EXHIBIT 10.5
FORM OF CORPORATE SERVICES AGREEMENT
This Corporate Services Agreement, dated as of ______________, 1996 (this
"Agreement"), is entered into on, and effective as of, the Closing Date by and
among GENESIS ENERGY, L.P., a Delaware limited partnership ("Genesis MLP"),
GENESIS CRUDE OIL, L.P., a Delaware limited partnership ("Genesis OLP") and
BASIS PETROLEUM, INC., a Texas corporation ("Basis").
R E C I T A L S:
WHEREAS, the parties desire by their execution of this Agreement to
evidence their understanding concerning the providing of certain services by
Basis to Genesis OLP and Genesis MLP.
WHEREAS, capitalized terms used herein but not defined shall have the
meanings provided therefor in the Amended and Restated Agreement of Limited
Partnership of GENESIS CRUDE OIL, L.P., dated as of the Closing Date, as such
agreement is in effect on the Closing Date (the "OLP Partnership Agreement"), to
which reference is hereby made for all purposes of this Agreement. Other
definitions are set forth in Section 8.14.
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:
ARTICLE I
SERVICES
SECTION 1.1 Services Generally.
During the Applicable Period, in exchange for the reimbursement described
herein, Basis agrees to use its reasonable best efforts to provide or cause one
or more of its Affiliates to provide to Genesis MLP and Genesis OLP
(collectively, the "Partnership Entities"), certain corporate and staff
services, including those services listed on Exhibit A hereto, and office space
(collectively, the "Services") to the extent such Services may be reasonably
requested by Genesis Energy L.L.C., a Delaware limited liability company and the
operating general partner of Genesis OLP and the general partner of Genesis MLP
(the "General Partner"), from time to time during the Applicable Period;
provided, at Basis' election, it may engage third-party contractors to provide
any Service (an "Outsourced Service") called for by this Agreement; provided,
however, any such Outsourced Service provided solely for the Partnership
Entities shall require approval of such contractor by the Partnership Entities
and approval of the terms and conditions of any such agreement governing the
Outsourced Service. The Services shall include, without limitation, and in
addition to those Services
listed on Exhibit A hereto: (i) computer and telecommunications-related
services, (ii) credit, treasury and tax services, (iii) accounting and human
resource services, (iv) corporate office services and (v) any additional
services not specifically named in this Agreement or listed on Exhibit A hereto
that shall be mutually agreed upon by Basis and Genesis OLP or Genesis MLP, as
the case may be. It is expressly agreed that Basis shall not be obligated to
hire any additional employees or retain or acquire any outside or additional
assistance, equipment, computer programs or data to enable it to provide any of
the Services. In the event that the employment with Basis of an employee
providing Services pursuant to this Agreement ("Terminated Employee") terminates
voluntarily or involuntarily, Basis shall use its reasonable efforts to continue
to provide the Services provided by the Terminated Employee, but Basis shall not
be required to do so if providing such Services would unreasonably disrupt the
other operations of Basis or its Affiliates.
ARTICLE II
CANCELLATION OR REDUCTION OF SERVICES
SECTION 2.1 Notice Requirements.
Except as provided in Sections 2.2, 5.1 or 8.16 or otherwise mutually
agreed between Basis and the General Partner on behalf of the Partnership
Entities, either Basis or the General Partner on behalf of the Partnership
Entities may terminate or reduce the level of any Service or Services, other
than office space or Outsourced Services, on ninety (90) days' prior written
notice to the other party; provided, however, the office space may be terminated
or reduced in amount on one hundred eighty (180) days' prior written notice to
the other party. Genesis MLP or Genesis OLP may terminate any Outsourced
Service upon proper notice as provided in and in compliance with the agreement
for such Outsourced Service.
SECTION 2.2 Consequences of Cancellation.
Should Genesis MLP or Genesis OLP terminate or be ineligible for any
Service being provided hereunder or cease to be eligible to purchase certain
Services from Basis' third party providers (such as the inability of Genesis MLP
or Genesis OLP to use computer licenses or otherwise not qualify under certain
agreements to purchase equipment or Services as a result of Genesis MLP or
Genesis OLP not meeting the definition of "Affiliate" or in the eligibility of
Genesis MLP, Genesis OLP or the General Partner to participate in Basis'
programs such as any applicable employee related plans), Basis shall have no
liability to Genesis MLP or Genesis OLP for their failure or inability to
replace such terminated Service or Services, as the case may be. Further, if
Genesis MLP or Genesis OLP terminates any Service, Genesis MLP and Genesis OLP
agree that Basis shall not be required to provide the terminated Service to the
General Partner, Genesis MLP or Genesis OLP in the future. No agreement entered
into by Basis or any of its Affiliates after the Closing Date shall give to any
third party a preferential right to provide the General Partner or any of the
Partnership Entities with Services.
-2-
ARTICLE III
NATURE AND QUALITY OF SERVICES
SECTION 3.1 Nature and Quality of Services Generally.
The parties agree that the Services described in Exhibit A shall be
performed with reasonable care. Basis alone may determine whether or not to
Outsource a Service. To the extent Basis Outsources a Service, then Basis shall
provide and each of the Partnership Entities agrees that such Services will be
of the nature and quality provided in the agreement with the third party
provider. This Agreement is subject to all of the provisions of Basis' lease for
office space (the "Lease"). The Partnership Entities acknowledge that they have
received a copy of the Lease and are familiar with the terms thereof. The
Partnership Entities shall observe all of the rules posted by the lessor
pursuant to the Lease and will comply with all restrictions. The Partnership
Entities shall preserve the premises and personal property covered thereby and
keep them free from damage, waste and nuisance and shall deliver up same in good
repair and condition, reasonable wear and tear and damage by fire or other
casualty excepted, upon expiration of this Agreement.
ARTICLE IV
PAYMENT
SECTION 4.1 Payment Generally.
Each of the Partnership Entities, in consideration for the performance of
the Services by or on behalf of Basis agrees to reimburse Basis for (i) all
direct and indirect expenses actually incurred by Basis relating to the Services
provided by Basis hereunder to the General Partner or the Partnership Entities,
including all Administrative and General Expenditures ("Direct Charges"), (ii)
the actual cost of any item purchased for the General Partner or the Partnership
Entities by Basis ("Operating Charges"), (iii) all expenses actually incurred by
Basis for Outsourced Services or other contract services or utilities provided
by any third party providers for the General Partner or the Partnership Entities
under an agreement between Basis or any of its Affiliates and such third party
("Outsourced Charges"), and (iv) all expenses for office space, including any
leasehold improvements, as allocated per space and per individual by reasonable
determination of Basis ("Office Charges").
-3-
ARTICLE V
INVOICING
SECTION 5.1 Invoicing for Direct Charges, Operating Charges, Outsourced Charges
and Office Charges.
Basis shall invoice, or cause its Affiliates to invoice, the General
Partner, on behalf of the Partnership Entities, by the 15th working day of each
month for all Direct Charges, Operating Charges, Outsourced Charges and Office
Charges attributable to each of the Partnership Entities 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
Services performed during the preceding month, and shall be due and payable on
the last day of the month in which the invoice is received. In the event of
default in payment by either of the Partnership Entities, upon thirty (30) days'
written notice to the General Partner, sent by certified mail to the address
specified below, Basis may terminate this Agreement as to those Services which
relate to the unpaid portion of the invoice if it has not received payment
within such thirty (30) days. In the event of a dispute as to the propriety of
invoiced amounts (a "Dispute"), the Partnership Entity shall pay all undisputed
amounts on each invoice, but shall be entitled to withhold payment of any amount
in dispute and shall notify Basis within ten (10) business days from receipt of
the disputed invoice of the disputed amount and the reasons each such charge is
disputed by the Partnership Entity. Basis shall provide the General Partner on
behalf of the Partnership Entity with records relating to the disputed amount so
as to enable the parties to resolve the Dispute. If the Dispute cannot be
resolved within fifteen (15) days of Basis receiving such notification, either
party may initiate arbitration proceedings in the manner provided for by Section
5.2 herein. So long as the parties are attempting in good faith to resolve the
Dispute, including the period during which the Dispute is in arbitration, Basis
shall not be entitled to terminate the Services related to and by reason of the
disputed charge.
SECTION 5.2 Arbitration of Disputed Invoiced Amounts.
Resolution of any and all Disputes arising under Section 5.1 herein shall
be exclusively governed by and settled in accordance with the provisions of this
Section 5.2; 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. Either Basis, Genesis MLP or Genesis OLP may commence
proceedings hereunder by delivering a written notice to the other party
expressly requesting arbitration hereunder after a Dispute has remained
unresolved for the period of time specified under Section 5.1 herein. The
parties hereby agree to submit all Disputes to arbitration under the terms
hereof, which arbitration shall be final, conclusive and binding upon the
parties, their successors and assigns. The arbitration shall be conducted in
Houston, 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
-4-
amended from time to time (the "AAA Rules"). The arbitrators shall be generally
knowledgeable about the crude oil gathering, marketing and pipeline 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 in
arbitration. If the arbitrator so selected becomes unable to serve, his or her
successors shall be similarly selected or appointed. The arbitration shall be
conducted in accordance with the AAA Rules to the extent such AAA 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 the other
party that are reasonably related to the Dispute; (ii) each party shall provide
to the other party involved in the applicable Dispute, reasonably in advance of
any hearing, copies of all documents which such party intends to present in 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 and declare a result utilizing the positions espoused by both parties, or
to make decisions beyond 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 attorneys' fees,
consultants' 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 particular 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.
SECTION 5.3 Finality of Undisputed Statements.
Any statement or payment not disputed in writing by either party within six
months of the date of such statement shall be considered final and no longer
subject to adjustment. Neither Genesis MLP nor Genesis OLP shall be obligated
to pay for any Direct Charges, Operating Charges, Outsourced Charges or Office
Charges for which statements for payment are submitted more than one year after
the termination of this Agreement.
-5-
ARTICLE VI
INPUT FROM THE PARTNERSHIP ENTITIES
SECTION 6.1 Input Necessary for Basis to Perform Services.
Any input or direction necessary for Basis or any third party provider
to perform any Services shall be provided by the Partnership Entities as
reasonably requested in a manner consistent with the practices utilized by Basis
during the one year period prior to the effective date hereof under this
Agreement, which manner shall not be altered except by mutual written agreement
of the parties. Should the Partnership Entities' failure to supply such input or
direction render performance of any Services by or on behalf of Basis
unreasonably difficult, Basis, upon reasonable notice, may provide a lesser
quality of Services or refuse to perform such Services.
ARTICLE VII
BENEFICIARIES
SECTION 7.1 Partnership Entities are Sole Beneficiaries.
Genesis MLP and Genesis OLP acknowledge that the Services shall be
provided only with respect to the business of Genesis MLP and Genesis OLP as
foreseeably operated. Neither Genesis MLP nor Genesis OLP shall request
performance of any Services for the benefit of any entity other than the General
Partner, Genesis MLP and Genesis OLP. Each of Genesis MLP and Genesis OLP
represents and agrees that it will direct that the Services be conducted 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
Basis to Genesis MLP and Genesis OLP. Basis reserves the right to take all
actions, including termination of any particular Services, that Basis reasonably
believes to be necessary to assure compliance with applicable laws, regulations
and tariffs. Basis will notify the General Partner of the reasons for any such
termination of Services.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Limited Warranty, Limitation of Liability.
BASIS REPRESENTS THAT IT WILL PROVIDE OR CAUSE THE SERVICES TO BE
PROVIDED TO THE GENERAL PARTNER AND THE PARTNERSHIP ENTITIES WITH REASONABLE
DILIGENCE. EXCEPT AS SET FORTH IN THE IMMEDIATELY PRECEDING SENTENCE, ALL
PRODUCTS OBTAINED FOR THE GENERAL
-6-
PARTNER OR THE PARTNERSHIP ENTITIES ARE AS IS, WHERE IS, WITH ALL FAULTS. BASIS
AND ITS AFFILIATES MAKE NO (AND HEREBY DISCLAIM AND NEGATE 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 GENERAL PARTNER OR THE PARTNERSHIP
ENTITIES. FURTHERMORE, NONE OF THE GENERAL PARTNER OR THE PARTNERSHIP ENTITIES
MAY RELY UPON ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING THE
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE MADE TO BASIS
OR ITS AFFILIATES BY ANY PARTY (INCLUDING, AN AFFILIATE OF BASIS) PERFORMING
SERVICES ON BEHALF ON BASIS OR ITS AFFILIATES HEREUNDER, UNLESS SUCH PARTY MAKES
AN EXPRESS WARRANTY TO THE GENERAL PARTNER, GENESIS MLP OR GENESIS OLP. HOWEVER,
IN THE CASE OF OUTSOURCED SERVICES PROVIDED SOLELY FOR THE PARTNERSHIP ENTITIES,
IF THE THIRD PARTY PROVIDER OF SUCH SERVICES MAKES AN EXPRESS WARRANTY TO BASIS,
THE GENERAL PARTNER AND THE PARTNERSHIP ENTITIES ARE ALSO ENTITLED TO RELY ON
SUCH WARRANTY.
IT IS EXPRESSLY UNDERSTOOD BY GENESIS MLP AND GENESIS OLP AND GENESIS
MLP AND GENESIS OLP AGREE THAT BASIS AND ITS AFFILIATES SHALL HAVE NO LIABILITY
FOR THE FAILURE OF THIRD PARTY PROVIDERS TO PERFORM ANY SERVICES HEREUNDER AND
FURTHER THAT BASIS AND ITS AFFILIATES SHALL HAVE NO LIABILITY WHATSOEVER FOR THE
SERVICES PROVIDED BY THEM UNLESS SUCH SERVICES ARE PROVIDED IN A MANNER WHICH
WOULD EVIDENCE GROSS NEGLIGENCE ON THE PART OF BASIS OR ITS AFFILIATES OR
WILLFUL OR INTENTIONAL MISCONDUCT. GENESIS MLP AND GENESIS OLP AGREE THAT THE
REMUNERATION PAID TO BASIS OR AN AFFILIATE HEREUNDER FOR THE SERVICES TO BE
PERFORMED REFLECT THIS LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES. IN
NO EVENT SHALL BASIS OR ITS AFFILIATES BE LIABLE TO THE GENERAL PARTNER, THE
PARTNERSHIP 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 BASIS, ANY BASIS
AFFILIATE OR ANY THIRD PARTY PROVIDER OR WHETHER BASIS, ANY BASIS AFFILIATE OR
THE THIRD PARTY PROVIDER ARE WHOLLY, CONCURRENTLY, PARTIALLY, OR SOLELY
NEGLIGENT. TO THE EXTENT ANY THIRD PARTY PROVIDER HAS LIMITED ITS LIABILITY TO
BASIS OR ITS AFFILIATE FOR SERVICES UNDER AN OUTSOURCING OR OTHER AGREEMENT,
GENESIS MLP AND GENESIS OLP AGREE TO BE BOUND BY SUCH LIMITATION OF LIABILITY
FOR ANY PRODUCT OR SERVICE PROVIDED TO THE GENERAL PARTNER OR ANY PARTNERSHIP
ENTITY BY SUCH THIRD PARTY PROVIDER UNDER BASIS'S OR SUCH AFFILIATE'S AGREEMENT.
-7-
Section 8.2 Indemnity.
IT IS EXPRESSLY UNDERSTOOD BY EACH OF GENESIS MLP AND GENESIS OLP AND
GENESIS MLP AND GENESIS OLP AGREE TO INDEMNIFY AND HOLD HARMLESS BASIS AND ITS
AFFILIATES FROM AND AGAINST ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES, JOINT OR
SEVERAL, EXPENSES (INCLUDING LEGAL FEES AND EXPENSES), JUDGMENTS, FINES,
PENALTIES, INTEREST SETTLEMENTS AND OTHER AMOUNTS ARISING FROM ANY AND ALL
CLAIMS, DEMANDS, ACTIONS, SUITS OR PROCEEDINGS, WHETHER CIVIL, CRIMINAL,
ADMINISTRATIVE OR INVESTIGATIVE, IN WHICH BASIS OR ITS AFFILIATES MAY BE
INVOLVED OR IS BELIEVED TO BE INVOLVED, AS A PARTY OR OTHERWISE, BY REASON OF
ITS STATUS OR SERVICES RENDERED OR ARISING FROM THE PROVISION OF SERVICES UNDER
THIS AGREEMENT, UNLESS DUE TO GROSS NEGLIGENCE OR WILLFUL OR INTENTIONAL
MISCONDUCT ON THE PART OF BASIS OR ITS AFFILIATES.
Section 8.3 Force Majeure.
BASIS 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 CONTROL OF BASIS, OR, IF APPLICABLE,
ITS AFFILIATES OR THIRD PARTY PROVIDERS OF SERVICES TO BASIS ("EVENT OF FORCE
MAJEURE"). Basis will notify the General Partner of any Event of Force Majeure.
Basis agrees that upon the restoration of Services following any Event of Force
Majeure, Basis will allow Genesis MLP and Genesis OLP to have equal priority
with Basis and its Affiliates, in accordance with prior practice, with respect
to access to the restored Service.
SECTION 8.4 Waiver of Trial, by Jury.
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT
OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.4.
-8-
SECTION 8.5 Severability.
In the event any portion of this Agreement shall be found by a court
of competent jurisdiction to be unenforceable, that portion of this Agreement
will be null and void and the remainder of this Agreement will be binding on the
parties as if the unenforceable provisions had never been contained herein.
SECTION 8.6 Assignment.
Except for the ability of Basis to cause one or more of the Services
to be performed by another Basis Affiliate or third party provider, no party
shall have the right to assign its rights or obligations under this Agreement
without the consent of the other party.
SECTION 8.7 Entire Agreement, Supersedure.
This Agreement constitutes the entire agreement of the parties
relating to the performance of the Services, and all prior or contemporaneous
written or oral agreements are merged herein.
SECTION 8.8 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.
SECTION 8.9 Amendment or Modification.
This Agreement may be amended or modified from time to time only by a
written amendment signed by Genesis MLP, Genesis OLP and Basis.
SECTION 8.10 Conflicts.
In the event of any conflict between the terms of this Agreement and
the Conveyance Agreement or between the terms of this Agreement and the
Transition Services Agreement, the terms of the Conveyance Agreement or this
Agreement, as the case may be, shall control.
SECTION 8.11 Notices.
Any notice, request, instruction, correspondence or other document to
be given hereunder by any party to any other party (collectively, "Notice")
shall be in writing and delivered personally, by mail, postage prepaid, or by
telegram or telecopier, as follows:
-9-
If to Basis:
Basis Petroleum, Inc.
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: President
with a copy to General Counsel
Fax No.: (000) 000-0000
If to Genesis MLP or Genesis OLP:
Genesis Energy, L.P.
Genesis Crude Oil, L.P.
c/o Genesis Energy, L.L.C.
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: President
with a copy to General Counsel
Fax No.: (713) 646-____
Notice given by personal delivery or mail shall be effective upon actual
receipt. Notice given by telegram or 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 the address
to which Notice is to be given to such Party by giving Notice as provided above
of such change of address.
SECTION 8.12 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 as may be required for Basis 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.
SECTION 8.13 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, AND (c) THAT IT RECOGNIZES THAT CERTAIN OF THE TERMS
OF THIS AGREEMENT
-10-
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".
Section 8.14 Definitions.
The following terms shall have the indicated meanings for the purposes of
this Agreement:
"Administrative and General Expenditures" shall mean all administrative and
general expenditures, including (i) salaries, bonus, incentive compensation and
related benefits, payroll taxes and expenses of personnel who render Services
related to the business or administration of Genesis MLP or Genesis OLP, (ii)
charges related to the computer and telecommunications services, (iii) the
administrative fee charged by Basis Affiliates to manage, administer and xxxx
for third party contracts related to the provision of Services hereunder, but
administrative and general expenditures shall not include charges related to
Basis' senior executive management. The Administrative and General Expenditures
shall be allocated to the General Partner in a fair and reasonable manner
determined by Basis in its sole discretion.
"Affiliate" shall mean, with respect to any Person, any other Person that
directly or indirectly through one or more intermediaries controls, is
controlled by or is under common control with, the Person in question; provided,
however, that for the purposes of this Agreement neither the General Partner,
Genesis MLP, Genesis OLP, nor any Person controlled by Genesis MLP, Genesis OLP
or the General Partner shall be deemed to be an Affiliate of Basis. Salomon Inc
shall be deemed an Affiliate of Basis for purposes of this Agreement. As used
herein, the term "control" means the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of a
Person, whether through ownership of voting securities, by contract or
otherwise.
"Applicable Period" shall mean the period from the Closing Date to the date
that neither the General Partner nor an Affiliate of Basis is the general
partner of Genesis OLP.
"Outsource" shall mean to cause a Service to be provided by a third party
provider.
"Transition Services Agreement" shall mean that certain Transition Services
Agreement, dated as of the date hereof, among Genesis LLC, Basis and Xxxxxx
Corporation, a Delaware corporation, Xxxxxx Crude Oil Company, a Delaware
corporation, and Xxxxxx Transportation Services, Inc., a Delaware corporation.
-11-
SECTION 8.15 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 the Partnership Entities, to enforce any
provision of this Agreement or to compel any party to this Agreement to comply
with the terms of this Agreement; provided, however, that Basis' Affiliates and
vendors are third party beneficiaries of those provisions of this Agreement that
apply to Basis' Affiliates and vendors and may enforce such provisions directly
against Genesis MLP and Genesis OLP.
SECTION 8.16 Termination.
This Agreement shall terminate upon the expiration of the Applicable Period
except for liabilities or obligations accruing prior to such termination. In
addition to the terms provided in Sections 2.1, 2.2 or 5.1 or as mutually or
otherwise agreed between Basis and the Partnership Entities, either the General
Partner on behalf of Genesis MLP and Genesis OLP or Basis shall have the right
to terminate this Agreement by giving written notice, signed by the terminating
party, to the other party and this Agreement shall terminate one hundred eighty
(180) days from the date on which notice is delivered.
-12-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed on their behalf by their duly authorized officers.
BASIS PETROLEUM, INC.
By:_________________________________________
Name:
Title:
GENESIS ENERGY, L.P., a Delaware limited
partnership
By: GENESIS ENERGY, L.L.C., a Delaware
limited liability company
By:_________________________________________
Name:
Title:
GENESIS CRUDE OIL, L.P., a Delaware limited
partnership
By: GENESIS ENERGY, L.L.C., a Delaware
limited liability company
By:_________________________________________
Name:
Title:
-13-
