AMENDMENT NO. 5
This AMENDMENT NO. 5, dated as of May 4, 2004 (this "AMENDMENT"), is
made to that certain Credit Agreement, dated as of September 5, 2001 (as
amended, the "CREDIT AGREEMENT"), among BUCKEYE PARTNERS, L.P. (the "BORROWER"),
SUNTRUST BANK, as administrative agent (the "ADMINISTRATIVE AGENT"), and certain
lenders party thereto (the "LENDERS").
PRELIMINARY STATEMENT:
WHEREAS, in connection with the Transaction referred to below, the
Borrower's general partner is changing from a Delaware corporation to a Delaware
limited liability company;
WHEREAS, the holders of all of the outstanding equity interests in
Glenmoor, Ltd., a Delaware corporation ("Glenmoor") and the parent of Buckeye
Pipe Line Company, the Borrower's general partner, have agreed to sell all of
the outstanding equity interests in Glenmoor to BPL Acquisition L.P. (the
"Buyer"), an entity newly formed by Carlyle/Riverstone Global Energy and Power
Fund II, L.P., pursuant to the Stock Purchase Agreement, dated as of March 5,
2004, by and among the Buyer, Glenmoor and the stockholders of Glenmoor (the
"Stock Purchase Agreement");
WHEREAS, the sale of all of the outstanding equity interests in
Glenmoor to Buyer, as contemplated by the Stock Purchase Agreement, shall be
referred to herein as the "Transaction";
WHEREAS, consummation of the Transaction would result in a Change of
Control under the Credit Agreement;
WHEREAS, a Change of Control would constitute an Event of Default under
Section 10.01(k) of the Credit Agreement;
WHEREAS, the Borrower has requested that the Lenders (i) consent to the
consummation of the Transaction, (ii) waive the provisions of Section 10.01(k)
as they apply to the Transaction and (iii) amend certain provisions of the
Credit Agreement as set forth herein; and
WHEREAS, Section 12.04 of the Credit Agreement requires that a consent,
waiver or amendment with respect to the Credit Agreement be in writing and
signed by the Required Lenders and the Borrower.
NOW, THEREFORE, intending to be legally bound hereby, each of the
undersigned hereby agree as follows:
1. Amendment to Section 1.01 of the Credit Agreement. Section
1.01 of the Credit Agreement is hereby amended by (a) deleting the definitions
of "BPLC" and "Change of Control" and inserting in lieu thereof the following
new definitions of
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"BPLC" and "Change of Control" and (b) adding the following new definitions of
"Board of Directors" and "Fifth Amendment Effective Date":
"BOARD OF DIRECTORS" means, with respect to any Person, such Person's
board of directors, managers or members, as applicable.
"BPLC" shall mean Buckeye Pipe Line Company LLC, a Delaware limited
liability company, formerly a Delaware corporation.
"CHANGE OF CONTROL" shall mean either (i) a change resulting when any
Unrelated Person or any Unrelated Persons acting together that would
constitute a Group together with any Affiliates thereof (in each case
also constituting Unrelated Persons) shall at any time Beneficially Own
more than 50% of the aggregate voting power of all classes of Voting
Stock of BMC, (ii) BMC or Glenmoor, Ltd. shall cease to own 100% of the
outstanding equity interests of BPLC on a fully diluted basis or (iii)
BPLC shall cease to own 100% of the general partnership interest of the
Borrower. As used herein (A) "Beneficially Own" means "beneficially
own" as defined in Rule 13d-3 of the Securities Exchange Act of 1934,
as amended, or any successor provision thereto; provided, however,
that, for purposes of this definition, a Person shall not be deemed to
Beneficially Own securities tendered pursuant to a tender or exchange
offer made by or on behalf of such Person or any of such Person's
Affiliates until such tendered securities are accepted for purchase or
exchange; (B) "Group" means a "group" for purposes of Section 13(d) of
the Securities Exchange Act of 1934, as amended; (C) "Unrelated Person"
means at any time any Person other than (1) Glenmoor, Ltd. and the
stockholders thereof as of the Fifth Amendment Effective Date, (2)
their respective spouses, lineal descendants, and spouses of their
lineal descendants, (3) the estates of the Persons described in clauses
(1) and (2), and (4) trusts established solely for the benefit of any
Person or Persons described in clauses (1) and (2); and (D) "Voting
Stock" of any Person shall mean capital stock of such Person that
ordinarily has voting power for the election of directors (or persons
performing similar functions) of such Person, whether at all times or
only so long as no senior class of securities has such voting power by
reason of any contingency.
"Fifth Amendment Effective Date" shall mean May 4, 2004.
3. Amendment to Section 7.22(c) of the Credit Agreement. Section
7.22(c) of the Credit Agreement is hereby amended by deleting such Section in
its entirety and inserting in lieu thereof the following new Section 7.22(c):
(c) BMC owns 100% of the equity interests of the General
Partner as of the date hereof.
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4. Waiver and Consent. Subject to the terms and conditions set
forth below, each of the undersigned Lenders hereby consents to the consummation
of the Transaction, waives the provisions of Section 10.01(k) of the Credit
Agreement as they apply to the Transaction and agrees that the consummation of
the Transaction shall not, pursuant to said Section 10.01(k) or otherwise, be
deemed to be an Event of Default under the Credit Agreement.
5. Limited Nature of Waiver and Consent. The provisions of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of the Administrative Agent or any Lender under any
of the Loan Documents. Without limiting the generality of the foregoing, the
waiver and consent set forth above shall be limited precisely as set forth
above, and nothing herein shall be deemed (i) to constitute (A) a waiver of or
consent to any future Change of Control or (B) a waiver of compliance by the
Borrower, any Guarantor or any Restricted Subsidiary with respect to any other
provision or condition of any other Loan Document, or (ii) to prejudice any
right or remedy that the Administrative Agent or any Lender may now have or may
have in the future under or in connection with any of the Loan Documents.
6. Effectiveness. This Amendment shall become effective as of the
date first set forth above when (i) the Required Lenders and the Borrower shall
have executed and delivered to the Administrative Agent a counterpart of this
Amendment, (ii) all Guarantors shall have executed and delivered to the
Administrative Agent the consent to this Amendment in substantially the form of
Exhibit A attached hereto, (iii) the Administrative Agent shall have received a
certificate from an officer of the General Partner setting forth (A) resolutions
of its board of directors, managers or members, as the case may be, confirming
and ratifying the actions of the Borrower and each Guarantor with respect to the
execution and delivery of the Loan Documents to which each such Person is a
party and the consummation of the transactions contemplated therein, (B) the
officers of the General Partner (1) who are authorized to sign Loan Documents to
which it is a party and (2) who will, until replaced by another officer or
officers duly authorized for that purpose, act as its representatives for the
purposes of signing documents and giving notices and other communications in
connection with the Credit Agreement and the transactions contemplated thereby,
(C) the certificate of formation and operating agreement or the limited
liability company agreement, as applicable, of the General Partner, each
certified as being true and complete and (iv) the Administrative Agent shall
have received certificates of the appropriate state agencies with respect to the
existence, qualification and good standing, as appropriate, of the General
Partner.
7. Representations and Warranties. The Borrower represents and
warrants that (a) the representations and warranties contained in Article VII of
the Credit Agreement, as amended hereby (with each reference therein to (i)
"this Agreement", "hereunder" and words of like import referring to the Credit
Agreement being deemed to be a reference to this Amendment and the Credit
Agreement as amended hereby and (ii) "Loan Documents", "thereunder" and words of
like import being deemed to include this Amendment and the Credit Agreement, as
amended hereby) are true and correct on and as of the date hereof as though made
on and as of such date, and (b) after giving
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effect hereto, no event has occurred and is continuing, or would result from the
execution and delivery of this Amendment, that constitutes an Event of Default.
8. Costs and Expenses. The Borrower agrees to pay on demand all
costs and expenses of the Administrative Agent in connection with the
preparation, execution and delivery of this Amendment, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Administrative Agent with respect thereto, and all costs and expenses
(including, without limitation, counsel fees and expenses), if any, in
connection with the enforcement (whether through negotiations, legal proceedings
or otherwise) of this Amendment.
9. Execution in Counterparts. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument.
10. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the internal laws of the State of the New York.
[signatures follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective duly authorized officers as of
the date first above written.
BUCKEYE PARTNERS, L.P., as Borrower
By BUCKEYE PIPE LINE COMPANY LLC,
its general partner
By /s/ Xxxxxxx X. Xxxxxx
_________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President,
Administration and
Secretary
SUNTRUST BANK, as Administrative Agent
and Lender
By /s/ Xxxxx Xxxx
____________________________________
Name: Xxxxx Xxxx
Title: Managing Director
BNP PARIBAS
By /s/ X. Xxxxxxxx
____________________________________
Name: X. Xxxxxxxx
Title: Director
By /s/ Xxxx Xxxxxxxx
____________________________________
Name: Xxxx Xxxxxxxx
Title: Vice President
CITIBANK, N.A.
By /s/ Joronne Xxxxx
____________________________________
Name: Joronne Xxxxx
Title: Attorney-in-Fact
THE FUJI BANK, LIMITED
By ____________________________________
Name:
Title:
SIGNATURE PAGE TO BUCKEYE PARTNERS, L.P. 5-YEAR AMENDMENT NO. 5
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FLEET NATIONAL BANK
By /s/ Xxxxxxxx Xxxxx
____________________________________
Name: Xxxxxxxx Xxxxx
Title: Managing Director
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By ____________________________________
Name:
Title:
NATIONAL AUSTRALIA BANK LTD.
By ____________________________________
Name:
Title:
THE SANWA BANK LIMITED
By ____________________________________
Name:
Title:
SUMITOMO MITSUI BANKING CORPORATION
By ____________________________________
Name:
Title:
SIGNATURE PAGE TO BUCKEYE PARTNERS, L.P. 5-YEAR AMENDMENT NO. 5
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JPMORGAN CHASE BANK
By /s/ Xxx X. Xxxxxxx
____________________________________
Name: Xxx X. Xxxxxxx
Title: Vice President
SIGNATURE PAGE TO BUCKEYE PARTNERS, L.P. 5-YEAR AMENDMENT NO. 5
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EXHIBIT A
FORM OF CONSENT
Dated as of May __, 2004
The undersigned parties (each, a "COMPANY"), as guarantor under the
Guaranty, dated as of September 5, 2001, made by the Company to SunTrust Bank,
as administrative agent (the "ADMINISTRATIVE AGENT") for the lenders (the
"LENDERS") party to the Credit Agreement, dated as of September 5, 2001 (the
"CREDIT AGREEMENT"), among BUCKEYE PARTNERS, L.P. (the "BORROWER"), the Lenders
and the Administrative Agent, hereby consents to the amendment of the Credit
Agreement by the Amendment No. 5, dated as of the date hereof (the "AMENDMENT"),
among the Borrower, the Lenders signatories thereto and the Administrative
Agent, and hereby confirms and agrees that (i) the Guaranty is, and shall
continue to be, in full force and effect and is hereby ratified and confirmed in
all respects except that, upon the effectiveness of, and on and after the date
of, the Amendment, each reference in the Guaranty to the "Credit Agreement",
"thereunder", "thereof" or words of like import referring to the Credit
Agreement shall mean and be a reference to the Credit Agreement, as amended by
the Amendment and (ii) the Guaranty is, and shall continue to, be an
unconditional and irrevocable guaranty of all of the Obligations (as defined in
the Guaranty).
[NAMES OF GUARANTOR]
By ____________________________________
Name:
Title:
