EXHIBIT 10.3
TRANSITION SERVICES
AGREEMENT
This TRANSITION SERVICES AGREEMENT (this “
Agreement ”), dated as of April 7, 2009, to be
effective as of 11:59 PM CDT March 31, 2009 (the “
Effective Date ”), is entered into by and between
SemGroup Energy Partners, L.P., SemGroup Energy Partners, L.L.C.,
SemGroup Crude Storage, L.L.C., SemPipe G.P., L.L.C. SemPipe, L.P.,
SemMaterials Energy Partners, L.L.C. and SGLP Asphalt L.L.C.
(collectively, “ Service Recipient ”), and
SemCrude, L.P., SemGroup, L.P., SemMaterials, L.P. and
SemManagement, L.L.C. (collectively, “ Service
Provider ”). Service Provider and Service
Recipient are hereinafter collectively referred to as the “
Parties ” or individually, as applicable, as the
“ Party .”
W I T N E S S E T
H
WHEREAS, Service Provider and Service Recipient
have entered into a Master Agreement, dated as of the date hereof
(the “ Master Agreement ”), pursuant to which,
among other things, Service Provider will provide certain services
for Service Recipient’s operations (the “ Service
Recipient Business ”) for a limited transition
period;
WHEREAS, after the date hereof, Service
Recipient will operate the Service Recipient Business independently
of the Service Provider’s other operations (the “
Service Provider Business ”);
WHEREAS, Service Recipient desires Service
Provider to provide Service Recipient with certain transition
services related to the Service Recipient Business, which are more
particularly described on Exhibits A, B, C and D
hereof (the “ Services ”); and
WHEREAS, the Parties will pay for transition
services and expenses in accordance with the terms hereof on a
basis reasonably related to cost of services rendered.
NOW, THEREFORE, in consideration of the
foregoing and the mutual covenants and agreements set forth herein,
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as
follows:
Unless otherwise expressly noted, the words
“hereof,” “herein,”
“hereunder,” and words of similar import shall refer to
this Agreement as a whole and not to any particular section,
subsection or clause of it, and references herein to an exhibit,
schedule, section, subsection, or clause shall refer to those of or
in this Agreement. The meanings of terms defined herein
shall be equally applicable to both the singular and plural forms
of those terms.
(a) Subject to the
terms and conditions hereof, during the Term (as hereinafter
defined), Service Provider shall provide to Service Recipient the
Services set forth in Exhibits A , B , C , and
D hereof.
(b) As may be required
or at its option, and after receiving the written consent of
Service Recipient, which shall not be unreasonably withheld,
conditioned or delayed, Service Provider may cause any Service
outlined hereunder to be provided by any third party (an “
Outsourced Service ”). Service Recipient
hereby consents to any Outsourced Services that are in existence as
of the date hereof. Notwithstanding anything to the
contrary contained herein, Service Provider will not be responsible
for the quality of any Outsourced Service so long as Service
Provider reasonably selects the provider of such
Services. In the event an Outsourced Service provider
commits a breach of an Outsourced Service agreement that has, or in
the reasonable judgment of Service Recipient has the potential to
have, a material adverse impact on Service Recipient, Service
Provider shall use commercially reasonable efforts to enforce any
claims and pursue any rights or remedies Service Provider may have
against the Outsourced Service provider for such breach or
potential breach in the same manner with which Service Provider
seeks to enforce such a claim or pursue such rights or remedies in
respect of such a breach or potential breach adversely affecting
Service Provider. Service Provider shall use
commercially reasonable efforts to have Service Recipient be a
third party beneficiary of any rights or remedies Service Provider
may have against the Outsourced Service provider for any breach
arising from or relating to any Outsourced Service. For
greater clarity and subject to Section 11 , nothing in this
Agreement shall be interpreted as to relieve Service Provider from
any of its obligations hereunder, including its obligation to
provide the Services it is required to provide
hereunder.
(c) Notwithstanding
any other provision of this Agreement and without limiting the
rights of Service Recipient for a breach of Service Provider of its
obligations under this Agreement, Service Recipient shall have
exclusive control and decision making authority with respect to the
Service Recipient Business and shall be responsible for ensuring
that the Service Recipient Business is in compliance with all
Applicable Laws. Service Provider shall not be
responsible for any Liabilities arising from (i) Service
Provider’s compliance with any instruction, direction or
parameter given by Service Recipient or any constraint imposed by
Service Recipient or (ii) Service Recipient’s decision to not
implement any actions recommended by Service Provider in connection
with its provision of Services to Service Recipient.
SECTION
3.
FUNDING OF
EXPENSES.
The Parties agree that Service Recipient will
accrue for and pay its direct expenses related to the Service
Recipient Business, including, without limitation, licensing,
registration fees, taxes, surety bonds, legal fees, auditing fees
and other outside vendors with whom Service Recipient contracts;
and the expense allocation payable under Exhibits A ,
B , C , and D hereto. Service
Provider further agrees that it will apportion or chargeback any
expenses at the end of each month, or any other applicable billing
period, and will not true up any such expenses to Service Recipient
at the end of any fiscal year.
SECTION
4.
TERM AND
TERMINATION.
4.1
Term
. Exhibits A ,
B , C , and D specifically outline the term
for which Services will be provided (the “ Term
”).
4.2
Effect of
Termination . Each Party’s obligations to
perform with respect to the particular Service or Services provided
to or by it hereunder shall end as of the effective date of its
termination in accordance with this Agreement; provided ,
however , that each Party shall remain liable to the other
as provided for hereunder with respect to (a) any obligations
accruing under this Agreement prior to the effective date of such
termination, or (b) as otherwise provided in this
Agreement. Notwithstanding anything in this Agreement to
the contrary, Sections 4.2 , 9 , 10 and
13 shall survive the expiration or termination of this
Agreement.
SECTION
5.
COMPENSATION, PAYMENT AND
AUDIT REVIEWS.
5.1
Payment of Service Fees to
Service Provider . In consideration for Service
Provider providing the Services to Service Recipient, Service
Recipient shall pay Service Provider the Service Fees in accordance
with Section 5.3 below.
(a) Not later than
fifteen (15) days following the end of each month, Service Provider
shall deliver to Service Recipient a statement (the “
Monthly Statement ”) that details the actual cost
allocable, to the extent applicable, for Services to Service
Recipient for that month as set forth on Exhibits A, B, C
and D (the “ Service Fees
”). Acceptable forms of delivery for the Monthly
Statement include facsimile, electronic mail, postal mail and hand
delivery.
(b) Service Recipient
shall have the right to review the supporting documentation for
such Monthly Statement pursuant to Section 5.4 and Service
Recipient shall have thirty (30) days after its receipt of the
Monthly Statement to deliver a written notice to Service Provider
(the “ Dispute Notice ”) setting forth the items
in dispute in reasonable details (the “ Disputed Items
”). During the thirty (30) day period following
delivery of the Dispute Notice (the “ Resolution
Period ”), the Parties will use commercially reasonable
efforts to reach agreement on the Disputed Items set forth in the
Dispute Notice. If the Parties are unable to reach an
agreement during the Resolution Period, then they will appoint a
mutually acceptable independent party to review the Dispute Notice
and determine the final amount of the Disputed Items. If
the Parties are unable to agree on a single independent party
within fifteen (15) days after the end of the Resolution Period,
then the Parties will each appoint one (1) independent party, who
will jointly select a third independent party (singly or
collectively, the “ Referee ”), within thirty
(30) days after the end of the Resolution Period. The
Referee shall deliver its determination to the Parties within
thirty (30) days from the date of its engagement. The
Referee’s report shall be final and binding upon the
Parties. The cost of the Referee’s engagement and
report shall be shared fifty percent (50%) by Service Provider and
fifty percent (50%) by Service
Recipient. Notwithstanding anything herein to the
contrary, Service Provider shall continue providing Services during
such time as a dispute exists and nonpayment by Service Recipient
of any Disputed Items that are outstanding in accordance with this
Section 5.2(b) shall not constitute a breach of this
Agreement.
(c) In accordance with
Service Provider’s normal practices as of the date hereof,
Service Provider shall maintain reasonably complete and accurate
records of and supporting documentation for all non Fixed Fee
charges and costs and all other data and/or information created,
generated, collected, processed or stored by Service Provider in
connection with the provision of the Services as provided for in
this Agreement (collectively, the “ Service Records
”). Service Provider shall retain the Service
Records in accordance with Service Provider’s record
retention policy; provided, that Service Provider will retain
records for a minimum of the term of this Agreement. In
the event of the termination of any Service provided by Service
Provider under this Agreement, Service Provider shall provide to
Service Recipient at Service Recipient’s request and cost a
copy of all Service Records pertaining to such terminated Service
to the extent not previously provided under Section 5.4
.
5.3
Payments of Service Fees by
Service Recipient . Service Recipient shall pay all Service Fees
promptly, but no later than fifteen (15) days after its receipt of
the Monthly Statement to which such Service Fees apply, via wire
transfer of immediately available funds into a bank account
designated by Service Provider, except for Disputed Items that
remain outstanding in accordance with Section 5.2(b) of this
Agreement. If Service Recipient disputes any portion of
a Monthly Statement, Service Recipient must pay the undisputed
portion. Overdue amounts that are resolved in favor of
Service Provider will accrue interest at the one-month London
Interbank Offered Rate from the date that payment is due until paid
in full. If overdue amounts are resolved in favor of
Service Provider, then Service Recipient will pay all of Service
Provider’s reasonable, out-of-pocket costs (including
reasonable attorney’s fees) of collecting past due payments
and late payment charges; provided , however , that
the Parties will share the costs of a Referee in accordance with
Section 5.2(b) . If overdue amounts are resolved
in favor of Service Recipient, then Service Provider will pay all
of Service Recipient’s reasonable, out-of-pocket costs
(including reasonable attorney’s fees) of defending itself;
provided , however , that the Parties will share the
costs of a Referee in accordance with Section 5.2(b)
. Any Disputed Items shall be resolved in accordance
with Section 5.2(b) of this Agreement.
5.4
Audit Review
.
Upon the request of Service
Recipient for an audit, Service Provider agrees to afford Service
Recipient’s accountants (and internal and external auditors,
inspectors, regulators and other representatives that Service
Recipient may designate from time to time) reasonable access,
during normal business hours and upon reasonable notice during the
Term, to the Service Records, and shall furnish promptly such
information concerning the Services and the Service Fees as Service
Recipient’s accountants (and internal and external auditors,
inspectors, regulators and other representatives that Service
Recipient may designate from time to time) reasonably request;
provided , however , that such investigation shall
not unreasonably disrupt Service Provider’s
operations. Service Recipient will be limited to one (1)
audit review for the entirety of the Term of this Agreement,
provided , however , if Service Recipient has a
reasonable business need for one (1) additional audit review,
Service Provider will facilitate one (1) additional audit review to
the extent the request is reasonable. Notwithstanding
any provision of this Article V to the contrary, Service
Recipient and its internal and external auditors, inspectors,
regulators and other representatives shall not be given access to
(i) the proprietary information of customers of Service Provider or
(ii) Service Provider’s facilities that are not related to
the provision of the Services. Each Party will be
responsible for its own costs associated with any audit activity
pursuant to this Section 5.4 .
5.5
Notification and Disclosure
Matters . Service Provider will notify
Service Recipient within forty-eight (48) hours regarding any
issues pertaining to Service Recipient in accordance with the
disclosure procedures in place as of the date hereof.
Service Recipient shall pay all applicable sales
and use taxes required to be paid on Services provided to Service
Recipient that may be due or become due in connection with Service
Provider’s performance of the Services. Service
Provider shall reasonably cooperate with Service Recipient in order
to permit Service Recipient to establish any exemption from or
reduction to, or obtain any credit or refund of, any such sales and
use Taxes.
7.1
Rights and
Obligations . The Parties hereby enter into this
Agreement for the purpose of setting forth their respective rights
and obligations relating to (i) the furnishing of Services and (ii)
the sharing of costs associated therewith between Service Provider
and Service Recipient.
7.2
Nature of the
Relationship .
(a) The relationship
of the Parties under this Agreement is and shall be limited to one
of contract. Neither the contractual relationship
between the Parties established hereby nor any provision of this
Agreement shall be construed to create a partnership or joint
venture between the Parties, or make either Party in any way
responsible for the indebtedness, obligations, legal compliance or
other liabilities of the other Party, except as specifically herein
provided. Neither Party shall have any authority or
power to act for or bind the other or to encumber, lease or convey
any part of or interest in the other Party’s
property. The Parties shall develop procedures and
practices so that the interests of any Party are not favored or
required to be preferred over the interests of the other, except as
provided herein.
(b) Except as provided
herein, this Agreement shall not in any manner (i) limit the
Parties in carrying on their respective separate businesses or
activities, (ii) impose upon either Party any fiduciary duty
vis-a-vis the other or (iii) impose upon either Party any
obligation or liability.
(c) The Parties
recognize that some of their respective operations are located at
shared sites and that necessary interactions result from the
proximity of their businesses and the shared responsibilities
resulting from the use of the shared sites. The
businesses of the respective Parties will be managed by the
Parties, as independent companies, and each will act and conduct
business independently. Further, each Party recognizes
its responsibility to support the capability of each other Party to
continue to conduct their respective businesses for routine and
non-routine activities (including but not limited to start-up, shut
down, emergency and other infrequent or unanticipated opportunities
or events).
SECTION
8.
NON-LIABILITY OF THE
PARTIES.
8.1
Standard of
Care . Service Provider shall perform the
Services in a good and workmanlike manner, exercising reasonable
skill, care and diligence in performing the same, (i) consistent in
all material respects with the practices and processes followed or
implemented by Service Provider when performing the same Services
in connection with the Service Provider Business, (ii) with the
same priority it would afford Service Provider’s operations
and (iii) in accordance with prudent industry practices and
Applicable Law. Except as described herein or due to a
breach hereof, unless caused by the gross negligence or willful
misconduct of a Party, the respective Parties shall not be liable
for any damage arising out of their performance of this Agreement,
whether with respect to the person or property of the other Party
or of any of its employees, agents, or invitees, or
otherwise.
8.2
Disclaimer of Warranties;
Limitation of Liability . SERVICE PROVIDER MAKES NO WARRANTIES OR
GUARANTEES, EXPRESS OR IMPLIED, RELATING TO ANY OF THE SERVICES AND
SERVICE PROVIDER DISCLAIMS ANY IMPLIED WARRANTIES OR WARRANTIES
IMPOSED BY LAW, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE. EXCEPT FOR THE
PARTIES’ INDEMNIFICATION OBLIGATIONS WITH RESPECT TO CLAIMS
OF THIRD PARTIES, THE PARTIES’ LIABILITY FOR DAMAGES
HEREUNDER IS LIMITED TO DIRECT, ACTUAL DAMAGES ONLY, AND NEITHER
PARTY SHALL BE LIABLE TO THE OTHER FOR SPECIFIC PERFORMANCE, LOST
PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, OR SPECIAL,
CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES,
IN TORT, CONTRACT OR OTHERWISE, OF ANY KIND, ARISING OUT OF OR IN
ANY WAY CONNECTED WITH THE PERFORMANCE, THE SUSPENSION OF
PERFORMANCE, THE FAILURE TO PERFORM, OR THE TERMINATION OF THIS
AGREEMENT.
SECTION
9.
INDEMNIFICATION.
9.1
Subject to Section 8
, each Party (each an “
Indemnitor ”) shall defend, indemnify, and hold
harmless the other Party, each of such Party’s Affiliates,
and the officers, employees, directors, representatives and agents
of such Party and its Affiliates (collectively, “
Indemnitees ”) from and against any and all
Liabilities to the extent that they result from, arise out of or
relate to (a) an Indemnitor’s (i) breach of this Agreement,
(ii) failure to comply with any contract with a third party
relating to the Services or (iii) failure to comply with Applicable
Law or (b) any gross negligence or willful misconduct of such
Indemnitor, its Affiliates or its officers, employees, directors,
managers, representatives or agents in connection with the
performance of such Party’s obligations under this
Agreement. Such Liabilities shall include, but not be
limited to, reasonable attorneys’ fees and any other
out-of-pocket expenses incurred by an Indemnitee in defending or
prosecuting any lawsuit or action that arises out of the
performance of this Agreement. Notwithstanding the
foregoing, however, an Indemnitor shall not be liable to defend,
indemnify or hold harmless any Indemnitee for any Liabilities
arising out of or resulting from the gross negligence or willful
misconduct of such Indemnitee.
9.2
In addition to the
indemnification obligations contained in Section 9.1 above,
Service Recipient shall defend, indemnify, and hold harmless
Service Provider, each of Service Recipient’s Affiliates, and
the officers, employees, directors, representatives and agents of
Service Provider and its Affiliates from and against any and all
Liabilities to the extent that they result from, arise out of or
relate to any allegation, claim, administrative finding or judicial
determination that Service Provider, by virtue of its performance
of this Agreement is an ‘operator’ or
‘generator’ under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, or
analogous state laws, of any real property owned, operated, leased
or occupied by Service Recipient. For purposes of this
Article IX , Service Recipient shall be an
“Indemnitor” and Service Providers and its Affiliates
and their respective officers, employees, directors and agents
shall be “Indemnitees”.
9.3
The Parties’ obligations to
defend, indemnify and hold each other harmless under the terms of
this Agreement shall not vest any rights in or be enforceable by
any third party, whether a Governmental Authority or private
entity, nor shall they be considered an admission of liability or
responsibility for any purposes other than those enumerated in this
Agreement. The terms of this Agreement are enforceable
only by the Parties and their permitted successors and assigns, and
no third party, including a member of Service Recipient, shall have
a separate right to enforce any provision of this Agreement, or to
compel any Party to comply with the terms of this
Agreement.
9.4
The Indemnitee shall notify the
Indemnitor as soon as practicable after receiving notice of any
claim or proceeding brought against it that might give rise to an
indemnity claim under this Agreement (an “ Indemnification
Claim ”) and shall furnish to the Indemnitor the complete
details within its knowledge. Any delay or failure by
the Indemnitee to give notice to the Indemnitor shall not relieve
the Indemnitor of its obligations except to the extent, if any,
that the Indemnitor shall have been materially prejudiced by reason
of such delay or failure.
9.5
The Indemnitor shall have the right
to assume the defense, at its own expense and by its own counsel,
of any Indemnification Claim; provided , however ,
that such counsel is reasonably acceptable to the
Indemnitee Notwithstanding the Indemnitor’s
appointment of counsel to represent an Indemnitee, the Indemnitee
shall have the right to employ separate counsel reasonably
acceptable to the Indemnitor, and the Indemnitor shall bear the
reasonable fees, costs and expenses of such separate counsel if in
the Indemnitee’s reasonable judgment (a) the use of counsel
chosen by the Indemnitor to represent the Indemnitee would present
such counsel with a conflict of interest or defenses that are
available to the Indemnitee that are not available to the
Indemnitor or (b) the Indemnitor shall not have employed counsel to
represent the Indemnitee within a reasonable time after notice of
the institution of such Indemnification Claim. If
requested by the Indemnitor, the Indemnitee Party agrees to
reasonably cooperate with the Indemnitor and its counsel in
contesting any claim or proceeding that the Indemnitor defends,
including, if appropriate, making any counterclaim or
cross-complaint. All reasonably incurred costs and
expenses incurred in connection with the Indemnitee’s
cooperation shall be borne by the Indemnitor.
9.6
No Indemnification Claim may be
settled or compromised by (a) the Indemnitee without the written
consent of the Indemnitor or (b) by the Indemnitor without the
written consent of the Indemnitee.
SECTION
10.
CONFIDENTIALITY.
From and after the date hereof, each Party shall
not and shall cause their directors, officers, employees and
Affiliates not to, directly or indirectly, disclose, reveal,
divulge or communicate to any person other than authorized
officers, directors and employees and Affiliates of the Party or
use or otherwise exploit for its own benefit any Confidential
Information (as defined below). No Party shall have any
obligation to keep confidential (or cause its officers, directors
or Affiliates to keep confidential) any Confidential Information if
and to the extent disclosure thereof is specifically required by
Applicable Law or a dispute between the Parties; provided ,
however , that in the event disclosure is required by
Applicable Law or by regulation and as required by regulatory
authorities, the relevant Party shall, to the extent reasonably
possible, provide the other Party with prompt notice of such
requirement prior to making any disclosure so that the other Party
may seek an appropriate protective order. For purposes
of this Agreement, “ Confidential Information ”
means any information with respect to the operations and
business practices of the other Party, including methods of
operation, customer lists, products, prices, fees, costs,
inventions, trade secrets, know-how, marketing methods, plans,
personnel, suppliers, competitors, markets or other specialized
information or proprietary matters. “Confidential
Information” does not include, and there shall be no
obligation hereunder with respect to, information that (i) is
generally available to the public on the date of this Agreement or
(ii) becomes generally available to the public other than as a
result of a disclosure not otherwise permissible
hereunder. The Parties consent to the filing of this
Agreement (i) with the Bankruptcy Court in connection with the
Bankruptcy Cases and (ii) with the Securities and Exchange
Commission.
SECTION
11.
FORCE
MAJEURE.
11.1
If Service Provider shall be
delayed, hindered in or prevented from performing any act required
to be performed by it hereunder by any cause or circumstance which
is beyond its control including, without limitation, an act of god,
strikes, lockouts or other labor troubles occurring with respect to
those sites for which Services are being provided hereunder,
inability to procure materials (including energy), power failure,
casualty, restrictive governmental laws, orders or regulations,
riots, insurrection, war or other reason of a like nature not the
fault of Service Provider, then performance of any such act shall
be extended for a period equivalent to the period of such delay and
a reasonable period of recovery thereafter.
11.2
If for any of the reasons set forth
above Service Provider shall be unable to perform any obligation
when due, Service Provider shall promptly notify Service Recipient
of such delay (and the estimated time that such delay shall
continue), in writing, and state the cause for the
same. Service Provider shall have the obligation to do
everything reasonably within its power to remove such cause, but
shall not be required to incur any substantial additional expense
or materially depart from its normal business practices. Service
Recipient shall not be required to pay for any disrupted Services
during the period in which they are not being provided to Service
Recipient pursuant to the terms of this Agreement.
12.1
Any notices and other communications
hereunder shall be in writing and shall be deemed to have been duly
given upon receipt if (i) hand delivered personally, (ii) mailed by
certified or registered mail, return receipt requested, (iii) sent
by Federal Express or other express carrier, fee prepaid, (iv) sent
via facsimile with receipt confirmed or (v) sent via electronic
email with receipt confirmed, provided that such notice or
communication is addressed to the respective Parties at the
following addresses:
6120 S. Yale
Avenue, Suite 700
Attention: Chief Financial Officer
Weil, Gotshal
& Manges LLP
200 Crescent
Court, Suite 300
Attention: Michael A. Saslaw,
Esq.
SemGroup Energy
Partners, L.L.C.
6120 S. Yale
Avenue, Suite 500
Attention: Chief Financial Officer
2001 Ross
Avenue, Suite 700
Attention: Doug Rayburn, Esq.
12.2
Any Party may change the person and
address to which notices or other communications to it hereunder
are to be sent by giving written notice of any such change to the
other Party in the manner provided in this Section 12
.
SECTION
13.
GENERAL
PROVISIONS.
13.1
Entire Agreement; Exhibits and
Schedules . This Agreement, and the Exhibits hereto,
represent the entire understanding and agreement between the
Parties hereto with respect to the subject matter hereof and
supersede any previous agreements or correspondence between the
Parties with respect to the same. All Exhibits annexed
hereto or referred to herein are hereby incorporated in and made a
part of this Agreement as if set forth in full
herein. Any capitalized terms used in any Exhibit but
not otherwise defined therein shall be defined as set forth in this
Agreement.
13.2
Amendments and
Waivers . This
Agreement and the Exhibits hereto can be amended, supplemented or
changed, and any provision hereof can be waived, only by written
instrument making specific reference to this Agreement or the
Exhibit hereto signed by the Party against whom enforcement of any
such amendment, supplement, modification or waiver is
sought. The Parties hereby acknowledge and agree that a
material amendment to this Agreement or any of the Exhibits
requires the approval of the Bankruptcy Court prior to the
effective date of the plan of reorganization in the Bankruptcy
Cases. The waiver by any Party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a
further or continuing waiver of such breach or as a waiver of any
other or subsequent breach. No failure on the part of
any Party to exercise, and no delay in exercising, any right, power
or remedy hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of such right, power or remedy by
such Party preclude any other or further exercise thereof or the
exercise of any other right, power or remedy.
13.3
Assignment;
Successors . This
Agreement shall be personal to each Party and no Party may assign
or transfer (directly or indirectly, by merger, consolidation,
operation of law or otherwise) its rights or obligations hereunder
without the prior written consent of the other Party, such consent
not to be unreasonably withheld, conditioned or delayed;
provided , however , that a Party may assign, without
the prior written consent of each other Party, this Agreement or
their respective rights and obligations hereunder, in whole or in
part, to an Affiliate or any successor in interest of such Party,
including the purchaser of all or substantially all of the assets
of such Party. This Agreement shall inure to the benefit
of, and shall be binding upon, the Parties and their respective
permitted successors and assigns, including with respect to Service
Provider, any reorganized debtor entity appointed pursuant to the
plan of reorganization of Service Provider.
13.4
Counterparts
.
This Agreement may be executed in
any number of counterparts each of which, when so executed and
delivered (including by facsimile or electronic mail transmission),
will be deemed an original but all of which together will
constitute one and the same instrument.
13.5
Headings
.
The captions of this Agreement are
for convenience only and are not a part of this Agreement and do
not in any way limit or amplify the terms and provisions of this
Agreement and shall have no effect on its
interpretation.
13.6
Severability
.
If any term or provision of this
Agreement is invalid, illegal or incapable of being enforced by Law
or public policy, all other terms and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the
legal and economic substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any
Party. Upon such determination that any term or
provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner in order that the
transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
13.7
Governing Law; Waiver of Jury
Trial . THIS AGREEMENT, THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT, AND ANY CLAIM OR
CONTROVERSY DIRECTLY OR INDIRECTLY BASED UPON OR ARISING OUT OF
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
(WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER THEORY), INCLUDING
ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, SHALL IN ALL
RESPECTS BE GOVERNED BY AND INTERPRETED, CONSTRUED, AND DETERMINED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF OKLAHOMA
(WITHOUT REGARD TO ANY CONFLICT OF LAWS PROVISION THAT WOULD
REQUIRE THE APPLICATION OF THE LAW OF ANY OTHER
JURISDICTION). THE PARTIES HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT THAT THEY MAY HAVE TO TRIAL BY JURY OF
ANY CLAIM OR CAUSE OF ACTION, OR IN ANY PROCEEDING, DIRECTLY OR
INDIRECTLY BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT (WHETHER BASED ON
CONTRACT, TORT, OR ANY OTHER THEORY). EACH PARTY
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.
(a) Without limiting
any Party’s right to appeal any Order of the Bankruptcy
Court, (i) the Bankruptcy Court shall retain exclusive jurisdiction
to enforce the terms of this Agreement and to decide any claims or
disputes which may arise or result from, or be connected with, this
Agreement, any breach or default hereunder, or the transactions
contemplated hereby, and (ii) any and all actions related to the
foregoing shall be filed and maintained only in the Bankruptcy
Court, and the Parties hereby consent to and submit to the
jurisdiction and venue of the Bankruptcy Court and shall receive
notices at such locations as indicated in Section 12.1 ;
provided , however , that if a plan of reorganization
has become effective in the Bankruptcy Cases, the Parties agree to
and hereby unconditionally and irrevocably submit to the
jurisdiction of any federal or state court in Oklahoma and any
appellate court from any thereof, for the resolution of any such
claim or dispute.
(b) The Parties hereby
unconditionally and irrevocably waive, to the fullest extent
permitted by Applicable Law, any objection which they may now or
hereafter have to the laying of venue of any dispute arising out of
or relating to this Agreement or any of the transactions
contemplated hereby brought in any court specified in paragraph (a)
above, or any defense of inconvenient forum for the maintenance of
such dispute. Each of the Parties hereto agrees that a
judgment in any such dispute may be enforced in other jurisdictions
by suit on the judgment or in any other manner provided by
law.
(c) Each of the
Parties hereto hereby consents to process being served by any Party
to this Agreement in any suit, action or proceeding by the mailing
of a copy thereof in accordance with the provisions of Section
12.1(ii) ; provided , however , that such service
shall not be effective until the actual receipt thereof by the
Party being served.
[Signature page follows.]
IN WITNESS WHEREOF , the Parties hereto have made and executed this
Agreement as of the day and year first above written to be
effective as of the Effective Date.
SERVICE
PROVIDER
By: SemGroup
G.P., L.L.C., its general partner
By:
SemOperating G.P., L.L.C., its general partner
By:
SemOperating G.P., L.L.C., its general partner
SEMMANAGEMENT, L.L.C.
SERVICE
RECIPIENT
SEMGROUP
ENERGY PARTNERS, L.P.
By: SemGroup
Energy Partners G.P., L.L.C., its general partner
By:
/s/ Alex G. Stallings
Title: Chief
Financial Officer and Secretary
SEMGROUP
ENERGY PARTNERS, L.L.C.
By:
/s/ Alex G. Stallings
Title: Chief
Financial Officer and Secretary
SEMGROUP
CRUDE STORAGE, L.L.C.
By:
/s/ Alex G. Stallings
Title: Chief
Financial Officer and Secretary
SEMPIPE
G.P., L.L.C.
By:
/s/ Alex G. Stallings
Title: Chief
Financial Officer and Secretary
SEMPIPE,
L.P.
By: SemPipe G.P., L.L.C.,
By:
/s/ Alex G. Stallings
Title: Chief
Financial Officer and Secretary
SEMMATERIALS
ENERGY PARTNERS, L.L.C.
By:
/s/ Alex G. Stallings
Title: Chief
Financial Officer and Secretary
By: SemMaterials
Energy Partners, L.L.C.,
By:
/s/ Alex G. Stallings
Title: Chief
Financial Officer and Secretary
EXHIBIT A
CORPORATE
TRANSITION SERVICES
ARTICLE
I.
TERM AND
TERMINATION.
Section
1.01
Term
. Subject to earlier
termination in accordance with the provisions of Section
1.02 of this Exhibit A , Service Provider may provide
the Services on this Exhibit A for an initial period of one
(1) month, commencing on the Effective Date, or for such shorter
period as provided in this Exhibit A . Services
under Sections 2.03 and 2.05 of this Exhibit A
will be for an initial period of two (2) months. Parties
may mutually agree to extend the term of the sections in this
Exhibit A, except for Section 2.05, for up to two additional
one (1) month periods. The term of Section 2.05
of this Exhibit A cannot be extended beyond the initial
period of two (2) months.
Section
1.02
Early
Termination . This Agreement may be terminated
with respect to the transition services in this Exhibit A in
t
|
