EXHIBIT 10.3
SERVICES AGREEMENT
THIS SERVICES AGREEMENT (this "Agreement"), dated as of December 15, 2004,
is entered into by and among Buckeye Partners, L.P., a publicly traded Delaware
limited partnership (the "Partnership"), Buckeye Pipe Line Company, L.P.
("Buckeye Pipe Line"), Buckeye Pipe Line Holdings, L.P., Everglades Pipe Line
Company, L.P., and Laurel Pipe Line Company, L.P. ("Laurel"), each a Delaware
limited partnership (the "Operating Partnerships"), WOOD RIVER PIPE LINES LLC
and BUCKEYE TERMINALS, LLC, each a Delaware limited liability company (the "LLC
Subsidiaries"), any "Additional Significant Subsidiaries" (as defined in Article
VIII hereof) from time to time parties hereto pursuant to Article VIII hereof
(such Additional Significant Subsidiaries, together with the Partnership, the
LLC Subsidiaries and the Operating Partnerships, collectively, the "Services
Recipients"), and BUCKEYE PIPE LINE SERVICES COMPANY, a Pennsylvania corporation
(the "Provider").
WITNESSETH:
WHEREAS, Buckeye Pipe Line Company LLC (the "Current General Partner") is
the sole general partner of each of the Partnership and the Operating
Partnerships and deems it in the best interests of the Partnership and the
Operating Partnerships to enter into this Agreement;
WHEREAS, the LLC Subsidiaries desire to enter into this Agreement;
WHEREAS, the Current General Partner, the Provider, and Buckeye Management
Company LLC were parties to that certain Services Agreement, dated as of August
12, 1997 and amended and restated as of April 24, 2002 and May 4, 2004 (as so
amended and restated, the "Original Agreement");
WHEREAS, the parties to the Original Agreement, concurrently with the
execution and delivery hereof, have terminated the Original Agreement and the
Services Recipients desire to engage the Provider to provide certain services to
the Services Recipients in accordance with the terms set forth below; and
WHEREAS, immediately after the execution and delivery hereof the Current
General Partner will transfer certain rights and interests, including its
general partnership interest in the Partnership and each of the Operating
Partnerships, to Buckeye GP LLC, a Delaware limited liability company (in its
capacity as successor to the Current General Partner as the sole general partner
of the Partnership and each of the Operating Partnerships, the "General
Partner");
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby,
agree as follows:
ARTICLE I
Engagement of the Provider
The Services Recipients hereby engage the Provider to provide certain
services in connection with the operation of the business of the Services
Recipients, subject, in the case of the Partnership and the Operating
Partnerships, to the control and oversight of the General Partner, acting in its
role as general partner of the Partnership and the Operating Partnerships, and
the Provider hereby accepts its engagement by the Services Recipients.
ARTICLE II
Term of Agreement
The term of this Agreement (the "Service Term") commences on the date
hereof and shall continue until all principal, interest and premium is paid in
full under the Note Agreement, dated as of May 4, 2004, among the Buckeye Pipe
Line Services Company Employee Stock Ownership Plan Trust (the "ESOP"), The
Prudential Insurance Company of America, Pruco Life Insurance Company and Pruco
Life Insurance Company of New Jersey (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
by the Partnership or any of the other Services Recipients for Cause. 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 Services Recipients in connection with the
performance by the Provider of its duties and responsibilities under this
Agreement, as determined by the nonmanagement members of the Board of Directors
of the General Partner, the Boards of Managers of the LLC Subsidiaries or the
Boards of Directors or Boards of Managers of any Additional Significant
Subsidiaries, as applicable, 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 Services Recipients, as are
assigned to the Provider by the Services Recipients (the "Services"), and may
include, but shall not be limited to, the matters listed on Schedule I hereto.
The Services Recipients may from time to time expand, limit or otherwise modify
the Services by timely notice to the Provider in writing. All activities of the
Provider under this Agreement for the Partnership or the Operating Partnerships
shall be performed under the direct supervision of the General Partner in its
capacity as general partner of the Partnership and the Operating Partnerships.
3.2 Employees. As of August 12, 1997, the Provider employed all employees
then employed by the Current General Partner as employees at will, and offered
such employees
2
compensation substantially the same as their then current compensation from the
Current 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 Current 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, acting in its role as general partner of the Partnership
and the Operating Partnerships, 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 Services Recipients, and
that any violation of any provision of that Section will result in irreparable
injury to the Services Recipients. The Provider also acknowledges that in the
event of any such violation, the Services Recipients 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 Services Recipients
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 Services Recipients shall include, or cause to be included, the
Provider as an additional insured under all liability insurance policies
maintained by, or for the benefit of, the Services Recipients. 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
Services Recipients in accordance with the terms of such policies.
3
ARTICLE V
Services Fee
The Services Recipients (based on the allocation of liability set forth
below) shall pay the Provider a fee for performing its duties and
responsibilities under this Agreement equal to their respective Allocable Share
(as determined in accordance with and defined in Schedule II) of the reasonable
costs and expenses incurred by the Provider which are directly or indirectly
related to the respective businesses or activities of the Services Recipients,
including, without limitation, the following: (i) any amounts related to the
payment of taxes when due related to the business of the Services Recipients or
to the ESOP, (ii) any cash contributions made or to be made by the Provider to
the ESOP pursuant to the terms of the ESOP plan, as necessary for the ESOP to
make all payments of principal, interest, fees and premium due under the Note
Agreement and any Successor Note Agreement (excluding, however, the accelerated
portion of any payments which have become due and payable upon acceleration of
such indebtedness as the result of a default under the Note Agreement or any
Successor Note Agreement) (each, a "top-up contribution"), (iii) cash deposits
made or to be made by the Provider pursuant to an obligation to maintain a
minimum value of collateral pledged to secure the obligations of the ESOP or the
Provider in respect of the Note Agreement or any Successor Note Agreement (each,
a "collateral coverage deposit"), provided, however, that any collateral
coverage deposits that are later withdrawn by the Provider shall only be used to
satisfy obligations of the Services Recipients to pay for Services hereunder,
(iv) any income taxes incurred by the Provider on the sale of limited
partnership units of the Partnership made to satisfy obligations of the Provider
under the ESOP to redeem ESOP accounts of departing employees upon the
termination of their employment, and (v) routine administrative charges and
expenses common to employee stock ownership plans incurred in connection with
the operations of the ESOP, but, in the case of the foregoing clauses (ii)
through (v), only to the extent distributions from limited partnership units of
the Partnership owned by the Provider are not sufficient to make all such
payments. In addition, the Partnership and the Services Recipients 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. The Partnership shall be jointly and
severally liable for its obligations and the obligations of each of the other
Services Recipients under this Article V. Each of such other Services Recipients
(other than Laurel and Buckeye Pipe Line) shall be jointly and severally liable
for its obligations and for those of each of the other Services Recipients under
this Article V. The obligations of Laurel and Buckeye Pipe Line shall each be
several. Except as set forth in this Article V, 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 Services Recipients 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 Services Recipients; provided that
the Provider or such affiliate seeking indemnification acted in good
4
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 Services
Recipients. This Agreement is not intended to form a joint venture or a
partnership.
ARTICLE VIII
Additional Significant Subsidiaries
The Partnership shall cause any Additional Significant Subsidiary,
concurrently with the formation or acquisition thereof, to become a Services
Recipient by executing and delivering to the other parties hereto a supplement
substantially in the form of Exhibit A attached hereto (a "Supplement"), upon
which any such Additional Significant Subsidiary shall thereafter be a "Services
Recipient" for all purposes under this Agreement. As used in this Article VIII,
"Additional Significant Subsidiary" shall mean any direct or indirect subsidiary
of the Partnership that is hereafter formed or acquired and that, after giving
effect to such formation or acquisition and to any transaction or series of
transactions consummated in connection therewith, would be a "significant
subsidiary" of the Partnership, as such term is defined in Article 1, Rule
1-02(w) of Regulation S-X promulgated under the Securities Act of 1933, as
amended (as such regulation is in effect on the date hereof). Notwithstanding
anything to the contrary contained herein, the Partnership shall not be required
to cause Additional Significant Subsidiaries to become Services Recipients or
execute Supplements to the extent such Additional Significant Subsidiaries would
be prohibited from doing so by applicable law and such prohibition cannot be
removed after expending commercially reasonable efforts in good faith or if the
level of services provided to such Additional Significant Subsidiary would be so
minimal as to make it commercially unreasonable to do so.
ARTICLE IX
General Provisions
9.1 No Third Party Beneficiaries. Except for the parties hereto and the
General Partner, solely in its capacity as general partner of the Partnership
and the Operating Partnerships, no other person or entity shall be entitled to
claim any right or benefit hereunder, including, without limitation, the status
of a third-party beneficiary of this Agreement.
9.2 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
5
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 Partnership or the Buckeye Partners, L.P.
Operating Partnerships: (or relevant Operating Partnership)
c/o Buckeye GP LLC
Five Radnor Corporate Center
Xxxxx 000
000 Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000
Attn: President
Telecopier No.: (000) 000-0000
If to Buckeye Terminals, LLC: Buckeye Terminals, LLC
0000 Xxxxxxx Xxxx
X.X. Xxx 000
Xxxxxx, XX 00000
Attention: President
Telecopier No.: (000) 000-0000
If to Wood River Pipe Lines LLC: Wood River Pipe Lines LLC
0000 Xxxxxxx Xxxx
X.X. Xxx 000
Xxxxxx, XX 00000
Attention: President
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,
Trustee of the Buckeye Pipe Line
Services Company
Employee Stock Ownership Plan Trust
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Corporate Trust Department
Telecopier No.: (000) 000-0000
9.3 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.
6
9.4 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.
9.5 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.
9.6 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.
9.7 Counterparts. This Agreement may be executed in any number of
counterparts, all of which together shall constitute one agreement binding on
the parties hereto.
9.8 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.
9.9 Applicable Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the Commonwealth of Pennsylvania.
9.10 Successor General Partner. All references in this Agreement to the
"General Partner" shall include any successor to the General Partner as general
partner of the Partnership and the Operating Partnerships.
[signatures follow on next page]
7
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto
as of the date first above written.
BUCKEYE PARTNERS, L.P.,
BUCKEYE PIPE LINE COMPANY, L.P.,
BUCKEYE PIPE LINE HOLDINGS, L.P., EVERGLADES PIPE LINE
COMPANY, L.P., and
LAUREL PIPE LINE COMPANY, L.P.
By: BUCKEYE PIPE LINE COMPANY LLC
Their General Partner
By: /s/ Xxxxxx X. Xxxxxxx
_________________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Sr. Vice President - Finance and Chief
Financial Officer
BUCKEYE TERMINALS, LLC
WOOD RIVER PIPE LINES LLC
By: /s/ Xxxxxx X. Xxxxxxx
____________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Sr. Vice President - Finance and Chief
Financial Officer
BUCKEYE PIPE LINE SERVICES COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
____________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Sr. Vice President - Administration,
General Counsel and Secretary
[Services Agreement]
Schedule I
The Services shall include any services necessary for the operation of the
Partnership and the Services Recipients as specified by such and may include,
without limitation, the following services:
- facility maintenance services, including preventative
maintenance activities and equipment repairs;
- operations services, including loading rack operations,
product quality control, sampling, blending, engineering,
manifold operations, general maintenance, building and grounds
maintenance, routine inspection, lab services, mainline
maintenance, right of way patrol, right of way clearing, line
depth issues, damage prevention program, emergency response,
scheduling services, and pipeline control services;
- terminal and pipeline marketing services;
- technical services, including engineering, safety,
environmental and real estate services;
- professional services, including legal, accounting, insurance,
tax, credit, finance, government affairs, and regulatory
affairs.
Notwithstanding anything to the contrary contained in this Schedule or in
the Agreement, the Provider shall not be obligated under this Agreement to
provide duties performed for the General Partner by certain officers described
in Section 2.01 of the Third Amended and Restated Exchange Agreement, dated as
of December 15, 2004, among Buckeye GP LLC, Buckeye Partners, L.P. and the
Operating Partnerships (the "Exchange Agreement") and will not be entitled under
this Agreement to reimbursement by the Services Recipients for any costs or
expenses related to the performance of such duties performed by the Provider
under any agreement with any third party.
Schedule II
The services fee for each Services Recipient shall be allocated by the
General Partner to the Services Recipient. Compensation of employees which work
directly for one Services Recipient shall be directly assigned to such Services
Recipient. All other amounts comprising the services fee shall be allocated by
the General Partner to each Services Recipient based upon such Services
Recipient's pro-rata portion (its "Allocable Share") of the total of the
following amounts (giving equal weight to each factor):
- revenues of the Services Recipients;
- book value of assets of the Services Recipients (on a gross or
net basis, whichever the General Partner deems the most
appropriate); and
- payroll of employees directly assigned to individual Services
Recipients.
The General Partner shall be entitled to use its good faith judgment in
calculating the foregoing factors, including in determining the date or period
of determination of the factors. For the avoidance of doubt, the revenues, book
value of assets and payroll of any Services Recipient that is a direct or
indirect subsidiary of one or more other Services Recipient(s) shall not be
included in the calculation of the revenues, book value or assets of such other
Services Recipient(s).
EXHIBIT A
SUPPLEMENT
THIS SUPPLEMENT (this "Supplement"), dated as of _______, 20__ is made by
________, a __________ (the "Additional Significant Subsidiary"), in favor of
the parties to the below-described Services Agreement.
WHEREAS, pursuant to the Services Agreement, dated as of December 15,
2004, by and among Buckeye Partners, L.P. (the "Partnership"), Buckeye Pipe Line
Company, L.P., Buckeye Pipe Line Holdings, L.P., Everglades Pipe Line Company,
L.P., Laurel Pipe Line Company, L.P., Wood River Pipe Lines LLC, Buckeye
Terminals, LLC and Buckeye Pipe Line Services Company (as amended, restated,
supplemented or otherwise modified from time to time, the "Services Agreement"),
the Partnership is required to cause the Additional Significant Subsidiary to
execute and deliver this Supplement in order to cause the Additional Significant
Subsidiary to become a Services Recipient (as such term is defined in the
Services Agreement) under the Services Agreement; and
WHEREAS, the Additional Significant Subsidiary will receive substantial
benefit from joining in the Services Agreement as aforesaid;
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Additional Significant Subsidiary hereby joins in the Services
Agreement and becomes a Services Recipient (as such term is defined in the
Services Agreement) for all purposes thereunder.
Notice of acceptance of this Supplement and of the Services Agreement, as
supplemented hereby, is hereby waived by the Additional Significant Subsidiary.
The address for notices and other communications to be delivered to the
Additional Significant Subsidiary pursuant to Section 9.2 of the Services
Agreement is set forth below.
IN WITNESS WHEREOF, the undersigned Additional Significant Subsidiary has
caused this Supplement to be duly executed and delivered as of the day and year
first above written.
________________________________________
a_______________________________________
By:_____________________________________
Name:
Title:
Address for Notices:
____________________
____________________
____________________
____________________
2
