and non-prevailing party,
except that each party shall pay all of its respective attorney's fees,
consultant's fees, and other costs of participating in the Arbitration
proceeding. Notwithstanding the foregoing, in no event may the arbitrator award
multiple, punitive, or exemplary damages. Any arbitration award shall be binding
and enforceable against each party involved in the Dispute and judgment may be
entered thereon in any court of competent jurisdiction. Payment of any such
award shall be made within five (5) business days of the arbitrator's decision.
6. INPUT FROM ENTITIES. Any input necessary for DSRMC or any
third party provider to perform any Services shall be submitted by the Entities
in a manner consistent with the practices utilized during the one year period
prior to the Effective Date, which manner shall not be altered except by mutual
written agreement of the parties. Should the Entities' failure to supply such
input render performance of any Services by or on behalf of DSRMC unreasonably
difficult, DSRMC, upon reasonable notice, may provide a lesser quality of
Services or refuse to perform such Services.
7. ENTITIES ARE SOLE BENEFICIARIES. The Entities acknowledge
that the Services shall be provided only with respect to their business as
currently operated or as mutually agreed by the parties hereto. The Entities
shall not request performance of any Services for the benefit of any entity
other than themselves. The Entities represent and agree that they will use the
Services only in accordance with all applicable federal, state, and local laws
and regulations and communications and common carrier tariffs, and in accordance
with the reasonable conditions, rules, regulations, and specifications which may
be set forth in any manuals, materials, documents, or instructions furnished
from time to time by DSRMC to the
-5-
Entities. DSRMC reserves the right to take all actions, including termination of
any Services, that DSRMC reasonably believes to be necessary to assure
compliance with applicable laws, regulations, and tariffs. DSRMC will notify the
Entities of the reasons for any such termination of Services.
8. LIMITED WARRANTY, LIMITATION OF LIABILITY.
DSRMC represents that it will provide or cause the Services to be
provided to the Entities with reasonable care and in accordance with all
applicable laws, rules, and regulations, including without limitation those of
the Federal Energy Regulatory Commission. EXCEPT AS SET FORTH IN THE IMMEDIATELY
PRECEDING SENTENCE AND IN SECTION 3, ALL PRODUCTS OBTAINED FOR THE ENTITIES ARE
AS IS, WHERE IS, WITH ALL FAULTS. DSRMC MAKES NO (AND HEREBY DISCLAIMS AND
NEGATES ANY AND ALL) REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
WITH RESPECT TO THE SERVICES RENDERED OR PRODUCTS OBTAINED FOR THE ENTITIES.
FURTHERMORE, THE ENTITIES MAY NOT RELY UPON ANY REPRESENTATION OR WARRANTY,
EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE MADE TO DSRMC BY ANY PARTY (INCLUDING, AN AFFILIATE OF DSRMC)
PERFORMING SERVICES ON BEHALF ON DSRMC HEREUNDER, UNLESS SUCH PARTY MAKES AN
EXPRESS WARRANTY TO SHAMROCK GP OR THE PARTNERSHIP ENTITIES. HOWEVER, IN THE
CASE OF OUTSOURCED SERVICES PROVIDED SOLELY FOR THE ENTITIES, IF THE THIRD PARTY
PROVIDER OF SUCH SERVICES MAKES AN EXPRESS WARRANTY TO ANY OF THE ENTITIES, THE
ENTITIES ARE ENTITLED TO CAUSE DSRMC TO RELY ON AND TO ENFORCE SUCH WARRANTY.
IT IS EXPRESSLY UNDERSTOOD BY THE ENTITIES THAT DSRMC AND ITS
AFFILIATES SHALL HAVE NO LIABILITY FOR THE FAILURE OF THIRD PARTY PROVIDERS TO
PERFORM ANY SERVICES HEREUNDER AND FURTHER THAT DSRMC AND ITS AFFILIATES SHALL
HAVE NO LIABILITY WHATSOEVER FOR THE SERVICES PROVIDED BY ANY SUCH THIRD PARTY
UNLESS IN EITHER EVENT SUCH SERVICES ARE PROVIDED IN A MANNER WHICH WOULD
EVIDENCE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT ON THE PART OF DSRMC OR ITS
AFFILIATES BUT DSRMC SHALL, ON BEHALF OF THE PARTNERSHIP, PURSUE ALL RIGHTS AND
REMEDIES UNDER ANY SUCH THIRD PARTY CONTRACT. THE ENTITIES AGREE THAT THE
REMUNERATION PAID TO DSRMC HEREUNDER FOR THE SERVICES TO BE PERFORMED REFLECT
THIS LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES. IN NO EVENT SHALL
DSRMC BE LIABLE TO THE ENTITIES OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL,
OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY ERROR IN THE PERFORMANCE OF SERVICES
OR FROM THE BREACH OF THIS AGREEMENT, REGARDLESS OF THE FAULT OF DSRMC, ANY
DSRMC AFFILIATE, OR ANY THIRD PARTY PROVIDER OR WHETHER DSRMC, ANY DSRMC
AFFILIATE, OR THE THIRD PARTY PROVIDER ARE WHOLLY, CONCURRENTLY, PARTIALLY, OR
SOLELY
-6-
NEGLIGENT. TO THE EXTENT ANY THIRD PARTY PROVIDER HAS LIMITED ITS LIABILITY TO
DSRMC OR ITS AFFILIATE FOR SERVICES UNDER AN OUTSOURCING OR OTHER AGREEMENT, THE
ENTITIES AGREE TO BE BOUND BY SUCH LIMITATION OF LIABILITY FOR ANY PRODUCT OR
SERVICE PROVIDED TO THE ENTITIES BY SUCH THIRD PARTY PROVIDER UNDER DSRMC'S OR
SUCH AFFILIATE'S AGREEMENT.
9. FORCE MAJEURE.
DSRMC SHALL HAVE NO OBLIGATION TO PERFORM OR CAUSE THE SERVICES
TO BE PERFORMED IF ITS FAILURE TO DO SO IS CAUSED BY OR RESULTS FROM ANY ACT OF
GOD, GOVERNMENTAL ACTION, NATURAL DISASTER, STRIKE, FAILURE OF ESSENTIAL
EQUIPMENT OR ANY OTHER CAUSE OR CIRCUMSTANCE BEYOND THE REASONABLE CONTROL OF
DSRMC, OR, IF APPLICABLE, ITS AFFILIATES OR THIRD PARTY PROVIDERS OF SERVICES TO
DSRMC ("EVENT OF FORCE MAJEURE"). DSRMC WILL NOTIFY THE ENTITIES OF ANY EVENT OF
FORCE MAJEURE. DSRMC AGREES THAT UPON RESTORING THE SERVICE FOLLOWING ANY EVENT
OF FORCE MAJEURE, DSRMC WILL ALLOW THE ENTITIES TO HAVE EQUAL PRIORITY WITH
DSRMC AND ITS AFFILIATES, IN ACCORDANCE WITH PRIOR PRACTICE, WITH RESPECT TO
ACCESS TO THE RESTORED SERVICE.
10. SEVERABILITY.
In the event any portion of this Agreement shall be found by a
court of competent jurisdiction to be unenforceable, that portion of the
Agreement will be null and void and the remainder of the Agreement will be
binding on the parties as if the unenforceable provisions had never been
contained herein.
11. ASSIGNMENT.
Except for the ability of DSRMC to cause one or more of the
Services to be performed by a third party provider (subject to the terms of this
Agreement), no party shall have the right to assign its rights or obligations
under this Agreement without the consent of the other party.
12. ENTIRE AGREEMENT, SUPERSEDURE.
This Agreement constitutes the entire agreement of the parties
relating to the performance of the Services; all prior or contemporaneous
written or oral agreements are merged herein; this Agreement may not be changed
except by a writing signed by both parties.
-7-
13. CHOICE OF LAW.
This Agreement shall be subject to and governed by the laws of
the State of Texas, excluding any conflicts-of-law rule or principle that might
refer the construction or interpretation of this Agreement to the laws of
another state.
14. AMENDMENT OR MODIFICATION.
This Agreement may be amended or modified from time to time only
by a written amendment signed by the Entities and DSRMC; provided however that
the Partnership and the Operating Partnership may not, without the prior
approval of the Conflicts Committee of Shamrock GP, agree to any amendment or
modification of this Agreement that, in the reasonable discretion of the General
Partner, will adversely affect the Holders of the Common Units.
15. NOTICES.
Any notice, request, instruction, correspondence or other
document to be given hereunder by either party to the other (herein collectively
called "Notice") shall be in writing and delivered personally or mailed, postage
prepaid, or by telegram or telecopier, as follows:
If to DSRMC:
Diamond Shamrock Refining and Marketing Company
X.X. Xxx 000000
Xxx Xxxxxxx, XX 00000-0000
Attention: Legal Department
Telecopy: (000)000-0000
If to the Entities:
Shamrock Logistics GP, LLC
X.X. Xxx 000000
Xxx Xxxxxxx, XX 00000-0000
Attention: President
Telecopy: (000)000-0000
Notice given by personal delivery or mail shall be effective upon
actual receipt. Notice given by telecopier shall be effective upon actual
receipt if received during the recipient's normal business hours, or at the
beginning of the recipient's next business day after receipt if not received
during the recipient's normal business hours. Any party may change any address
to which Notice is to be given to it by giving Notice as provided above of such
change of address.
16. FURTHER ASSURANCES.
In connection with this Agreement and all transactions contemplated by this
Agreement each signatory party hereto agrees to execute and deliver such
additional documents and instruments
-8-
as may be required for DSRMC to provide the Services hereunder and to perform
such other additional acts as may be necessary or appropriate to effectuate,
carry out, and perform all of the terms, provisions, and conditions of this
Agreement.
17. DESIGNATED CONTACT PERSON.
Without limiting the obligations of the parties hereto with
respect to the delivery of notices, requests or consents pursuant to sections 14
and 15, DSRMC hereby designates the Corporate Secretary of Ultramar Diamond
Shamrock Corporation (phone no. (000) 000-0000) as a person with whom
representatives of the Entities may communicate regarding any Services to be
performed hereunder. The Entities hereby designate the Vice President-Operations
of Shamrock GP (phone no. (000) 000-0000) as its designated person with whom
DSRMC may communicate regarding any problems or other matters that DSRMC may
have in providing any Service hereunder by itself or any third party provider.
18. ACKNOWLEDGMENT REGARDING CERTAIN PROVISIONS.
EACH OF THE PARTIES HERETO SPECIFICALLY ACKNOWLEDGES AND AGREES
(a) THAT IT HAS A DUTY TO READ THIS AGREEMENT AND THAT IT IS CHARGED WITH NOTICE
AND KNOWLEDGE OF THE TERMS HEREOF, (b) THAT IT HAS IN FACT READ THIS AGREEMENT
AND IS FULLY INFORMED AND HAS FULL NOTICE AND KNOWLEDGE OF THE TERMS, CONDITIONS
AND EFFECTS OF THIS AGREEMENT, (c) THAT IT HAS BEEN REPRESENTED BY LEGAL COUNSEL
OF ITS CHOICE THROUGHOUT THE NEGOTIATIONS PRECEDING THE EXECUTION OF THIS
AGREEMENT AND HAS RECEIVED THE COUNSEL IN CONNECTION WITH ENTERING INTO THIS
AGREEMENT, AND (d) THAT IT RECOGNIZES THAT CERTAIN OF THE TERMS OF THIS
AGREEMENT PROVIDE FOR THE ASSUMPTION BY ONE PARTY OF, AND/OR RELEASE OF THE
OTHER PARTY FROM, CERTAIN LIABILITIES ATTRIBUTABLE TO THE MATTERS COVERED BY
THIS AGREEMENT THAT SUCH PARTY WOULD OTHERWISE BE RESPONSIBLE FOR UNDER THE LAW.
EACH PARTY HERETO FURTHER AGREES AND COVENANTS THAT IT WILL NOT CONTEST THE
VALIDITY OR ENFORCEABILITY OF ANY SUCH PROVISIONS OF THIS AGREEMENT ON THE BASIS
THAT THE PARTY HAD NO NOTICE OR KNOWLEDGE OF SUCH PROVISION OR THAT SUCH
PROVISIONS ARE NOT "CONSPICUOUS".
19. DEFINITIONS. The following terms shall have the indicated
meanings for the purposes of this Agreement:
"Affiliate" shall have the meaning attributed to such term in the
Master Partnership Agreement; provided, however, that for the purposes of this
Agreement neither Shamrock GP, the General Partner, the Partnership, the
Operating Partnership, nor any Person controlled by the Partnership or the
Operating Partnership (as the term "control" is used in the definition of
"Affiliate" in the Partnership Agreement) shall be deemed to be an Affiliate of
DSRMC.
-9-
"Common Units" shall mean limited partnership interests that have
been so designated under the terms of the Master Partnership Agreement.
"Master Partnership Agreement" shall mean the Second Amended and
Restated Agreement of Limited Partnership of the Partnership, as it may be
hereafter amended or restated.
20. NO THIRD PARTY BENEFICIARY. The provisions of this
Agreement are enforceable solely by the parties to this Agreement, and no
limited partner, assignee or other person shall have the right, separate and
apart from Shamrock GP and the General Partner, to enforce any provision of this
Agreement or to compel any party to this Agreement to comply with the terms of
this Agreement.
21. DURATION; TERMINATION. This Agreement shall terminate upon
the eighth anniversary of the Effective Date (the "Initial Term"); provided that
this Agreement shall automatically continue for successive two year terms after
the Initial Term unless or until one year's advance notice is given to terminate
this Agreement is given by DSRMC or the General Partner, in which case this
agreement shall terminate one year after such notice is delivered.
Notwithstanding the foregoing, the General Partner (a) may terminate the
provision of one or more Other Services or reduce the level of one or more Other
Services in accordance with the provisions of Section 2 hereof and (b) shall
have the right at any time to terminate this Agreement by giving written notice
to DSRMC, and in such event this Agreement shall terminate one hundred and
eighty (180) days from the date on which such notice is given.
-10-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be signed on their behalf by their duly authorized officers on the date first
above written.
DIAMOND SHAMROCK REFINING AND MARKETING
COMPANY, ON BEHALF OF ITSELF AND ITS
AFFILIATES LISTED ON SCHEDULE A
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President and CFO
SHAMROCK LOGISTICS, L.P.
BY: RIVERWALK LOGISTICS, L.P.,
its General Partner
BY: SHAMROCK LOGISTICS GP, LLC,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President and CEO
SHAMROCK LOGISTICS OPERATIONS, L.P.
BY: RIVERWALK LOGISTICS, L.P.,
its General Partner
BY: SHAMROCK LOGISTICS GP, LLC,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President and CEO
RIVERWALK LOGISTICS, LP
BY: SHAMROCK LOGISTICS GP, LLC,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President and CEO
SHAMROCK LOGISTICS GP, LLC,
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President and CEO
EXHIBIT A
Diamond Shamrock Refining Company, L.P.
Sigmor Corporation
TPI Pipeline Corporation
The Shamrock Pipe Line Corporation
EXHIBIT B
CORPORATE, GENERAL AND ADMINISTRATIVE SERVICES
Aviation and Travel Services
Corporate Development
Data Processing and Information Technology Services
Financial Accounting and Reporting
Foreign Trade Zone Reporting and Accounting
Group Accounting
Health and Safety Services
Human Resources Services
Benefits
Benefit Accounting
Benefit Plans
Retirement Plans
401(k) Savings Plans
Payroll Services
Training Services
Internal Audit
Legal
General Litigation Support
General Corporate
Corporate Secretary
Tariff Maintenance
Office Services
Mail Center
Health Club
Building and Office Maintenance
Purchasing/Fleet Management
Records Management
Real Estate Management
Risk and Claims Management Services
Security Services
Shareholder, Investor, Public, and Government Relations
Tax Accounting
Treasury & Banking
Finance Services
Cash Management
Credit Services
EXHIBIT C
Other Services
Costs incurred in the Pipeline and Terminal Operating and Maintenance
Departments include the following:
- Construction
- Safety
- Engineering
- Right of Way
- Corrosion Control
- SCADA and Automation
- Control Centers
- Product and Crude Administration
- In addition to the above departments, there are direct operating
personnel that operating the individual pipelines and terminals.
Costs incurred in the Operations and Maintenance of the Pipelines and Terminals
include the following:
- Salary, Wages and Benefits Costs for Employees devoted to the operation and
maintenance of the MLP assets. Including the following:
-Gross payroll, including bonuses
-FICA
-Vacation pay
-Sick pay
-Life insurance
-Disability insurance
-401(k) matching contribution costs (qualified and non-qualified plans)
-Defined benefit pension costs
-Post retirement health and medical costs
- Insurance Costs for the following insurance coverages:
-General liability
-Automobile liability
-Comprehensive liability
-Excess liability
-Property
-Directors & Officers
- Incidental Costs incurred by the MLP or Employees devoted to the operation
and maintenance of the MLP assets.
