reorganization, arrangement, adjustment, protection,
relief, or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee, or other similar
official for it or for any substantial part of its property and, in the case of
any such proceeding instituted against it (but not instituted by it), shall
remain undismissed or unstayed for a period of 30 days; or such Person shall
take any action to authorize any of the actions set forth above.
means BreitBurn Energy Company L.P., a Delaware limited partnership.
Management Party” is defined in Section 9.1.
Information” means non-public information about the disclosing Party’s or any of its
Affiliates’ business or activities that is proprietary and confidential, which
shall include, without limitation, all business, financial, technical and other
information, including software (source and object code) and programming code,
of a Party or its Affiliates marked or designated “confidential” or “proprietary”
or by its nature or the circumstances surrounding its disclosure it should
reasonably be regarded as confidential.
Confidential Information includes not only written or other tangible
information, but also information transferred orally, visually, electronically or
by any other means. Confidential
Information does not include information that (i) is in or enters the public
domain without breach of this Agreement, or (ii) the receiving Party lawfully
receives from a third party without restriction on disclosure and to the
receiving Party’s knowledge without breach of a nondisclosure obligation.
“Damages” is defined in Section 9.2.
“Default Rate” means an interest rate (which
shall in no event be higher than the rate permitted by applicable law) equal to
the prime interest rate of the Operating Partnership’s principal lender.
“Effective Date” is defined in the introductory paragraph.
means current local, county, state, federal, and/or foreign law (including
common law), statute, code, ordinance, rule, order, judgment, decree,
regulation or other legal obligation relating to the protection of health,
safety or the environment or natural resources, including, without limitation,
the Comprehensive Environmental Response Compensation and Liability Act (42
U.S.C. section 9601 et seq.), as amended, the Resource Conservation and
Recovery Act (42 U.S.C. section 6901 et seq.), as amended, the Federal Water
Pollution Control Act (33 U.S.C. section 1251 et seq.), as amended, the Clean
Air Act (42 U.S.C. section 7401 et seq.), as amended, the Toxic Substances
Control Act (15 U.S.C. section 2601 et seq.), as amended, the Occupational
Safety and Health Act (29 U.S.C. section 651 et seq.), as amended, the Safe
Drinking Water Act (42 U.S.C. section 300(f) et seq.), as amended, analogous
state, tribal or local laws, and any similar, implementing or successor law,
and any amendment, rule, regulation, or directive issued thereunder, including
any determination by, or interpretation of any of the foregoing by any Governmental
Authority that has the force of law.
“Force Majeure” means any cause beyond the reasonable control
of a Party, including the following causes (unless they are within such Party’s
reasonable control): acts of God, strikes, lockouts, acts of the public enemy,
wars or warlike action (whether actual or impending), arrests and other
restraints of government (civil or military), blockades, embargoes,
insurrections, riots, epidemics, landslides, lightning, earthquakes, fires,
sabotage, tornadoes, named tropical storms and hurricanes, and floods, civil
disturbances, terrorism, mechanical breakdown of machinery or equipment,
explosions, confiscation or seizure by any government or other public
authority, any order of any court of competent jurisdiction, regulatory agency
or governmental body having jurisdiction.
means those general and administrative services necessary or useful for the
conduct of the business of the Partnership Group, including, but not limited
to, accounting, corporate development, finance, land, legal and engineering.
means any material consent, authorization, certificate, permit, right-of-way
grant or approval of any Governmental Authority that is necessary for the
construction, ownership and operation of the Assets in accordance with
Authority” means 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.
means any applicable statute, Environmental Law, common law, rule, regulation,
judgment, order, ordinance, writ, injunction or decree issued or promulgated by
any Governmental Authority.
“Parties” is defined in the introductory paragraph.
defined in the introductory paragraph.
“Partnership Agreement” means the First Amended and Restated
Agreement of Limited Partnership of the Partnership, as may be amended or
restated from time to time.
“Partnership Group” means the General Partner, the
Partnership, the Operating Partnership and all of their respective
“Partnership Group Party” is
defined in Section 9.1.
“Payment Amount” is defined in Section 4.1.
“Person” means an individual or a corporation, limited
liability company, partnership, joint venture, trust, unincorporated
organization, association, government agency or political subdivision thereof
or other entity.
“Services” is defined in Section 2.2.
with respect to any Person, (a) a corporation of which more than 50% of the
voting power of shares entitled (without regard to the occurrence of any contingency)
to vote in the election of directors or other governing body of such
corporation is owned, directly or indirectly, at the date of determination, by
such Person, by one or more Subsidiaries of such Person or a combination
thereof, (b) a partnership (whether general or limited) in which such Person or
a Subsidiary of such Person is, at the date of determination, a general or
limited partner of such partnership, but only if more than 50% of the
partnership interests of such partnership (considering all of the partnership
interests of the partnership as a single class) is owned, directly or
indirectly, at the date of determination, by such Person, by one or more
Subsidiaries of such Person, or a combination thereof, or (c) any other Person
(other than a corporation or a partnership) in which such Person, one or more
Subsidiaries of such Person, or a combination thereof, directly or indirectly,
at the date of determination, has (i) at least a majority ownership interest or
(ii) the power to elect or direct the election of a majority of the directors
or other governing body of such Person.
Other terms defined herein have the meanings so given
Section 1.2 Construction.
Unless the context requires otherwise: (a) any pronoun
used in this Agreement shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns, pronouns and verbs shall include
the plural and vice versa; (b) references to Articles and Sections refer to
Articles and Sections of this Agreement; (c) references to Exhibits refer to
the Exhibits attached to this Agreement, each of which is made a part hereof
for all purposes; (d) the terms “include”, “includes”, “including” and words of
like import shall be deemed to be followed by the words “without limitation”; (e)
the terms “hereof,” “herein” and “hereunder” refer to this Agreement as a whole
and not to any particular provision of this Agreement; and (f) references to
money refer to legal currency of the United States of America. The table of contents and headings contained
in this Agreement are for reference purposes only, and shall not affect in any
way the meaning or interpretation of this Agreement.
RETENTION OF BREITBURN MANAGEMENT; SCOPE OF SERVICES
Section 2.1 Retention of BreitBurn Management.
The Partnership hereby engages BreitBurn Management to
perform the Services, as directed by the General Partner, and to provide all personnel
and any facilities, goods and equipment not otherwise provided by the
Partnership Group necessary to perform the Services. BreitBurn Management hereby accepts such
engagement and agrees to perform the Services requested by the General Partner and
to provide any personnel, facilities, goods and equipment not otherwise
provided by the Partnership Group, and to provide all employees as may be
reasonable and necessary to perform the Services. The Partnership recognizes that BreitBurn
Management is concurrently entering into an Administrative Services Agreement
with BreitBurn Energy.
Section 2.2 Scope of Services.
shall consist of such services the General Partner determines may be reasonable
and necessary to operate the Business, including, without limitation, any
G&A Services and those services described on Schedule I hereto. BreitBurn Management hereby covenants and
agrees that the Services will be performed in accordance with (i) applicable
material Governmental Approvals and Laws and (ii) industry standards.
Section 2.3 Exclusion of Services.
The General Partner may temporarily or permanently exclude
any particular service from the scope of the Services upon 90 days’ notice to BreitBurn
Section 2.4 Performance of Services by Affiliates and Third
The Parties hereby agree that in discharging its
obligations hereunder, BreitBurn Management may engage any of its Affiliates or
any qualified third party to perform the Services (or any part of the Services)
on its behalf and that the performance of the Services (or any part of the
Services) by any such Affiliate or third party shall be treated as if BreitBurn
Management performed such Services itself.
Notwithstanding the foregoing, nothing contained herein shall relieve
BreitBurn Management of its obligations hereunder.
Section 2.5 Intellectual Property.
(a) Any (i) inventions,
whether patentable or not, developed or invented, or (ii) copyrightable
material (and the intangible rights of copyright therein) developed, by
BreitBurn Management, its Affiliates or its or their employees in connection
with the performance of the Services shall be the property of BreitBurn
however, that the Partnership Group shall be granted an irrevocable,
royalty-free, non-exclusive and non-transferable right and license to use such
inventions or material; and further provided, however, that the Partnership Group shall only be
granted such a right and license to the extent such grant does not conflict
with, or result in a breach, default, or violation of a right or license to use
such inventions or material granted to BreitBurn Management by any Person other
than an Affiliate of BreitBurn Management.
Notwithstanding the foregoing, BreitBurn Management will use all
commercially reasonable efforts to grant such right and license to the
(b) The General Partner
and the Partnership and the Operating Partnership hereby grant to BreitBurn
Management and its Affiliates an irrevocable, royalty-free, non-exclusive and
non-transferable right and license to use, during the term of this Agreement,
any intellectual property provided by the Partnership Group to BreitBurn
Management or its Affiliates, but only to the extent such use is necessary for
the performance of the Services.
BreitBurn Management agrees that it and its Affiliates will utilize such
intellectual property solely in connection with the performance of the
Section 2.6 Appointment of Independent Accounting Firm and
Independent Petroleum Engineer.
Notwithstanding anything to the contrary in this
Agreement, the Parties hereby recognize and agree that the General Partner
shall have the exclusive authority to appoint an independent accounting firm to
audit the financial statements of the Partnership and an independent petroleum
engineer to provide reports to the Partnership relating to estimates of proved
reserves for Securities and Exchange Commission and other reporting purposes.
BOOKS, RECORDS AND REPORTING
Section 3.1 Books and Records.
BreitBurn Management shall maintain accurate books and
records regarding the performance of the Services and its calculation of the
Payment Amount, and shall maintain such books and records for the period
required by applicable accounting practices or law.
Section 3.2 Audits.
The Partnership shall have the right, upon reasonable
notice, and at all reasonable times during usual business hours, to audit,
examine and make copies of the books and records referred to in Section 3.1. Such right may be exercised through any agent
or employee of the Partnership Group designated in writing by it or by an
independent public accountant, engineer, attorney or other agent so
designated. The Partnership shall bear
all costs and expenses incurred in any inspection, examination or audit. BreitBurn Management shall review and respond
in a timely manner to any claims or inquiries made by the Partnership regarding
matters revealed by any such inspection, examination or audit.
Section 3.3 Reports.
BreitBurn Management shall prepare and deliver to the
Partnership any reports provided for in this Agreement and such other reports
as the Partnership may reasonably request from time to time regarding the
performance of the Services.
Section 4.1 Payment Amount.
The Partnership shall reimburse BreitBurn Management
on a monthly basis for all direct and indirect expenses BreitBurn Management incurs,
or payments it makes on behalf of the Partnership Group or expenses allocated
to BreitBurn Management by its Affiliates, in each case in connection with the
performance by BreitBurn Management or its Affiliates of the Services
(including, subject to Section 4.5, salary, bonus, incentive compensation and
other amounts paid
to any Person to perform the Services) (collectively,
the “Payment Amount”); provided, however, that
to the extent any Services performed by BreitBurn Management or its Affiliates
benefit both the Partnership and BreitBurn Energy, each of the Partnership and
BreitBurn Energy shall be responsible for reimbursement of BreitBurn Management
for such Services in proportion to the benefits each of them received therefrom. BreitBurn Management shall charge the
Partnership based on BreitBurn Management’s good-faith determination of the
actual time spent by its personnel performing the Services, plus related
Management personnel providing services to both the Partnership and one or more
other affiliates shall be charged based on BreitBurn Management’s good faith
estimate of actual time spent performing the services plus expenses or on other
systematic and rational allocations as determined by BreitBurn Management. Notwithstanding the foregoing, the
Partnership shall be obligated to reimburse BreitBurn Management for a portion
of the cost of the existing benefit plans of BreitBurn Management, including
those plans of BreitBurn Energy Company L.P. adopted by BreitBurn
Management. The amount of the
reimbursement shall be determined by BreitBurn Management on any basis that it
deems to be reasonable and need not be based on the amount of services
performed for the Partnership.
Section 4.2 Payment of Payment Amount.
BreitBurn Management shall invoice the Partnership on
or before the 25th day of each month for the estimated Payment Amount for the
next succeeding month, plus or minus any adjustment necessary to correct prior
estimated xxxxxxxx to actual xxxxxxxx. Subject to Section 4.3, all invoices
shall be due and payable, in immediately available funds, on the last day of
the month to which the invoice relates. Upon the request of the Partnership,
BreitBurn Management shall furnish a reasonable detail of the Services provided
and charges assessed during any month.
Section 4.3 Disputed Charges.
THE PARTNERSHIP MAY, WITHIN 120 DAYS AFTER RECEIPT OF
A CHARGE FROM BREITBURN MANAGEMENT, TAKE WRITTEN EXCEPTION TO SUCH CHARGE, ON
THE GROUND THAT THE SAME WAS NOT A REASONABLE COST INCURRED BY BREITBURN
MANAGEMENT OR ITS AFFILIATES IN CONNECTION WITH THE SERVICES. THE PARTNERSHIP
SHALL NEVERTHELESS PAY BREITBURN MANAGEMENT IN FULL WHEN DUE THE FULL PAYMENT
AMOUNT OWED TO BREITBURN MANAGEMENT. SUCH PAYMENT SHALL NOT BE DEEMED A WAIVER
OF THE RIGHT OF THE PARTNERSHIP TO RECOUP ANY CONTESTED PORTION OF ANY AMOUNT
SO PAID. HOWEVER, IF THE AMOUNT AS TO WHICH SUCH WRITTEN EXCEPTION IS TAKEN, OR
ANY PART THEREOF, IS ULTIMATELY DETERMINED NOT TO BE A REASONABLE COST INCURRED
BY BREITBURN MANAGEMENT OR ITS AFFILIATES IN CONNECTION WITH ITS PROVIDING THE
SERVICES HEREUNDER, SUCH AMOUNT OR PORTION THEREOF (AS THE CASE MAY BE) SHALL
BE REFUNDED BY BREITBURN MANAGEMENT TO THE PARTNERSHIP TOGETHER WITH INTEREST
THEREON AT THE DEFAULT RATE DURING THE PERIOD FROM THE DATE OF PAYMENT BY THE
PARTNERSHIP TO THE DATE OF REFUND BY BREITBURN MANAGEMENT.
Section 4.4 Set Off.
In the event that BreitBurn Management owes the
Partnership a sum certain in an uncontested amount under any other agreement,
then any such amounts may be aggregated and the Partnership and BreitBurn
Management may discharge their obligations by netting those amounts against any
amounts owed by the Partnership to BreitBurn Management under this
Agreement. If the Partnership or
BreitBurn Management owes the other party a greater aggregate amount, that
Party may pay to the other Party the difference between the amounts owed.
Section 4.5 BreitBurn Management’s Employees.
The obligations under Sections 4.1 and 4.2, to the extent
they relate to Services provided by employees of BreitBurn Management or its
Affiliates, shall be limited to payment to BreitBurn Management for expenses in
connection with its or its Affiliates’ employees engaged in the provision of
Services hereunder, and the Partnership shall not be obligated to pay to
BreitBurn Management’s or its Affiliates’ employees directly any compensation,
salaries, wages, bonuses, benefits, social security taxes, workers’
compensation insurance, retirement and insurance benefits, training and other
such expenses; provided, however, that the Partnership may, at its option,
compensate such employees under the Partnership’s Long-Term Incentive Plan for
the provision of Services hereunder; and provided further, however, that if BreitBurn
Management fails to pay any employee, with the exception of employee claims for
amounts owed that BreitBurn Management disputes in good faith, within 30 days
of the date such employee’s payment is due:
(a) The Partnership may
(i) pay such employee directly, (ii) employ such employee directly, (iii)
notify BreitBurn Management and begin to pay all employees providing service to
the Partnership directly, or (iv) notify BreitBurn Management that this
Agreement is terminated and employ all employees directly; and
(b) BreitBurn Management
shall reimburse the Partnership, as the case may be, the amount the Partnership
paid to BreitBurn Management for employee services that BreitBurn Management
did not pay to any such employee.
The Partnership recognizes that, pursuant to the Administrative
Services Agreement between BreitBurn Management and BreitBurn Energy, BreitBurn
Management will have similar rights to those of the Partnership contained in
this Section 4.5.
Section 4.6 Approval of Expenses.
BreitBurn Management acknowledges that all charges for
Services assessed by BreitBurn Management and included in the Payment Amount
must be approved by the persons authorized to approve such Payment Amount
pursuant to the Partnership’s governance and delegation-of-authority process. Additionally, BreitBurn Management
acknowledges that the Audit Committee of the General Partner’s Board of
Directors may at any time review the Payment Amounts and the levels of Services
and, as a result, may direct the Partnership to decrease the level of Services
or to dispute a prior invoice pursuant to Section 4.3. In addition to the information BreitBurn
Management is obligated to provide pursuant to Section
4.2, BreitBurn Management shall provide such other information as reasonably
necessary to determine the veracity or appropriateness of any Payment Amount
Section 5.1 Force Majeure.
A Party’s obligation under this Agreement shall be
excused when and to the extent its performance of that obligation is prevented
due to Force Majeure; provided, however, that a Party shall not be excused by
Force Majeure from any obligation to pay money.
The Party that is prevented from performing its obligation by reason of
Force Majeure shall promptly notify the other Parties of that fact and shall
exercise due diligence to end its inability to perform as promptly as
practicable. Notwithstanding the
foregoing, a Party is not required to settle any strike, lockout or other labor
dispute in which it may be involved; provided, however, that, in the
event of a strike, lockout or other labor dispute affecting BreitBurn
Management, BreitBurn Management shall use reasonable efforts to continue to
perform all obligations hereunder by utilizing its management personnel and
that of its Affiliates.
ASSIGNMENTS AND SUBCONTRACTS
Section 6.1 Assignments.
(a) Without the prior
consent of BreitBurn Management, none of the Partnership or the other members or
the Partnership Group may sell, assign, transfer or convey any of its rights,
or delegate any of its obligations, under this Agreement to any Person.
(b) Without the prior
consent of the Partnership, BreitBurn Management may not sell, assign, transfer
or convey any of its rights, or delegate any of its obligations, under this
Agreement to any Person, other than the delegation of performance of Services
to an Affiliate of BreitBurn Management or a qualified third party as permitted
by Section 2.4 and the sale, assignment, transfer or conveyance of its rights
hereunder to any such Affiliate.
Section 6.2 Other Requirements.
Subject to the other provisions hereof:
(a) All materials and
workmanship used or provided in performing the Services shall be in accordance
with applicable specifications and standards.
(b) BreitBurn Management
shall exercise reasonable diligence to obtain the most favorable terms or
warranties available from vendors, suppliers and other third parties, and where
appropriate, BreitBurn Management shall assign such warranties to the
(c) In rendering the
Services, BreitBurn Management shall not discriminate against any employee or
applicant for employment because of race, creed, color, religion, sex, national
origin, age or handicap, and shall comply with all applicable provisions of
Executive Order 11246 of September 24, 1965, and any successor order
thereto. Subject to the above, BreitBurn
Management shall, to the extent practicable, engage employees who reside in or
whose businesses are located in the local area or state where the Services are
(d) BreitBurn Management
agrees to exercise reasonable diligence to ensure that, during the term of this
Agreement, it shall not employ unauthorized aliens as defined in the
Immigration Reform and Control Act of 1986, or any successor law.
Section 7.1 Termination by the Partnership on
behalf of the Partnership Group.
(a) Upon the occurrence
of any of the following events, the Partnership, on behalf of the Partnership
Group, may terminate this Agreement by giving written notice of such
termination to BreitBurn Management:
(i) Provident Energy Trust and its Affiliates
cease to maintain a direct or indirect controlling interest in the General
Partner or BreitBurn Management; or
(ii) BreitBurn Management’s failure to pay any
employee within thirty (30) days of the date such employee’s payment is due,
subject to the limitations described in Section 4.5.
Any termination under this Section 7.1(a) shall become
effective immediately upon delivery of the notice first described in this Section
7.1(a), or such later time (not to exceed the first anniversary of the delivery
of such notice) as may be specified by the Partnership.
(b) In addition to its
rights under Section 7.1(a), the Partnership may terminate this Agreement at
any time by giving notice of such termination to BreitBurn Management. Any termination under this Section 7.1(b)
shall become effective 90 days after delivery of such notice, or such later
time (not to exceed the first anniversary of the delivery of such notice) as
may be specified by the Partnership.
(c) In the event that
BreitBurn Management becomes Bankrupt or dissolves and commences liquidation or
winding-up, this Agreement shall automatically terminate without notice to
Section 7.2 Termination by BreitBurn Management.
(a) BreitBurn Management
may terminate this Agreement by giving written notice of such termination to the
Partnership in the event that Provident Energy Trust and its Affiliates cease
to maintain a direct or indirect controlling interest in the General Partner or
Management. Any termination under this Section
7.2(a) shall become effective immediately upon delivery of the notice first
described in this Section 7.2(a).
(b) In addition to its
rights under Section 7.2(a), BreitBurn Management may terminate this Agreement
at any time by giving notice of such termination to the Partnership. Any
termination under this Section 7.2(b) shall become effective 90 days after
delivery of such notice, or such later time (not to exceed the first
anniversary of the delivery of such notice) as may be specified by BreitBurn
Section 7.3 Effect of Termination.
If this Agreement is terminated in accordance with Section
7.1 or 7.2, all rights and obligations under this Agreement shall cease except
for (a) obligations that expressly survive termination of this Agreement; (b)
liabilities and obligations that have accrued prior to such termination,
including the obligation to pay any amounts that have become due and payable
prior to such termination, and (c) the obligation to pay any portion of the
Payment Amount that has accrued prior to such termination, even if such portion
has not become due and payable at that time.
Section 8.1 Nondisclosure.
of BreitBurn Management and the Partnership Group agrees that (i) it will not
disclose to any third party or use any Confidential Information disclosed to it
by the other except as expressly permitted in this Agreement, and (ii) it will
take all reasonable measures to maintain the confidentiality of all
Confidential Information of the other Party in its possession or control, which
will in no event be less than the measures it uses to maintain the
confidentiality of its own information of similar type and importance.
Section 8.2 Permitted Disclosure.
the foregoing, each Party may disclose Confidential Information (i) to the
extent required by a court of competent jurisdiction or other governmental
authority or otherwise as required by law, including without limitation
disclosure obligations imposed under the federal securities laws, provided that
such Party has given the other Party prior notice of such requirement when
legally permissible to permit the other Party to take such legal action to
prevent the disclosure as it deems reasonable, appropriate or necessary, or
(ii) to its consultants, legal counsel, Affiliates, accountants, banks and
other financing sources and their advisors.
Section 9.1 Limitation of Liability.
as may be provided in Section 9.2 below, BreitBurn Management and its
controlling persons, directors, officers, employees, agents and permitted
assigns (each, a “BreitBurn Management Party”) shall not be liable to the
Partnership Group and their respective directors, officers, employees, agents
or permitted assigns (each, a “Partnership Group Party”) for any liabilities,
claims, damages, losses or expenses, including, but not limited to, any
special, indirect, incidental or consequential damages, of a Partnership Group
Party arising in connection with this Agreement and the Services provided
Section 9.2 Indemnification.
(a) BreitBurn Management shall indemnify,
defend and hold harmless each of the Partnership Group Parties from and against
all liabilities, claims, damages, losses and expenses (including, but not
limited to, court costs and reasonable attorneys’ fees)(collectively referred
to as “Damages”) of any kind or nature, of third parties unrelated to any
Partnership Group Party caused by or arising in connection with the gross
negligence or willful misconduct of BreitBurn Management in connection with the
performance of the Services, except to the extent that Damages were caused
directly or indirectly by acts or omissions of any Partnership Group Party.
(b) The Partnership hereby acknowledges
that BreitBurn Management is an “Indemnitee” as such term is defined in the
Partnership Agreement and entitled to indemnity under the provisions of
Sections 7.7 and 7.8 of the Partnership Agreement.
If the Parties are unable to resolve
any dispute regarding the validity or terms of this Agreement or its
termination, service or performance issues, there is a material breach of this
Agreement that has not been corrected within thirty (30) days of receipt of
notice of such breach or any other dispute between the parties related to this
Agreement, either party hereto may refer the matter to
an arbitrator selected in accordance with the rules of JAMS in Los Angeles
County, California as the exclusive remedy for any such dispute, and in lieu of
any court action, which is hereby waived.
The only exception shall be a claim by either Party for injunctive
relief pending arbitration.
Section 11.1 Notices.
All notices or other communications required or
permitted under, or otherwise in connection with, this Agreement must be in
writing and must be given by depositing same in the mail, addressed to the
Person to be notified, postpaid and registered or certified with return receipt
requested or by transmitting by national overnight courier or by transmitting
by national overnight courier or by delivering such notice in person or by
facsimile to such Party. Notice given by
mail, national overnight courier or personal delivery shall be effective upon
actual receipt. Notice given by facsimile
shall be effective upon confirmation of receipt when transmitted by facsimile
if transmitted during the recipient’s normal business hours or at the beginning
of the recipient’s next business day after receipt if not transmitted during
the recipient’s normal business hours. All
notices to be sent to a Party pursuant to this Agreement shall be sent to or
made at the address, in each case as follows:
if to the General Partner:
BreitBurn GP, LLC
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Fax: (000) 000-0000
if to the Partnership:
BreitBurn Energy Partners L.P.
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Fax: (000) 000-0000
if to the Operating Partnership:
BreitBurn Operating L.P.
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Fax: (000) 000-0000
if to BreitBurn Management:
BreitBurn Management Company, LLC
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
Section 11.2 Further Action.
The Parties shall execute and deliver all documents,
provide all information and take or refrain from taking action as may be
necessary or appropriate to achieve the purposes of this Agreement.
Section 11.3 Binding Effect.
This Agreement shall be binding upon and inure to the
benefit of the Parties hereto and their heirs, executors, administrators,
successors, legal representatives and permitted assigns.
Section 11.4 Integration.
This Agreement constitutes the entire Agreement among
the Parties hereto pertaining to the subject matter hereof and supersedes all
prior agreements and understandings pertaining thereto.
Section 11.5 Creditors.
None of the provisions of this Agreement shall be for
the benefit of, or shall be enforceable by, any creditor of the Partnership.
Section 11.6 Waiver.
No failure by any party to insist upon the strict
performance of any covenant, duty, agreement or condition of this Agreement or
to exercise any right or remedy consequent upon a breach thereof shall
constitute waiver of any such breach of any other covenant, duty, agreement or
Section 11.7 Counterparts.
This Agreement may be executed in counterparts, all of
which together shall constitute an agreement binding on all the Parties hereto,
notwithstanding that all such Parties are not signatories to the original or
the same counterpart. Each Party shall
become bound by this Agreement immediately upon affixing its signature hereto.
Section 11.8 Applicable Law.
This Agreement shall be construed in accordance with
and governed by the laws of the State of Delaware, without regard to the
principles of conflicts of law.
Section 11.9 Invalidity of Provisions.
If any provision of this Agreement is or becomes
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not be
Section 11.10 Amendment or Restatement.
This Agreement may be amended or restated only by a
written instrument executed by each of the Parties; provided, however, that the
Partnership may not, without the prior approval of its Conflicts Committee,
agree to any amendment or modification of this Agreement that the General
Partner determines will adversely affect the holders of common units
representing limited partner interests in the Partnership. The Parties hereto agree that, for purposes
of this Section 8.10, any material change in the nature, quantity or duration
of the Services to be provided under this Agreement shall constitute a
modification of this Agreement.
Section 11.11 Directly or Indirectly.
Where any provision of this Agreement refers to action
to be taken by any Party, or which such Party is prohibited from taking, such
provision shall be applicable whether such action is taken directly or indirectly
by such Party, including actions taken by or on behalf of any Affiliate of such