Exhibit 10.3
FMP
AMENDED AND RESTATED SERVICES AGREEMENT
THIS AMENDED AND RESTATED SERVICES AGREEMENT (this "Agreement") is
dated as of January 1, 1997, by and between FM Services Company, a Delaware
corporation ("FMS"), and FM Properties Inc., a Delaware corporation ("FMP").
WHEREAS, the parties entered into a Services Agreement dated as of January
1, 1996 (the"Original Agreement") pursuant to which FMS furnished FMP and
its affiliates, as that term is defined in Rule 405 under the Securities Act
of 1933 (collectively, the "FMP Group"), with Services,as defined below, to
support and complement the services provided by the FMP Group's officers,
employees and other available resources;
WHEREAS, the parties desire to amend the Original Agreement to provide
for a cost of living adjustment to the Annual Fee, as defined below, and to
restate the Original Agreement as so amended.
NOW THEREFORE, in consideration of the covenants and agreements set forth
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Services. During the term of this Agreement FMS shall
furnish the following services (collectively, the "Services") to the FMP
Group: (a) accounting, treasury and financial, (b) tax, (c) insurance and
risk management (including the purchase and maintenance on behalf of FMP of
such insurance as FMP deems necessary or appropriate), (d) human resources
(including employee benefit services), (e) management information and system
support, (f) governmental relations, (g) community relations, (h) investor
relations, (i) facilities management and security, (j) marketing,
(k) business development, (l) executive support, (m) aviation, (n) contract
administration and (o) such other services as may mutually be agreed upon by
the parties hereto. Services shall be provided directly by FMS or, in the
discretion of FMS, by affiliated or non-affiliated third parties.
Section 2. Administration of Services. FMS shall keep the
appropriate officers and employees of FMP and other members of the FMP Group
fully informed and shall cooperate with such officers and employees with
respect to the performance of Services by FMS. Each member of the FMP Group
shall have complete and full access to all data, records, files, statements,
invoices, xxxxxxxx and other information generated by or in the custody of
FMS relating to Services provided to such entity.
Section 3. Compensation and Reimbursement.
(a) As compensation for the performance of the Services, FMP shall pay
to FMS an annual fee of $500,000, subject to the adjustment set forth in
Section 10 hereof (the "Annual Fee"). The Annual Fee shall be payable in four
equal payments on or before the tenth (10th) day of each calendar quarter in
each year during the term of this Agreement.
(b) FMP shall reimburse FMS for all costs of goods, services or other
items purchased from third parties by FMS for the FMP Group, to the extent
such costs are paid by FMS ("Third Party Charges").
Section 4. Use of FMS Facilities. FMS shall provide the FMP Group
with a non-exclusive right to utilize its properties and facilities, subject
to such limitations, if any, as may be imposed by leases and other agreements
and instruments governing the use of such properties and facilities.
Section 5. Terms of Agreement; Termination. (a) This Agreement shall
commence as of the date first above written and shall continue in effect
until (i) the parties mutually agree in writing to terminate this Agreement
or (ii) 90 days after receipt by FMS of written notice from FMP of its
request to terminate this Agreement.
(b) Upon termination of this Agreement, FMP shall be liable for a pro
rata portion of the Annual Fee and all Third Party Charges incurred in
accordance with Section 3 prior to termination.
Section 6. Limitation of Liability.
(a) FMS makes no representation or warranty whatsoever, express or
implied, with respect to the Services. In no event shall FMS be liable to
FMP for (i) any loss, cost or expense resulting from any act or omission
taken at the express direction of any member of the FMP Group or (ii) any
special, indirect or consequential damages resulting from any error or
omission in the performance of the Services or from the breach of this
Agreement.
(b) Neither FMS nor FMP shall be liable for any loss or damage or any
nonperformance, partial or whole, under this Agreement, caused by any strike,
labor troubles, riot act of a public enemy, insurrection, act of God, or any
law, rule or regulation promulgated by any governmental body or agency, or
any demand or requisition of any governmental body or agency, or any other
cause beyond the control of the parties hereto.
Section 7. Confidentiality. FMS will hold and will use its best
efforts to cause its officers, directors, employees and other agents
(collectively, its "Agents") to hold, in confidence, all confidential
documents and information concerning the FMP Group furnished to such party in
connection with this Agreement, except to the extent that such information can
be shown to have been (a) previously known by such party on a nonconfidential
basis, (b) in the public domain through no fault of such party or (c) later
lawfully acquired by such party on a nonconfidential basis from a source
other than the FMP Group; provided that FMS may disclose such information in
connection with this Agreement to its Agents so long as such persons are
informed by FMS of the confidential nature of such information and are directed
by FMS to keep such information confidential and not to use it for any
purpose other than its intended use. Notwithstanding the foregoing, FMS or
its Agents may disclose such information if (i) compelled to disclose by
judicial or administrative process or by other requirements of law or (ii)
necessary to establish such party's position in any litigation or any
arbitration or other proceeding based upon or in connection with the
subject matter of this Agreement. Prior to any disclosure pursuant to the
preceding sentence, FMS or its Agent(s) shall give reasonable prior notice to
FMP of such intended disclosure, and if requested by FMP, FMS shall use all
reasonable efforts to obtain a protective order or similar protection for
such information and shall otherwise disclose only such information as is
legally required. If all or any part of the Services are terminated, FMS
will, and will use its best efforts to cause its Agents to, destroy or
deliver to FMP, upon request, all documents and other materials, and
all copies thereof, containing confidential information obtained from the FMP
Group in connection with the Services so terminated.
Section 8. Technology. FMS hereby grants to FMP a royalty free,
non-exclusive right and license to use (but not to sublicense outside of the
FMP Group) any and all technology, whether or not patented, developed by or
on behalf of FMS, relating to the business of FMP; provided that the license
hereby granted shall not extend to (i) any technology developed for a person
not affiliated with FMS, pursuant to an arrangement granting such person
exclusive rights to such technology, or (ii) any technology developed after
the termination of this Agreement.
Section 9. Dispute Resolution. FMP and FMS shall use all reasonable
efforts to amicably resolve all disputes arising under this Agreement. If
despite such efforts any matter cannot be amicably resolved the matter shall
be referred to the Presidents of FMP and FMS who shall promptly meet for the
purpose of resolving such dispute. If despite such efforts and meetings the
matter remains unresolved, then any affected party may refer the matter to
arbitration for final resolution in accordance with the commercial rules of
the American Arbitration Association. Any matter submitted to arbitration
shall be decided by a single arbitrator selected by mutual agreement
of the parties (or if the parties cannot agree then such arbitrator shall be
selected by the appropriate official or designee of the American Arbitration
Association). Any such arbitration proceeding shall be held in New Orleans,
Louisiana. Each party shall bear its own costs and expenses, and the
arbitrator's fees and expenses and the costs and expenses of the proceeding
itself shall be borne by the parties in such proportions as the arbitrator
shall decide. The decision of the arbitrator shall be final and
non-appealable, and may be enforced in any court of competent jurisdiction.
Section 10. Cost of Living Adjustment.
(a) Prior to the end of the first calendar quarter of each year during
the term of this Agreement, beginning with the first calendar quarter of
1997, the Annual Fee shall be adjusted to reflect any cost of living increase
(the "Cost of Living Adjustment"), as provided for in this Section 10.
(b) The Cost of Living Adjustment factor is:
1 + ( (Actual inflation Base Year inflation) / Base Year inflation)
where Actual inflation = CPI-U for the December preceding the year for
which the Cost of Living Adjustment is being calculated;
Base Year inflation = CPI-U for December 1995; and CPI-U = the Consumer
Price Index, as published by the Bureau of Labor Statistics, U.S.
Department of Labor, For All Urban Consumers, U.S.C. City Average,
All Items, 1982-84=100.
(c) The Annual Fee shall be multiplied by the Cost of Living Adjustment
factor as determined above, if such factor is greater than one. The Cost of
Living Adjustment factor shall be determined as soon as practicable after the
end of each calendar year.
(d) In the event the Bureau of Labor Statistics stops publishing the
CPI-U or substantially changes its content and format, FMS will substitute
another comparable index published at least annually by a mutually agreeable
source. If the Bureau of Labor Statistics merely redefines the base
year for the CPI-U from 1982-84 to another year, FMP and FMS will continue to
use the CPI-U, but will convert the Base Year to the new base year by using
the appropriate conversion formula.
Section 11. Miscellaneous.
(a) The parties hereto are independent contractors. Nothing in this
Agreement is intended or shall be deemed to constitute a partnership, agency,
franchise or joint venture relationship between the parties. Neither party
shall incur any debts or make any commitments upon the other, except to the
extent specifically provided herein.
(b) This Agreement constitutes the entire agreement between the parties
hereto with respect to the matters set forth in this Agreement. This
Agreement shall not be amended, modified or supplemented except by an
instrument in writing executed by each of the parties hereto.
(c) All notices and other communications hereunder shall be in writing
and shall be given by hand delivery, certified or registered mail, return
receipt requested or telecopy transmission with confirmation of receipt to
the address of each of the parties set forth opposite the signature of such
party on the signature page hereof. All notices and communications shall be
deemed given upon receipt thereof.
(d) This Agreement shall be governed by and construed in accordance with
the internal laws of the State of Louisiana without the application of any
conflicts of laws principles.
(e) This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns. This Agreement
shall not be assignable by any party hereto without the prior written consent o
of the other party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
Address for Notices: FM SERVICES COMPANY
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000 By:
Attention: General Counsel Xxxxxxx X. Xxxxxx
President
Address for Notices: FM PROPERTIES INC.
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000 By:
Attention: General Counsel Xxxxxxx X. Xxxxxxxx
Chairman of the Board and
Chief Executive Officer
