Execution Copy
EXHIBIT 10.8
TRANSITION SERVICES
AGREEMENT
BY AND BETWEEN
THE XXXXXXXX COMPANIES, INC.,
A DELAWARE CORPORATION
AND
WEG ACQUISITIONS, L.P.,
A DELAWARE LIMITED PARTNERSHIP
TRANSITION SERVICES AGREEMENT
This TRANSITION SERVICES AGREEMENT (this "Agreement") is
entered into as of June 17, 2003, by and between THE XXXXXXXX COMPANIES, INC., a
Delaware corporation ("Xxxxxxxx"), and WEG ACQUISITIONS, L.P., a Delaware
limited partnership ("Buyer").
Recitals
WHEREAS, Buyer, Xxxxxxxx Energy Services, LLC ("XXX"),
Xxxxxxxx Natural Gas Liquids, Inc. ("WNGL") and Xxxxxxxx XX LLC (the "Old GP,"
and together with XXX and WNGL, the "Selling Parties") have entered into that
certain Purchase Agreement, dated April 18, 2003, as amended by Amendment No. 1
thereto dated as of May 5, 2003 (as amended, the "Purchase Agreement"), for the
purchase and sale of all of the membership interests of WEG GP LLC (the "General
Partner"), the general partner of the Xxxxxxxx Energy Partners L.P. (the "MLP"),
all of the common units and subordinated units representing limited partner
interests in the MLP owned by XXX and WNGL, and all of the class B common units
representing limited partner interests in the MLP owned by the Old GP (as
contemplated in the Purchase Agreement, the "Transaction");
WHEREAS, the Partnership Entities (as defined herein) are
engaged in the business of the storage, transportation and distribution of
refined petroleum products and ammonia (the "Business"); and
WHEREAS, Xxxxxxxx and certain of its affiliates and
subsidiaries currently provide certain services to the Partnership Entities with
respect to the operation of its Business pursuant to the Services Agreement,
dated September 30, 2002 (the "Services Agreement"), among XXX, Xxxxxxxx
Petroleum Services, L.L.C. ("WPS"), the General Partner and the MLP; and it is a
closing condition for the parties to the Purchase Agreement that Xxxxxxxx and
Buyer enter into this Agreement pursuant to which Xxxxxxxx shall provide, or
cause the Xxxxxxxx Service Providers (as defined herein) to provide, and make
available to the Buyer Entities (as defined herein) for their benefit, the
Transition Services (as defined herein) during the term of this Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. Definitions. Capitalized terms used but not otherwise defined herein
shall have the meanings ascribed to them in the Purchase Agreement.
"Accounting Referee" has the meaning set forth in Section 5(b).
"Additional Services" has the meaning set forth in Section 2(j).
"Business" shall have the meaning set forth in the recitals.
"Buyer Entities" shall mean, collectively, Buyer and its subsidiaries,
including the Partnership Entities.
"Buyer Indemnified Parties" shall have the meaning set forth in Section
9(a).
"Claim" shall have the meaning set forth in Section 9(a).
"Closing" shall have the meanings set forth in Section 1.1 of the
Purchase Agreement.
"Closing Date" shall have the meaning set forth in Section 1.1 of the
Purchase Agreement.
"Determination Amount" shall have the meaning set forth in Section
5(b).
"Employee Lease Payment" shall have the meaning set forth in Section
2(f).
"Force Majeure Event" shall mean an act of God; unusual fire, flood,
earthquake, storm, lightning; an act of Governmental Authority, or necessity for
compliance with any court order, law, statute, ordinance or regulation
promulgated by a Governmental Authority having jurisdiction with respect to the
applicable subject matter; a strike, lockout or other industrial disturbance; an
act of the public enemy, sabotage, war, act of terrorism, insurrection or
blockade; riot or other civil disturbance; epidemic; explosions; and any other
similar event that, in each such case, prevents, in whole or in part, the
performance of a party's obligations under this Agreement, is not reasonably
within the control of the affected party and which by the exercise of
commercially reasonable efforts the affected party is unable to overcome or
prevent.
"G&A Employees" shall have the meaning set forth in Section 1A.
"G&A Services" shall mean all general and administrative services of
the same or similar nature which the Xxxxxxxx Service Providers furnished to the
Partnership Entities pursuant to the Services Agreement during the one-month
period ending on the Closing Date, the categories with respect to which are set
forth on Schedule "A" attached hereto.
"G&A Service Fee" shall have the meaning set forth in Section 5(a)(ii).
"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
Business 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.
"Interest Rate" shall have the meaning set forth in Section 5(b).
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"Laws" shall mean any applicable statute, Environmental Law (as defined
in the Purchase Agreement), common law, rule, regulation, judgment, order,
ordinance, writ, injunction or decree issued or promulgated by any Governmental
Authority.
"Leased Employee" shall have the meaning set forth in Section 2(f).
"Leasing Period" shall have the meaning set forth in Section 2(f).
"MLP" shall have the meaning set forth in the recitals.
"Monthly Invoice" shall have the meaning set forth in Section
5(a)(iii).
"New Omnibus Agreement" shall mean the New Omnibus Agreement, dated the
date hereof, among the Buyer, Xxxxxxxx and the Xxxxxxxx Service Providers named
therein.
"O&M Employees" shall have the meaning set forth in Section 1A.
"O&M Services" shall mean all operating and maintenance services of the
same or similar nature which the Xxxxxxxx Service Providers furnished, during
the one-month period ending on the Closing Date, to the Partnership Entities
pursuant to the Services Agreement.
"Organizational Documents" shall mean certificates of incorporation,
by-laws, certificates of formation, limited liability company operating
agreements, partnership or limited partnership agreements or other formation or
governing documents of a particular entity.
"Partnership Assets" shall mean the assets and properties of the
Partnership Entities.
"Partnership Entities" shall mean the General Partner, the MLP and all
of the subsidiaries of the MLP.
"Partnership Group" shall mean the Partnership Entities, with the
exclusion of the General Partner.
"Person" shall mean an individual, corporation, partnership, joint
venture, trust, limited liability company, unincorporated organization or any
other entity.
"Section 4.3(a) Notice" shall mean the notice provided by Buyer to the
Selling Parties pursuant to Section 4.3(a) of the Purchase Agreement which lists
the Business Employees and Additional Employees that have accepted employment
offers with Buyer.
"Services Agreement" shall have the meaning set forth in the recitals
to this Agreement.
"Transition Services" shall mean the G&A Services and the O&M Services.
"Xxxxxxxx Indemnified Parties" shall have the meaning set forth in
Section 9(b).
"Xxxxxxxx Service Providers" shall mean any subsidiary or affiliate of
Xxxxxxxx that, during the one-month period ending on the Closing Date, was
providing to the Partnership Entities any services pursuant to the Services
Agreement.
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1A. Covered Employees.
Promptly upon delivery of the Section 4.3(a) Notice to the Selling
Parties by Buyer as required under the Purchase Agreement, and no more than five
(5) days after such delivery, Xxxxxxxx and Buyer shall determine (i) which of
such Business Employees and Additional Employees, as of the Closing Date,
provided O&M Services to the Partnership Entities under the Services Agreement
(the "O&M Employees") and (ii) which of such Business Employees and Additional
Employees, as of the Closing Date, provided G&A Services to the Partnership
Entities under the Services Agreement (the "G&A Employees"), and among the G&A
Employees, which single category of G&A Services (of those categories listed on
Schedule A hereto) they are responsible for providing. Immediately, upon such
determination, Xxxxxxxx and Buyer shall attach such information to this
Agreement as Schedule "C" hereto.
2. Services.
(a) Existing Services Agreement. Xxxxxxxx and the Xxxxxxxx
Service Providers currently provide certain services to the Partnership
Entities pursuant to the Services Agreement. Xxxxxxxx shall continue,
and shall cause the Xxxxxxxx Service Providers to continue, to provide
such services to the Partnership Entities pursuant to the Services
Agreement, as further provided in this Agreement; provided, however, in
the event of the termination of the Services Agreement during the term
of this Agreement, Xxxxxxxx shall continue, and shall cause the
Xxxxxxxx Service Providers to continue, to provide, or cause to be
provided, such services under this Agreement. At any time during the
term of this Agreement, upon the written request of Xxxxxxxx, Buyer
shall use its reasonable best efforts to cause the Partnership Entities
to terminate the Services Agreement as promptly as possible.
(b) O&M Services. Until the date that all of the O&M Employees
are transferred to one or more of the Buyer Entities as provided in
Section 2(e) below, the Xxxxxxxx Service Providers shall continue to
provide the O&M Services to the Partnership Entities at a cost
consistent with the historical cost of providing such services under
the Services Agreement.
(c) G&A Services. The Xxxxxxxx Service Providers shall
provide, or subject to Section 2(h) below shall cause a third-party to
provide, to the Buyer (or the Partnership Entity designated by Buyer)
each category of G&A Services pursuant to the terms of the Services
Agreement; provided, the obligation to provide any category of G&A
Services hereunder shall terminate when the group of G&A Employees who
provides such category of G&A Services is transferred to Buyer or a
Partnership Entity designated by Buyer as provided in Section 2(e)
below.
(d) Standard for Provision of Transition Services. Xxxxxxxx
hereby covenants and agrees that the Transition Services will be
performed (i) in accordance with applicable material Governmental
Approvals and Laws, (ii) with at least the same level, standard of care
and timeliness that services were provided to the Partnership Entities
under the Service Agreement prior to the Closing and (iii) with at
least the same level, standard of care and timeliness that the Xxxxxxxx
Service Providers operate assets similar to the
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Partnership Assets. EXCEPT AS SET FORTH IN THIS SECTION AND SECTION
8(b) HEREOF, XXXXXXXX AND THE XXXXXXXX SERVICE PROVIDERS MAKE NO
REPRESENTATION, WARRANTY OR GUARANTY, EXPRESS OR IMPLIED, OF ANY KIND
CONCERNING THE TRANSITION SERVICES AND ANY RESULTS OR WORK PRODUCT AND
SPECIFICALLY MAKE NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, AND NONE SHALL BE IMPLIED. ALL OTHER
REPRESENTATIONS, WARRANTIES OR GUARANTEES, WRITTEN OR ORAL, EXPRESS OR
IMPLIED IN FACT OR IN LAW, AND WHETHER OR NOT BASED ON STATUTE ARE
EXCLUDED.
(e) Transfer of Employees.
(i) To effect the transfer of the O&M Employees,
Buyer shall deliver written notice to Xxxxxxxx requesting that
all (and not less than all) of the O&M Employees be
transferred to Buyer, or one or more of the Partnership
Entities designated by Buyer. The O&M Employees shall be
transferred within twenty (20) days of the receipt by Xxxxxxxx
of such notice, or as soon as practicable thereafter, in
either case, as of a date mutually agreed upon by the parties
(which shall be the last day of the any month during the term
of this Agreement). Upon the transfer of the O&M Employees,
the obligation of the Xxxxxxxx Service Providers to continue
providing the O&M Services hereunder shall terminate;
(ii) To effect the transfer of one or more groups
of G&A Employees that provide a category of G&A Services,
Buyer shall deliver written notice to Xxxxxxxx requesting that
all (and not less than all) of the G&A Employees comprising
each such group be transferred to Buyer, or one or more of the
Partnership Entities designated by Buyer. Each such group of
G&A Employees shall be transferred within twenty (20) days of
the receipt by Xxxxxxxx of such notice, or as soon as
practicable thereafter, in either case, as of a date mutually
agreed upon by the parties (which shall be the last day of the
any month during the term of this Agreement). Upon the
transfer of any such group of G&A Employees, the obligation of
the Xxxxxxxx Service Providers to continue providing the
corresponding category of G&A Services hereunder shall
terminate; and
(iii) The transfer of O&M Employees and G&A
Employees under this Section 2(e) is subject to Section 2(f)
below.
(f) Leased Employees. Notwithstanding the provisions of
Section 2(e) above, Buyer shall lease from Xxxxxxxx the services of
each of the employees listed on Schedule "B" hereto (each, a "Leased
Employee") for the period beginning on the date that such employee
would otherwise be transferred to Buyer (or a Partnership Entity
designated by Buyer) and ending, with respect to each such employee, on
the date such employee reaches the age of fifty-five (55) years (the
"Leasing Period"), for the amount per month previously provided by
Xxxxxxxx to Buyer in writing, which amount shall include salary and an
allocation equal to 34% of salary which represents the cost of payroll,
taxes, benefits and target bonus accruals for such employee (in
aggregate the "Employee Lease
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Payment"). Buyer shall, or shall cause the Partnership Entities to,
reimburse Xxxxxxxx for any amounts paid in respect of a Leased Employee
that are in excess of the target bonus amount with respect to such
employee. During the Leasing Period, Xxxxxxxx shall have the sole
responsibility for the payment of salary and providing benefits to the
Leased Employees. The provisions of this Section 2(f) shall not apply
in the case of any employee listed on Schedule "B" who reaches the age
of fifty-five (55) years prior to the date such employee would
otherwise be transferred to Buyer (or a Partnership Entity designated
by Buyer) pursuant to Section 2(e) above.
(g) Service Changes. Xxxxxxxx and/or the Xxxxxxxx Service
Providers may at any time, in their sole discretion, change or replace
any of its (or their) internal or external services, functions or
features that may affect such Transition Services; provided, that such
change or replacement does not materially change Xxxxxxxx or the
Xxxxxxxx Services Providers' performance of the Transition Services.
(h) Subcontractors. Xxxxxxxx and the Xxxxxxxx Service
Providers shall have the right, in their sole discretion, to
subcontract the performance of services under this Agreement to one or
more third-parties; provided, that such subcontracting arrangement does
not materially change Xxxxxxxx or the Xxxxxxxx Services Providers'
performance of the Transition Services.
(i) Transfer upon Termination. Notwithstanding anything else
in this Agreement, except as provided in Section 2(f), upon the
termination of this Agreement, any O&M Employees or G&A Employees that
have not been transferred to Buyer, or a Partnership Entity designated
by Buyer, shall immediately be transferred to Buyer.
(j) Additional Services. Buyer may from time to time during
the term of this Agreement request that Xxxxxxxx or a Xxxxxxxx Service
Provider to provide additional services in accordance with the
provisions of this Agreement that are not included in the definition of
Transition Services. Upon receipt of any such request, Xxxxxxxx shall
consider in good faith as to whether to provide such additional
services and notify Buyer as to whether Xxxxxxxx is willing to provide
or perform such service, and if so, shall submit to Buyer an estimate
of the cost of such services; provided, Xxxxxxxx shall not unreasonably
refuse to provide such additional services to Buyer. Buyer shall then
promptly review such estimate and notify Xxxxxxxx in writing as to
Buyer's concurrence or non-concurrence with such estimated costs. If
Buyer concurs with such estimated costs, Buyer may notify Xxxxxxxx to
proceed to provide or cause such services to be provided to Buyer, or
the Partnership Entity designated by Buyer. Xxxxxxxx shall not be
obligated to provide any such services to Buyer or the Partnership
Entities other than pursuant to this Section 2(j). Any such services
provided pursuant to this Section 2(j) shall be referred to as
"Additional Services."
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3. [Reserved].
4. Term and Termination.
(a) Term. The term of this Agreement shall commence on the
Closing Date and shall continue until the earlier of (i) the date on
which all of the O&M Employees and G&A Employees have been transferred
to Buyer, or one or more of the Partnership Entities designated by
Buyer, or (ii) the last day of the ninth (9th) full calendar month
following the calendar month in which the Closing Date occurs;
provided, however, Buyer may, upon written notice delivered to and
received by Xxxxxxxx not less than ten (10 days) prior to the date
referred to in clause (ii) above, extend the term of this agreement
until the last day of the twelfth (12th) full calendar month following
the calendar month in which the Closing Date occurs; provided, further,
that upon any such extension by Buyer, the aggregate amount payable by
Buyer set forth on each Monthly Invoice following such extension shall
be increased by five percent (5%).
(b) Termination of Transition Services. Except as provided in
Section 4(c) or as otherwise provided in this Section 4(b), the
provision of Transition Services by Xxxxxxxx and/or the Xxxxxxxx
Service Providers will terminate upon the transfer of the employees
associated with such service as provided under Section 2(e) above. With
respect to any category of G&A Services, with respect to which there
are no G&A Employees associated with such category, Buyer may elect, by
giving not less ten (10) days advance written notice to Xxxxxxxx to
terminate the provision by Xxxxxxxx or any Xxxxxxxx Service Provider of
such category(ies) of Transition Services; provided, such categories of
G&A Services shall only be terminated as of the last day of the month.
The Buyer Entities shall have the right to immediately commence,
whether directly or indirectly through third parties, the performance
of any of the Transition Services, without advance notice to Xxxxxxxx,
in the event of any event or occurrence of an emergency nature, in the
event that Xxxxxxxx or any Xxxxxxxx Service Provider is unable to
perform any such service because of the occurrence of a Force Majeure
Event or in the event of any bankruptcy, insolvency or similar
proceeding affecting Xxxxxxxx or any Xxxxxxxx Service Provider, without
any obligation to Xxxxxxxx other than for Transition Services
previously performed.
(c) Xxxxxxxx' Right to Suspend Performance or Terminate the
Agreement. Xxxxxxxx shall have the right to suspend the performance of
its obligations under this Agreement in the event of the Buyer
Entities' failure to make payments due, owing and not disputed in good
faith pursuant to Section 5(b) hereof or properly set off pursuant to
Section 9.5 of the Purchase Agreement, to Xxxxxxxx under this
Agreement, and such failure has not been cured within thirty (30) days
after written notice of such failure to Buyer. In the event a Buyer
Entity cures such payment default within sixty (60) days, Xxxxxxxx
shall resume the performance of its obligations hereunder. Xxxxxxxx
shall have the right to terminate this Agreement in the event such
failure to make payment has not been cured within sixty (60) days after
written notice of such failure to the Buyer.
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(d) Effect of Termination. Upon termination of this Agreement
or any category of Transition Services, Xxxxxxxx and Xxxxxxxx Service
Providers shall have no further obligation to provide such Transition
Services to any of the Buyer Entities hereunder.
5. Billing and Payment.
(a) Fees. Subject to Buyer's off-set rights contained in
Section 9.5 of the Purchase Agreement, Buyer shall, or shall cause a
Partnership Entity to, reimburse Xxxxxxxx for the Transition Services
in accordance with this Section 5.
(i) O&M Services Fee. Buyer shall, or shall
cause a Partnership Entity to, reimburse the Xxxxxxxx Service
Providers each month an amount equal to the cost of providing
the O&M Services, as set forth in the Monthly Invoice, except
that payment shall be made as provided in Section 5(a)(iii)
below.
(ii) G&A Services Fee. Beginning on the Closing
Date, the Buyer Entities shall, or shall cause a Partnership
Entity to, pay Xxxxxxxx each month for G&A Services (the "G&A
Service Fee") an amount equal to $2,898,913 (which amount
represents the sum of the monthly service fees for each of the
separate categories of G&A Services set forth on Schedule "A"
hereto), subject to Article VII of the New Omnibus Agreement.
Upon receipt of notice from Buyer pursuant to Section 4(b)
requesting the termination of one or more categories of G&A
Services, the G&A Service fee shall be reduced by the amount
of the monthly service fee set forth on Schedule "A" for each
such category of G&A Services to be terminated, effective as
of the beginning of the month immediately following the month
in which each such category of G&A Services has been
terminated pursuant to Section 4 hereof.
(iii) Billing. On or before the twentieth (20th)
day of each month, Xxxxxxxx shall provide to the Buyer one or
more written invoices (collectively, the "Monthly Invoice"),
setting out the total amount due Xxxxxxxx for (A) G&A Service
Fee, (B) the cost of O&M Expenses provided in the immediately
preceding month, (C) the Employee Lease Payment and (D) the
cost of any Additional Services provided in the immediately
preceding month, subject, if applicable, to the final proviso
of Section 4(a) above. Items properly invoiced and not
disputed in good faith by the Buyer are due and payable within
fifteen (15) days following the date of such invoice;
provided, that the Buyer shall give written notice on or
before the due date of any Xxxxxxxx invoice of any good faith
dispute of all or any portion of such Monthly Invoice, with
the particulars of such dispute, which dispute shall be
resolved in the manner provided in Section 5(b) below.
(b) Disputes. If there is a dispute between a Buyer Entity, on
the one hand, and Xxxxxxxx or a Xxxxxxxx Service Provider, on the other
hand, regarding the amounts shown as billed to the Buyer on any Monthly
Invoice, (i) Xxxxxxxx shall, where applicable and practicable, furnish
or cause to be furnished to the Buyer additional supporting
documentation to reasonably substantiate the amounts billed including
listings
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of the dates, times and amounts of the Transition Services in question,
and (ii) the Buyer Entities may withhold payment with respect to all or
any portion of such invoiced amounts that such Buyer Entity believes in
good faith are inaccurate or are otherwise not in accordance with the
terms of this Agreement until resolution in accordance with the
procedures set forth below in this Section 5(b); provided that the
Buyer Entities shall pay any undisputed portion of such amount in
accordance with Section 5(a).
Upon delivery of such additional documentation, Xxxxxxxx and
the Buyer Entities shall cooperate and use their reasonable efforts to
resolve such dispute. If they are unable to resolve their dispute
within twenty (20) business days of the delivery of such additional
supporting documentation by Xxxxxxxx, then the dispute shall be
referred for resolution by a firm of independent accountants of
nationally recognized standing (the "Accounting Referee") to be
selected in the following manner: Xxxxxxxx will select three (3)
candidates and deliver a written notice containing the names of such
candidates to Buyer, and within five (5) days of receiving such notice,
Buyer will select one of such three candidates to serve as the
Accounting Referee. The Accounting Referee may not be otherwise engaged
by Xxxxxxxx or Buyer, or their respective Affiliates, in connection
with the transactions contemplated under this Agreement or the
Transaction Documents and may not have performed any material services
on behalf of Xxxxxxxx or Buyer, or their respective Affiliates, during
the five (5) years immediately preceding the date of this Agreement.
The Accounting Referee shall determine the validity of the disputed
amounts within thirty (30) days of the referral of such dispute to such
Accounting Referee. The determination of the Accounting Referee shall
not require the Buyer Entities to pay more than the amount in dispute
nor require any Xxxxxxxx Service Provider to return any amount
previously paid by the Buyer Entities. The determination of the
Accounting Referee shall be finally binding. The fees and expenses of
the Accounting Referee shall be borne (i) by the Buyer if the
difference between the amount set forth in such determination by the
Accounting Referee (the "Determination Amount") and the Buyer's
estimation of what the invoice amount should have been (which the Buyer
shall provide to the Accounting Referee at such time the dispute is
referred to such Accounting Referee) is greater than the difference
between the Determination Amount and the amount set forth on the
Monthly Invoice, (ii) by Xxxxxxxx if the first such difference is less
than the second such difference and (iii) otherwise equally by Xxxxxxxx
and the Buyer; provided, if any invoice dispute is resolved in favor of
the Buyer Entities and Buyer has paid such amount, Xxxxxxxx shall
offset the amount of any overpayment against future invoices to Buyer;
or, if there are no additional invoices to be paid, Xxxxxxxx shall
refund any amount owed within fifteen (15) days of resolution of the
dispute. Such offset or refund shall be credited or paid to Buyer
together with interest at the Interest Rate from the date of
overpayment to Xxxxxxxx until the date of such offset or refund. If a
dispute is resolved in favor of Xxxxxxxx, Buyer shall, or shall cause
the Buyer Entities to, pay interest on the undisputed amount of an
invoice from the due date thereof up to and including the date when
such amount and interest thereon are paid in full, at the rate per
annum equal to the rate published as the "prime rate" in The Wall
Street Journal for the first business day of the month in which such
invoice is paid, plus 2%, but in no event at any rate that is greater
than the maximum interest rate allowed by applicable Laws (such rate,
the "Interest Rate").
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(c) Buyer's Audit Rights. Buyer shall have the right, at any
time within three (3) months after the date of any Xxxxxxxx invoice for
reimbursement of costs of Transition Services to audit those books and
records of Xxxxxxxx and any Xxxxxxxx Service Provider that provided
Transition Services or which books and records relate to the Transition
Services covered by such invoice, to verify the items reflected on such
invoice. Any such audit shall be conducted during normal business hours
by Buyer or its designated auditor after ten (10) days prior written
notice to Xxxxxxxx, at Buyer's sole cost and expense, in the offices of
Xxxxxxxx and the relevant Xxxxxxxx Service Provider or such other
location as may be mutually agreed. Xxxxxxxx shall cooperate and shall
cause any relevant Xxxxxxxx Service Provider to cooperate with and
provide reasonable assistance to Buyer and/or its auditor in connection
with the performance of any such audit. Buyer shall assert any claim
for refund of costs of Transition Services reimbursed to Xxxxxxxx under
the audited invoice within thirty (30) days after the completion of the
audit. Xxxxxxxx shall have thirty (30) days from receipt of Buyer's
claim for refund to respond. If Xxxxxxxx does not dispute Buyer's
refund claim, Xxxxxxxx shall offset the overpayment against future
invoices; or, if there are no additional invoices to be paid, Xxxxxxxx
shall pay such refund within such 30-day period; such offset or refund
shall be credited or paid together with interest at the Interest Rate
from the date of Buyer's overpayment to Xxxxxxxx until the date of such
offset or refund of such overpayment is credited or paid. Should
Xxxxxxxx dispute the claim and refuse to pay any refund claim by Buyer
resulting from the exercise of Buyer's audit rights, the parties will
refer the dispute to an Accounting Referee in the manner described in
Section 5(b) above.
6. Confidentiality of Information.
(a) General. During the term of this Agreement and for a
period of one (1) year following the termination of this Agreement,
neither Party (as defined below in this Section 6(a)) shall, directly
or indirectly, disclose to any Person any information received,
obtained or created that is not in the public domain or generally known
in the industry, in any form, whether acquired prior to or after the
Closing Date, relating to the business and operations of the other
Party. Notwithstanding the foregoing, either Party may disclose any
information relating to the business and operations of the other Party
(i) if required by Law or applicable stock exchange rule, and (ii) to
such other Persons if, at the time such information is provided, such
Person is already in the possession of such information. For purposes
of this Section 6, each of Buyer and its affiliates, on the one hand,
and Xxxxxxxx and its affiliates, on the other hand, shall be a "Party."
(b) Obligations upon Termination. Upon termination of this
Agreement, except as otherwise provided in this Agreement or in the
Purchase Agreement, each Party agrees to turn over to the other Party
or destroy such confidential information in its possession, but only in
accordance with the instructions of the other Party; provided, however,
that each Party may maintain one archive copy of all of such
confidential information that was generated during the term of this
Agreement in a secure data storage facility.
7. Relationships Among the Parties. It is the intent of the parties
that with respect to the provision of Transition Services pursuant to this
Agreement, Xxxxxxxx and the Xxxxxxxx Service Providers are independent
contractors, with authority to control, direct and oversee their
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performance of the Transition Services, subject to the overall direction and
control of the representatives of the Buyer Entities. Nothing in this Agreement
shall cause the relationship between Xxxxxxxx and the Xxxxxxxx Service Providers
on the one hand, and Buyer and the Partnership Entities on the other hand, to be
deemed to constitute an agency, partnership or joint venture. The terms of this
Agreement are not intended to constitute a joint employer for any purpose
between any of the parties and their affiliates. Neither Xxxxxxxx nor the
Xxxxxxxx Service Providers shall have or hold itself out as having, any
authority to enter into any contract or create any obligation or liability on
behalf of, in the name of, or binding upon the Buyer Entities except as
specifically provided in this Agreement.
8. Representations and Warranties.
(a) Representations and Warranties of Buyer. As of the date of
this Agreement, Buyer represents and warrants as follows:
(i) Organization. Buyer is a limited partnership
duly organized, validly existing and in good standing under
the laws of the state of Delaware and has all requisite power
and authority to own its properties and assets and to conduct
its business as now conducted.
(ii) Validity of Agreement. Buyer has the power
to enter into this Agreement and to carry out its obligations
hereunder. The execution and delivery of this Agreement and
the performance of the Buyer's obligations hereunder have been
duly authorized by its general partner, and no other
proceedings on the part of Buyer are necessary to authorize
such execution, delivery and performance. This Agreement has
been duly executed by Buyer and constitutes the valid and
binding obligation of Buyer enforceable against Buyer in
accordance with its terms (except to the extent that its
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or other similar law affecting the
enforcement of creditors' rights generally or by general
equitable principles).
(iii) No Conflict or Violation; No Defaults. The
execution, delivery and performance by Buyer of this Agreement
does not and will not violate or conflict with any provision
of its organizational documents and does not and will not
violate any applicable provision of law, or any order,
judgment or decree of any Governmental Authority, nor violate
or result in a breach of or constitute (with due notice or
lapse of time or both) a default under any contract, lease,
loan agreement, mortgage, security agreement, trust indenture
or other agreement or instrument to which Buyer is a party or
by which it is bound or to which its properties or assets is
subject, nor result in the creation or imposition of any
encumbrance upon any of its properties or assets where such
violations, breaches or defaults in the aggregate would have a
material adverse effect on the transactions contemplated
hereby or on the assets, properties, business, operations, net
income or financial condition of Buyer.
(b) Representations and Warranties of Xxxxxxxx. As of the date
of this Agreement, Xxxxxxxx represents and warrants as follows:
11
(i) Corporate Organization. Xxxxxxxx is a
corporation duly organized, validly existing and in good
standing under the laws of the state of Delaware and has all
requisite power and authority to own its properties and assets
and to conduct its business as now conducted.
(ii) Validity of Agreement. Xxxxxxxx has the
power to enter into this Agreement and to carry out its
obligations hereunder. The execution and delivery of this
Agreement and the performance of Xxxxxxxx' obligations
hereunder have been duly authorized by its Boards of Directors
and no other proceedings on the part of Xxxxxxxx are necessary
to authorize such execution, delivery and performance. This
Agreement has been duly executed by Xxxxxxxx and constitutes
the valid and binding obligation of Xxxxxxxx enforceable in
accordance with its terms against Xxxxxxxx (except to the
extent that its enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or other similar law
affecting the enforcement of creditors' rights generally or by
general equitable principles).
(iii) No Conflict or Violation; No Defaults. The
execution, delivery and performance by Xxxxxxxx of this
Agreement does not and will not violate or conflict with any
provision of its organizational documents and does not and
will not violate any applicable provision of law, or any
order, judgment or decree of any Governmental Authority, nor
violate or result in a breach of or constitute (with due
notice or lapse of time or both) a default under any contract,
lease, loan agreement, mortgage, security agreement, trust
indenture or other agreement or instrument to which Xxxxxxxx
is a party or by which it is bound or to which any of its
properties or assets is subject, nor result in the creation or
imposition of any encumbrance upon any of its properties or
assets where such violations, breaches or defaults in the
aggregate would have a material adverse effect on the
transactions contemplated hereby or on the assets, properties,
business, operations, net income or financial condition of
Xxxxxxxx.
9. Indemnification; Release; Limit on Liability.
(a) Xxxxxxxx and the Xxxxxxxx Service Providers shall, jointly
and severally, indemnify and hold harmless the Buyer Entities and each
of their respective officers, directors, employees, agents and
affiliates (and the officers, directors, employees and agents of such
affiliates) (the "Buyer Indemnified Parties") from and against any and
all losses, claims, demands, damages, fines, penalties, injuries,
liabilities, suits, obligations to indemnify others, judgments,
expenses or costs (including reasonable attorneys', consultants' and
experts' fees and other expenses incurred in the defense of any claim
or lawsuit in the enforcement of this indemnity obligation) (each, a
"Claim") arising out of, relating to or resulting from the Xxxxxxxx
Service Providers' performance of the services specified under this
Agreement to the extent such Claim results from Xxxxxxxx or the
Xxxxxxxx Service Providers' negligence or willful failure to perform
their obligations hereunder.
12
(b) The Buyer Entities shall, jointly and severally, indemnify
and hold harmless Xxxxxxxx and the Xxxxxxxx Service Providers, and each
of their respective officers, directors, employees, agents and
affiliates (and the officers, directors, employees and agents of such
affiliates) ("Xxxxxxxx Indemnified Parties") if any of the Xxxxxxxx
Indemnified Parties shall at any time or from time to time be subject
to any Claims arising out of, relating to or resulting from the
performance of the services specified under this Agreement by either
party except to the extent such Claim results from the Xxxxxxxx
Indemnified Parties' negligence or willful failure to perform their
obligations hereunder.
(c) Notwithstanding anything to the contrary in this
Agreement, the Buyer Entities shall not be liable to any of the
Xxxxxxxx Indemnified Parties, nor shall Xxxxxxxx or the Xxxxxxxx
Service Providers be liable to any of the Buyer Indemnified Parties,
for any exemplary, punitive, special, indirect, consequential, remote,
or speculative damages (including, without limitation, any damages on
account of lost profits or opportunities) resulting from or arising out
of this Agreement or the transactions contemplated hereby.
(d) The obligations of the Parties in this Section 9 shall not
limit their respective indemnification obligations, or those of their
affiliates, under the Purchase Agreement.
10. Schedules. The Schedules to this Agreement that are specifically
referred to herein are a part of this Agreement as if fully set forth herein.
All references herein to Articles, Sections, subsections, paragraphs,
subparagraphs, clauses and Schedules shall be deemed references to such parts of
this Agreement, unless the context shall otherwise require.
11. Force Majeure. If by reason of a Force Majeure Event either party
is rendered unable, in whole or in part, to perform its obligations under this
Agreement, other than the obligation to make payments of money then due, such
party shall be excused from such performance to the extent it is prevented by,
and during the continuance of, such Force Majeure Event. The party whose
performance is affected by an Force Majeure Event shall (i) give the other party
notice of the occurrence of such Force Majeure Event as soon as practicable and
(ii) use all commercially reasonable efforts to remedy the cause(s) and
effect(s) of such Force Majeure Event with all reasonable dispatch; provided,
however, that the affected party shall not be obligated to undertake
commercially unreasonable costs or burdens in order to overcome the effects of
the Force Majeure Event and reinstate full performance of its obligations under
this Agreement.
12. Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be deemed given if delivered personally,
by facsimile (which is confirmed) or sent by overnight courier (providing proof
of delivery), to the parties at the following address:
(a) If to Xxxxxxxx:
The Xxxxxxxx Companies, Inc.
Xxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
13
Facsimile: (000) 000-0000
Attention: Xx. Xxxx Xxxxxx
(b) If to the Buyer Entities:
WEG Acquisitions, L.P.
c/o WEG GP LLC
Xxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xx. Xxxxx Xxxxxxxx
with a copy to:
Xxxxxx & Xxxxxx L.L.P.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xx. Xxxx Xxxxxxxxxxx
Any party may, by notice given in accordance with this Section 12 to the other
parties, designate another address or person for receipt of notices hereunder
provided that notice of such a change shall be effective upon receipt.
13. Successors and Assigns. This Agreement shall inure to the benefit
of, and be binding upon, Xxxxxxxx and Buyer and their respective successors and
permitted assigns. No party may assign or otherwise transfer all or any of its
rights, benefits or obligations hereunder without the prior written consent of
the other party, and any assignment without such consent shall be void; provided
however, that, upon written notice to the other party but without the prior
written consent of such other party, a party may assign or otherwise transfer
its rights, benefits and obligations hereunder to another person or entity in
connection with an acquisition, merger, consolidation, sale of assets or other
transaction involving such other person or entity and constituting a change of
control of such party hereto.
14. Headings. The headings in this Agreement are for reference only,
and shall not affect the interpretation of this Agreement.
15. Signatures Counterparts. Facsimile transmission of any signed
original document and/or retransmission of any signed facsimile transmission
shall be the same as delivery of an original. At the request of Buyer or
Xxxxxxxx, the parties will confirm facsimile transmission by signing a duplicate
original document. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original and all of which together shall be
considered one and the same agreement.
14
16. Amendments. This Agreement may be amended, modified or supplemented
only by a written instrument executed by Xxxxxxxx and Buyer. The execution of
such instrument by any Partnership Entity shall not be required.
17. Governing Law. This Agreement shall be governed and construed in
accordance with the internal and substantive laws of New York and without regard
to any conflicts of laws concepts that would apply the substantive law of some
other jurisdiction.
18. Entire Agreement. This Agreement, together with the Schedules
attached hereto, and the provisions of the Purchase Agreement relating hereto,
represent the entire agreement and understanding of the parties hereto and
thereto with reference to the transactions set forth herein. This Agreement,
together with the Schedules attached hereto, and the provisions of the Purchase
Agreement relating hereto, supercede all prior negotiations, discussions,
correspondence, communications, understandings and agreements between the
parties relating to the transactions set forth herein and all prior drafts
hereof (including Exhibit 1.2(a)(iv)(2) to the Purchase Agreement). No prior
drafts hereof and no words or phrases from any such prior drafts shall be
admissible into evidence in any action or suit involving this Agreement.
19. Negotiated Agreement. This Agreement has been negotiated by the
parties and the fact that the initial and final draft will have been prepared by
either party will not give rise to any presumption for or against any party to
this Agreement or be used in any respect or forum in the construction or
interpretation of this Agreement or any of its provisions.
20. Waiver. No consent or waiver, express or implied, by any party to
or of any breach or default by any other party in the performance by such other
party 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 of obligations
hereunder by such other party hereunder. Failure on the part of any party to
complain of any act or failure to act of any other party or to declare any other
party in default, irrespective of how long such failure continues, shall not
constitute a waiver by such first party of any of its rights hereunder.
21. Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, each of Xxxxxxxx and Buyer directs that such court interpret
and apply the remainder of this Agreement in the manner that it determines most
closely effectuates their intent in entering into this Agreement, and in doing
so particularly take into account the relative importance of the term,
provision, covenant or restriction being held invalid, void or unenforceable.
22. Interpretation. Whenever the words "include," "includes," or
"including," are used in this Agreement, they shall be deemed to be followed by
the words "without limitation."
23. Third Party Beneficiaries. Except for the Buyer Entities other than
the Buyer (including the Partnership Entities) and Xxxxxxxx Service Providers,
which are intended third party beneficiaries, and except as set forth in
Sections 9 and 13, nothing in this Agreement is intended or shall be construed
to give any person, other than the parties hereto, their successors and
permitted assigns, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
15
24. Agreement Binding on Entities Other Than Parties. Buyer shall use
commercially reasonable efforts to cause the Partnership Entities to be bound by
the terms and conditions of this Agreement, and Buyer shall be responsible for
any breaches thereof by any such Partnership Entity. The Buyer Entities are
jointly and severally liable hereunder.
25. Press Release. Except as required by Laws or applicable stock
exchange rules, neither party shall issue any press releases relating to or
arising out of the performance of this Agreement without the prior written
consent and approval of the content of such statement by the other party (which
consent shall not be unreasonably withheld).
26. Reasonable Cooperation. During the term of this Agreement, each of
the parties shall reasonably cooperate with each other to perform its
obligations under this Agreement, including without limitation, agreeing to
negotiate in good faith to enter into an amendment to this Agreement upon the
written request of either party.
16
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
THE XXXXXXXX COMPANIES, INC.
A DELAWARE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
WEG ACQUISITIONS, L.P.
A DELAWARE LIMITED PARTNERSHIP
By: WEG Acquisition Management, LLC
its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
---------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Authorized Signatory
17
SCHEDULE "A"
G&A SERVICES
Monthly
Category of G&A Services G&A Services Fee
------------------------ ----------------
1. Technical services, including engineering, project management,
corrosion control, environmental, health and safety services (excludes
$30,583 estimated monthly bonus accrual and $22,702 benefits) $746,715
2. Pipeline commercial services, including commercial, business
development, tariffs, and operations management for the Pipeline
Group (excludes $31,417 in estimated monthly bonus accrual and
$12,231 benefits) $423,019
3. Terminals commercial services, including commercial, business
development and operations management for the Terminals Group
(excludes $22,833 in estimated monthly bonus accrual and $7,508
benefits) $286,325
4. Services of CEO, CFO and their staffs, including investor relations
and planning (excludes $16,750 in estimated monthly bonus accrual
and $2,976 benefits) $113,607
5. Information technology services, including business, financial and
HR applications and network, hardware and website support
(excludes $12,500 in estimated monthly bonus accrual and $10,518
benefits),* subdivided as follows: $710,000
a. ATLAS $193,000
b. Terminals Application (TAS) $ 49,000
c. Pipeline Applications (SCADA, Magic, Squire) $ 54,000
d. Environmental Management $ 9,000
e. GIS $ 1,000
f. Livelink $ 6,000
g. Financial applications, including accounts payable/receivable,
general ledger, financial reporting, purchasing) $ 13,000
h. HR/Payroll applications $ 46,000
i. Personal computing infrastructure (PC procurement, helpdesk,
email, security) $174,000
j. Hardware Leases $ 27,000
k. Network support, including LAN and WAN routers $138,000
6. Accounting services, including business, general, accounts payable,
property and management accounting and accounting services for $192,673
A-1
SEC reporting (excludes $9,083 in estimated monthly bonus accrual and $6,577 benefits),
subdivided as follows:
a. Financial Reporting $ 27,365
b. General Accounting $ 33,522
c. Accounts Payable $ 24,068
d. Revenue Accounting $ 82,049
e. Property Accounting $ 25,669
7. Human resources and benefits administration, including HR
generalists, compensation benefits analysts and benefits
administration and employee communications (excludes $5,250 in
estimated monthly bonus accrual and $2,710 benefits) $ 167,040
8. Legal services of internal and external attorneys for legal services
including contract negotiation, business advice, corporate secretary,
general business advice, and services of general counsel (excludes
$10,583 in estimated monthly bonus accrual and $2,102 benefits) $ 120,648
9. Governmental Affairs and regulatory representation (excludes $3,250
in estimated monthly bonus accrual and $446 benefits) $ 37,971
10. Tax services, including state and local taxes, ad valorem tax,
transactional taxes, and federal K-1 reporting assistance (excludes
$2,167 in estimated monthly bonus accrual and $1,209 benefits) $ 38,291
11. Internal audit and compliance services (excludes $2,167 in estimated
monthly bonus accrual and $676 benefits) $ 22,157
12. Risk management and insurance services $ 8,333
13. Treasury services, including cash management and wire/ACH
processing (excludes $167 in estimated monthly bonus accrual and
$143 benefits) $ 8,024
14. Administrative services, including mail services, fax and copier
leases, records management, office services, and parking subsidy
(excludes $500 in estimated monthly bonus accrual and $390
benefits) $ 24,110
----------
TOTAL $2,898,913
* Notes to Item 5 above:
- Individual PC leases will be reduced following transfer of payment
responsibilities.
- Network circuit charges (Xxxxxxxx' billed amount) will be reduced
following circuit transfers.
- Computing (subcategory "i .") shall remain for the duration of the
Agreement.
- Subcategories "a." through "j." shall not be subdivided; Buyer shall
assume cost until the entire service represented by any such
subcategory is removed.
A-2
SCHEDULE "B"
POTENTIAL LEASED EMPLOYEES*
----------------------------------------------------------------------------
Employee Name Date of Birth Lease End Date
----------------------------------------------------------------------------
Xxxx Xxxxxx 7/4/1948 7/11/2003
--------------------------------------------------------------------------
Xxxxx Xxxxxx 8/14/1948 8/22/2003
--------------------------------------------------------------------------
Xxxxxxx Xxxxx 8/18/1948 8/22/2003
--------------------------------------------------------------------------
Xxxxxxxx X. Xxxxx 9/21/1948 10/3/2003
--------------------------------------------------------------------------
Xxxxxx X. Xxxxxxxx 10/28/1948 10/31/2003
--------------------------------------------------------------------------
Xxxx X. Xxxxxxxx 11/8/1948 11/14/2003
--------------------------------------------------------------------------
* Each potential Leased Employees listed above shall become a Leased Employee in
accordance with Section 2(f) of this Agreement.
B-1
SCHEDULE "C"
POTENTIAL O&M EMPLOYEES AND G&A EMPLOYEES*
[See Attached List]
* This Schedule shall be finalized no more than five (5) days after delivery of
the Section 4.3(a) Notice to the Selling Parties.
C-1
