FIRST AMENDMENT AND LIMITED WAIVER AND CONSENT
THIS FIRST AMENDMENT AND LIMITED WAIVER AND CONSENT, dated as of May 4,
2004 (this "Amendment"), is by and among Buckeye Partners, L.P., a Delaware
limited partnership (the "Borrower"), SunTrust Bank, as administrative agent
(the "Administrative Agent") and the undersigned financial institutions and is
entered into pursuant to Section 12.04 of that certain Credit Agreement, dated
as of September 3, 2003 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), by and among the Borrower,
the Administrative Agent and the lenders from time to time party thereto (the
"Lenders"). Terms that are capitalized but undefined herein shall have the
meanings ascribed thereto in the Credit Agreement.
RECITALS
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(j) 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(j)
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:
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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 "BPLC" and "Change of Control" and (b) adding the following
new definitions of "Board of Directors" and "First 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
First 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.
"FIRST AMENDMENT EFFECTIVE DATE" shall mean May 4, 2004.
2. Amendment to Section 6.03(b) of the Credit Agreement. Section
6.03(b) of the Credit Agreement is hereby amended by deleting such Section in
its entirety and inserting in lieu thereof the following new Section 6.03(b):
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(b) the Agent shall have received such other documents
and legal opinions in respect of any aspect or consequence of the
transactions contemplated by Section 2.04 as the Agent shall reasonably
request, including, without limitation, copies of the resolutions, in
form and substance satisfactory to the Agent, of the directors,
managers or members, as the case may be, of the Borrower's general
partner authorizing the extension of the Termination Date; and
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.
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(j) 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(j) 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
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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 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.
BORROWER
BUCKEYE PARTNERS, L.P.
By: BUCKEYE PIPE LINE COMPANY LLC,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
_____________________________
Name:
Title: Senior Vice President,
Administration and
Secretary
[SIGNATURE PAGE TO FIRST AMENDMENT AND LIMITED WAIVER AND CONSENT]
LENDERS
SUNTRUST BANK
By /s/ Xxxxx Xxxx
_______________________________
[SIGNATURE PAGE TO FIRST AMENDMENT AND LIMITED WAIVER AND CONSENT]
KEYBANK NATIONAL ASSOCIATION
By /s/ Xxxxx X. Xxxxx
______________________________
Name: Xxxxx X. Xxxxx
Title: Vice President
[SIGNATURE PAGE TO FIRST AMENDMENT AND LIMITED WAIVER AND CONSENT]
BNP PARIBAS
By /s/ Xxxxx Xxxxxxxx
______________________________
Name: Xxxxx Xxxxxxxx
Title: Director
By /s/ Xxxx Xxxxxxxx
______________________________
Name: Xxxx Xxxxxxxx
Title: Vice President
[SIGNATURE PAGE TO FIRST AMENDMENT AND LIMITED WAIVER AND CONSENT]
NATIONAL AUSTRALIA BANK LTD.
By ______________________________
Name:
Title:
[SIGNATURE PAGE TO FIRST AMENDMENT AND LIMITED WAIVER AND CONSENT]
PNC BANK, NATIONAL ASSOCIATION
By /s/ Xxxx Xxxxxxxxxx
______________________________
Name: Xxxx Xxxxxxxxxx
Title: Assistant Vice President
[SIGNATURE PAGE TO FIRST AMENDMENT AND LIMITED WAIVER AND CONSENT]
WACHOVIA BANK, NATIONAL ASSOCIATION
By /s/ Xxxxx X. Xxxxxxxx
______________________________
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
[SIGNATURE PAGE TO FIRST AMENDMENT AND LIMITED WAIVER AND CONSENT]
FLEET NATIONAL BANK
By /s/ Xxxxxxxx Xxxxx
______________________________
Name: Xxxxxxxx Xxxxx
Title: Managing Director
[SIGNATURE PAGE TO FIRST AMENDMENT AND LIMITED WAIVER AND CONSENT]
CITIBANK, N.A.
By /s/ Joronne Xxxxx
______________________________
Name: Joronne Xxxxx
Title: Attorney-in-Fact
[SIGNATURE PAGE TO FIRST AMENDMENT AND LIMITED WAIVER AND CONSENT]
JPMORGAN CHASE BANK
By /s/ Xxx X. Xxxxxxx
______________________________
Name: Xxx X. Xxxxxxx
Title: Vice President
[SIGNATURE PAGE TO FIRST AMENDMENT AND LIMITED WAIVER AND CONSENT]
[SIGNATURE PAGE TO FIRST AMENDMENT AND LIMITED WAIVER AND CONSENT]
ACKNOWLEDGED BY:
ADMINISTRATIVE AGENT
SUNTRUST BANK
By: /s/ Xxxxx Xxxx
____________________________
Name: Xxxxx Xxxx
Title: Managing Director
[SIGNATURE PAGE TO FIRST AMENDMENT AND LIMITED WAIVER AND CONSENT]
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 3, 2003, 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 3, 2003 (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 First Amendment and Limited Waiver and Consent, dated as of May
__, 2004 (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:
