EXHIBIT 10.18
SERVICES AGREEMENT
THIS SERVICES AGREEMENT (this "Agreement"), dated and effective as of
September 30, 1997, is by and between Horizon Offshore, Inc., a Delaware
corporation ("Horizon Offshore"), and Horizon Barge & Towing, Inc., a Delaware
corporation ("Horizon Barge").
W I T N E S S E T H :
WHEREAS, Horizon Barge desires that Horizon Offshore or one or more of its
subsidiaries as designated by Horizon Offshore furnish Horizon Barge with
certain administrative and other support services described in this Agreement on
an interim basis to support and complement the services provided by its own
administrative and support staff and other available resources.
NOW, THEREFORE, in consideration of the covenants and agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Rights and Duties of Horizon Offshore.
(a) Upon the terms and subject to the conditions set forth herein, Horizon
Offshore agrees from and after the date hereof to provide the administrative and
other support services described in Section 2, together with all customary,
ancillary or related activities that are associated with or incidental to such
services (collectively, the "Services") to Horizon Barge.
(b) Horizon Barge acknowledges and agrees that Horizon Offshore may, at its
election, cause one or more of it subsidiaries or third party contractors or
service providers to perform the Services.
Section 2. Description of Services. Horizon Offshore and Horizon Barge
agree that Horizon Offshore shall provide the following Services:
(a) accounting and financial services, including maintenance of books and
records, accounting systems and payroll and benefit systems;
(b) tax services, including the preparation and filing of, and assistance
with respect to federal, foreign, state and local tax returns;
(c) insurance and risk management services, including, but not limited to
the purchase and maintenance of insurance and the processing and administration
of insurance claims;
(d) employee personnel services, including advisory services relating to
employee, employee benefit and other personnel matters;
(e) management information and system services, including computer
operations, data input, systems and programming and technical support; and
(f) such other services as may mutually be agreed upon by the parties
hereto.
Section 3. Administration of Services.
(a) Each department head within Horizon Offshore shall keep the appropriate
officers and employees of Horizon Barge fully informed of the Services performed
pursuant to this Agreement and shall cooperate with such officers and employees
with respect to the performance of Services by such department. Horizon Barge
shall have complete and full access to all data, records, files, statements,
invoices, xxxxxxxx and other information generated by or in the custody of
Horizon Offshore relating to the Services provided pursuant to this Agreement.
(b) Horizon Barge acknowledges and agrees that the Services shall be
provided only with respect to the business of Horizon Barge and its
subsidiaries.
(c) Horizon Barge represents and warrants that the Services will not be
used in violation of any applicable federal, state or local law or any rules or
regulations promulgated thereunder.
(d) Each party shall (i) maintain confidential and secret all confidential
information that may be disclosed by the other party in connection with the
provision of the Services hereunder, (ii) restrict disclosure of such
confidential information to those of its employees who have a need to know such
information in order to comply with its obligations hereunder and (iii) employ
the same standards of care with respect to such confidential information as it
uses to protect its own confidential information. The obligations of this
Section 3(d) shall survive the expiration and termination of this Agreement for
a period of five years.
Section 4. Compensation.
(a) Horizon Offshore shall be compensated for the performance of the
Services as follows:
(i) Horizon Barge shall reimburse Horizon Offshore for the actual
cost of any goods or third party services purchased, leased or
otherwise procured by Horizon Offshore for the direct benefit of
Horizon Barge in accordance with this Agreement ("Direct Costs");
and
(ii) Horizon Barge shall reimburse Horizon Offshore for the actual
cost of any item purchased for Horizon Barge by Horizon Offshore
and the actual charge by third parties for the same or similar
operating service ("Operating Costs"); and
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(iii) Horizon Barge shall reimburse Horizon Offshore for all indirect
general and administrative costs incurred by Horizon Offshore in
performing the services hereunder, including all corporate
overhead costs and expenses such as accounting, administrative,
secretarial or other services, office rent, telephone, employee
compensation and benefits, taxes, depreciation and other expense
items of a general and administrative nature and any other
expenses incurred by Horizon Offshore that are reasonably
necessary to the performance of the Services, plus 5.0%,
representing a reasonable return on Horizon Offshore's investment
required to perform the Services required hereunder ("Indirect
Costs"), subject to adjustment as provided in paragraph (f)
below.
(b) Horizon Offshore shall invoice Horizon Barge by the last day of each
month for all Direct Costs, Operating Costs and Indirect Costs incurred for the
immediately preceding month. All invoices shall provide Horizon Barge with an
account of all Direct Costs, Operating Costs and Indirect Costs. All amounts
shown on each invoice shall be due and payable within 30 days of the date of the
invoice.
Section 5. Terms of Agreement: Termination. This Agreement shall
commence on the date hereof and shall continue for one year from such date
unless earlier terminated by either party by giving 60 days prior written
notice.
Section 6. Limitation of Liability; Indemnification.
(a) Horizon Offshore makes no representation or warranty whatsoever,
express or implied, with respect to the Services. In no event shall Horizon
Offshore be liable to Horizon Barge for (i) any loss, cost or expense resulting
from any act or omission taken at the express direction of Horizon Barge 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 Horizon Offshore nor Horizon Barge 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.
(c) Horizon Barge shall reimburse, indemnify and hold harmless Horizon
Offshore and its successors, assigns, affiliates, directors, officers, employees
and agents from and against any and all judgments, losses, damages, liabilities,
demands, actions, suits, taxes, charges, costs, claims, expenses and
disbursements (including legal fees and expenses) of any kind and nature
whatsoever that may at any time be imposed on, incurred by or asserted against
Horizon Offshore (including any claims against Horizon Offshore for
indemnification by any such person) or any such person (whether or not
indemnified by Horizon Offshore or any other person) in connection with any suit
or proceeding, whether judicial or administrative, relating to or arising out of
any acts or omissions
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performed or omitted by Horizon Offshore or any such person in connection with
or arising out of the performance of the Services unless such act or omission by
Horizon Offshore or such person constituted bad faith, willful misfeasance,
gross negligence, recklessness or a willful, material breach of this Agreement.
Section 7. Relationship of Parties.
Nothing contained in this Agreement (a) shall constitute Horizon Offshore
and Horizon Barge as members of any partnership, joint venture, association,
syndicate, unincorporated business or other separate entity, (b) shall be
construed to impose any liability as such on either of them, (c) shall be deemed
to confer on either of them any express, implied or apparent authority to incur
any obligation or liability on behalf of the other, or (d) shall be deemed to,
or in fact, create any benefit for, or impose any obligation on the parties in
favor of, any person not party to this Agreement.
Section 8. Miscellaneous.
(a) 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.
(b) Each of the parties hereto shall use its best efforts to take or cause
to be taken, to the extent necessary, all actions necessary, proper or advisable
to consummate the transactions contemplated by this Agreement.
(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 Texas.
(e) This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument.
(f) 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.
(g) In the event that any provision of this Agreement shall be determined
to be invalid or unenforceable, in whole or in part, it is the parties intention
that such determination shall not be held to affect the validity or
enforceability of any other provision of this Agreement, which provisions shall
otherwise remain in full force and effect.
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(h) 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 of
the other party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
Addresses for Notices: HORIZON OFFSHORE, INC.
0000 Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
By: /s/ Xxxxx. X. Xxxxx
--------------------------------
Xxxxx X. Xxxxx
Chief Financial Officer
HORIZON BARGE & TOWING, INC.
0000 Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
By: /s/ Xxxxxx X. Xxxx, III
-------------------------------
Xxxxxx X. Xxxx, III
President
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