MANAGEMENT SERVICES AGREEMENT
This Management Services Agreement (the "Agreement"), dated
October 16, 2001, effective as of August 21, 2001 (the "Effective Date"), by and
between AmeriGas Propane, Inc. ("API" or "Provider"), a Pennsylvania corporation
and the general partner of AmeriGas Propane, L.P., a Delaware limited
partnership ("OLP"), and AmeriGas Partners, L.P., a Delaware limited partnership
("MLP"), and AmeriGas Eagle Holdings, Inc. ("AEHI"), a Delaware corporation and
the general partner of AmeriGas Eagle Propane, L.P. (formerly Columbia Propane,
L.P.), a Delaware limited partnership ("AEPLP").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Amended and Restated
Purchase Agreement, dated as of January 30, 2001 and amended and restated on
August 7, 2001 (the "Purchase Agreement"), by and among Columbia Energy Group,
Columbia Propane Corporation, Columbia Propane, L.P. (now AEPLP), CP Holdings,
Inc. (now AEHI), OLP, MLP and API, OLP has acquired all of the issued and
outstanding shares of Columbia Propane Corporation (now AmeriGas Eagle Propane,
Inc.) and in excess of 99% of the limited partnership interests of Columbia
Propane, L.P.;
WHEREAS, AEHI desires that the Provider render certain
management and other services for the benefit of AEPLP pursuant to Sections 7.1
and 7.6 of the Amended and Restated Agreement of Limited Partnership of National
Propane, L.P. (the "Partnership Agreement") and Section 17-403 (c) of the
Delaware Revised Uniform Limited Partnership Act (the "DRULPA"); and
WHEREAS, the Provider is able to provide the services
requested by AEHI and desires to do so on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements hereinafter contained and other valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
1. Management Services to be Provided by the Provider.
(a) The Provider will provide or cause to be provided overall
coordination and supervision of the business of AEPLP and shall direct and
manage the day-to-day operations and business affairs of AEPLP consistent with
policies adopted by the AEHI board of directors acting as the general partner of
AEPLP. The Provider will follow the policies and directives of the AEHI board of
directors, but in the absence thereof, the Provider will exercise its reasonable
judgment in discharging its duties hereunder.
(b) The Provider will provide or cause to be provided to AEHI on
behalf of AEPLP the following services:
(i) general management, supervisory and administrative
services;
(ii) management information systems services;
(iii) general financial, treasury, accounting and payroll
services;
(iv) general banking and cash management services;
(v) billing, collection and receivable management
services;
(vi) safety services;
(vii) purchasing, supply and delivery services in
accordance with subsection (c) hereof;
(viii) sales and marketing services;
(ix) general human resources and personnel administration
services in accordance with subsection (d) hereof;
(x) risk management and insurance administration
services;
(xi) the services of an internal law department; and
(xii) certain corporate development services.
(c) The Provider will manage the purchase, supply and delivery of
propane and other goods and services for AEHI on behalf of AEPLP. The Provider
will not differentiate between the districts of AEPLP and other districts under
its management in managing the purchase, supply and delivery of propane and
other goods and services and will use purchasing, supply and delivery
methodologies that in the Provider's reasonable judgment are in the best
interest of all such districts under its management taken as a whole. The
Provider shall not be obligated to make trade credit available to AEPLP. The
Provider may enter into hedging transactions that are permitted by the terms of
the Propane Price Risk Management Policy adopted by the Provider as such policy
may be amended from time to time. AEHI will reimburse and will cause AEPLP to
reimburse the Provider for the portion of any loss incurred in connection with
such transactions that is allocable to AEPLP. The Provider will pay or issue a
credit to AEPLP for the portion of any gain that is realized in connection with
such transactions that is allocable to AEPLP.
(d) The Provider will make available to AEHI on behalf of AEPLP
such personnel as AEPLP may reasonably require to carry on its propane
distribution business and shall be the employer of such personnel and, in that
capacity, shall be responsible for paying the salary and benefits of such
employees.
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(e) The Provider will provide such other services as may be
reasonably requested by AEHI as the general partner of AEPLP or AEPLP directly.
2. Reimbursement of Expenses.
(a) Except as otherwise specifically provided below, AEHI shall
reimburse or cause AEPLP to reimburse the Provider for:
(i)(A) any direct and indirect expenses that the Provider
incurs or payments that Provider makes at the request of AEHI or on
behalf of AEPLP, and (B) all other necessary and appropriate expenses
incurred or payments made by the Provider that are allocable to either
AEHI or AEPLP or otherwise reasonably incurred by the Provider in
connection with providing the services described in Section 1 above;
(ii) AEHI's or AEPLP's allocable portion of (A) any
expenses of UGI Corporation ("UGI") that are charged to or reimbursed
by the Provider and that are in turn allocable to AEHI or AEPLP based
upon services rendered to AEHI or AEPLP, and (B) any overhead expenses
incurred and accruals established by the Provider in connection with
the provision of the services described in Section 1 above;
(iii) all product costs and supply and delivery expenses
for liquefied petroleum gas purchased by the Provider that is supplied
or delivered to any location or site owned, leased or operated by AEHI
or AEPLP;
(iv)(A) any salaries, bonuses, incentive compensation and
other amounts paid to employees of the Provider or its subsidiaries or
affiliates who are made available to AEHI on behalf of AEPLP pursuant
to Section 1(d) above, and (B) any expenses incurred for benefits
provided to such employees under any employee benefit plan, employee
program and employee practice administered by the Provider or its
subsidiaries or affiliates; and
(v)(A) any premiums for insurance policies issued solely in
the name of AEHI and/or AEPLP or that provide coverage exclusively for
the benefit of the directors, officers, employees, properties or
business operations of AEHI and/or AEPLP, and (B) the portion of any
premiums allocable to AEHI and/or AEPLP for insurance policies that are
issued in the name of AEHI and/or AEPLP and the Provider or any of its
other subsidiaries or affiliates or that provide coverage for the
benefit of the directors, officers, employees, properties or business
operations of AEHI and/or AEPLP on a non-exclusive basis.
(b) The Provider will pay all third-party invoices issued in the
name of AEHI or AEPLP for services rendered to or for the benefit of AEHI or
AEPLP or for goods sold to or for the benefit of AEHI or AEPLP, including
without limitation, consulting, legal, auditing and other professional fees, and
third-party vendor and independent contractor invoices. The Provider shall be
entitled to be reimbursed by AEHI and AEPLP for all such invoices and other
expenses. Before paying any such invoice and other expense, the Provider may at
any time demand adequate assurance of reimbursement from AEHI and AEPLP or
require AEHI and AEPLP to post a bond or other security in an amount that the
Provider reasonably believes to be adequate to assure reimbursement hereunder.
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(c) The Provider shall determine the fees, costs and other
expenses that are allocable to AEPLP in a reasonable manner consistent with the
manner in which the Provider allocates such fees, costs and other expenses to
other affiliated propane businesses under its management.
3. Performance of Services. All services to be performed by the Provider
under this Agreement shall be performed with reasonable care. The Provider shall
be deemed to have acted reasonably if it provided services and made personnel
and other resources (including computer software and access to third-party
vendors) available to AEHI on behalf of AEPLP on the same basis that it provided
services or made personnel or other resources available to any other affiliated
propane business to which it is providing management services during the term of
this Agreement.
4. Term and Termination. The initial term of this Agreement shall commence
as of the date hereof and end on September 30, 2002. Thereafter, this Agreement
shall continue for consecutive one-year renewal terms until terminated in
accordance with this Section 4. Either party may terminate this Agreement as of
the last day of the initial or any renewal term by providing the other party
with written notice of termination not less than six months prior to the last
day of the initial or renewal term, as the case may be.
5. Limitation of Liability; Indemnification.
(a) Limitation of Liability. Except as provided in the next
sentence of this Section 5, the Provider, its subsidiaries and affiliates and
their respective successors and assigns and their respective directors,
officers, employees, partners, consultants, contractors and agents
(collectively, the "Provider Group") shall not be liable to AEHI or AEPLP, or
their subsidiaries or affiliates or their respective successors or assigns or
their respective directors, officers, employees, partners, consultants,
contractors or agents (collectively, the "AmeriGas Eagle Group") for any cost,
damage, expense or loss, including any special, indirect, consequential or
punitive damages that any member of the AmeriGas Eagle Group sustains in any way
arising out of or relating to the services provided hereunder by any member of
the Provider Group or based upon any advice, data or other services provided by
any member of the Provider Group to any member of the AmeriGas Eagle Group
pursuant to this Agreement. The Provider shall indemnify each member of the
AmeriGas Eagle Group from and against any cost, damage, expense or loss
(including court costs and reasonable attorneys' fees)(collectively, "Losses")
that is finally judicially determined to have resulted solely from the willful
misconduct or gross negligence of any member of the Provider Group.
(b) Indemnification of the Provider Group. AEHI shall indemnify
and shall cause AEPLP to indemnify each member of the Provider Group, and shall
hold each such member harmless from and against any Losses that such member of
the Provider Group may sustain or incur by reason of any claim, demand, suit or
recovery by any person or entity arising (i) in connection with this Agreement,
(ii) out of the performance or nonperformance of any service by a member of the
AmeriGas Eagle Group or (iii) out of the failure of any member of the AmeriGas
Eagle Group to perform its obligations pursuant to this Agreement, other than
any Losses arising from or out of the willful misconduct or gross negligence of
such member of the Provider Group.
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6. Successors and Assigns; No Third Party Beneficiaries Except AEPLP and
Certain Other Parties.
(a) The rights and obligations of AEHI hereunder shall not be
assignable without the prior written consent of the Provider. The rights and
obligations of the Provider hereunder may be assigned by the Provider at any
time in whole or in part, without the consent of either AEHI or AEPLP; provided,
however, that any such assignment by the Provider shall not relieve the Provider
of any of its obligations hereunder; provided further, however, that any such
assignment upon a Provider's change of control through a merger, the sale of at
least a majority of the outstanding shares of the Provider or units of the OLP
or the sale of all or substantially all of the Provider's or the OLP's assets
shall relieve that Provider but not the successor or assignee of its obligations
hereunder. This Agreement shall be binding upon and inure to the benefit of the
permitted successors and assigns of the parties.
(b) Except for AEPLP and such parties as are intended
beneficiaries of the indemnification rights established in Section 5 of this
Agreement, no other party is intended or shall be deemed to be a third party
beneficiary of this Agreement, other than the parties hereto and their
respective permitted successors and assigns.
7. Governing Law; Notices; Section Headings; Counterparts; Entire and Sole
Agreement; Amendment; Interpretation.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to its conflict
of laws provisions.
(b) All notices and other communications under this Agreement
shall be in writing and shall be deemed to have been duly given when (i)
personally delivered, (ii) sent by registered or certified mail return receipt
requested or facsimile, or (iii) sent by overnight delivery service that
provides a written receipt evidencing delivery, in any case to the address or
facsimile number of such party specified below or such other address or
facsimile number as shall be designated by such party in a notice to the other
party complying with the terms of this Section 7.
(i) If to Provider:
if in person, by courier or telecopier to:
AmeriGas Propane, Inc.
000 Xxxxx Xxxxx Xxxx
Xxxx xx Xxxxxxx, XX 00000
Attention: Vice President-Law
Fax: (000) 000-0000
if by U.S. mail to:
AmeriGas Propane, Inc.
X.X. Xxx 000
Xxxxxx Xxxxx, XX 00000
Attention: Vice President-Law
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(ii) If to AEHI:
if in person, by courier or telecopier to:
AmeriGas Eagle Holdings, Inc.
000 Xxxxx Xxxxx Xxxx
Xxxx xx Xxxxxxx, XX 00000
Attention: Vice President-Law
Fax: (000) 000-0000
if by U.S. mail to:
AmeriGas Eagle Holdings, Inc.
X.X. Xxx 000
Xxxxxx Xxxxx, XX 00000
Attention: Vice President-Law
(c) The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(d) This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
(e) This Agreement constitutes the entire agreement between the
parties and supersedes all prior agreements, representations, warranties,
statements, promises, information, arrangements and understandings, whether oral
or written, express or implied, with respect to the subject matter of this
Agreement.
(f) Any amendment or supplement made to this Agreement shall not
be valid unless in writing and signed by each of the parties to this Agreement.
(g) For purposes of this Agreement, the word "including" shall
have the inclusive meaning associated with the phrase "including without
limitation."
8. Waiver; Severability. The failure of a party to insist in any instance
upon the strict and punctual performance of any provision of this Agreement
shall not constitute or be deemed to be a continuing waiver of such provision.
No party shall be deemed to have waived any right, power, or privilege under
this Agreement or any provisions hereof, unless such waiver shall have been in
writing and duly executed by the party to be charged with such waiver, and such
waiver shall be a waiver only with respect to the specific instance involved and
shall not in any way impair the rights of the waiving party or the obligations
of any other party in any other respect or at any other time. If any provision
of this Agreement shall be waived, or be invalid or unenforceable, the remaining
provisions of this Agreement shall be unaffected thereby and shall remain
binding and in full force and effect.
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9. Force Majeure. Neither AEHI nor API shall have any liability hereunder
to the extent related to, and this Agreement shall not be terminated as a result
of, any failure of a party to perform any of its obligations hereunder if such
failure is due to circumstances beyond its control (an "Event of Force
Majeure"), including any requisition by any government authority, act of war or
terrorism, strike, boycott, lockout, picketing, riot, sabotage, civil commotion,
insurrection, epidemic, disease, act of God, fire, flood, accident, explosion,
earthquake, storm, failure of public utilities or common carriers, mechanical
failure, embargo, or prohibition imposed by any governmental body or agency
having authority over the party; provided that at such time as an Event of Force
Majeure no longer exists, the respective obligations of the parties hereto shall
be reinstated and this Agreement shall continue in full force and effect. The
party affected by an Event of Force Majeure shall give prompt notice thereof to
the other parties hereto, and each party shall use good faith efforts to
minimize the duration and consequences of, and to eliminate, any such Event of
Force Majeure.
10. Relationship Among the Parties. In all matters relating to this
Agreement, each party hereto shall be solely responsible for the acts of its
employees, and employees of one party shall not be considered employees of any
other party. Except as otherwise provided herein, no party shall have any right,
power or authority to create any obligation, express or implied, on behalf of
any other party. Nothing in this Agreement is intended to create or constitute a
joint venture or partnership between the parties hereto or persons referred to
herein.
IN WITNESS WHEREOF, the parties hereto have executed this
Management Services Agreement as of the date first above written.
AMERIGAS PROPANE, INC.
By: s/Xxxxxx X. Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx
Vice President-Law
AMERIGAS EAGLE HOLDINGS, INC.
By: s/Xxxxxx X. Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx
Vice President-Law:
RHK/Columbia/Columbia Propane Management Services Agreement
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