EXHIBIT 10.A
GENERAL AND ADMINISTRATIVE SERVICES AGREEMENT
This General and Administrative Services Agreement (this "Agreement")
is entered into as of May 5, 2003 by and among DeepTech International Inc., a
Delaware corporation ("DII"), GulfTerra Energy Company, L.L.C., a Delaware
limited liability company ("GTLLC"), and El Paso Field Services, L.P., a
Delaware limited partnership ("EPFS"). DII, GTLLC and EPFS are sometimes
referred to collectively herein as the "Parties" and individually as a "Party."
RECITALS
WHEREAS, GTLLC is a wholly-owned subsidiary of GulfTerra GP Holding
Company, a Delaware corporation and wholly-owned subsidiary of DII, and the
general partner (in such capacity, the "General Partner") of El Paso Energy
Partners, L.P., a publicly-owned Delaware limited partnership (the
"Partnership");
WHEREAS, all management powers over the business and affairs of the
Partnership are exclusively vested in the General Partner and the General
Partner is required to conduct, direct and exercise full control over all
activities of the Partnership, including, among other things, providing various
general and administrative resources;
WHEREAS, DII historically has provided certain operational, financial,
accounting and other general and administrative services to El Paso Energy
Partners Company, a Delaware corporation and former general partner (in such
capacity, the "Old General Partner") of the Partnership through the General and
Administrative Services Agreement dated April 8, 2002 (as amended, restated,
supplemented or otherwise modified through the date hereof, the "Existing
Agreement");
WHEREAS, pursuant to that certain Assignment and Assumption Agreement
dated as of the date hereof by and between the Old General Partner and the
General Partner, the Old General Partner has assigned and transferred to the
General Partner the Old General Partner's 1% general partner interest in the
Partnership, which the General Partner has taken and accepted; and
WHEREAS, the General Partner desires DII to provide to the General
Partner those operational, financial, accounting and other general and
administrative services under substantially the same terms and conditions that
it provided to the Old General Partner under the Existing Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and other good and valuable consideration (the receipt and
sufficiency of which are hereby confirmed and acknowledged), the Parties agree
as follows:
I. DEFINITIONS
For purposes of this Agreement, the following capitalized terms shall
have the following meanings:
"Affiliates" means, with respect to either Party, entities that
directly or indirectly through one or more intermediaries control, or are
controlled by, or are under common control with such
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Party, and the term "control" shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
an entity, whether through the ownership of voting securities, by contract or
otherwise; provided, however, that (i) with respect to DII, the term "Affiliate"
shall exclude each member of the Partnership Group and (ii) with respect to
GTLLC, the term "Affiliate" shall exclude each member of the El Paso Group.
"Agreement" shall have the meaning set forth in the preamble.
"Communications Facilities" means communications equipment, towers and
other facilities (including rights-of-way and fee property).
"Communications Services" means communications services, including: (i)
providing access to Communication Facilities; (ii) providing use of
Communication Facilities; (iii) maintaining bandwidth and network connectivity
to meet the communications requirements for Partnership Facilities; (iv)
transporting and networking of voice, data and video used to support field
operations, including mobile radio systems, SCADA communications, telephone
systems, videoconferencing and wide area and local area networking; (v)
operating and maintaining the Communication Facilities so as to ensure reliable
service at a consistent level across the entire network; (vi) operating and
maintaining Communications Facilities in compliance with all applicable laws and
regulations and in accordance with all licenses and permits; (vii) maintaining
in full force and effect all rights-of-way used with respect to Communications
Facilities; (viii) designing and engineering additions and modifications to the
existing Communications Facilities so as to provide the above-described
communications services for future growth and changes (as agreed to by the
Parties); and (ix) all other communications-related services necessary for the
operation of the Partnership Facilities consistent with their level of operation
prior to the date of this Agreement.
"DII" shall have the meaning set forth in the preamble.
"El Paso Corporation" means El Paso Corporation, a Delaware
corporation.
"El Paso Group" means, other than members of the Partnership Group, (i)
each Affiliate of El Paso Corporation in which El Paso Corporation owns
(directly or indirectly) an equity interest and (ii) each natural person that is
an Affiliate of any person described in (i) above solely because of such natural
person's position as an officer (or natural person performing similar
functions), director (or natural person performing similar functions) or other
representative of any person described in (i) above, but only to the extent that
such natural person is acting in such capacity.
"GTLLC" shall have the meaning set forth in the preamble.
"EPFS" shall have the meaning set forth in the preamble.
"Existing Agreement" shall have the meaning set forth in the recitals.
"Fiscal Year" shall mean the period from July 1 through June 30.
"General Partner" shall have the meaning set forth in the recitals.
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"Old General Partner" shall have the meaning set forth in the recitals.
"Party" and "Parties" shall have the meanings set forth in the
preamble.
"Partnership" shall have the meaning set forth in the recitals.
"Partnership Agreement" shall mean Agreement of Limited Partnership of
the Partnership, as amended, supplemented, restated or otherwise modified from
time to time.
"Partnership Facilities" means all of the Partnership's assets and
facilities.
"Partnership Group" means (i) GTLLC, (ii) the Partnership, (iii) each
Affiliate of the Partnership in which the Partnership owns (directly or
indirectly) an equity interest and (iv) each natural person that is an Affiliate
of any person described in (i) - (iii) above solely because of such natural
person's position as an officer (or natural person performing similar
functions), director (or natural person performing similar functions) or other
representative of any person described in (i) - (iii) above, but only to the
extent that such natural person is acting in such capacity.
"Renewal Date" means December 31, 2005.
II. DUTIES AND OBLIGATIONS OF GTLLC
2.1 General and Administrative. DII or any Affiliate or designee of DII
shall provide non-exclusive management, employee-related and other related
services to GTLLC, its subsidiaries and the Partnership through GTLLC, which
shall include, but shall not be limited to, services related to acquisitions to
be made by GTLLC, cash management, review of significant operating, financial
opportunities, accounting, legal, engineering, commercial, human resources,
information technology and such other management, employee-related and other
general and administrative services as the Parties may from time to time agree.
2.2 Chief Executive Officer. In order to provide the services set forth
in Section 2.1, DII shall provide to GTLLC the services of a Chief Executive
Officer who shall serve with GTLLC in that capacity. The individual to serve as
Chief Executive Officer of GTLLC shall be recommended by DII but shall be
subject to the approval of the Board of Directors of GTLLC.
2.3 Communications Services. DII will, or will cause the applicable El
Paso Group member to, provide Communications Services for the Partnership
Facilities, as necessary or appropriate to operate the Partnership Facilities in
the manner in which such facilities had been operated prior to the date of this
Agreement. All Communications Services will be provided in a good and
workmanlike manner, and in accordance with industry standards. DII will ensure
that the Partnership has the right to inspect all Communications Facilities on
reasonable (but no less than 24 hours) notice.
III. COMPENSATION, EXPENSES AND PAYMENT
3.1 Fees. Prior to the date hereof, the annual compensation due DII
from GTLLC for services provided pursuant to this Agreement shall accrue in
accordance with the terms and conditions of the Existing Agreement. On and as of
the date hereof through the term of this
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Agreement, the annual compensation (prorated for any portion of a month) due DII
from GTLLC for services provided pursuant to this Agreement shall be (including
costs associated with Communication Services) a fee of $2,900,000 per month.
GTLLC shall also promptly reimburse DII for (i) amounts actually paid by DII for
reasonable out-of-pocket expenditures to persons and entities other than the El
Paso Group and who are directly engaged to provide goods or services to the
Partnership Group, (ii) the value for the use of materials or equipment (other
than in connection with Communications Services, which costs are included in the
fee described in Section 4.1) provided by the El Paso Group to the Partnership
Group (including, but not limited to, field equipment, vehicles and vessels) and
(iii) to the extent of the actual time expended directly in connection with
providing services to the Partnership Group, the corresponding portion of the
salaries, wages and employee benefit costs of employees (1) who work in the
field, (2) whose primary function is the direct supervision of employees who
work in the field or (3) who have special and specific engineering, geological
or other professional skills and whose primary function is addressing, resolving
and otherwise handling operating conditions and problems related to assets of
the Partnership Group. DII shall maintain time sheets and other appropriate
records to substantiate such costs and allocations thereof.
3.2 Payment of Fee. For purposes of accounting and periodic payment,
before the first day of each calendar month, DII shall present GTLLC with an
invoice which reflects an amount equal to all reimbursable amounts. GTLLC shall
pay such sum on or before the first day of that calendar month. On or before
September 1 of each calendar year, DII shall furnish a statement to GTLLC
detailing (i) payments made from GTLLC to DII for such Fiscal Year and (ii) any
adjustment balance due to/from DII. Within 15 days of the date of such
statement, GTLLC or DII, as applicable, shall remit the balance due.
3.3 Uncompensated Services. It is recognized by the Parties that DII is
the sole member of GTLLC. It is expressly acknowledged and agreed by the Parties
that the compensation to DII provided for in Section 3.1 is solely to compensate
DII for services to be rendered by DII to GTLLC or on GTLLC's behalf which are
of direct benefit to GTLLC and such compensation is not and shall not be related
to DII's status as a member of GTLLC.
IV. ACCESS TO INFORMATION, BOOKS AND RECORDS
DII and its duly authorized representatives shall have complete access
to GTLLC's offices, facilities and records wherever located, in order to
discharge DII's responsibilities hereunder; provided, however, that GTLLC shall
provide and make available to DII and its duly authorized representatives at
DII's Houston offices, at DII's request, all such records required by DII to
perform its duties pursuant to this Agreement. All records and materials
furnished to DII by GTLLC in performance of this Agreement shall at all times
during the term of this Agreement remain the property of GTLLC.
V. TERM AND TERMINATION OF THE AGREEMENT
5.1 Initial and Extended Term. This Agreement shall be in effect until
the Renewal Date subject, however, to the terms of Section 5.2. Beginning on the
Renewal Date, this
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Agreement shall continue in full force and effect for subsequent one-year
periods unless terminated by either Party pursuant to Section 5.2.
5.2 Termination. This Agreement may be sooner terminated on the first
to occur of the following:
(a) Termination by Mutual Agreement. If the Parties so
mutually agree in writing, this Agreement may be terminated on the
terms and dates stipulated therein.
(b) Optional Termination. Any Party may, 90 days prior to the
Renewal Date or any anniversary thereof, provide to the other Parties
written notice of its intent to terminate this Agreement on such date,
whereupon this Agreement shall terminate on the date specified in such
notice.
(c) Uncorrected Material Breach. If any Party shall fail to
discharge any of its material obligations hereunder, or shall commit a
material breach of this Agreement, and such default or breach shall
continue for a period of 30 days after any other Party has served
notice of such default, this Agreement may then be terminated at the
option of such noticing Party by notice thereof to the other Parties.
5.3 Effects of Termination. Except for covenants or other provisions
herein that, by their terms, expressly extend beyond the term of this Agreement,
the Parties' obligations hereunder are limited to the term of this Agreement.
5.4 GTLLC's Remedies. If DII shall at any time owe or otherwise become
liable to GTLLC for any amount pursuant to the terms of this Agreement, in
addition to GTLLC's other rights hereunder, at law or in equity, GTLLC shall
have the right to offset any such amount against any amount held by GTLLC for
the account of DII and against any amount otherwise due or to become due to DII
from GTLLC.
VI. INDEMNIFICATION OF DII
GTLLC hereby agrees to indemnify and hold harmless DII from and against
any and all claims, courses of action, liabilities, damages, costs, charges,
fees, expenses (including reasonable attorneys' fees and expenses to be
reimbursed as incurred), suits, order, judgments, adjudications and losses of
whatever nature and kind which DII or its Affiliates or designees or for which
DII or its Affiliates or designees become liable as the result of the
performance of DII's obligations and duties pursuant to this Agreement;
provided, however, that GTLLC shall not be obligated to indemnify DII for any
claims, courses of action, liabilities, damages, costs, charges, fees, expenses
(including reasonable attorneys' fees and expenses to be reimbursed as
incurred), suits, order, judgments, adjudications and losses attributable to the
gross negligence or willful misconduct of DII or its Affiliates or
subcontractors.
VII. OBLIGATIONS OF EPFS
EPFS executes this Agreement for the sole purpose of assuming all
obligations of DII hereunder and agrees to fully and timely perform and
discharge (including the payment of money) all obligations and liabilities of
DII now existing or hereafter arising under this
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Agreement and hereby agrees that if DII shall fail (i) to pay any amount when
and as the same shall be due and payable by DII to GTLLC or (ii) timely to
perform and discharge in full any other obligation or liability in accordance
with the terms of this Agreement, EPFS will forthwith pay to GTLLC such amount
or perform and discharge any such obligation or liability, as the case may be,
as such payment or performance and discharge is required to be made or done by
the DII pursuant to the terms of this Agreement.
VIII. MISCELLANEOUS
8.1 Relationship of Parties. This Agreement does not create a
partnership, joint venture or association; nor does this Agreement, or the
operations hereunder, create the relationship of lessor and lessee or xxxxxx and
bailee. Nothing contained in this Agreement or in any agreement made pursuant
hereto shall ever be construed to create a partnership, joint venture or
association, or the relationship of lessor and lessee or xxxxxx and bailee, or
to impose any duty, obligation or liability that would arise therefrom with
respect to either or both or the Parties. Specifically, but not by way of
limitation, except as otherwise expressly provided for herein, nothing contained
herein shall be construed as imposing any responsibility on DII for the debts or
obligations of GTLLC or any if its Affiliates. It is expressly understood that
DII is hereby engaged by GTLLC to provide management and operational services as
an agent of GTLLC. DII, its Affiliates and designees shall have the right to
render similar services for other business entities and persons, including its
own, whether or not engaged in the same business as GTLLC, and may enter into
such other business activities as DII and its Affiliates, in their sole
discretion, may determine.
8.2 No Third Party Beneficiaries. Except to the extent (i) that GTLLC
utilizes services provided hereunder by DII to perform its obligations as
General Partner to the Partnership in accordance with the terms of the
Partnership Agreement or (ii) a third party is expressly given rights herein,
any agreement herein contained, expressed or implied, shall be only for the
benefit of the Parties and their respective legal representatives, successors,
and permitted assigns, and such agreements or assumption shall not inure to the
benefit of any other party whomsoever, it being the intention of the Parties
that no person or entity shall be deemed a third party beneficiary of this
Agreement except to the extent a third party is expressly given rights herein.
8.3 General Representations. Each Party represents and warrants that on
the date hereof: (i) it is either a corporation or a limited liability company
(as applicable), duly established, validly existing and in good standing under
the laws of its state or jurisdiction of incorporation, with power and authority
to carry on the business in which it is engaged and to perform its respective
obligations under this Agreement; (ii) the execution and delivery of this
Agreement have been duly authorized and approved by all requisite corporate
action; (iii) it has all the requisite corporate power and authority to enter
into this Agreement and to perform its obligations hereunder; and (iv) the
execution and delivery of this Agreement do not, and consummation of the
transactions contemplated herein shall not, violate any of the provisions of its
certificate of incorporation or certificate of formation (as applicable) or
bylaws or limited liability company agreement (as applicable) or any applicable
state or federal laws applicable to it.
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8.4 Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given two business
days after it is sent by registered or certified mail, return receipt requested,
postage prepaid, and addressed to the intended recipient as set forth below:
If to DII, to: DeepTech International Inc.
Attention: President
El Paso Building
0000 Xxxxxxxxx
Xxxxxxx, Xxxxx 00000
(000) 000-0000
If to GTLLC, to: GulfTerra Energy Company, L.L.C.
Attention: President
0 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
(000) 000-0000
If to EPFS, to: El Paso Field Services, L.P.
Attention: President
El Paso Building
0000 Xxxxxxxxx
Xxxxxxx, Xxxxx 00000
(000) 000-0000
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the addresses set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, ordinary mail, or electronic mail), but no such notice, request,
demand, claim, or other communication shall be deemed to have been duly given
unless and until it actually is received by the intended recipient. Any Party
may change the address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other Party notice in
the manner herein set forth.
8.5 GOVERNING LAW. THIS AGREEMENT HAS BEEN EXECUTED AND DELIVERED AND
SHALL BE INTERPRETED, CONSTRUED, GOVERNED AND ENFORCED PURSUANT TO AND IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO ANY CHOICE OR
CONFLICT OF LAW PRINCIPLES (WHETHER OF THE STATE OF TEXAS OR ANY OTHER
JURISDICTION) WHICH, IF APPLIED, MIGHT PERMIT OR REQUIRE THE APPLICATION OF THE
LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF TEXAS.
8.6 Assignment. No assignment of this Agreement or any of the rights or
obligations set forth herein by either Party shall be valid without the specific
written consent of the other Party; provided, however, that DII shall have the
right to assign its rights and obligations under this Agreement to any Affiliate
without the consent of GTLLC, and any such Affiliate may
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reassign such rights and obligations so long as such rights and obligations are
not assigned to any entity other than an Affiliate of DII.
8.7 Waiver of Breach. The waiver by either Party of a breach or
violation of any provision of this Agreement, whether intentional or not, shall
not operate as, or be construed to be, a waiver of any subsequent breach of the
same or any other provision hereof.
8.8 Additional Assurances. The provisions of this Agreement shall be
self-operative and shall not require further accord between the Parties except
as may herein specifically be provided to the contrary; provided, however, that
at the request of either Party, the other Parties shall execute such additional
instruments and take such additional actions as shall be necessary to effectuate
this Agreement.
8.9 Severability. If any provision of this Agreement is held to be
unenforceable for any reason, such provision shall be severable from this
Agreement if it is capable of being identified with and apportioned to
reciprocal consideration or to the extent that it is a provision that is not
essential and the absence of which would not have prevented the Parties from
entering into this Agreement. The unenforceability of a provision that has been
performed shall not be grounds for invalidation of this Agreement under
circumstances in which the true controversy between the Parties does not involve
such provision.
8.10 Article and Section Headings. The article and section headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning of interpretation of this Agreement.
8.11 Amendments. No amendment of any provision of this Agreement shall
be valid unless the same shall be in writing and signed by each Party.
8.12 Entire Agreement. This Agreement (including the documents referred
to herein) supersedes all previous understandings, representations, contracts or
agreements, written, oral or otherwise, between the Parties and constitutes the
entire Agreement between the Parties with respect to the subject matter of this
Agreement, and no changes in or additions to this Agreement shall be recognized
unless incorporated herein by written amendment.
8.13 Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. If an ambiguity or question of
intent or interpretation arises, this Agreement shall be construed as if drafted
jointly by the Parties and no presumption or burden of proof shall arise
favoring or disfavoring any Party by virtue of the authorship of any of the
provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean "including without limitation". All personal
pronouns used in this Agreement, whether used in the masculine, feminine or
neuter gender, shall include all other genders; the singular shall include the
plural, and vice versa. All references herein to Exhibits, Schedules, Articles,
Sections or subdivisions thereof shall refer to the corresponding Exhibits,
Schedules, Article, Section or subdivision thereof of this Agreement unless
specific reference is made to such exhibits, articles, sections or subdivisions
of another document or instrument. The terms "herein," "hereby," "hereunder,"
"hereof," "hereinafter," and
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other equivalent words refer to this Agreement in its entirety and not solely to
the particular portion of the Agreement in which such word is used.
8.14 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original but which together shall constitute one and
the same instrument.
8.15 Termination of Existing Agreement. The Existing Agreement is
hereby terminated.
*******
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their respective duly authorized representatives as of the day and
year first above written.
DII: DEEPTECH INTERNATIONAL INC.
By: /s/ D. Xxxx Xxxxxx
------------------------
Name: D. Xxxx Xxxxxx
Title: Senior Vice President
GTLLC: GULFTERRA ENERGY COMPANY, L.L.C.
By: /s/ D. Xxxx Xxxxxx
----------------------
Name: D. Xxxx Xxxxxx
Title: Senior Vice President
EPFS: EL PASO FIELD SERVICES, L.P.
By: /s/ D. Xxxx Xxxxxx
-----------------------
Name: D. Xxxx Xxxxxx
Title: Senior Vice President
Solely with respect to Section 8.15:
EL PASO ENERGY PARTNERS COMPANY, L.L.C.
successor to El Paso Energy Partners Company
By: /s/ D. Xxxx Xxxxxx
----------------------------
Name: D. Xxxx Xxxxxx
Title: Senior Vice President
[Signature Page]
