EXHIBIT 10.1
ADMINISTRATIVE SERVICES AGREEMENT
THIS ADMINISTRATIVE SERVICES AGREEMENT (this "Agreement") is entered
into effective as of January 1, 2003 and is by and between EOTT ENERGY LLC, a
Delaware limited liability company (the "Administrator") and EOTT ENERGY GENERAL
PARTNER, L.L.C., a Delaware limited liability company (the "Partnership General
Partner") and the general partner of EOTT Energy Liquids, L.P., EOTT Energy
Operating Limited Partnership, EOTT Energy Pipeline Limited Partnership and EOTT
Energy Canada Limited Partnership (collectively, the "Partnerships").
RECITALS:
The Partnership General Partner has been vested with all management
powers over the business and affairs of the Partnerships.
The Partnership General Partner proposes to contract with the
Administrator for the provision of services in connection with the day-to-day
business and affairs of the Partnerships and any other Person (as defined below)
that may become a Partnership (as defined below) in the future.
The Administrator and the Partnership General Partner desire by their
execution of this Agreement to evidence their understanding with respect to the
terms and conditions upon which the Administrator and its Affiliates (as defined
below) will provide services on behalf of the Partnership General Partner to any
Partnership in connection with the day-to-day business and affairs of such
Partnership.
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:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. Capitalized terms used herein but not defined
elsewhere shall have the following meanings.
"Affiliate" means, with respect to any Person, any other Person that
directly or indirectly controls, is controlled by or is under common control
with, the Person in question; provided however, that for the purposes of this
Agreement, the Partnership General Partner and any Person controlled by the
Partnership General Partner or any Partnership shall be deemed not to be
Affiliates of the Administrator.
"Partnership" shall mean the Partnerships and any other partnership or
other entity of which the Partnership General Partner becomes the general
partner, managing general partner or manager or for which it becomes responsible
for performing similar management functions.
"Person" means an individual or a corporation, partnership, trust,
unincorporated organization, association or other entity.
ARTICLE II
SERVICES
2.1 TERM; SERVICES. In exchange for the reimbursement described in
Section 3.1, the Administrator agrees to provide the Partnership General Partner
with the administrative services listed below and such additional services as
the Partnership General Partner may establish and authorize the
Administrator to provide from time to time (the services to be provided by the
Administrator being herein referred to as the "Services"):
(i) The day-to-day supervision, administrative liaison and related
services, including, without limitation legal, accounting,
planning support, budgeting support, technical, insurance
administration, treasury services, tax and external audit
services required in connection with the business and affairs
of the Partnership General Partner and the Partnerships.
(ii) The commercial, marketing and operations support required to
conduct the commercial activities and operations of the
Partnerships.
(iii) The preparation for signature by an authorized officer of all
documents and instruments required to be signed by or
otherwise appropriate for signature by the Partnership General
Partner.
(iv) The maintenance of capital accounts for each owner of any
Partnership that is required to maintain capital accounts.
(v) The calculation of available cash of any Partnership that is
required to do so and the making of all distributions of cash
authorized by the Partnership General Partner or otherwise
required to be made.
(vi) The taking or provision of custody of funds, notes, drafts,
acceptances, commercial paper and other securities belonging
to any Partnership; maintain bank accounts in one or more
banking institutions; deposit funds of the Partnership General
Partner or any Partnership in its respective accounts and
disburse funds therefrom, in each case as necessary to satisfy
the obligations of each of them in connection with the conduct
of its business and affairs; invest available funds of the
Partnership General Partner or any Partnership; and keep
appropriate records in connection with all the above
transactions.
(vii) The maintenance of all books and records relating to the
business and affairs of the Partnership General Partner and
any Partnership.
(viii) The preparation and submission each year of an estimate of
distributable cash flows, operating expenses, equity earnings,
investment income, interest expense, direct charges, equity
contributions and capital expenditures (and a financing plan
relating to such contributions or expenditures, if necessary)
of the Partnerships that the Administrator anticipates for the
ensuing calendar year. Except as the Partnership General
Partner may otherwise direct, any budgets approved by the
Partnership General Partner shall constitute authorization of
the Administrator to incur the expenditures contained therein
on behalf of the Partnership General Partner or any
Partnership.
(ix) The preparation of all tax returns and the administration of
the tax matters relating to any Partnership.
(x) The transfer of interests or issuance of new interests in any
Partnership and the admission of substitute or new partners,
members or shareholders, as authorized by the Partnership
General Partner.
(xi) The conduct of such internal audits as may be requested from
time to time by the Partnership General Partner.
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The above Services will be performed in accordance with such policies
and directives as may be issued from time to time by the Partnership General
Partner.
2.2 AFFILIATES. At its election, the Administrator may cause one or
more of its Affiliates or third-party contractors to provide the Services;
provided, however, that the Administrator shall remain responsible for the
provision of the Services in accordance with this Agreement.
ARTICLE III
FINANCIAL, ACCOUNTING AND BILLING PRACTICES
3.1 ACCOUNTING AND COMPENSATION. (a) The Administrator shall keep a
full and complete account of all costs, expenses and expenditures incurred by it
in connection with the provision of Services hereunder in the manner set forth
in the Accounting Procedure set forth on Exhibit A hereto (the "Accounting
Procedure").
(b) As compensation for the provision of the Services by the
Administrator, the Partnership General Partner agrees to reimburse the
Administrator for all reasonable and proper costs, expenses and expenditures
incurred by the Administrator or its Affiliates in connection with the provision
of Services to such entity at the rate and in the manner set forth in the
Accounting Procedure (the aggregate amount of all such costs and expenses being
herein referred to as the "Reimbursement Amount"); provided, however, that costs
incurred by the Administrator under Section 4.3(d) shall not be reimbursed by
the Partnership General Partner. In addition, the Partnership General Partner
shall pay all sales, use, excise, value added or similar taxes, if any, that may
be applicable from time to time in respect of the Services provided to it by the
Administrator or its Affiliates. It is the intent of the parties that the
Administrator shall carry out its Services hereunder on a fully reimbursed basis
without profit or loss. To the extent that a deviation from this standard
occurs, appropriate adjustments will promptly be made.
(c) To the extent that the Administrator enters into activities other
than the discharge of its responsibilities under this Agreement, the
Administrator shall separately account for all such costs, expenses and
expenditures, and the Partnership General Partner shall not be billed for such
costs, expenses or expenditures.
3.2 INVOICES. (a) The Administrator shall xxxx the Partnership General
Partner for its Services at such times as it deems appropriate, and the
Partnership General Partner shall promptly transmit payment for all bills
presented.
(b) Payment of any such bills shall not prejudice the right of the
Partnership General Partner to protest or question the correctness thereof;
provided, however, all bills and statements rendered to the Partnership General
Partner by the Administrator during any calendar year shall conclusively be
presumed to be true and correct after 24 months following the end of any such
calendar year, unless prior to the end of said 24-month period the Partnership
General Partner takes written exception thereto and makes claim on the
Administrator for adjustment. No adjustment favorable to the Administrator shall
be made unless written notice of such adjustment is received by the Partnership
General Partner within the same prescribed period.
3.3 DISPUTES; DEFAULT. The Partnership General Partner may, within the
time period provided in Section 3.4, take written exception to any xxxx or
statement rendered by the Administrator for any expenditure or any part thereof,
on the grounds that the same was not a reasonable, authorized, and proper cost
incurred by the Administrator in connection with the provision of the Services.
The Partnership General Partner shall nevertheless pay in full when due the
amount of all statements submitted by the Administrator. Such payment shall not
be deemed a waiver of the right of the Partnership General Partner to recoup any
contested portion of any xxxx or statement. If, however, the amount as to which
such written exception is taken or any part thereof is ultimately determined by
the
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Partnership General Partner not to be a reasonable, authorized and proper
expense incurred by the Administrator in connection with the provision of the
Services, such amount or portion thereof (as the case may be) shall be refunded
by the Administrator to the Partnership General Partner together with interest
thereon at a rate (which in no event shall be higher than the maximum rate
permitted by applicable law) equal to the prime rate charged by Citibank, N.A.
in New York, New York from time to time to responsible commercial and industrial
borrowers during the period from the date of payment by the Partnership General
Partner to the date of refund by the Administrator.
3.4 AUDIT. The Partnership General Partner, after fifteen (15) days'
notice in writing to the Administrator, shall have the right during normal
business hours to audit, at its own expense or at the expense of any
Partnership, all books and records of the Administrator. Such audits shall not
be commenced more often than twice each calendar year. The Partnership General
Partner shall have two (2) years after the close of a calendar year in which to
make an audit of the Administrator's records for such calendar year. Absent
fraud or intentional concealment or misrepresentation by the Administrator or
its employees, the Administrator shall neither be required nor permitted to
adjust any item unless a claim therefor is presented or adjustment is initiated
within two (2) years after the close of the calendar year in which the statement
therefor is rendered, and in the absence of such timely claims or adjustments,
the bills and statements rendered shall be conclusively established as correct.
The Administrator shall obtain similar rights from contractors, consultants and
suppliers engaged to perform any of the Services on behalf of the Administrator.
ARTICLE IV
REPORTING, RECORDS AND RESPONSIBILITIES
4.1 REPORTS TO COMMITTEES. The Administrator shall make reports to and
consult with any committee established from time to time by the Partnership
General Partner or a Partnership in the form and at the times requested by such
committee.
4.2 MAINTENANCE OF RECORDS; ACCESS TO INFORMATION AND MATERIALS. (a)
The Administrator shall maintain accurate books and records in accordance with
generally accepted accounting principles and practices covering all of the
Administrator's actions under this Agreement.
(b) The Administrator shall have access to any records, information or
other input from the Partnership General Partner and any Partnership that is
necessary for the Administrator to perform the Services. If the Partnership
General Partner or a Partnership fails to make available or supply such
information or input and such failure renders the Administrator's performance of
any Services unreasonably difficult, the Administrator, upon reasonable notice
to the applicable party, may refuse to perform such Services.
4.3 WARRANTY; LIMITATION OF LIABILITY; NATURE OF RELATIONSHIP;
INDEMNITY. (a) The Administrator represents that it will discharge its duties
hereunder in good faith and with reasonable diligence. EXCEPT AS SET FORTH IN
THE IMMEDIATELY PRECEDING SENTENCE, THE ADMINISTRATOR MAKES NO (AND HEREBY
DISCLAIMS AND NEGATES ANY AND ALL) WARRANTIES OR REPRESENTATIONS WHATSOEVER,
EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES. IN NO EVENT SHALL THE
ADMINISTRATOR OR ITS AFFILIATES BE LIABLE TO THE PARTNERSHIP GENERAL PARTNER,
ANY PARTNERSHIP OR ANY OTHER PERSON FOR ANY INCIDENTAL, CONSEQUENTIAL, OR
SPECIAL DAMAGES RESULTING FROM ANY ERROR IN THE PERFORMANCE OF THE SERVICES,
REGARDLESS OF WHETHER THE ADMINISTRATOR, ITS AFFILIATES, OR OTHERS MAY BE
WHOLLY, CONCURRENTLY, PARTIALLY, OR SOLELY NEGLIGENT OR OTHERWISE AT FAULT;
PROVIDED HOWEVER, THAT THE ADMINISTRATOR SHALL BE LIABLE FOR ANY DAMAGES ARISING
OUT OF ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
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(b) The relationship of the Administrator and its Affiliates with the
Partnership General Partner established under this Agreement will be that of an
independent contractor, and in no event shall any party hereto be deemed a
partner, co-venturer or agent of the other party hereto.
(c) The Partnership General Partner agrees, with respect to the
Services provided to such entity hereunder, to indemnify, defend and hold
harmless the Administrator and its Affiliates, and their respective employees,
officers, directors, representatives and agents, from and against all claims,
losses, costs, damages and expenses (including, without limitation, attorneys'
fees and expenses), penalties and liabilities (collectively, "Liabilities")
arising out of the acts (or failure to act) by any such persons or entities in
connection with the performance by such persons or entities of such Services,
REGARDLESS OF WHETHER THE ADMINISTRATOR OR SUCH OTHER PERSONS OR ENTITIES MAY BE
WHOLLY, CONCURRENTLY, PARTIALLY OR SOLELY NEGLIGENT OR OTHERWISE AT FAULT IN
CONNECTION THEREWITH; PROVIDED, HOWEVER, THAT THE ADMINISTRATOR SHALL NOT BE
INDEMNIFIED FOR THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE ADMINISTRATOR
OR ITS AFFILIATES.
(d) The Administrator shall indemnify, defend and hold the Partnership
General Partner, any Partnership and their respective employees, directors,
officers, representatives and agents harmless from and against all Liabilities
arising out of the performance of this Agreement and resulting from the gross
negligence or willful misconduct of the Administrator or its Affiliates.
4.4 FORCE MAJEURE. The Administrator shall have no obligation to
perform the Services 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, whether similar or dissimilar to
the foregoing causes or circumstances, beyond the reasonable control of the
Administrator REGARDLESS OF WHETHER THE ADMINISTRATOR MAY BE WHOLLY,
CONCURRENTLY, PARTIALLY OR SOLELY NEGLIGENT OR OTHERWISE AT FAULT IN CONNECTION
WITH SUCH FAILURE TO PERFORM THE SERVICES, EXCEPT TO THE EXTENT THAT THE FAILURE
WAS CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE ADMINISTRATOR OR
ITS AFFILIATES.
4.5 CONFIDENTIALITY. Because the information and knowledge gained
during the performance of services hereunder may consist of valuable propriety
information, the misuse or disclosure of which could cause substantial damage to
the Partnership General Partner or a Partnership, any and all information
obtained by the Administrator in performance of the obligations hereunder shall
be held in strict confidence by the Administrator, its employees or agents
except as needed to comply with the purposes of this Agreement. Any contracts
entered into by the Administrator related to its obligations under this
Agreement shall contain a provision which similarly restricts the use and
disclosure of such information, unless such contract relates to matters that
will not involve access by the contracting party to any confidential information
regarding the business of the Partnership General Partner or any Partnership.
ARTICLE V
MISCELLANEOUS
5.1 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.
5.2 ENTIRE AGREEMENT; SUPERSEDURE. This Agreement constitutes the
entire agreement of the parties relating to the matters contained herein,
superseding all prior contracts or agreements, whether oral or written, relating
to the matters contained herein.
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5.3 EFFECT OF WAIVER OR CONSENT. No waiver or consent, express or
implied, by any party to or of any breach or default by any Person in the
performance by such Person of its obligations hereunder shall be deemed or
construed to be a consent or waiver to or of any other breach or default in the
performance by such Person of the same or any other obligations of such Person
hereunder. Failure on the part of a party to complain of any act of any Person
or to declare any Person in default, irrespective of how long such failure
continues, shall not constitute a waiver by such party of its rights hereunder
until the applicable statute of limitations period has run.
5.4 AMENDMENT AND TERMINATION. This Agreement may be amended from time
to time only by a written amendment signed by the Partnership General Partner
and the Administrator. Either the Partnership General Partner or the
Administrator may terminate this Agreement at any time upon thirty (30) days'
written notice.
5.5 ASSIGNMENT. Except for the right of the Administrator to cause one
or more of its Affiliates to perform certain of the Services, no party shall
have the right to assign its rights or obligations under this Agreement without
the consent of the other party hereto.
5.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts with the same effect as if all signatory parties had signed the
same document. All counterparts shall be construed together and shall constitute
one and the same instrument.
5.7 SEVERABILITY. If any provision of this Agreement or the application
thereof to any Person or circumstance shall be held invalid or unenforceable to
any extent, the remainder of this Agreement and the application of such
provision to other Persons or circumstances shall not be affected thereby and
shall be enforced to the greatest extent permitted by law.
5.8 GENDER; ARTICLES AND SECTIONS. Whenever the context requires the
gender of all words used in this Agreement shall include the masculine, feminine
and neuter, and the number of all words shall include the singular and the
plural. All references to Article numbers and Section numbers refer to Articles
and Sections of this Agreement.
5.9 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 and to perform
such additional acts as may be necessary or appropriate to effectuate, carry out
and perform all of the terms, provisions and conditions of this Agreement and
all such transactions.
5.10 WITHHOLDING OR GRANTING OF CONSENT. Each party may, with respect
to any consent or approval that it is entitled to grant pursuant to this
Agreement, grant or withhold such consent or approval in its sole and
uncontrolled discretion, with or without cause, and subject to such conditions
as it shall deem appropriate.
5.11 LAWS AND REGULATIONS. Notwithstanding any provision of this
Agreement to the contrary, no party hereto shall be required to take any act or
fail to take any act, under this Agreement if the effect thereof would be to
cause such party to be in violation of any applicable law, statute, rule or
regulation.
5.12 NEGATION OF RIGHTS OF LIMITED PARTNERS, ASSIGNEES, AND THIRD
PARTIES. 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 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement on, and
effective as of, the date written above.
EOTT ENERGY LLC
By:
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Xxxx X. Xxxxx
President and Chief Executive Officer
Address for Notice:
X.X Xxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attention: General Counsel
Fax No.: (000) 000-0000
EOTT ENERGY GENERAL PARTNER, L.L.C.
By:
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Xxxx X. Xxxxx
President and Chief Executive Officer
Address for Notice:
X.X Xxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attention: General Counsel
Fax No.: (000) 000-0000
Attachment
Exhibit A - Accounting Procedures
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EXHIBIT A
TO
ADMINISTRATIVE SERVICES AGREEMENT
ACCOUNTING PROCEDURES
Subject to the limitations hereinafter prescribed and the
provisions of the Administrative Services Agreement (the "Agreement") to which
this Accounting Procedure is an exhibit, the Administrator shall charge the
Partnership General Partner for all costs and expenses incurred by the
Administrator (except those costs incurred pursuant to Section 4.3(d) of the
Agreement) in connection with the performance of its duties and responsibilities
under the Agreement, including, but not limited to, the following items:
a. ADMINISTRATIVE AND GENERAL EXPENSE. All administrative and
general expenditures, including salaries and related benefits
and expenses of personnel who render services related to the
administration of the Partnership General Partner and the
Partnerships, including, but not limited to, Accounting,
Administrative, Marketing, Personnel, Legal, Risk Management,
Treasury and Audit, will be charged on the basis of costs
incurred. Such expenditures related to personnel who are not
employed full time in rendering services to the Partnership
General Partner under the Agreement shall be allocated to the
Partnership General Partner in a fair and reasonable manner.
b. REIMBURSABLE EXPENSES OF EMPLOYEES. Reasonable personal
expenses of employees whose salaries and wages are chargeable
under paragraph a. above; provided, however, that such
expenses shall be reimbursed only to the extent such expense
relates to the provision of the Services.
c. SERVICES. The cost of contract services and utilities procured
from outside sources.
d. LEGAL EXPENSES AND CLAIMS. All fees and expenses of outside
legal counsel engaged to handle matters for the Partnership
General Partner or the Partnerships. All costs and expenses of
handling, investigating, and settling litigation or claims at
the request of the Partnership General Partner, including, but
not limited to, attorneys' fees, court costs, costs of
investigation or procuring evidence and any judgments paid or
amounts paid in settlement or satisfaction of any such
litigation or claims. The Administrator shall credit the
Partnership General Partner or the appropriate Partnership for
judgments received or amounts received in settlement of any
such litigation.
e. TAXES. All taxes of every kind and nature assessed or levied
upon or incurred in connection with the provision of the
Services and which taxes have been paid by the Administrator
for the benefit of the Partnership General Partner or any of
the Partnerships, including charges for late payment arising
from extensions of the time for filing which is caused by the
Partnership General Partner.
f. INSURANCE. Net of any returns, refunds or dividends, all
premiums paid and expenses incurred for insurance carried for
the benefit of the Partnership General Partner or a
Partnership.
g. PERMITS, LICENSES AND BOND. Cost of permits, licenses and bond
premiums necessary in the performance of the Administrator's
duties under the Agreement.
h. RENTALS. All rentals paid by the Administrator.
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