exv10w1



 






EXHIBIT 10.1




AMENDED AND RESTATED

TERMINAL SERVICES AGREEMENT




     THIS AMENDED AND RESTATED TERMINAL SERVICES AGREEMENT is made and entered
into as of October 27, 2004, effective as of July 1, 2004 (the “Effective
Date”), by and between MARTIN OPERATING PARTNERSHIP L.P., a Delaware limited
partnership (hereinafter referred to as “Operator”), and MIDSTREAM FUEL SERVICE
LLC, an Alabama limited liability company (hereinafter referred to as
“Customer”).



     WITNESSETH:



     WHEREAS, the Operator operates several marine terminal facilities
(“Terminals”) which are identified in Attachment A; and



     WHEREAS, the Customer is in the # 2 Diesel Fuel (“Product”) distribution
business; and



     WHEREAS, it is the desire of the Operator and the Customer that the
Customer’s Product be throughput at the Terminals and that the Operator provide
unloading, handling, storage, out-loading and other terminal services with
respect to the Customer’s Product at the Terminals, all on the terms and
conditions hereinafter provided.



     NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the Operator and the Customer agree that the Operator shall
provide the hereinafter described terminal services with respect to the
Customer’s Product at the Terminals, on the terms and conditions provided
herein:




	1.	 	Term of Agreement. The term of this Agreement shall begin on the
Effective Date and shall end on December 31, 2006 and shall continue Month
to Month thereafter, unless terminated by either party with at least sixty
(60) days written notice prior to the end of any term.
	 
	2.	 	Operator’s Duties. In consideration of the compensation provided in
Section 3 hereof, the Operator shall provide the following services
(“Terminal Services’) to the Customer at the Terminals:






	(a)	 	Unloading. Handling and Storage Services. The Customer shall
deliver Product to these Terminals by marine vessel. The Operator
shall unload the Customer’s Product from such marine vessels in
accordance with prevailing industry standards relating to the
handling of petroleum products. The Operator shall transfer the
Product to, and store the Product in, any or all of the storage
tanks listed in Attachment B (“Storage Tanks”), all of which are
located at the Terminals.




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	 	 	Said Tanks shall be reserved and dedicated at all times for the
exclusive use of Customer.
	 
	(b)	 	Out-Loading Services. The Customer’s Product may be removed
from the Terminals by marine vessel. The Operator shall provide all
out-loading services necessary to permit the Customer to transfer
Product from the Storage Tanks to the Customer’s designated marine
vessels for removal from the Terminals.
	 
	(c)	 	Inventory Services. The Operator shall provide to the
Customer daily inventory reports of Customer’s Product, containing
reports as to receipts and withdrawals of Customer Product, and the
balance as of the close of business of the immediately preceding
day.






	3.	 	Operator’s Compensation. For the Terminal Services performed hereunder,
the Operator shall receive the following compensation from the Customer:






	(a)	 	Throughput Fee. . The Customer shall compensate the
Operator for the Terminal Services provide hereunder, in the form of
a “Throughput Fee” equal to $         per gallon for Product out-loaded
out from these Terminals during a calendar month. The Customer
shall have a Minimum Annual Total Throughput (“Minimum”) quantity of
90,000,000 gallons for which they shall pay the Operator this
Throughput Fee. Should Customer not meet or exceed this Minimum
then Customer shall compensate Operator for this shortfall at the
same $         per gallon rate. The invoicing for the Minimum shortfall
(if required) will occur on the first invoice generated immediately
following each calendar year. Should this Agreement be terminated
prior to the end of any calendar year, then the Minimum shortfall,
if any, shall be determined based on a prorated allocation of the
Minimum. The Throughput Fee shall remain as stated above until
December, 2005. Thereafter, the Throughput Fee shall be adjusted
annually (both upward and downward as hereinafter provided) by a
factor equal to the increase or decrease, as the case may be, in the
Consumer Price Index (as defined below). The adjustment shall be
calculated annually in December of each year, commencing in
December, 2005. The adjustment shall be calculated as follows: the
Throughput Fee in effect shall be multiplied by a factor equal to
the amount of the increase or decrease, as the case may be, in the
Consumer Price Index for the immediately preceding month of
November, over the Consumer Price Index for November of the
preceding year. For purposes hereof, the term “Consumer Price
Index” shall mean the “Consumer Price Index for Urban Wage Earners
and Clerical Workers (1967=100)” specified for “All Items. United
States” compiled by the Bureau of Labor Statistics of the United
States Department of Labor (the “Index”). In event the Index shall
be converted to a different standard reference base or otherwise
revised, the determination of the percentage change shall be made
with the use of such conversion factor, formula or table for
converting the Index as may be published by the Bureau of Labor
Statistics or, if said Bureau shall not publish the same, then as
shall be reasonably determined by the parties.





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	(b)	 	Miscellaneous Fees. The Customer shall reimburse the
Operator for any and all taxes, dockage or wharfage fees, product
testing charges, barge or tug charges, or any other charges which
may be levied against Operator having to do with handling and or
custody of Customer’s Product.
	 
	(c)	 	Fourchon Terminal Commission Fee Reimbursement Fee. The
Customer shall reimburse the Operator for the Commission Fees owed
by the Operator as a result of the handling of Product and water at
the terminal located at Port Fourchon, Louisiana for the Customer’s
account. This reimbursement will be a direct reimbursement of
actual fees owed by the Operator as a result of the Fuel Terminal
Services Agreement dated March 19, 1997, a copy of which is included
as Attachment C. There will be no additional handling fees or other
charges associated with the reimbursement of this fee.
	 
	(d)	 	Additional Freeport OOS Terminal Throughput Fee. Beginning
September 17, 2004, in addition to that Throughput Fee specified
under Article 3(a), the Customer shall pay to the Operator, a per
gallon throughput fee of $         (the “Freeport Throughput Fee”) for
each and every gallon of diesel fuel sold from the Freeport
Terminal. There is no required minimum volume associated with this
Article 3(d). The Freeport Throughput fee shall be reviewed on an
annual basis by the Operator and the Customer and is subject to
adjustment if mutually agreed to by both Operator and Customer.
	 
	(e)	 	Payment Terms. Payment of these Fees from the Customer to
the Operator shall be net 30 days from the date of the invoice.






	4.	 	Title to Product. Title to all of the Customer’s Product received,
stored and handled by the Operator at these Terminals shall remain at all
times in the name of the Customer. The Customer agrees not to deliver for
storage at these Terminals any Product which may not be lawfully stored on
the premises of these Terminals or any Product injurious to the premises
or facilities, or which would render the facilities unfit, after cleaning,
for the proper storage of similar product, or Products.
	 
	5.	 	Assignment. Neither party shall assign this Agreement without the
express written consent of the other party.
	 
	6.	 	Facility, Tank and Equipment Condition. The Operator shall, at its sole
cost and expense, provide and maintain all handling and storage equipment
and facilities necessary to the performance of its services expressed
hereunder, including without limitation the storage tanks, in compliance
with prevailing industry standards and all applicable Laws (as defined
below) as they may exist from time to time.
	 
	7.	 	Customers Compliance with Laws. In the conduct of its business in the
premises of these Terminals, the Customer shall comply in all material
respects with all federal, state and local laws, ordinances, decrees,
orders, regulations, permits or other requirements having the force of law
(hereinafter, the “Laws”).




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	8.	 	Entire Agreement. This Terminal Services Agreement shall constitute the
entire agreement concerning the subject hereof between the parties
superseding all previous agreements, negotiations and representations made
prior or contemporaneous to the date hereof. This Agreement shall be
modified or amended only by written agreement executed by both parties
hereto.
	 
	9.	 	Controlling Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas.





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EXECUTED as of the date first set forth above.

	 	 	 	 	 
	 	MIDSTREAM FUEL SERVICE LLC

 	 
	 	By:  	Martin Resource Management
 	 
	 	 	Corporation, Its Sole Member 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	/s/ Ruben S. Martin
 	 
	 	 	Name:  	Ruben S. Martin	 
	 	 	Title:  	President	 
	 



	 	 	 	 	 
	 	MARTIN OPERATING PARTNERSHIP LP

 	 
	 	By:  	Martin Operating GP LLC,
 	 
	 	 	its General Partner 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	Martin Midstream Partners L.P.,
 	 
	 	 	its Sole Member 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	Martin Midstream GP LLC,
 	 
	 	 	its General Partner 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	/s/ Ruben S. Martin
 	 
	 	 	Name:  	Ruben S. Martin	 
	 	 	Title:  	CFO and President