SECOND AMENDED AND RESTATED SERVICES AGREEMENT
THIS SECOND AMENDED AND RESTATED SERVICES AGREEMENT (this "Agreement"),
dated as of May 4, 2004, is entered into among BUCKEYE PIPE LINE COMPANY LLC, a
Delaware limited liability company (the "General Partner"), BUCKEYE MANAGEMENT
COMPANY LLC, a Delaware limited liability company ("BMC"), and BUCKEYE PIPE LINE
SERVICES COMPANY, a Pennsylvania corporation (the "Provider").
WITNESSETH:
WHEREAS, pursuant to Section 266 of the Delaware General Corporation
Law and Section 18-214 of the Delaware Limited Liability Company Act, the
General Partner and BMC converted as of the date of this Agreement from Delaware
corporations into Delaware limited liability companies;
WHEREAS, the parties hereto were parties to that certain Services
Agreement, dated as of August 12, 1997 (the "Original Agreement");
WHEREAS, the parties hereto amended and restated the Original Agreement
as of April 24, 2002 (as so amended and restated, the "Prior Agreement");
WHEREAS, the parties to the Prior Agreement desire to amend and restate
the Prior Agreement in its entirety to clarify the circumstances under which the
Service Term (as defined herein) shall terminate;
WHEREAS, the General Partner owns an approximate 1% general partnership
interest in, and serves as sole general partner of, Buckeye Partners, L.P., a
publicly traded Delaware limited partnership (the "Partnership");
WHEREAS, the General Partner owns a 1% general partnership interest in,
and serves as sole general partner of, Buckeye Pipe Line Company, L.P., Buckeye
Pipe Line Company of Michigan, L.P., Buckeye Pipe Line Holdings, L.P.,
Everglades Pipe Line Company, L.P., and Laurel Pipe Line Company, L.P., each a
Delaware limited partnership (together, the "Operating Partnerships"), and the
Partnership owns a 99% limited partnership interest in each such entity (except
Buckeye Pipe Line Company of Michigan, L.P., which is owned 98.01% by Laurel
Pipe Line Company, L.P. and 1.99% by the General Partner);
WHEREAS, pursuant to the Contribution, Assignment and Assumption
Agreement, dated as of December 31, 1998 (the "Assignment Agreement"), BMC
assigned certain assets, including its approximate 1% general partnership
interest in the Partnership, to the General Partner; and
WHEREAS, the General Partner and BMC desire that the Provider continue
to provide certain services to the Partnership and the Operating Partnerships in
accordance with the terms set forth below.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
ARTICLE I
Appointment of the Provider
The General Partner and BMC hereby appoint the Provider to provide
certain services in connection with the operation of the business of the
Partnership and the Operating Partnerships, subject to the control and oversight
of the General Partner and BMC, and the Provider accepts its appointment by the
General Partner and BMC.
ARTICLE II
Term of Agreement
The term of this Agreement (the "Service Term") commenced on the date
of the Original Agreement and shall continue until all principal, interest and
premium is paid in full under the Amended and Restated Note Agreement, dated as
of August 12, 1997, among the BMC Acquisition Company Employee Stock Ownership
Plan (now known as the Buckeye Pipe Line Services Company Employee Stock
Ownership Plan) (the "ESOP"), The Prudential Insurance Company of America and
Pruco Life Insurance Company (the "Note Agreement") and under any agreements or
instruments (each, a "Successor Note Agreement") setting forth the terms of, or
evidencing, any indebtedness incurred by the ESOP in order to refinance any of
the principal, interest or premium outstanding under the Note Agreement or any
preceding Successor Note Agreement, unless earlier terminated (i) by the General
Partner for Cause or (ii) by the General Partner in the event that the General
Partner is removed as general partner of the Partnership for any reason. For
purposes of this Agreement, "Cause" shall mean the failure of the Provider to
comply with the terms and conditions set forth in this Agreement or to follow
the lawful directives of the General Partner or BMC in connection with the
performance by the Provider of its duties and responsibilities under this
Agreement, as determined by the nonmanagement directors of the Board of
Directors of the General Partner in their sole discretion.
ARTICLE III
Duties and Responsibilities Of the Provider
3.1 Duties and Responsibilities. During the Service Term, the Provider
shall perform such duties and responsibilities as are necessary or appropriate
to conduct the day-to-day business operations of the Partnership and the
Operating Partnerships and as are assigned to the Provider by the General
Partner or BMC. The General Partner or BMC may from time to time expand, limit
or otherwise modify the duties and responsibilities of the Provider by timely
notice to the Provider in writing. All activities of the Provider under this
Agreement shall be performed under the direct supervision of the General Partner
or BMC.
3.2 Employees. As of the date of the Original Agreement, the Provider
employed all employees then employed by the General Partner as employees at
will, and offered such
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employees compensation substantially the same as their then current compensation
from the General Partner, subject to annual compensation adjustments in the
ordinary course of business. The Provider assumed all liabilities and acquired
all assets in connection with all current employee benefit plans for the benefit
of such employees, including, without limitation, sponsorship of the ESOP. The
Provider granted each such employee credit for service with the General Partner
for all purposes under such employee benefits plans.
3.3 Officers and Directors. During the Service Term, the persons
serving as the officers and as the Independent Director (as defined in the
Articles of Incorporation of the Provider) of the Provider shall be subject to
the approval of the General Partner, such approval not to be unreasonably
withheld and to be deemed given in the absence of an objection by the General
Partner.
3.4 Equitable Relief. The Provider acknowledges that the provisions of
Section 3.3 are, in view of the nature of this transaction, reasonable and
necessary to protect the legitimate interests of the General Partner, BMC, the
Partnership and the Operating Partnerships, and that any violation of any
provision of that Section will result in irreparable injury to the General
Partner, BMC, the Partnership and the Operating Partnerships. The Provider also
acknowledges that in the event of any such violation, the General Partner and
BMC shall be entitled to preliminary and permanent injunctive relief without the
necessity of proving actual damages, and to an equitable accounting of all
earnings, profits and other benefits arising from any such violation, which
rights shall be cumulative and in addition to any other rights or remedies to
which the General Partner or BMC may be entitled. The Provider agrees that in
the event of any such violation, an action may be commenced for any such
preliminary and permanent injunctive relief and other equitable relief in the
United States District Court for the Eastern District of Pennsylvania or the
state court of competent jurisdiction sitting in Delaware County or in Lehigh
County, Pennsylvania or in any other court of competent jurisdiction. The
Provider hereby waives, to the fullest extent permitted by law, any objection
that the Provider may now or hereafter have to such jurisdiction or to the
laying of the venue of any such suit, action or proceeding brought in such a
court and any claim that such suit, action or proceeding has been brought in an
inconvenient forum. The Provider agrees that effective service of process may be
made upon the Provider under the notice provisions contained in Section 8.2 of
this Agreement.
3.5 Survival of Covenants. Sections 3.3 and 3.4 shall survive the
termination of this Agreement.
ARTICLE IV
Insurance
The General Partner shall include the Provider as an additional insured
under all liability insurance policies maintained by the General Partner. Such
policies shall indemnify the Provider and its officers, directors and employees
against covered claims and expenses which may be incurred by the Provider and
its officers, directors and employees in connection with the activities of the
Partnership or the Operating Partnerships in accordance with the terms of such
policies.
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ARTICLE V
Services Fee
The General Partner and BMC shall pay the Provider a fee for performing
its duties and responsibilities under this Agreement equal to the reasonable
costs and expenses incurred by the Provider which are directly or indirectly
related to the business or activities of the Partnership and the Operating
Partnerships, respectively (including, without limitation, (i) any amounts
related to the payment of taxes when due related to the business of the
Partnership or the Operating Partnerships or to the ESOP, (ii) any top-up
contribution (as defined in the Second Amended and Restated Exchange Agreement,
dated as of May 4, 2004, by and among the General Partner, BMC, the Partnership,
the Operating Partnerships and Glenmoor LLC (the "Exchange Agreement"), and
(iii) any collateral coverage deposit (as defined in the Exchange Agreement),
provided, however, that any collateral coverage deposits that are later
withdrawn by the Provider shall only be used to satisfy obligations of the
General Partner and BMC to pay for services hereunder), and the General Partner
shall reimburse the Provider for all costs and expenses incurred by the Provider
in connection with the formation, capitalization, business or other activities
of the Provider pursuant to this Agreement. Except as set forth in the preceding
sentence, the Provider will not have the right to receive any other compensation
for performing its duties and responsibilities under this Agreement.
ARTICLE VI
Indemnification
The General Partner and BMC shall jointly and severally indemnify,
protect and hold the Provider and its affiliates harmless from any and all
claims, demands, suits or actions (including attorneys' fees and expenses) which
may be asserted against the Provider arising out of the performance of services
pursuant to this Agreement or otherwise in connection with the Partnership or
the Operating Partnerships; provided that the Provider or such affiliate seeking
indemnification acted in good faith and the act or omission which is the basis
of such claim, demand, suit or action does not involve the gross negligence or
willful misconduct of the Provider or such affiliate.
ARTICLE VII
No Interest Conveyed to the Provider
This Agreement is a services agreement only and does not convey to the
Provider any right, title or interest in or to any assets of the Partnership or
the Operating Partnerships. This Agreement is not intended to form a joint
venture or a partnership.
ARTICLE VIII
General Provisions
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8.1 Third Party Beneficiary. The Partnership and the Operating
Partnerships shall be deemed third party beneficiaries of the duties and
responsibilities of the Provider under this Agreement and shall have the right
as such to enforce this Agreement directly against the Provider; however, there
shall be no other third party beneficiaries to this Agreement.
8.2 Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be delivered
personally, sent by telecopier, by first class mail or by a nationally
recognized overnight courier, postage prepaid. All such notices, requests,
demands and other communications shall be addressed to the respective parties at
the addresses set forth below, or to such other address or person as any party
may designate by notice to the other parties in accordance herewith:
If to the General Partner: Buckeye Pipe Line Company LLC
Five Radnor Corporate Center
Xxxxx 000
000 Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000
Attn: President
Telecopier No.: (000) 000-0000
If to BMC: Buckeye Management Company LLC
Five Radnor Corporate Center
Xxxxx 000
000 Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000
Attn: President
Telecopier No.: (000) 000-0000
In either case, with a copy to: Xxxxxx, Xxxxx & Xxxxxxx LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxx
Telecopier No.: (000) 000-0000
If to the Provider: Buckeye Pipe Line Services Company
0000 Xxxxxxx Xxxx
Xxxxxx, XX 00000
Attn: President
Telecopier No.: (000) 000-0000
With a copy to: LaSalle Bank, National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Corporate Trust Department
Telecopier No.: (000) 000-0000
and
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Jenkens & Xxxxxxxxx
000 X. Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxxxx, Esquire
Telecopier No.: (000) 000-0000
8.3 Headings. All article or section headings in this Agreement are for
convenience only and shall not be deemed to control or affect the meaning or
construction of any of the provisions hereof.
8.4 Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their successors but shall not be
assignable except upon the consent in writing of the parties hereto.
8.5 Integration. This Agreement constitutes the entire agreement among
the parties pertaining to the subject matter hereof and supersedes all prior
agreements and understandings pertaining thereto.
8.6 Waiver and Amendment. 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 a waiver of any such breach or of any other covenant, duty,
agreement or condition. Any amendment to this Agreement shall be effective only
if in a writing signed by each of the parties hereto.
8.7 Counterparts. This Agreement may be executed in any number of
counterparts, all of which together shall constitute one agreement binding on
the parties hereto.
8.8 Severability. 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 hereof, or of such provision in other
respects, shall not be affected thereby.
8.9 Applicable Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the Commonwealth of Pennsylvania.
[signatures follow on next page]
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IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the date first above written.
BUCKEYE PIPE LINE COMPANY LLC
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Sr.Vice President - Administration,
General Counsel and Secretary
BUCKEYE MANAGEMENT COMPANY LLC
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Sr.Vice President - Administration,
General Counsel and Secretary
BUCKEYE PIPE LINE SERVICES COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Sr.Vice President - Administration,
General Counsel and Secretary
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