Execution Copy
CORPORATE SERVICES AGREEMENT
THIS CORPORATE SERVICES AGREEMENT is entered into on, and effective as
of, July 2, 1996 (the "Closing Date") by and between NATIONAL SALES & SERVICE,
INC., a Delaware corporation ("NSSI"), and NATIONAL PROPANE CORPORATION, a
Delaware corporation (the "Managing General Partner").
R E C I T A L S:
WHEREAS, the Managing General Partner, National Propane Partners, L.P.,
a Delaware limited partnership (the "Partnership"), National Propane, L.P. (the
"Operating Partnership"), and certain other parties have executed that certain
Agreement of Limited Partnership of National Propane Partners, L.P. (the
"Partnership Agreement"), that certain Agreement of Limited Partnership of
National Propane, L.P. (the "Operating Partnership Agreement") and that certain
conveyance agreements, each dated the date hereof; and
WHEREAS, the Operating Partnership has established a wholly-owned
corporate subsidiary, NSSI, to conduct its parts and appliance sales and service
businesses; and
WHEREAS, it is the desire of NSSI that the Managing General Partner
perform certain acts and provide certain services or assets to NSSI; and
WHEREAS, it is the desire of the Managing General Partner to perform
certain acts and provide certain services or assets to NSSI; and
WHEREAS, it is also the desire of the Managing General Partner and NSSI
that certain employees of NSSI provide certain services to the Operating
Partnership; and
WHEREAS, capitalized terms used herein but not defined shall have the
meanings given to them in the Operating Partnership Agreement, except as other
definitions are set forth in Section 17.
A G R E E M E N T S:
NOW, THEREFORE, in consideration of the premises recited above and the
covenants, conditions, and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Term.
The term of this Agreement commences on the Closing Date and, unless
sooner terminated in accordance with Section 19 below, continues for so long as
the Managing General Partner or its affiliates remain the managing general
partner of each of the Partnership and the Operating Partnership.
2. Services.
(a) Services by the Managing General Partner. During the
Applicable Period, in exchange for the reimbursement described herein, the
Managing General Partner agrees to provide, or cause to be provided, to NSSI
certain corporate and staff services (the "Services") to the extent such
Services may be reasonably requested by NSSI from time to time during the
Applicable Period. The Services provided hereunder shall be those listed on
Exhibit A attached hereto as well as those specifically described below:
(i) Tax Matters. The Managing General Partner shall provide, or
cause to be provided, the services necessary to provide required tax
information to NSSI, prepare tax returns, if any are required, and
administer any tax matters or tax reporting requirements of NSSI to
the extent required.
(ii) Insurance. To the extent permitted by the Managing General
Partner's insurers, the business, properties and assets of NSSI shall
be insured under the Managing General Partner's policies or policies
of the Operating Partnership administered by the Managing General
Partner in effect from time to time or separate policies arranged by
the Managing General Partner.
(iii) Audit. The Managing General Partner shall assist NSSI with
negotiating services for both internal and contract audit functions.
(iv) Sales and Repairs Workforce. The Managing General Partner
shall provide any of its personnel as NSSI may reasonably require to
carry on its sale and service activities. The personnel used to carry
on the NSSI activities will be subject to the control and direction of
the officers of NSSI. All services to be performed by the Managing
General Partner or its affiliates on behalf of NSSI shall be performed
with reasonable care.
(b) Contractors. The Managing General Partner may engage any
affiliate or any third-party contractor to perform any Service (an "Outsourced
Service"); provided, the Managing General Partner shall remain responsible for
the provision of the Outsourced Service in accordance with this Agreement. NSSI
may not terminate any such Outsourced Service except upon proper notice as
provided in the agreement between the Managing General Partner and the
third-party contractor; provided, however, no agreement entered into by the
Managing General Partner after the
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Closing Date shall give to any third party a preferential right to provide NSSI
with Services following the expiration of this Agreement.
(c) Services by NSSI. During the Applicable Period, in exchange
for the reimbursement described herein, NSSI agrees to (i) render propane
equipment related maintenance and repair services and (ii) sell propane
appliance parts and propane appliances, to the customers of the Operating
Partnership and, if requested, to the Operating Partnership. All services to be
performed by NSSI shall be performed with reasonable care.
(d) All employees of NSSI performing services on behalf of the
Managing General Partner shall be subject to the direction and control of the
Managing General Partner in performing such services
(e) Cancellation or Reduction of Services. NSSI or the Managing
General Partner may remove and terminate or reduce the level of any Service or
Services or service or services on thirty (30) days' prior written notice to the
other party.
3. Payment for Services.
(a) Payments by NSSI. NSSI, in consideration for the performance
of the Services by or on behalf of the Managing General Partner, agrees to pay
the Managing General Partner for (i) all direct and indirect expenses actually
incurred by the Managing General Partner relating to the Services provided by
the Managing General Partner hereunder to NSSI, including all Administrative and
General Expenditures ("Direct Charges") and all expenses actually incurred by
the Managing General Partner for Outsourced Services or other contract services
or utilities provided by any third party providers for NSSI under a Managing
General Partner agreement with such third party ("Outsourced Charges"). If the
compensation for the Services does not include sales, use, excise, value added
or similar taxes, and if any such taxes are imposed on the Services, NSSI shall
pay or reimburse the Managing General Partner for any such taxes.
(b) Payments to NSSI. NSSI shall be entitled to charge a
reasonable price for all parts and appliances sold or repair services rendered
to the customers of the Operating Partnership or to the Operating Partnership.
The Managing General Partner shall assist NSSI in billing its customers, by
including amounts owed to NSSI by customers, as a separately stated item on the
Operating Partnership's bills to its customers. Cash collected by the Operating
Partnership on behalf of the NSSI shall be remitted to NSSI within 30 days of
receipt. Upon request of the Managing General Partner, NSSI will submit such
charges to the Operating Partnership rather than billing the Operating
Partnership's customers. In such event, the Operating Partnership shall make
payments to NSSI and the Operating Partnership shall assume responsibility for
collecting from the customers. Amounts collected from a customer of the
Operating Partnership shall be deemed applied first to amounts owed by such
customer to NSSI. The amount of any finance charges charged to the customer will
belong to the Operating Partnership.
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4. Invoicing.
(a) The Managing General Partner shall invoice NSSI by the
fifteenth (15th) working day of each month for all Direct Charges and Outsourced
Charges with respect to the preceding month and any adjustments that may be
necessary to correct prior invoices. All invoices shall reflect in reasonable
detail a description of the Services performed during the preceding month, and
shall be due and payable on the last day of the month of the invoice. In the
event of default in payment by NSSI, upon thirty (30) days' written notice to
NSSI, sent by certified mail to the address specified below, the Managing
General Partner may terminate this Agreement as to those Services which relate
to the unpaid portion of the invoice if it has not received payment within such
thirty (30) days. In the event of a dispute as to the propriety of invoiced
amounts, NSSI shall pay all undisputed amounts on each invoice, but shall be
entitled to withhold payment of any amount in dispute and shall notify the
Managing General Partner within ten (10) business days from receipt of the
disputed invoice of the disputed amount and the reasons each such charge is
disputed by NSSI. The Managing General Partner shall provide NSSI with records
relating to the disputed amount so as to enable the parties to resolve the
dispute. So long as the parties are attempting in good faith to resolve the
dispute, NSSI shall not be entitled to terminate the Services related to and by
reason of the disputed charge.
(b) NSSI shall invoice the Managing General Partner by the
fifteenth (15th) working day of each month for all charges attributable to work
performed by NSSI employees during the preceding month and any adjustments that
may be necessary to correct prior invoices. All invoices shall reflect in
reasonable detail a description of the services performed during the preceding
month, and shall be due and payable on the last day of the month of the invoice.
In the event of default in payment by the Managing General Partner, upon thirty
(30) days' written notice to the Managing General Partner, sent by certified
mail to the address specified below, NSSI may terminate this Agreement as to
such services if it has not received payment within such thirty (30) days. In
the event of a dispute as to the propriety of invoiced amounts, the Managing
General Partner shall pay all undisputed amounts on each invoice, but shall be
entitled to withhold payment of any amount in dispute and shall notify NSSI
within ten (10) business days from receipt of the disputed invoice of the
disputed amount and the reasons each such charge is disputed by the Managing
General Partner. NSSI shall provide the Managing General Partner with records
relating to the disputed amount so as to enable the parties to resolve the
dispute. So long as the parties are attempting in good faith to resolve the
dispute, the Managing General Partner shall not be entitled to terminate the
services related to and by reason of the disputed charge.
(c) Any statement or payment not disputed in writing by either
party within two years of the date of such statement shall be considered final
and no longer subject to adjustment. Neither party shall be obligated to pay for
any charges for which statements for payment are submitted more than two years
after the termination of this Agreement.
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5. NSSI and the Managing General Partner as Sole Beneficiaries.
NSSI acknowledges that the Services shall be provided only with respect
to the business of NSSI as currently operated or as mutually agreed by the
parties hereto. NSSI shall not request performance of any Services for the
benefit of any entity other than NSSI. NSSI represents and agrees that it will
use the Services only in accordance with all applicable federal, state and local
laws and regulations and communications and common carrier tariffs, and in
accordance with the reasonable conditions, rules, regulations and specifications
which may be set forth in any manuals, materials, documents or instructions
furnished from time to time by the Managing General Partner to NSSI. The
Managing General Partner reserves the right to take all actions, including
termination of any particular Services, that the Managing General Partner
reasonably believes to be necessary to assure compliance with applicable laws,
regulations and tariffs. The Managing General Partner will notify NSSI of the
reasons for any such termination of Services.
The Managing General Partner acknowledges that the services of NSSI
shall be provided only (i) with respect to the business of the Managing General
Partner for the benefit of the Operating Partnership as currently or in the
future operated or (ii) as mutually agreed by the parties hereto. The Managing
General Partner shall not request performance of any services for the benefit of
any entity other than the Managing General Partner and the Operating
Partnership. The Managing General Partner represents and agrees that it will use
the services only in accordance with all applicable federal, state and local
laws and regulations and communications and common carrier tariffs, and in
accordance with the reasonable conditions, rules, regulations and specifications
which may be set forth in any manuals, materials, documents or instructions
furnished from time to time by the Managing General Partner to NSSI. NSSI
reserves the right to take all actions, including termination of the services,
that NSSI reasonably believes to be necessary to assure compliance with
applicable laws, regulations and tariffs. NSSI will notify the Managing General
Partner of the reasons for any such termination of services.
6. Limited Warranty, Limitation of Liability.
The Managing General Partner represents that it will provide or cause
the Services to be provided to NSSI with reasonable diligence. EXCEPT AS SET
FORTH IN THE IMMEDIATELY PRECEDING SENTENCE, ALL PRODUCTS OBTAINED FOR NSSI ARE
TO BE OBTAINED AS IS, WHERE IS, WITH ALL FAULTS. THE MANAGING GENERAL PARTNER
MAKES NO (AND HEREBY DISCLAIMS AND NEGATES ANY AND ALL) REPRESENTATIONS AND
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES RENDERED OR
PRODUCTS OBTAINED FOR NSSI. FURTHERMORE, NSSI MAY NOT RELY UPON ANY
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE MADE TO THE MANAGING GENERAL
PARTNER BY ANY PARTY PERFORMING
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SERVICES ON BEHALF OF THE MANAGING GENERAL PARTNER OR ITS AFFILIATES HEREUNDER,
UNLESS SUCH PARTY MAKES AN EXPRESS WARRANTY TO NSSI.
IT IS EXPRESSLY UNDERSTOOD BY NSSI AND NSSI AGREES THAT THE MANAGING
GENERAL PARTNER SHALL HAVE NO LIABILITY FOR THE FAILURE OF THIRD PARTY PROVIDERS
TO PERFORM ANY SERVICES HEREUNDER AND FURTHER THAT THE MANAGING GENERAL PARTNER
SHALL HAVE NO LIABILITY WHATSOEVER FOR THE SERVICES PROVIDED BY THEM UNLESS SUCH
SERVICES ARE PROVIDED IN A MANNER WHICH WOULD EVIDENCE GROSS NEGLIGENCE ON THE
PART OF THE MANAGING GENERAL PARTNER OR INTENTIONAL MISCONDUCT. NSSI AGREES THAT
THE REMUNERATION PAID TO THE MANAGING GENERAL PARTNER HEREUNDER FOR THE SERVICES
TO BE PERFORMED REFLECT THIS LIMITATION OF LIABILITY AND DISCLAIMER OF
WARRANTIES. IN NO EVENT SHALL THE MANAGING GENERAL PARTNER BE LIABLE TO NSSI OR
ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING
FROM ANY ERROR IN THE PERFORMANCE OF SERVICES OR FROM THE BREACH OF THIS
AGREEMENT, REGARDLESS OF THE FAULT OF THE MANAGING GENERAL PARTNER, OR ANY THIRD
PARTY PROVIDER OR WHETHER THE MANAGING GENERAL PARTNER OR THE THIRD PARTY
PROVIDER ARE WHOLLY, CONCURRENTLY, PARTIALLY, OR SOLELY NEGLIGENT. TO THE EXTENT
ANY THIRD PARTY PROVIDER HAS LIMITED ITS LIABILITY TO THE MANAGING GENERAL
PARTNER FOR SERVICES UNDER AN OUTSOURCING OR OTHER AGREEMENT, NSSI AGREES TO BE
BOUND BY SUCH LIMITATION OF LIABILITY FOR ANY PRODUCT OR SERVICE PROVIDED TO
NSSI BY SUCH THIRD PARTY PROVIDER UNDER THE MANAGING GENERAL PARTNER'S
AGREEMENT.
7. Force Majeure.
NEITHER THE MANAGING GENERAL PARTNER NOR NSSI SHALL HAVE ANY OBLIGATION
TO PERFORM OR CAUSE THE SERVICES TO BE PERFORMED IF ITS FAILURE TO DO SO IS
CAUSED BY OR RESULTS FROM ANY ACT OF GOD, GOVERNMENTAL ACTION, NATURAL DISASTER,
STRIKE, FAILURE OF ESSENTIAL EQUIPMENT OR ANY OTHER CAUSE OR CIRCUMSTANCE BEYOND
THE CONTROL OF THE MANAGING GENERAL PARTNER OR THIRD PARTY PROVIDERS OF SERVICES
TO THE MANAGING GENERAL PARTNER ("EVENT OF FORCE MAJEURE"). The Managing General
Partner will notify NSSI of any Event of Force Majeure affecting its Services,
and NSSI will notify the Managing General Partner of any Event of Force Majeure
affecting its services.
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8. Liability and Indemnification.
(a) Liability of the Managing General Partner and Indemnitees.
(i) Notwithstanding anything contrary set forth in this
Agreement, neither the Managing General Partner nor any Indemnitee, as
defined in Section 8(c) below, shall be liable, responsible or
accountable in damages or otherwise to NSSI for any expenses
(including attorney's fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by it in connection with
any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative if the
Managing General Partner or such Indemnitee acted in good faith in a
manner the Managing General Partner or such Indemnitee reasonably
believes or believed to be in or not opposed to the best interests of
NSSI (and, with respect to any criminal action or proceeding, as to
which such Indemnitee had no reasonable cause to believe such conduct
was unlawful). Neither the Managing General Partner nor any Indemnitee
shall be liable to NSSI for any action of any other employee or agent
of NSSI.
(ii) Subject to its obligations and duties under this Agreement
set forth in Section 2, the Managing General Partner may exercise any
powers granted to it by this Agreement and perform any of the duties
imposed upon it hereunder either directly, by or through its agents or
by or through third party contractors, and the Managing General
Partner shall not, except as provided in Section 6, be responsible for
any misconduct or negligence on the part of such agents or third party
contractors.
(iii) Any amendment, modification or repeal of this Section 8 or
any provisions hereof shall be prospective only and shall not in any
way affect the limitations on the liability to NSSI of the Managing
General Partner or the Indemnitees under this Section 8 as in effect
immediately prior to such amendment, modification or repeal with
respect to claims arising from or relating to matters occurring, in
whole or in part, prior to such amendment, modification or repeal
regardless of when such claims may arise or be asserted.
(b) Indemnification.
(i) NSSI shall indemnify and hold harmless the Managing General
Partner and each Indemnitee from and against any and all losses,
claims, damages, liabilities, joint or several, expenses (including
legal fees and expenses), judgments, fines, penalties, interest,
settlements and other amounts arising from any and all claims,
demands, actions, suits or proceedings, whether civil, criminal,
administrative or investigative, in which the Managing General Partner
or any Indemnitee may be involved, or is threatened to be involved, as
a party or otherwise, by reason of its status or services rendered in
connection with the activities of NSSI; provided in each case the
Managing General Partner or the Indemnitee acted in good faith and in
a manner that the Managing General Partner or such Indemnitee
reasonably believed to be in, or not opposed to, the best interests of
the NSSI
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and, with respect to any criminal proceeding, had no reasonable
cause to believe its conduct was unlawful; provided, further, that any
indemnity under this Section 8 shall be paid solely out of and to the
extent of the assets of NSSI.
(ii) To the fullest extent permitted by law, expenses (including
legal fees and expenses) incurred by the Managing General Partner or
any Indemnitee who is entitled to indemnification pursuant to this
Section 8 in defending any claim, demand, action, suit or proceeding
shall, from time to time, be advanced by NSSI prior to the final
disposition of such claim, demand, action, suit or proceeding upon
receipt by NSSI of an undertaking by or on behalf of the Managing
General Partner or such Indemnitee to repay such amount if it shall be
determined that the Managing General Partner or such Indemnitee is not
entitled to be indemnified as authorized in this Section 8.
(iii) The indemnification provided for by this Section 8 shall be
in addition to any other rights to which the Managing General Partner
or an Indemnitee shall be entitled under any agreement, as a matter of
law, or otherwise, and shall continue as to the Managing General
Partner or any Indemnitee who has ceased to serve in such capacity and
shall inure to the benefit of the heirs, successors, assigns and
administrators of the Managing General Partner or the Indemnitee.
(iv) No amendment, modification or repeal of this Section 8 or
any provision hereof shall in any manner terminate, reduce or impair
the right of the Managing General Partner or any past, present or
future Indemnitee to be indemnified by NSSI, nor the obligation of
NSSI to indemnify the Managing General Partner or any such Indemnitee
under and in accordance with the provisions of this Section 8 as in
effect immediately prior to such amendment, modification or repeal
with respect to claims arising from or relating to matters occurring,
in whole or in part, prior to such amendment, modification or repeal,
regardless of when such claims may arise or be asserted.
(c) Liability and Indemnification of NSSI and Others. NSSI and
each of its directors, officers and employees shall constitute "Indemnitees" as
defined by the Operating Partnership Agreement in connection with any services
requested by the Managing General Partner and provided by NSSI for the benefit
of the Operating Partnership and each such "Indemnitee" shall have the limited
liability of "Indemnitees" to the extent provided for under Section 7.8 of the
Operating Partnership Agreement and the indemnification of "Indemnitee" to the
extent provided for under Section 7.7 of the Operating Partnership Agreement.
(d) Insurance.
(i) NSSI may purchase and maintain (or shall reimburse the
Managing General Partner for the cost of) insurance, on behalf of the
Managing General Partner and such other Persons as the Managing
General Partner shall determine, against any liability that may be
asserted against or expense that may be incurred by such Person in
connection with
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Services performed for or on behalf of NSSI, regardless of whether
NSSI has the power to indemnify such Person against such liability
under the provisions of this Agreement.
(ii) The Managing General Partner may purchase and maintain
insurance, on behalf of the Managing General Partner, the Operating
Partnership and such other Persons as the Managing General Partner
shall determine, against any liability that may be asserted against or
expense that may be incurred by such Person in connection with
services performed by NSSI for or on behalf of the Managing General
Partner and the Operating Partnership, regardless of whether the
Managing General Partner or the Operating Partnership have the power
to indemnify such Person against such liability under the provisions
of this Agreement.
9. Severability.
In the event any portion of this Agreement shall be found by a court of
competent jurisdiction to be unenforceable, that portion of the Agreement will
be null and void and the remainder of the Agreement will be binding on the
parties as if the unenforceable provisions had never been contained herein.
10. Assignment.
Except for the ability of the Managing General Partner to cause one or
more of the Services to be performed by an affiliate or a third party provider,
no party shall have the right to assign its rights or obligations under this
Agreement without the consent of the other party.
11. Entire Agreement, Supersedure.
This Agreement constitutes the entire agreement of the parties relating
to the performance of the Services and services by the Managing General Partner
and NSSI; all prior or contemporaneous written or oral agreements are merged
herein.
12. Choice of Law.
This Agreement shall be subject to and governed by the laws of the
State of New York, excluding any conflicts-of-law rule or principle that might
refer the construction or interpretation of this Agreement to the laws of
another state.
13. Amendment or Modification.
This Agreement may be amended or modified from time to time only by a
written amendment signed by the Managing General Partner and NSSI.
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14. Notices.
Any notice, request, instruction, correspondence or other document to
be given hereunder by any party to the other (herein collectively called
"Notice") shall be in writing and delivered personally or mailed, postage
prepaid, or by telegram or telecopier, as follows:
IF TO NSSI:
National Sales & Service, Inc.
Suite 1700, IES Tower
200 1st Street, S.E.
P.O. Box 2067
Cedar Rapids, Iowa 52401-2067
IF TO THE MANAGING GENERAL PARTNER:
National Propane Corporation
Suite 1700, IES Tower
200 1st Street, S.E.
P.O. Box 2067
Cedar Rapids, Iowa 52401-2067
Notice given by personal delivery or mail shall be effective upon actual
receipt. Notice given by telegram or telecopier shall be effective upon actual
receipt if received during the recipient's normal business hours, or at the
beginning of the recipient's next business day after receipt if not received
during the recipient's normal business hours. Any party may change any address
to which Notice is to be given to it by giving Notice as provided above of such
change of address.
15. Further Assurances.
In connection with this Agreement and all transactions contemplated by
this Agreement, each signatory party hereto agrees to execute and deliver such
additional documents and instruments as may be required for the Managing General
Partner to provide the Services hereunder, or for NSSI to perform its services
hereunder, and to perform such other additional acts as may be necessary or
appropriate to effectuate, carry out and perform all of the terms, provisions,
and conditions of this Agreement.
16. Acknowledgment Regarding Certain Provisions.
EACH OF THE PARTIES HERETO SPECIFICALLY ACKNOWLEDGES AND AGREES (a)
THAT IT HAS A DUTY TO READ THIS AGREEMENT AND THAT IT IS CHARGED WITH NOTICE AND
KNOWLEDGE OF THE TERMS HEREOF, (b) THAT IT HAS IN FACT READ THIS AGREEMENT AND
IS FULLY INFORMED AND HAS
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FULL NOTICE AND KNOWLEDGE OF THE TERMS, CONDITIONS AND EFFECTS OF THIS
AGREEMENT, AND (c) THAT IT RECOGNIZES THAT CERTAIN OF THE TERMS OF THIS
AGREEMENT PROVIDE FOR THE ASSUMPTION BY ONE PARTY OF, AND/OR RELEASE OF THE
OTHER PARTY FROM, CERTAIN LIABILITIES ATTRIBUTABLE TO THE MATTERS COVERED BY
THIS AGREEMENT THAT SUCH PARTY WOULD OTHERWISE BE RESPONSIBLE FOR UNDER THE LAW.
EACH PARTY HERETO FURTHER AGREES AND COVENANTS THAT IT WILL NOT CONTEST THE
VALIDITY OR ENFORCEABILITY OF ANY SUCH PROVISIONS OF THIS AGREEMENT ON THE BASIS
THAT THE PARTY HAD NO NOTICE OR KNOWLEDGE OF SUCH PROVISION OR THAT SUCH
PROVISIONS ARE NOT "CONSPICUOUS."
17. Definitions.
The following terms shall have the indicated meanings for the purposes
of this Agreement:
"Administrative and General Expenditures" shall mean all administrative
and general expenditures, including salaries and related benefits and expenses
of Managing General Partner personnel who render Services for the benefit of
NSSI and who manage, administer and bill for third party contracts related to
the provision of Services hereunder, but Administrative and General Expenditures
shall not include charges related to the Managing General Partner's senior
executive management. Such expenditures shall be allocated to NSSI in a fair and
reasonable manner.
"Applicable Period" shall mean the period from the Closing Date to the
date that the Managing General Partner or its affiliate ceases to serve as the
managing general partner of each of the Partnership and the Operating
Partnership.
"Outsource" shall mean to cause a Service to be provided by a third
party provider.
"Indemnitee," except as otherwise noted, shall mean for purposes of
this Agreement (a) any Person who is or was an officer, director, employee,
partner, agent or trustee of the Managing General Partner or any Departing
Partner or any Affiliate, or (b) any Person who is or was serving at the request
of the Managing General Partner or any Departing Partner or any Affiliate as a
director, officer, employee, agent, fiduciary or trustee of another Person;
provided, that a Person shall not be an Indemnitee pursuant to this clause (b)
by reason of providing, on a fee-for-services basis, trustee, fiduciary or
custodial services.
18. No Third Party Beneficiary.
The provisions of this Agreement are enforceable solely by the parties
to this Agreement, and no Limited Partner, Assignee or other Person, other than
pursuant to Section 8 hereof, shall have the right, separate and apart from NSSI
or the Managing General Partner, to enforce any provision of
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this Agreement or to compel any party to this Agreement to comply with the terms
of this Agreement.
19. Termination.
This Agreement shall terminate upon the withdrawal or removal of the
Managing General Partner under either the Partnership Agreement or the Operating
Partnership Agreement as general partner of either the Partnership or the
Operating Partnership except for liabilities or obligations accruing prior to
such termination. In addition, this Agreement may be terminated prior to the
expiration of the term described in Section 1 hereof as follows:
(a) By NSSI. NSSI shall have the right to terminate this Agreement
for "Cause," in which case no further payment shall be due the Managing General
Partner pursuant to this Agreement, other than obligations already accrued as of
the Notice Date (as defined below). For purposes of this Section 19(a), "Cause"
shall mean the material failure by the Managing General Partner to perform its
obligations hereunder.
(b) By the Managing General Partner. The Managing General Partner
shall have the right to terminate this Agreement for "Cause," in which case no
further payment shall be due NSSI pursuant to this Agreement, other than
obligations already accrued as of the Notice Date (as defined below). For
purposes of this Section 19(b), "Cause" shall mean the material failure by NSSI
to perform its obligations hereunder. In addition, the Managing General Partner
shall have the right to terminate this Agreement upon any "Constructive
Termination," which shall mean:
(i) The failure by NSSI to pay Charges in accordance with this
Agreement and such failure continues for 30 days after written notice
to NSSI; or
(ii) Dissolution or liquidation of NSSI for any reason.
(c) By Mutual Agreement. This Agreement may be terminated by
mutual agreement on the terms and dates stipulated in a writing signed by NSSI
and the Managing General Partner.
(d) Notice of Termination. Termination of this Agreement pursuant
to this Section 19 shall be effected by giving written notice, signed by the
terminating party, to the other parties and this Agreement shall terminate
thirty (30) days from the date on which such notice is delivered ("Notice
Date"); provided, that in the case of a Constructive Termination described in
Section 19(b), termination of this Agreement shall automatically occur on the
date of such event.
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20. Licenses.
If any licenses to perform services performed by NSSI are held by
employees of the Managing General Partner, the parties hereto on agree that such
licenses shall be held on behalf of NSSI.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed on their behalf by their duly authorized officers.
NATIONAL SALES & SERVICE, INC.
By: /s/ Ronald R. Rominiecki
----------------------------
NATIONAL PROPANE CORPORATION
By: /s/ Ronald R. Rominiecki
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EXHIBIT A
ATTACHED TO AND MADE PART OF THAT CERTAIN
CORPORATE SERVICES AGREEMENT BETWEEN
NATIONAL SALES & SERVICE, INC. AND NATIONAL PROPANE CORPORATION
GENERAL CORPORATE SERVICES
ADMINISTRATIVE SERVICES
DATA PROCESSING SERVICES
HUMAN RESOURCE SERVICES
GROUP ACCOUNTING
FINANCIAL MANAGEMENT
INSURANCE
LEGAL
TAX
MEDIA RELATIONS
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