EXHIBIT 10.7
AMENDMENT NO. 1 TO NOTE AGREEMENT
THIS AMENDMENT NO. 1 TO NOTE AGREEMENT (this "AMENDMENT") is entered into
as of December 15, 2004 by and among LASALLE BANK NATIONAL ASSOCIATION, as
Trustee of the BUCKEYE PIPE LINE SERVICES COMPANY EMPLOYEE STOCK OWNERSHIP PLAN
TRUST (the "ESOP TRUST"), and each of the undersigned holders of Notes (as
defined below).
RECITALS
A. The ESOP Trust and the undersigned holders of Notes entered into a Note
Agreement dated as of May 4, 2004 (as amended, restated, supplemented or
otherwise modified from time to time, including by this Amendment, the
"AGREEMENT"), pursuant to which the ESOP Trust issued and sold to such holders
the ESOP Trust's 3.60% Senior Secured Notes due March 28, 2011, in the aggregate
principal amount of $44,133,600 (together with any notes issued in substitution
or exchange therefor pursuant to the Agreement, the "NOTES"). Capitalized terms
used and not otherwise defined in this Amendment shall have the respective
meanings ascribed to them in the Agreement.
B. In connection with the issuance and sale of the Notes pursuant to the
Agreement, Buckeye Pipe Line Services Company, a Pennsylvania corporation (the
"SERVICES COMPANY") entered into a Guaranty Agreement dated as of May 4, 2004
(as amended, restated, supplemented or otherwise modified from time to time, the
"GUARANTY AGREEMENT"), in favor of the holders from time to time of the Notes.
C. The undersigned holders of Notes have been advised that the Manager,
the Master Partnership and certain of their respective Affiliates desire to
effect a restructuring of certain contractual rights and obligations and other
arrangements, which will include the following: (i) the Manager will transfer
its general partner interests in the Master Partnership and each of the
Operating Companies that is a limited partnership to Buckeye GP LLC, a newly
formed Delaware limited liability company and wholly owned subsidiary of the
Manager (the "NEW MANAGER"); (ii) the New Manager will become the new general
partner of the Master Partnership and each of such Operating Companies and will
assume all of the rights and obligations of the Manager as general partner of
the Master Partnership and each of such Operating Companies; (iii) the Services
Agreement (as defined in the Agreement before giving effect to this Amendment)
will be terminated and a new services agreement will be entered into by and
among the Master Partnership, certain of the Operating Companies and the
Services Company; (iv) the Manager will assign all of its contractual rights and
obligations, other than those under the Incentive Compensation Agreement, to the
New Manager, and the New Manager will assume all such rights and obligations;
(v) BMC and the Manager will merge with and into Glenmoor, which will
immediately thereafter change its name to MainLine Sub LLC and will thereafter
directly own all of the issued and outstanding equity interests in the New
Manager; and (vi) certain additional actions necessary or advisable in order to
effect the foregoing will be taken.
D. To facilitate the above-described restructuring, the ESOP Trustee and
the Services Company have requested that the Agreement be amended as provided
hereinbelow, and the undersigned holders of Notes are willing to agree to such
amendments, upon and subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree, subject to the terms and
conditions set forth herein, and, in the case of the undersigned holders of
Notes, in reliance on the representations and warranties of the ESOP Trustee
contained herein, as follows:
SECTION 1. AMENDMENTS TO AGREEMENT. Effective as of the Amendment
Effective Date (as defined below):
(a) Amendments to Paragraph 11B (Other Terms).
(i) Paragraph 11B of the Agreement is amended by deleting in
their entirety the definitions of ""Exchange Agreement", "Glenmoor
Management Agreement", "GP Entities", "Incentive Compensation
Agreement" and "Intercreditor Agreement". From and after the
Amendment Effective Date, all references to any of such terms in the
Agreement or in any of the other Note Documents shall have no
further force or effect.
(ii) Paragraph 11B of the Agreement is further amended by
deleting in its entirety the definition of "Manager" and replacing
it with the following:
" "MANAGER" shall mean (i) prior to consummation of the
Restructuring, Buckeye Pipe Line Company LLC, a Delaware
limited liability company (formerly Buckeye Pipe Line Company,
a Delaware corporation), and (ii) immediately following
consummation of the Restructuring, Buckeye GP LLC, a Delaware
limited liability company and wholly owned Subsidiary of
MainLine. "
(iii) Paragraph 11B of the Agreement is further amended by
deleting in its entirety the definition of "Services Agreement" and
replacing it with the following:
" "SERVICES AGREEMENT" shall mean the Services
Agreement, dated as of December 15, 2004, by and among the
Master Partnership, the Operating Companies parties thereto
and the Services Company, as the same may be amended,
restated, supplemented or otherwise modified from time to
time."
(iv) Paragraph 11B of the Agreement is further amended by
adding the following new definitions in their respective appropriate
alphabetical positions:
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" "AMENDMENT NO. 1" shall mean Amendment No. 1 to Note
Agreement, dated as of December 15, 2004, by and among the
ESOP Trust and the holders of Notes parties thereto.
"AMENDMENT NO. 1 EFFECTIVE DATE" shall mean the date on
which all conditions to effectiveness set forth in paragraph 2
of Amendment No. 1 to this Agreement have been satisfied."
"MAINLINE" shall mean, following the merger of Buckeye
Pipe Line Company LLC, Buckeye Management Company and Glenmoor
LLC, MainLine Sub LLC, a Delaware limited liability company
formerly known as Glenmoor LLC.
"RESTRUCTURING" shall mean, collectively, the following:
(i) the transfer by Buckeye Pipe Line Company, LLC, a Delaware
limited liability company (the "Existing Manager") of its
general partner interests in the Master Partnership and each
of the Operating Companies that is a limited partnership to
Buckeye GP LLC, a newly formed Delaware limited liability
company and wholly owned subsidiary of the Existing Manager
(the "New Manager"); (ii) the termination of that certain
Second Amended and Restated Services Agreement, dated as of
May 4, 2004, among Buckeye Management Company LLC, Buckeye
Pipe Line Company LLC and the Services Company and the
execution and delivery by the parties thereto of the Services
Agreement in replacement thereof; (iii) the assignment by the
Existing Manager of all of its contractual rights and
obligations, other than those under that certain Third Amended
and Restated Incentive Compensation Agreement, dated as of May
4, 2004, by and between the Existing Manager and the Master
Partnership, to the New Manager, and the assumption by the New
Manager of all such rights and obligations; (iv) the merger of
BMC and the Existing Manager with and into MainLine, which
will thereafter directly own all of the issued and outstanding
equity interests in the New Manager; and (v) certain
additional actions necessary or advisable in order to effect
the foregoing."
(b) Amendment to Xxxxxxxxx 00X (Xxxxxxxxxx xx XXXX Liability).
Paragraph 12I of the Agreement is amended by deleting in its entirety the
parenthetical set forth in subclause (i)(b) thereof and replacing it with
the following:
"(in each case whether derived from contributions under
Article V of the Services Agreement, out of distributions received
from the Master Partnership in respect of the limited partnership
units of the Master Partnership owned by the Services Company or
otherwise)"
SECTION 2. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective on the date hereof (the "AMENDMENT EFFECTIVE DATE"), subject to the
following conditions:
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(a) Certain Documents. The holders of Notes shall have received the
following, each in form, scope and substance satisfactory to the holders
and duly executed and delivered by all parties thereto:
(i) a counterpart of this Amendment;
(ii) a counterpart of Amendment No. 1 to Guaranty Agreement,
dated as of the date hereof, between the Services Company and the
holders of Notes (the "GUARANTY AMENDMENT");
(iii) a certificate of the Secretary or an Assistant Secretary
of the ESOP Trustee, (A) attaching resolutions evidencing approval
of the transactions contemplated by this Amendment and any other
documents to be executed and delivered by the ESOP Trust in
connection herewith or therewith and the execution, delivery and
performance thereof, authorizing certain officers to execute and
deliver the same, and certifying that such resolutions were duly and
validly adopted and have not since been amended, revoked or
rescinded, (B) certifying as to the names, titles and true
signatures of the officers of the ESOP Trustee authorized to sign,
on behalf of the ESOP Trust on the date hereof, this Amendment and
any other documents to be executed and delivered by the ESOP Trust
in connection herewith or therewith, and (C) attaching any
amendments or modifications to the Articles of Association of the
ESOP Trustee since May 4, 2004, or certifying that no such
amendments or modifications have been effected;
(iv) a certificate of the Secretary or an Assistant Secretary
of the Services Company, (A) attaching resolutions evidencing
approval of the transactions contemplated by the Guaranty Amendment
and any other documents to be executed and delivered by the Services
Company in connection herewith or therewith and the execution,
delivery and performance thereof, authorizing certain officers to
execute and deliver the same, and certifying that such resolutions
were duly and validly adopted and have not since been amended,
revoked or rescinded, (B) certifying as to the names, titles and
true signatures of the officers or other authorized persons of the
Services Company authorized to sign, on behalf of the Services
Company on the date hereof, the Guaranty Amendment and any other
documents to be executed and delivered by the Services Company in
connection herewith or therewith, (C) attaching a copy (certified by
the Secretary of State of the Commonwealth of Pennsylvania within 10
Business Days of the Amendment Effective Date) of the Index and
Docket Record of the Services Company, (D) certifying that no
dissolution or liquidation proceedings as to the Services Company
have been commenced or are contemplated, and (E) attaching any
amendments or modifications to the Articles of Incorporation or
Bylaws of the Services Company since May 4, 2004, or certifying that
no such amendments or modifications have been effected;
(v) favorable opinions of counsel to (A) the ESOP Trustee, (B)
the Services Company and (C) the Master Partnership and each of the
Operating
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Companies parties to the Services Agreement, each as to such matters
relating to the transactions contemplated by this Amendment, the
Guaranty Amendment and the Restructuring as the holders of Notes may
reasonably request;
(vi) An Officer's Certificate of the ESOP Trustee, certifying
that, after giving effect to this Amendment and the transactions
contemplated hereby, (A) the representations and warranties of the
ESOP and the ESOP Trustee contained in this Amendment, the Agreement
and the other Note Documents are true on and as of the date hereof,
(B) there exists on the date hereof no Event of Default or Default,
either before or immediately after giving effect to this Amendment
and the transactions contemplated hereby (including, without
limitation, the Restructuring), and (C) on the date hereof there
exists or has occurred no condition, event or act which could
reasonably be expected to have a Material Adverse Effect;
(vii) An Officer's Certificate of the Services Company,
certifying that, after giving effect to this Amendment, the Guaranty
Amendment and the transactions contemplated hereby and thereby, (A)
the representations and warranties of the Services Company contained
in the Guaranty Amendment, the Guaranty Agreement and the other Note
Documents are true on and as of the date hereof, (B) there exists on
the date hereof no Event of Default or Default (each as defined in
the Guaranty Agreement), either before or immediately after giving
effect to the Guaranty Amendment and the transactions contemplated
thereby (including, without limitation, the Restructuring), and (C)
on the date hereof there exists or has occurred no condition, event
or act which could reasonably be expected to have a Material Adverse
Effect (as defined in the Guaranty Agreement);
(viii) a certificate of an officer of the Manager attaching
copies of all instruments, agreements or other documents to be
entered into by the Services Company, the ESOP Trust, MainLine, the
Manager, the Master Partnership or any of the Operating Companies in
connection with, or otherwise relating to, the Restructuring
(collectively, the "RESTRUCTURING DOCUMENTS"), the terms and
conditions of each of which shall be in full force and effect and
shall not have been amended, modified or waived except with the
prior written consent of each holder of Notes; and
(ix) such additional documents or certificates as may be
reasonably requested by any holder of Notes.
(b) Proceedings; Related Transactions. All corporate and other
proceedings taken or to be taken in connection with (i) the transactions
contemplated hereby and all documents incident thereto and (ii) the
Restructuring and all related transactions contemplated by the
Restructuring Documents shall in each case be satisfactory in form, scope
and substance to the holders of Notes, and each such holder shall have
received all such counterpart originals or certified or other copies of
such documents as it may reasonably request. In addition, each such holder
shall have received evidence satisfactory to it that the Restructuring
shall have been consummated on or before the Amendment
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Effective Date, pursuant to and in accordance with the terms and
conditions of the Restructuring Documents (no material terms thereof
having been amended, supplemented, waived or otherwise modified without
such holder's prior written consent).
(c) Payment of Fees. Without limiting the provisions of paragraph
12B of the Agreement, special counsel to the holders of Notes shall have
received its fees, charges and disbursements to the extent reflected in a
statement of such special counsel rendered to the ESOP Trustee and/or the
Services Company at least one Business Day prior to the Amendment
Effective Date.
SECTION 3. REPRESENTATIONS AND WARRANTIES. In order to induce the
undersigned holders of Notes to enter into this Amendment, the ESOP Trustee,
both on its own behalf and in its capacity as Trustee of the ESOP, represents
and warrants as follows:
(a) Power and Authority; Enforceability. The ESOP Trustee has all
requisite power to execute, deliver, and perform its obligations under
this Amendment and under the Agreement as amended hereby, and to bind the
ESOP Trust in connection therewith. The execution, delivery and
performance by the ESOP Trust of this Amendment and of the Agreement as
amended hereby, and of all documents to be executed and delivered in
connection herewith, have been duly authorized by all requisite action on
the part of the ESOP Trustee. The ESOP Trustee has duly executed and
delivered this Amendment on behalf of the ESOP Trust, and this Amendment
and the Agreement as amended hereby constitute the legal, valid and
binding obligations of the ESOP Trust, enforceable against the ESOP Trust
in accordance with their respective terms.
(b) No Conflicts. The execution, delivery and performance by the
ESOP Trust of this Amendment and of the Agreement as amended hereby do not
and will not (i) contravene the terms of any of the ESOP Documents, (ii)
conflict with or result in any breach or contravention of, or the creation
of any Lien under, any document evidencing any contractual obligation to
which the ESOP is a party or otherwise subject, or any order, injunction,
writ or decree of any governmental authority binding on the ESOP or its
properties, or (iii) violate any applicable statute, law, rule or
regulation binding on or affecting the ESOP.
(c) Representations and Warranties. The representations and
warranties of the ESOP Trustee contained in this Amendment, the Agreement
and the other Note Documents are true on and as of the date hereof.
(d) No Default or Event of Default. No Default or Event of Default
exists as of the date hereof, either before or immediately after giving
effect to this Amendment and the transactions contemplated hereby
(including, without limitation, the Restructuring).
(e) No Material Adverse Effect. There exists or has occurred no
condition, event or act which could reasonably be expected to have a
Material Adverse Effect
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SECTION 4. MISCELLANEOUS.
(a) Effect on Agreement. On and after the Amendment Effective Date,
each reference in the Agreement to "this Agreement", "hereunder",
"hereof", or words of like import referring to the Agreement and each
reference in the Notes and all other Note Documents to "the Agreement",
"thereunder", "thereof", or words of like import referring to the
Agreement shall mean the Agreement as amended by this Amendment. The
Agreement, as amended by this Amendment, is and shall continue to be in
full force and effect and is hereby in all respects ratified and
confirmed.
(b) Expenses. The ESOP Trust confirms its agreement, pursuant to
paragraph 12B of the Agreement, to pay promptly all expenses of the
holders of Notes related to this Amendment and all matters contemplated
hereby, including without limitation all fees and expenses of the holders'
special counsel.
(c) No Waiver. The execution, delivery and effectiveness of this
Amendment shall not, except as expressly set forth herein, operate as a
waiver of any right, power or remedy of any holder or holders of Notes,
nor constitute a waiver of any provision of the Agreement, the Notes or
any other Note Document.
(d) Affirmation of Obligations. Notwithstanding that such consent is
not required under the Guaranty Agreement or any of the other Note
Documents to which it is a party, the Services Company consents to the
execution and delivery of this Amendment by the parties hereto and the
amendment of the Agreement effected hereby. As a material inducement to
the undersigned to amend the Agreement as set forth herein, the Services
Company (i) acknowledges and confirms the continuing existence, validity
and effectiveness of the Guaranty Agreement and each of the other Note
Documents to which it is a party and (ii) agrees that the execution,
delivery and performance of this Amendment shall not in any way release,
diminish, impair, reduce or otherwise affect its obligations thereunder.
(e) GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE
LAW OF THE STATE OF NEW YORK.
(f) Counterparts. This Amendment may be executed in counterparts,
each of which shall be deemed an original and all of which taken together
shall constitute one and the same document. Delivery of this Amendment may
be made by telecopy or electronic transmission of a duly executed
counterpart copy hereof; provided that any such delivery by electronic
transmission shall be effective only if transmitted in .pdf format, .tif
format or other format in which the text is not readily modifiable by any
recipient thereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute this Amendment as of the day and year first above written.
LASALLE BANK NATIONAL
ASSOCIATION, not in its
individual or corporate
capacity but solely as
Trustee of THE BUCKEYE PIPE
LINE SERVICES COMPANY
EMPLOYEE STOCK OWNERSHIP
PLAN TRUST
By: /s/ E. Xxxxxx Xxxxx
----------------------------------------
E. Xxxxxx Xxxxx
Senior Vice President
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx
Vice President
PRUCO LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx
Vice President
PRUCO LIFE INSURANCE COMPANY
OF NEW JERSEY
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx
Vice President
AGREED TO AND ACKNOWLEDGED BY THE UNDERSIGNED
FOR THE PURPOSES SET FORTH IN PARAGRAPH 4(d):
BUCKEYE PIPE LINE SERVICES COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President-Administration,
General Counsel and Secretary
[Signature Page - Amendment No. 1 to Note Agreement]
