AMENDED AND RESTATED SERVICES AGREEMENT
Exhibit 10.9
This Amended and Restated Services Agreement (this “Agreement”) is entered into as of the ___
day of _________, 2011, by and among CVR Partners, LP, a Delaware limited partnership (“MLP”), CVR
GP, LLC, a Delaware limited liability company (“GP”), and CVR Energy, Inc., a Delaware corporation
(“CVR”, and collectively with MLP and GP, the “Parties” and each, a “Party”).
RECITALS
MLP is the owner, directly or indirectly, of Coffeyville Resources Nitrogen Fertilizers LLC, a
Delaware limited liability company (“Fertilizer”). CVR is the owner, directly or indirectly, of
Coffeyville Resources Refining & Marketing, LLC, a Delaware limited liability company (“Refinery”).
GP, in its capacity as the general partner of MLP, desires to engage CVR, on its own behalf and
for the benefit of Fertilizer and MLP, to provide certain services necessary to operate the
business conducted by Fertilizer, MLP and GP (the “Services Recipients”), and CVR is willing to
undertake such engagement, subject to the terms and conditions of this Agreement.
MLP, GP, CVR and CVR Special GP, LLC, a Delaware limited liability company (“Special GP”),
entered into a Services Agreement dated as of October 25, 2007, as amended effective January 1,
2010 (as amended, the “Original Agreement”), pursuant to which CVR agreed to provide certain
services to the Services Recipients. Special GP has been merged into
Coffeyville Resources, LLC, a Delaware limited liability company, and is no longer
party to the Original Agreement. The Parties desire to amend and restate the terms of the Original
Agreement upon the terms and subject to the conditions set forth in this Agreement.
MLP, GP (for itself and in its capacity as the general partner of MLP), and CVR agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01 Terms. The following defined terms will have the meanings given below:
“Administrative Personnel” means individuals who are employed by CVR or any of its Affiliates
and assist in providing, as part of the Services, any of the administrative services referred to in
Exhibit 1 hereto.
“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, such specified Person. For purposes of this definition, “control” when used with
respect to any Person means the power to direct the management and policies of such Person,
directly or indirectly, through the ownership of voting securities, by contract or otherwise
(provided that, solely for purposes of this Agreement, the Services Recipients shall not be deemed
Affiliates of CVR).
“Bankrupt” with respect to any Person shall mean such Person shall generally be unable to pay
its debts as such debts become due, or shall so admit in writing or shall make a general assignment
for the benefit of creditors; or any proceeding shall be instituted by or against such Person
seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking
the entry of an order for relief or the appointment of a receiver, trustee, or other similar
official for it or for any substantial part of its property and, in the case of any such proceeding
instituted against it (but not instituted by it), shall remain undismissed or unstayed for a period
of 30 days; or such Person shall take any action to authorize any of the actions set forth above.
“CVR Representative” means such person as is designated in writing by CVR to serve in such
capacity.
“Default Rate” shall mean an interest rate (which shall in no event be higher than the rate
permitted by applicable law) equal to 300 basis points over LIBOR.
“Fertilizer” has the meaning set forth in the Recitals hereinabove.
“Fertilizer Payroll Percentage” means, for any applicable period, the percentage represented
by a fraction, the numerator of which is the total payroll amount of Fertilizer for such period,
and the denominator of which is the total payroll amount of Fertilizer plus the total payroll
amount of Refinery for such period, as such payroll amounts are calculated on a consistent basis
for purposes of determining the Fertilizer Payroll Percentage.
“Governmental Approval” shall mean any material consent, authorization, certificate, permit,
right of way grant or approval of any Governmental Authority that is necessary for the
construction, ownership and operation of the assets used in the business of the Services Recipients
in accordance with applicable Laws.
“Governmental Authority” shall mean any court or tribunal in any jurisdiction or any federal,
state, tribal, municipal or local government or other governmental body, agency, authority,
department, commission, board, bureau, instrumentality, arbitrator or arbitral body or any
quasi-governmental or private body lawfully exercising any regulatory or taxing authority.
“GP/MLP Representative” means such person as is designated in writing by GP to serve in such
capacity.
“Initial Offering” means the initial public offering of common units representing limited
partner interests in MLP.
“Laws” shall mean any applicable statute, environmental law, common law, rule, regulation,
judgment, order, ordinance, writ, injunction or decree issued or promulgated by any Governmental
Authority.
“Party” and “Parties” means the parties to this Agreement.
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“Person” means an individual, corporation, partnership, joint venture, trust, limited
liability company, unincorporated organization or other entity.
“Personnel
Costs” means all compensation costs incurred by an employer in connection with the employment by
such employer of applicable personnel, including all payroll and benefits but excluding any
Share-Based Compensation.
“Refinery” has the meaning set forth in the Recitals hereinabove.
“Seconded Personnel” means individuals, other than Administrative Personnel, who are employed
by CVR or any of its Affiliates and provided on a full-time basis to the Services Recipients in
connection with provision of the Services.
“Services” shall consist of those services performed for the Services Recipients as described
on Exhibit 1 hereto.
“Services Recipients” has the meaning set forth in the Recitals hereinabove.
“Share-Based Compensation” means any compensation accruing or payable under any incentive or
other compensation plan or program of an employer based upon changes in the equity value of such
employer or any of its Affiliates.
“Shared Personnel” means individuals, other than Administrative Personnel, who are employed by
CVR or any of its Affiliates and provided on a part-time basis to the Services Recipients in
connection with provision of the Services.
ARTICLE II
RETENTION OF CVR; SCOPE OF SERVICES
Section 2.01 Retention of CVR. GP, on its own behalf and for the benefit of the
Services Recipients, hereby engages CVR to perform the Services and CVR hereby accepts such
engagement and agrees to perform the Services and to provide all Administrative Personnel, Seconded
Personnel, and Shared Personnel necessary to perform the Services.
Section 2.02 Scope of Services. The Services shall be provided in accordance with (i)
applicable material Governmental Approvals and Laws, (ii) applicable industry standards and (iii) quality standards that, taken as a whole, are not materially less favorable to the Services Recipients compared to those provided to the Services Recipients as of the date of this Agreement.
Section 2.03 Exclusion of Services. At any time, GP or CVR may temporarily or
permanently exclude any particular service from the scope of the Services upon 180 days notice.
Section 2.04 Performance of Services by Affiliates or Other Persons. The Parties
hereby agree that in discharging its obligations hereunder, CVR may engage any of its Affiliates or
other Persons to perform the Services (or any part of the Services) on its behalf and that the
performance of the Services (or any part of the Services) by any such Affiliate or Person shall be
treated as if CVR performed such Services itself. No such delegation by CVR to Affiliates or other
Persons shall relieve CVR of its obligations hereunder.
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ARTICLE III
PAYMENT AMOUNT
Section 3.01 Payment Amount. GP shall pay or cause MLP or Fertilizer to pay, to CVR
(or its Affiliates as CVR may direct) the amount of any direct or indirect expenses incurred by CVR
or its Affiliates in connection with the provision of Services by CVR or its Affiliates (the
“Payment Amount”), in accordance with the following:
(a) Seconded Personnel. The Payment Amount will include all Personnel Costs of
Seconded Personnel, to the extent attributable to the periods during which such Seconded
Personnel are provided to the Services Recipients.
(b) Shared Personnel and Administrative Personnel. The Payment Amount will
include a prorata share of all Personnel Costs of Shared Personnel and Administrative
Personnel (including government and public relations), as determined by CVR on a
commercially reasonable basis, based on the percent of total working time that such
respective personnel are engaged in performing any of the Services.
(c) Administrative Costs. The Payment Amount will include following:
(i) Payroll. A prorata share of all Personnel Costs of Administrative
Personnel engaged in performing payroll services as part of the
Services, as determined by CVR on a commercially reasonable basis, based on
the Fertilizer Payroll Percentage;
(ii) Office Costs. A prorata share of all office costs (including,
without limitation, all costs relating to office leases, equipment leases, supplies,
property taxes and utilities) for all locations of Administrative
Personnel, as determined by CVR on a commercially reasonable basis, based
on the Fertilizer Payroll Percentage;
(iii) Insurance. Insurance premiums will be direct charged to the
applicable insured, provided, however, the Payment Amount will
include all insurance premiums for adequate directors
and officers (or equivalent) insurance for any Seconded Personnel or Shared
Personnel, with liability coverage of no less than $15 million;
(iv) Outside Services. Services provided by outside vendors (including
audit services, legal services, government and public relation services, and other
services) will first be direct charged where applicable, a prorata share of
charges for all services that are provided by outside vendors and not
direct charged, as determined by CVR on a commercially reasonable
basis, based upon the following percentages of such
charges: audit services — 25%; legal services — 20%; and all other services —
Fertilizer Payroll Percentage;
(v) Other SGA Costs. A prorata share of all other sales, general and
administrative costs relating to the Services Recipients, based on the Fertilizer
Payroll Percentage, as determined by CVR on a commercially reasonable
basis; and
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(vi) Depreciation and Amortization. A prorata share of depreciation
and amortization relating to all locations of Administrative Personnel, based on the
Fertilizer Payroll Percentage, as determined by CVR on a commercially
reasonable basis, following
recognition of such depreciation or amortization as an expense on the books and
records of CVR or its Affiliates.
(d)
Other Costs. Bank charges, interest expense and any other costs as reasonably incurred by CVR or its
Affiliates in the provision of Services will be direct charged as
applicable. For the avoidance of doubt, any of the foregoing costs
and expenses described in Section 3.01 that are direct charged
to any Party will not be included in the Payment Amount.
Section 3.02 Payment of Payment Amount. CVR shall submit monthly invoices to GP for
the Services, which invoices shall be due and payable net 15 days. GP shall pay or cause MLP or
Fertilizer to pay, to CVR in immediately available funds, the full Payment Amount due under
Section 3.01. Past due amounts shall bear interest at the Default Rate. Allocation
percentages referred to in this Article III will be calculated and determined for calendar year or
calendar quarter periods, as CVR may determine, based upon CVR’s annual audited financials, or
quarterly unaudited financials, for the immediately preceding calendar year or calendar quarter, as
applicable.
Section 3.03 Disputed Charges. GP MAY, WITHIN 90 DAYS AFTER RECEIPT OF A CHARGE FROM
CVR, TAKE WRITTEN EXCEPTION TO SUCH CHARGE, ON THE GROUND THAT THE SAME WAS NOT A REASONABLE COST
INCURRED BY CVR OR ITS AFFILIATES IN CONNECTION WITH THE SERVICES. GP SHALL NEVERTHELESS PAY OR
CAUSE MLP OR FERTILIZER TO PAY IN FULL WHEN DUE THE FULL PAYMENT AMOUNT OWED TO CVR. SUCH PAYMENT
SHALL NOT BE DEEMED A WAIVER OF THE RIGHT OF THE SERVICES RECIPIENT TO RECOUP ANY CONTESTED PORTION
OF ANY AMOUNT SO PAID. HOWEVER, IF THE AMOUNT AS TO WHICH SUCH WRITTEN EXCEPTION IS TAKEN, OR ANY
PART THEREOF, IS ULTIMATELY DETERMINED NOT TO BE A REASONABLE COST INCURRED BY CVR OR ITS
AFFILIATES IN CONNECTION WITH ITS PROVIDING THE SERVICES HEREUNDER, SUCH AMOUNT OR PORTION THEREOF
(AS THE CASE MAY BE) SHALL BE REFUNDED BY CVR TO THE SERVICES RECIPIENTS TOGETHER WITH INTEREST
THEREON AT THE DEFAULT RATE DURING THE PERIOD FROM THE DATE OF PAYMENT BY THE SERVICES RECIPIENTS
TO THE DATE OF REFUND BY CVR.
Section 3.04 CVR’s Employees. The Services Recipients shall not be obligated to pay
directly to Seconded Personnel or Shared Personnel any compensation, salaries, wages, bonuses,
benefits, social security taxes, workers’ compensation insurance, retirement and insurance
benefits, training or other expenses; provided, however, that if CVR fails to pay any employee
within 30 days of the date such employee’s payment is due:
(a) The Services Recipients may (i) pay such employee directly, (ii) employ such
employee directly, or (iii) notify CVR that this Agreement is terminated and employ such
employees directly; and
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(b) CVR shall reimburse GP, MLP or Fertilizer, as the case may be, for the amount GP,
MLP or Fertilizer, as applicable, paid to CVR with respect to employee services for which
CVR did not pay any such employee.
ARTICLE IV
BOOKS, RECORDS AND REPORTING
Section 4.01 Books and Records. CVR and its Affiliates and the Services Recipients
shall each maintain accurate books and records regarding the performance of the Services and
calculation of the Payment Amount, and shall maintain such books and records for the period
required by applicable accounting practices or law, or five (5) years, whichever is longer.
Section 4.02 Audits. CVR and its Affiliates and the Services Recipients shall have
the right, upon reasonable notice, and at all reasonable times during usual business hours, to
audit, examine and make copies of the books and records referred to in Section 4.01. Such
right may be exercised through any agent or employee of the Person exercising such right if
designated in writing by such Person or by an independent public accountant, engineer, attorney or
other agent so designated. Each Person exercising such right shall bear all costs and expenses
incurred by it in any inspection, examination or audit. Each Party shall review and respond in a
timely manner to any claims or inquiries made by the other Party regarding matters revealed by any
such inspection, examination or audit.
Section 4.03 Reports. CVR shall prepare and deliver to GP any reports provided for in
this Agreement and such other reports as GP may reasonably request from time to time regarding the
performance of the Services.
ARTICLE V
INTELLECTUAL PROPERTY
Section 5.01 Ownership by CVR and License to MLP. Any (i) inventions, whether
patentable or not, developed or invented, or (ii) copyrightable material (and the intangible rights
of copyright therein) developed, by CVR, its Affiliates or its or their employees in connection
with the performance of the Services shall be the property of CVR; provided, however, that CVR hereby grants, and agrees to cause its Affiliates to grant, to MLP
an irrevocable, royalty-free, non-exclusive and non-transferable (without the prior written consent of CVR) right and license
to use such inventions or material; and further provided, however, that MLP shall only be granted
such a right and license to the extent such grant does not conflict with, or result in a breach,
default, or violation of a right or license to use such inventions or material granted to CVR by
any Person other than an Affiliate of CVR. Notwithstanding the foregoing, CVR will and will cause its Affiliates to, use all
commercially reasonable efforts to grant such right and license to MLP.
Section 5.02 License to CVR and its Affiliates. MLP hereby grants, and will cause its
Affiliates to grant, to CVR and its Affiliates an irrevocable, royalty-free, non-exclusive and
non-transferable right and license to use, during the term of this Agreement, any intellectual
property provided by MLP or its Affiliates to CVR or its Affiliates, but only to the extent such
use is necessary for the performance of the Services. CVR agrees that CVR and its Affiliates will
utilize such intellectual property solely in connection with the performance of the Services.
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ARTICLE VI
TERMINATION
Section 6.01 Termination By GP.
(a) Upon the occurrence of any of the following events, GP may terminate this Agreement
by giving written notice of such termination to CVR:
(i) | CVR becomes Bankrupt; or | ||
(ii) | CVR dissolves and commences liquidation or winding-up. |
Any termination under this Section 6.01(a) shall become effective immediately upon delivery
of the notice first described in this Section 6.01(a), or such later time (not to exceed
the first anniversary of the delivery of such notice) as may be specified by GP.
(b) In addition to its rights under Section 6.01(b), after
the first year anniversary of the completion of the Initial Offering, GP may terminate this
Agreement at any time by giving notice of such termination to CVR. Any termination under
this Section 6.01(b) shall become effective 180 days after delivery of such notice,
or such later time (not to exceed the first anniversary of the delivery of such notice) as
may be specified by GP.
Section 6.02 Termination By CVR. After the first year anniversary of the completion of the
Initial Offering and continuing thereafter, CVR may terminate this Agreement at any time by giving
notice of such termination to GP. Any termination under this Section 6.02 shall become
effective 180 days after delivery of such notice, or such later time (not to exceed the first
anniversary of the delivery of such notice) as may be specified by CVR.
Section 6.03 Effect of Termination. If this Agreement is terminated in accordance
with Section 6.01 or Section 6.02, all rights and obligations under this Agreement
shall cease except for (a) obligations that expressly survive termination of this Agreement; (b)
liabilities and obligations that have accrued prior to such termination, including the obligation
to pay any amounts that have become due and payable prior to such termination, and (c) the
obligation to pay any portion of any Payment Amount that has accrued prior to such termination,
even if such portion has not become due and payable at that time.
Section 6.04 Transition of Services. During the period of 180 days following the delivery of
any notice of termination delivered in accordance with Section 6.01(b) or 6.02, in addition to the Services, CVR will, and will cause its Affiliates to, provide to MLP such additional services as may
be reasonably requested by the GP to assist the Services Recipients in effecting a transition of the responsibility for providing the Services.
Section 6.05 Survival. The provisions of this Article VI and Sections 3.03, 4.01, 4.02, 5.01, 8.01,
8.02, 8.03 and Articles IX and X will survive and continue in full force and effect notwithstanding the termination of this Agreement.
ARTICLE VII
ADDITIONAL REPRESENTATIONS AND WARRANTIES
Section 7.01 Representations and Warranties of CVR. CVR hereby represents, warrants
and covenants to the other Parties that as of the date hereof:
(a) CVR is duly organized, validly existing, and in good standing under the laws of the
State of Delaware; CVR is duly qualified and in good standing in the States required in
order to perform the Services except where failure to be so qualified or in
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good standing could not reasonably be expected to have a material adverse impact on GP
or MLP; and CVR has full power and authority to execute and deliver this Agreement and to
perform its obligations hereunder
(b) CVR has duly executed and delivered this Agreement, and this Agreement constitutes
the legal, valid and binding obligation of each such Person, enforceable against it in
accordance with its terms (except as may be limited by bankruptcy, insolvency or similar
laws of general application and by the effect of general principles of equity, regardless of
whether considered at law or in equity); and
(c) The authorization, execution, delivery, and performance of this Agreement by CVR
does not and will not (i) conflict with, or result in a breach, default or violation of, (A)
the amended and restated certificate of incorporation of CVR, (B) any contract or agreement
to which such Person is a party or is otherwise subject, or (C) any law, order, judgment,
decree, writ, injunction or arbitral award to which such Person is subject; or (ii) require
any consent, approval or authorization from, filing or registration with, or notice to, any
governmental authority or other Person, unless such requirement has already been satisfied,
except, in the case of clauses (i)(B) and (i)(C), for such conflicts, breaches, defaults or
violations that would not have a material adverse effect on CVR or on its ability to perform
its obligations hereunder, and except, in the case of clause (ii), for such consents,
approvals, authorizations, filings, registrations or notices, the failure of which to obtain
or make would not have a material adverse effect on CVR or on their ability to perform their
obligations hereunder.
Section 7.02 Representations and Warranties of GP and MLP. Each of GP and MLP hereby
represents, warrants and covenants to the other Parties that as of the date hereof:
(a) Each of GP and MLP is duly organized, validly existing, and in good standing under
the laws of the jurisdiction of its formation; each of GP and MLP has full power and
authority to execute and deliver this Agreement and to perform its obligations hereunder;
(b) Each of GP and MLP has duly executed and delivered this Agreement, and this
Agreement constitutes the legal, valid and binding obligation of each such Person
enforceable against it in accordance with its terms (except as may be limited by bankruptcy,
insolvency or similar laws of general application and by the effect of general principles of
equity, regardless of whether considered at law or in equity); and
(c) The authorization, execution, delivery, and performance of this Agreement by each
of GP and MLP does not and will not (i) conflict with, or result in a breach, default or
violation of, (A) the limited liability company agreement of GP or the partnership agreement
of MLP, (B) any contract or agreement to which such Person is a party or is otherwise
subject, or (C) any law, order, judgment, decree, writ, injunction or arbitral award to
which such Person is subject; or (ii) require any consent, approval or authorization from,
filing or registration with, or notice to, any governmental authority or other Person,
unless such requirement has already been satisfied, except, in the case of clause (i)(B) and
(i)(C), for such conflicts, breaches, defaults or violations that would not
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have a material adverse effect on GP or MLP or on their ability to perform their
obligations hereunder, and except, in the case of clause (ii), for such consents, approvals,
authorizations, filings, registrations or notices, the failure of which to obtain or make
would not have a material adverse effect on GP or MLP or on their ability to perform their
respective obligations hereunder.
ARTICLE VIII
ADDITIONAL REQUIREMENTS
Section 8.01 Indemnity. The Services Recipients shall indemnify, reimburse, defend
and hold harmless CVR and its Affiliates and their respective successors and permitted assigns,
together with their respective employees, officers, members, managers, directors, agents and
representatives (collectively the “Indemnified Parties”), from and against all losses
(including lost profits), costs, damages, injuries, taxes, penalties, interests, expenses,
obligations, claims and liabilities (joint or severable) of any kind or nature whatsoever
(collectively “Losses”) that are incurred by such Indemnified Parties in connection with,
relating to or arising out of (i) the breach of any term or condition of this Agreement, or (ii)
the performance of any Services hereunder; provided, however, that the Services Recipients shall
not be obligated to indemnify, reimburse, defend or hold harmless any Indemnified Party for any
Losses Incurred, by such Indemnified Party in connection with, relating to or arising out of:
(a) a breach by such Indemnified Party of this Agreement;
(b) the gross negligence, willful misconduct, bad faith or reckless disregard of such
Indemnified Party in the performance of any Services hereunder; or
(c) fraudulent or dishonest acts of such Indemnified Party with respect to the Services
Recipients.
The rights of any Indemnified Party referred to above shall be in addition to any rights that such
Indemnified Party shall otherwise have at law or in equity. Without the prior written consent of
the Services Recipients, no Indemnified Party shall settle, compromise or consent to the entry of
any judgment in, or otherwise seek to terminate any, claim, action, proceeding or investigation in
respect of which indemnification could be sought hereunder unless (a) such Indemnified Party
indemnifies the Services Recipients from any liabilities arising out of such claim, action,
proceeding or investigation, (b) such settlement, compromise or consent includes an unconditional
release of the Services Recipients and Indemnified Party from all liability arising out of such
claim, action, proceeding or investigation and (c) the parties involved agree that the terms of
such settlement, compromise or consent shall remain confidential. In the event that
indemnification is provided for under any other agreements between CVR or any of its Affiliates and
any of the Services Recipients or any of their Affiliates, and such indemnification is for any
particular Losses, then such indemnification (and any limitations thereon) as provided in such
other agreement shall apply as to such particular Losses and shall supersede and be in lieu of any
indemnification that would otherwise apply to such particular Losses under this Agreement.
Section 8.02 Limitation of Duties and Liability. The relationship of CVR to the
Services Recipients pursuant to this Agreement is as an independent contractor and nothing in
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this Agreement shall be construed to impose on CVR, or on any of its Affiliates, or on any of
their respective successors and permitted assigns, or on their respective employees, officers,
members, managers, directors, agents and representatives, an express or implied fiduciary duty.
CVR and its Affiliates and their respective successors and permitted assigns, together with their
respective employees, officers, members, managers, directors, agents and representatives, shall not
be liable for, and the Services Recipients shall not take, or permit to be taken, any action
against any of such Persons to hold such Persons liable for, (a) any error of judgment or mistake
of law or for any liability or loss suffered by the Services Recipients in connection with the
performance of any Services under this Agreement, except for a liability or loss resulting from
gross negligence, willful misconduct, bad faith or reckless disregard in the performance of the
Services, or (b) any fraudulent or dishonest acts with respect to the Services Recipients. In no
event, whether based on contract, indemnity, warranty, tort (including negligence), strict
liability or otherwise, shall CVR or its Affiliates, their respective successors and permitted
assigns, or their respective employees, officers, members, managers, directors, agents and
representatives, be liable for loss of profits or revenue or special, incidental, exemplary,
punitive or consequential damages.
Section 8.03 Reliance. CVR and its Affiliates and their respective successors and
permitted assigns, together with their respective employees, officers, members, managers,
directors, agents and representatives, may take and may act and rely upon:
(a) the opinion or advice of legal counsel, which may be in-house counsel to the
Services Recipients or to CVR or its Affiliates, any U.S.-based law firm, or other legal
counsel reasonably acceptable to the Boards of Directors of the Services Recipients, in
relation to the interpretation of this Agreement or any other document (whether statutory or
otherwise) or generally in connection with the Services Recipients;
(b) advice, opinions, statements or information from bankers, accountants, auditors,
valuation consultants and other consulted Persons who are in each case believed by the
relying Person in good faith to be expert in relation to the matters upon which they are
consulted; or
(c) any other document provided in connection with the Services Recipients upon which
it is reasonable for the applicable Person to rely.
A Person shall not be liable for anything done, suffered or omitted by it in good faith in reliance
upon such opinion, advice, statement, information or document.
Section 8.04 Services to Others. While CVR is providing the Services under this
Agreement, CVR shall also be permitted to provide services, including services similar to the
Services covered hereby, to others, including Affiliates of CVR.
Section 8.05 Transactions With Affiliates. CVR may recommend to the Services
Recipients, and may engage in, transactions with any of CVR’s Affiliates; provided, that any such
transactions shall be subject to the authorization and approval of the Services Recipients’ Boards
of Directors, as applicable.
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Section 8.06 Sharing of Information. CVR, and its Affiliates and other agents or
representatives, shall be permitted to share Services Recipients’ information with its Affiliates
and other Persons as reasonably necessary to perform the Services, subject to appropriate and
reasonable confidentiality arrangements.
Section 8.07 Disclosure of Remuneration. CVR shall disclose the amount of
remuneration of the Chief Financial Officer and any other officer or employee shared with or
seconded to the Services Recipients, including the Chief Executive Officer, to the Boards of
Directors of the Services Recipients to the extent required for the Services Recipients to comply
with the requirements of applicable law, including applicable Federal securities laws.
Section 8.08 Additional Seconded Personnel or Shared Personnel. CVR and the Services
Recipients’ Boards of Directors may agree from time to time that CVR shall provide additional
Seconded Personnel or Shared Personnel, upon such terms as CVR and the Services Recipients’ Board
of Directors may mutually agree. Any such individuals shall have such titles and fulfill such
functions as CVR and the Services Recipients may mutually agree but subject to compliance with the
agreement of limited partnership of MLP.
Section 8.09 Plant Personnel. Personnel performing the actual day-to-day business and
operations of Fertilizer at the plant level will be employed by Fertilizer and Fertilizer will bear
all Personnel Costs or other costs relating to such personnel.
Section 8.10 Election. The Services Recipients shall cause the election of any
Seconded Personnel or Shared Personnel to the extent required by the organizational documents of
the Services Recipients. The Services Recipients’ Board of Directors, after due consultation with
CVR, may at any time request that CVR replace any Seconded Personnel and CVR shall, as promptly as
practicable, replace any individual with respect to whom such Board of Directors shall have made
its request, subject to the requirements for the election of officers under the organizational
documents of the Services Recipients but subject to compliance with the agreement of limited
partnership of MLP.
ARTICLE IX
DISPUTES
Section 9.01 Resolution of Disputes. The Parties shall in good faith attempt to
resolve promptly and amicably any dispute between the Parties arising out of or relating to this
Agreement (each a “Dispute”) pursuant to this Article IX. The Parties shall first submit
the Dispute to the CVR Representative and the GP/MLP Representative, who shall then meet within
fifteen (15) days to resolve the Dispute. If the Dispute has not been resolved within forty-five
(45) days after the submission of the Dispute to the CVR Representative and the GP/MLP
Representative, the Dispute shall be submitted to a mutually agreed non-binding mediation. The
costs and expenses of the mediator shall be borne equally by the Parties, and the Parties shall pay
their own respective attorneys’ fees and other costs. If the Dispute is not resolved by mediation
within ninety (90) days after the Dispute is first submitted to the CVR Representative and the
GP/MLP Representative as provided above, then the Parties may exercise all available remedies.
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Section 9.02 Multi-Party Disputes. The Parties acknowledge that they or their
respective affiliates contemplate entering or have entered into various additional agreements with
third parties that relate to the subject matter of this Agreement and that, as a consequence,
Disputes may arise hereunder that involve such third parties (each a “Multi-Party
Dispute”). Accordingly, the Parties agree, with the consent of such third parties, that any
such Multi-Party Dispute, to the extent feasible, shall be resolved by and among all the interested
parties consistent with the provisions of this Article IX.
ARTICLE X
MISCELLANEOUS
Section 10.01 Notices. Except as expressly set forth to the contrary in this
Agreement, all notices, requests or consents provided for or permitted to be given under this
Agreement must be in writing and must be delivered to the recipient in person, by courier or mail
or by facsimile, telegram, telex, cablegram or similar transmission; and a notice, request or
consent given under this Agreement is effective on receipt by the Party to receive it; provided,
however, that a facsimile or other electronic transmission that is transmitted after the normal
business hours of the recipient shall be deemed effective on the next business day. All notices,
requests and consents to be sent to MLP must be sent to GP. All notices, requests and consents
(including copies thereof) to be sent to GP must be sent to or made at the address given below for
GP.
If to GP or MLP, to:
|
With a copy to: | |
Xxxxx X. Xxxx
|
Xxxxxx X. Xxxxx, | |
Executive Vice President and
|
Senior Vice President and General Counsel | |
Fertilizer General Manager
|
CVR Energy, Inc. | |
00 X. Xxxxxxxxx Xxxxxx, Xxx. 000
|
10 E. Cambridge Circle, Ste. 250 | |
Xxxxxx Xxxx, Xxxxxx 00000 | ||
Facsimile: (000) 000-0000
|
Facsimile: (000) 000-0000 | |
If to CVR, to:
|
With a copy to: | |
Xxxx X. Xxxxxxxx
|
Xxxxxx X. Xxxxx, | |
President and CEO
|
Senior Vice President and General Counsel | |
0000 Xxxxx Xxxxx
|
CVR Energy, Inc. | |
Xxxxx 000
|
00 X. Xxxxxxxxx Xxxxxx, Xxx. 000 | |
Sugar Land, Texas 77479
|
Xxxxxx Xxxx, Xxxxxx 00000 | |
Facsimile: (000) 000-0000
|
Facsimile: (000) 000-0000 |
Section 10.02 Effect of Waiver or Consent. Except as otherwise provided in this
Agreement, a waiver or consent, express or implied, to or of any breach or default by any Party in
the performance by that Party of its obligations under this Agreement is not a consent or waiver to
or of any other breach or default in the performance by that Party of the same or any other
obligations of that Party under this Agreement. Except as otherwise provided in this Agreement,
failure on the part of a Party to complain of any act of another Party or to declare another Party
in default under this Agreement, irrespective of how long that failure continues,
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does not constitute a waiver by that Party of its rights with respect to that default until
the applicable statute-of-limitations period has run.
Section 10.03 Headings; References; Interpretation. All Article and Section headings
in this Agreement are for convenience only and will not be deemed to control or affect the meaning
or construction of any of the provisions hereof. The words “hereof,” “herein” and “hereunder” and
words of similar import, when used in this Agreement, will refer to this Agreement as a whole, and
not to any particular provision of this Agreement. All references herein to Articles and Sections
will, unless the context requires a different construction, be deemed to be references to the
Articles and Sections of this Agreement, respectively. All personal pronouns used in this
Agreement, whether used in the masculine, feminine or neuter gender, will include all other
genders, and the singular will include the plural and vice versa. The terms “include,” “includes,”
“including” or words of like import will be deemed to be followed by the words “without
limitation.”
Section 10.04 Successors and Assigns. This Agreement will be binding upon and inure
to the benefit of the Parties and their respective successors and assigns.
Section 10.05 No Third Party Rights. The provisions of this Agreement are intended to
bind the parties signatory hereto as to each other and are not intended to and do not create rights
in any other person or confer upon any other person any benefits, rights or remedies, and no person
is or is intended to be a third party beneficiary of any of the provisions of this Agreement.
Section 10.06 Counterparts. This Agreement may be executed in any number of
counterparts, all of which together will constitute one agreement binding on the Parties.
Section 10.07 Governing Law. THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF KANSAS.
Section 10.08 Submission to Jurisdiction; Waiver of Jury Trial. Subject to the
provisions of Article IX, each of the Parties hereby irrevocably acknowledges and consents
that any legal action or proceeding brought with respect to any of the obligations arising under or
relating to this Agreement may be brought in the courts of the State of Kansas, or in the United
States District Court for the District of Kansas and each of the Parties hereby irrevocably submits
to and accepts with regard to any such action or proceeding, for itself and in respect of its
property, generally and unconditionally, the non-exclusive jurisdiction of the aforesaid courts.
Each Party hereby further irrevocably waives any claim that any such courts lack jurisdiction over
such Party, and agrees not to plead or claim, in any legal action or proceeding with respect to
this Agreement or the transactions contemplated hereby brought in any of the aforesaid courts, that
any such court lacks jurisdiction over such Party. Each Party irrevocably consents to the service
of process in any such action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to such party, at its address for notices set forth in this
Agreement, such service to become effective ten (10) days after such mailing. Each Party hereby
irrevocably waives any objection to such service of process and further irrevocably waives and
agrees not to plead or claim in any action or proceeding commenced hereunder or under any other
documents contemplated hereby that service of process was in any way invalid or
13
ineffective. The foregoing shall not limit the rights of any Party to serve process in any
other manner permitted by applicable law. The foregoing consents to jurisdiction shall not
constitute general consents to service of process in the State of Kansas for any purpose except as
provided above and shall not be deemed to confer rights on any Person other than the respective
Parties. Each of the Parties hereby waives any right it may have under the laws of any
jurisdiction to commence by publication any legal action or proceeding with respect this Agreement.
To the fullest extent permitted by applicable law, each of the Parties hereby irrevocably waives
the objection which it may now or hereafter have to the laying of the venue of any suit, action or
proceeding arising out of or relating to this Agreement in any of the courts referred to in this
Section 10.08 and hereby further irrevocably waives and agrees not to plead or claim that any such
court is not a convenient forum for any such suit, action or proceeding. The Parties agree that
any judgment obtained by any Party or its successors or assigns in any action, suit or proceeding
referred to above may, in the discretion of such Party (or its successors or assigns), be enforced
in any jurisdiction, to the extent permitted by applicable law. The Parties agree that the remedy
at law for any breach of this Agreement may be inadequate and that should any dispute arise
concerning any matter hereunder, this Agreement shall be enforceable in a court of equity by an
injunction or a decree of specific performance. Such remedies shall, however, be cumulative and
nonexclusive, and shall be in addition to any other remedies which the Parties may have. Each Party
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 as between the Parties directly or indirectly arising out of,
under or in connection with this Agreement or the transactions contemplated hereby or disputes
relating hereto. Each Party (i) 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 (ii) acknowledges that it and the other
Parties have been induced to enter into this Agreement by, among other things, the mutual waivers
and certifications in this Section 10.08.
Section 10.09 Remedies to Prevailing Party. If any action at law or equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys’ fees, costs, and necessary disbursements in addition to any other
relief to which such party may be entitled.
Section 10.10 Severability. If any provision of this Agreement or the application
thereof to any Person or any circumstance is 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.
Section 10.11 Amendment or Modification. This Agreement may be amended or modified
from time to time only by the written agreement of all the Parties.
Section 10.12 Integration. This Agreement and the exhibit referenced herein supersede
all previous understandings or agreements (including the Original Agreement) among the Parties,
whether oral or written, with respect to its subject matter. This Agreement and such exhibit
contain the entire understanding of the Parties with respect to its subject matter. In the case of
any actual conflict or inconsistency between the terms of this Agreement and the agreement of
limited partnership of MLP, the terms of the agreement of limited partnership of MLP shall control.
No understanding, representation, promise or agreement, whether oral or written, is
14
intended to be or will be included in or form part of this Agreement unless it is contained in
a written amendment hereto executed by the Parties after the date of this Agreement.
Section 10.13 Further Assurances. In connection with this Agreement and the
transactions contemplated hereby, each Party shall execute and deliver any additional documents and
instruments and perform any additional acts that may be reasonably necessary or appropriate to
effectuate and perform the provisions of this Agreement and those transactions.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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This Agreement has been duly executed by the Parties as of the date first written above.
CVR PARTNERS, LP | ||||
By: | CVR GP, LLC | |||
its General Partner | ||||
By: | ||||
Name: | ||||
Title: | ||||
CVR GP, LLC | ||||
By: | ||||
Name: | ||||
Title: | ||||
CVR ENERGY, INC. | ||||
By: | ||||
Name: | ||||
Title: |
Services Agreement
Signature Page
Signature Page
Exhibit 1
The Services shall include the following:
• | services in capacities equivalent to the capacities of corporate executive officers, except that the persons serving in such capacities shall serve in such capacities as Shared Personnel on a shared, part-time basis only, unless and to the extent otherwise agreed by CVR; | |
• | safety and environmental advice; | |
• | administrative and professional services, including legal, accounting, human resources, insurance, tax, credit, finance, government affairs, and regulatory affairs; | |
• | manage the Services Recipients’ day-to-day business and operations, including managing its liquidity and capital resources and compliance with applicable law; | |
• | establishing and maintaining books and records of the Services Recipients in accordance with customary practice and GAAP; | |
• | recommend to the Services Recipients’ Board of Directors (x) capital raising activities, including the issuance of debt or equity securities of the Services Recipients, the entry into credit facilities or other credit arrangements, structured financings or other capital market transactions, (y) changes or other modifications in the capital structure of the Services Recipients, including repurchases; | |
• | recommend to the Services Recipients’ Board of Directors the engagement of or, if approval is not otherwise required hereunder, engage agents, consultants or other third party service providers to the Services Recipients, including accountants, lawyers or experts, in each case, as may be necessary by the Services Recipients from time to time; | |
• | manage the Services Recipients’ property and assets in the ordinary course of business; | |
• | manage or oversee litigation, administrative or regulatory proceedings, investigations or any other reviews of the Services Recipients’ business or operations that may arise in the ordinary course of business or otherwise, subject to the approval of the Services Recipients’ Board of Directors to the extent necessary in connection with the settlement, compromise, consent to the entry of an order or judgment or other agreement resolving any of the foregoing; | |
• | establish and maintain appropriate insurance policies with respect to the Services Recipients’ business and operations; |
• | recommend to the Services Recipients’ Board of Directors the payment of dividends or other distributions on the equity interests of the Services Recipients; | |
• | attend to the timely calculation and payment of taxes payable, and the filing of all taxes return due, by the Services Recipients; and | |
• | manage or provide advice or recommendations for other projects of the Services Recipients, as may be agreed to between GP and CVR from time to time. |