EXHIBIT 10.1
INTERCORPORATE SERVICES AGREEMENT
This INTERCORPORATE SERVICES AGREEMENT (the "Agreement"), effective as of
January 1, 2003, amends and supersedes that certain Intercorporate Services
Agreement effective as of January 1, 2002 between CONTRAN CORPORATION, a
Delaware corporation ("Contran"), and NL INDUSTRIES, INC., a New Jersey
corporation ("NL").
Recitals
A. NL desires to have the services of certain Contran personnel and
Contran is willing to provide such services under the terms of this Agreement.
B. Contran desires to have the services of certain NL personnel and NL is
willing to provide such services under the terms of this Agreement.
C. The costs of maintaining the additional personnel necessary to perform
the functions provided for by this Agreement would exceed the amount charged to
such party that is contained in the net fee set forth in Section 4 of this
Agreement and that the terms of this Agreement are no less favorable to each
party than could otherwise be obtained from a third party for comparable
services.
D. Each party desires to continue receiving the services presently
provided by the other party and its affiliates and each party is willing to
continue to provide such services under the terms of this Agreement.
Agreement
For and in consideration of the mutual premises, representations and
covenants contained in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto mutually agree as follows:
Section 1. Contran Services to be Provided. Contran agrees to make
available to NL, upon request, the following services (the "Contran Services")
to be rendered by the internal staff of Contran and affiliates of Contran:
(a) Consultation and assistance in the development and
implementation of NL's corporate business strategies, plans and
objectives;
(b) Consultation and assistance in management and conduct of
corporate affairs and corporate governance consistent with the charter and
bylaws of NL;
(c) Consultation and assistance in preparation and review of
periodic financial statements and reports to be filed with public and
regulatory entities and those required to be prepared for financial
institutions or pursuant to indentures and credit agreements;
(d) Ongoing consultation and assistance in connection with NL's
credit facilities and the KII Senior Note indenture;
(e) Consultation and assistance in the preparation and filing of tax
returns, examinations by government authorities and tax planning;
(f) certain administration and management services with respect to
NL's insurance and risk management needs, including, without limitation,
administration of NL's:
(i) property and casualty insurance program,
(ii) claims management program,
(iii) property loss control program; and
(iv) management of EWI, RE.
(g) Such other services as may be requested by NL from time to time.
Section 2. NL Services to be Provided. NL agrees to make available to
Contran, upon request, the following services (the "NL Services," and
collectively with the Contran Services, the "Services") to be rendered by the
internal staff of NL:
(a) certain administration and support services with respect to
Contran's insurance and risk management needs; and
(b) Such other services as may be requested by Contran from time to
time.
This Agreement does not apply to, and the Services provided for herein do not
include, any services that ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ may provide to NL in their roles as members of NL's board of directors or
any other activity related to such board of directors.
Section 3. Miscellaneous Services. It is the intent of the parties hereto
that each party to this Agreement provide (a "Providing Party") only such
Services as are requested by the other party (a "Receiving Party") in connection
with routine management, financial and administrative functions related to the
ongoing operations of the Receiving Party and not with respect to special
projects, including corporate investments, acquisitions and divestitures. The
parties hereto contemplate that the Services rendered by a Providing Party in
connection with the conduct of each Receiving Party's business will be on a
scale compared to that existing on the effective date of this Agreement,
adjusted for internal corporate growth or contraction, but not for major
corporate acquisitions or divestitures, and that adjustments may be required to
the terms of this Agreement in the event of such major corporate acquisitions,
divestitures or special projects. Each Receiving Party will continue to bear all
other costs required for outside services including, but not limited to, the
outside services of attorneys, auditors, trustees, consultants, transfer agents
and registrars, and it is expressly understood that each Providing Party assumes
no liability for any expenses or services other than those stated in this
Agreement to be provided by such party. In addition to the amounts charged to a
Receiving Party for Services provided pursuant to this Agreement, such Receiving
Party will pay the Providing Party the amount of out-of-pocket costs incurred by
the Providing Party in rendering such Services.
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Section 4. Net Fee for Services. NL agrees to pay to Contran a net annual
fee of $1,970,000 payable in quarterly installments of $492,500 each on the
first business day of each quarter, commencing as of January 1, 2003, pursuant
to this Agreement. In addition to the net annual fee:
(a) Contran shall credit or pay to NL additional amounts plus all
related out-of-pocket costs, all as agreed to by the parties, for all NL
Services provided under Subsection 2(b); and
(b) NL shall credit or pay to Contran additional amounts plus all
related out-of-pocket costs, all as agreed to by the parties, for all
Contran Services provided under Subsection 1(f).
Section 5. Original Term. Subject to the provisions of Section 6 hereof,
the original term of this Agreement shall be from January 1, 2003 to December
31, 2003.
Section 6. Extensions. This Agreement shall be extended on a
quarter-to-quarter basis after the expiration of its original term unless
written notification is given by Contran or NL thirty (30) days in advance of
the first day of each successive quarter or unless it is superseded by a
subsequent written agreement of the parties hereto.
Section 7. Limitation of Liability. In providing Services hereunder, each
Providing Party shall have a duty to act, and to cause its agents to act, in a
reasonably prudent manner, but no Providing Party nor any officer, director,
employee or agent of such party nor or its affiliates shall be liable to a
Receiving Party for any error of judgment or mistake of law or for any loss
incurred by the Receiving Party in connection with the matter to which this
Agreement relates, except a loss resulting from willful misfeasance, bad faith
or gross negligence on the part of the Providing Party.
Section 8. Indemnification. Each Receiving Party shall indemnify and hold
harmless the Providing Party, its affiliates and their respective officers,
directors and employees from and against any and all losses, liabilities,
claims, damages, costs and expenses (including attorneys' fees and other
expenses of litigation) to which such Providing Party or person may become
subject arising out of the Services provided by such Providing Party to the
Receiving Party hereunder, provided that such indemnity shall not protect any
person against any liability to which such person would otherwise be subject by
reason of willful misfeasance, bad faith or gross negligence on the part of such
person.
Section 9. Confidentiality. Except as otherwise required by applicable
law, each of the parties agrees that it will maintain in confidence all
confidential information regarding the other party supplied to it in the course
of the performance of this Agreement.
Section 10. Further Assurances. Each of the parties will make, execute,
acknowledge and deliver such other instruments and documents, and take all such
other actions, as the other party may reasonably request and as may reasonably
be required in order to effectuate the purposes of this Agreement and to carry
out the terms hereof.
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Section 11. Notices. All communications hereunder shall be in writing and
shall be addressed, if intended for Contran, to Three Lincoln Centre, ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: President, or such other
address as it shall have furnished to NL in writing, and if intended for NL, to
Two Greenspoint Plaza, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
Attention: President, or such other address as it shall have furnished to
Contran in writing.
Section 12. Amendment and Modification. Neither this Agreement nor any
term hereof may be changed, waived, discharged or terminated other than by
agreement in writing signed by the parties hereto.
Section 13. Successor and Assigns. This Agreement shall be binding upon
and inure to the benefit of Contran and NL and their respective successors and
assigns, except that neither party may assign its rights under this Agreement
without the prior written consent of the other party.
Section 14. Governing Law. This Agreement shall be governed by, and
construed and interpreted in accordance with, the laws of the state of Texas.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
CONTRAN CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
NL INDUSTRIES, INC.
By: /s/ J. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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J. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer
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