SEVENTH AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.20
SEVENTH AMENDMENT TO CREDIT AGREEMENT
THIS SEVENTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is made and entered into
as of December 13, 2010, by and among BUCKEYE PARTNERS, L.P., a Delaware limited
partnership (the “Borrower”), the Subsidiaries of the Borrower that are parties hereto (the
“Guarantors”), the Lenders (as defined below) that are parties hereto, and SUNTRUST BANK,
in its capacity as administrative agent for the Lenders (the “Administrative Agent”).
W I T N E S S E T H:
WHEREAS, the Borrower, the several banks and other financial institutions party
thereto (collectively, the “Lenders”) and the Administrative Agent are parties to that
certain Credit Agreement, dated as of November 13, 2006 (as amended, supplemented and
modified from time to time and in effect immediately prior to the date hereof, the “Credit
Agreement”; capitalized terms used herein and not otherwise defined shall have the meanings
assigned to such terms in the Credit Agreement as amended hereby), pursuant to which the
Lenders have made certain financial accommodations available to the Borrower; and
WHEREAS, the Borrower has requested that the Lenders and the Administrative Agent
amend certain provisions of the Credit Agreement, and subject to the terms and conditions
hereof, the Lenders executing this Amendment are willing to do so;
NOW, THEREFORE, for good and valuable consideration, the sufficiency and receipt of
all of which are acknowledged, the Borrower, the Guarantors, the Lenders executing this
Amendment and the Administrative Agent agree as follows:
1. Amendment to SECTION 1.01 (“Certain Defined Terms”). Section
1.01 is hereby amended by replacing the following defined term and accompanying definition:
“Plan” shall mean any employee pension benefit plan, as defined in Section 3(2)
of ERISA, that (i) is currently or hereafter sponsored, maintained or contributed to
by the Borrower, any Subsidiary of the Borrower or an ERISA Affiliate or (ii) was at
any time during the preceding six calendar years sponsored, maintained or
contributed to by the Borrower, any Subsidiary of the Borrower or an ERISA
Affiliate, provided, however, that Shell Chemical Yabucoa, Inc. (“SCYI”) and its
ERISA Affiliates shall be deemed to have never sponsored, maintained or contributed
to any Plan subject to Title IV of ERISA prior to SCYI becoming a Subsidiary of the
Borrower so long as the Borrower or any of its ERISA Affiliates has a right to
indemnification with respect to such Plan from Shell Overseas Holdings Limited
pursuant to an agreement in form and substance satisfactory to the Administrative
Agent.
2. Effectiveness of Amendment. Notwithstanding any other provision
of this Amendment and without affecting in any manner the rights of the Lenders hereunder,
it is understood and agreed that this Amendment shall not become effective, and the
Borrower shall have no rights under this Amendment until the Administrative Agent shall
have received (i) reimbursement or payment of its costs and expenses incurred in connection
with the preparation, execution and delivery of this Amendment, including, without
limitation, the reasonable fees and out-of-pocket expenses of outside counsel for the
Administrative Agent with respect thereto and (ii) executed counterparts of this
Amendment from the Borrower, the Guarantors and the Required Lenders;
3. Representations and Warranties. To induce the Lenders and the
Administrative Agent to enter into this Amendment, each of the Borrower, the General
Partner and the Guarantors (collectively, the “Loan Parties”) hereby represents and
warrants to the Lenders and the Administrative Agent that:
(a) The execution and delivery by such Loan Party of this Amendment and the
performance of this Amendment and the Credit Agreement as amended hereby (i) are within
such Loan Party’s power and authority; (ii) have been duly authorized by all necessary
partnership, limited liability company, partner and/or member action; (iii) are not in
contravention of any provision of such Loan Party’s certificate of formation, certificate
of partnership, partnership agreement, operating agreement or other organizational
documents; (iv) do not violate any law or regulation, or any order or decree of any
Governmental Authority; (v) do not conflict with or result in the breach or termination of,
constitute a default under or accelerate any performance required by, any indenture,
mortgage, deed of trust, lease, agreement or other instrument to which such Loan Party or
any of its Subsidiaries is a party or by which such Loan Party or any such Subsidiary or
any of their respective property is bound; (vi) do not result in the creation or imposition
of any Lien upon any of the property of such Loan Party or any of its Subsidiaries; and
(vii) do not require the consent or approval of any Governmental Authority or any other
Person;
(b) This Amendment has been duly executed and delivered for the benefit of or on
behalf of each Loan Party and constitutes a legal, valid and binding obligation of each
Loan Party, enforceable against such Loan Party in accordance with its terms except as the
enforceability hereof may be limited by bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium and other similar laws of general application relating to or
affecting creditors’ rights and general principles of equity; and
(c) After giving effect to this Amendment, the representations and warranties
contained in the Credit Agreement and the other Loan Documents are true and correct in all
material respects, and no Default or Event of Default has occurred and is continuing as of
the date hereof.
4. Reaffirmations and Acknowledgments.
Each Guarantor consents to the execution and delivery by the Borrower of this
Amendment and jointly and severally ratifies and confirms the terms of its Guaranty with
respect to the Debt now or hereafter outstanding under the Credit Agreement as amended
hereby and all promissory notes issued thereunder. Each Guarantor acknowledges that,
notwithstanding anything to the contrary contained herein or in any other document
evidencing any Debt of the Borrower to the Lenders or any other obligation of the Borrower,
or any actions now or hereafter taken by the Lenders with respect to any obligation of the
Borrower, its Guaranty (i) is and shall continue to be a primary obligation of such
Guarantor, (ii) is and shall continue to be an absolute, unconditional, joint and several,
continuing and irrevocable guaranty of payment, and (iii) is and shall continue to be in
full force and effect in accordance with its terms. Nothing contained herein to the
contrary shall release, discharge, modify, change or affect the original liability of the
Guarantors under the Guaranties.
5. Effect of Amendment. Except as set forth expressly herein, all
terms of the Credit Agreement, as amended hereby, and the other Loan Documents shall be and
remain in full force and effect and shall constitute the legal, valid, binding and
enforceable obligations of the Borrower to the Lenders and the Administrative Agent. The
execution, delivery and effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy of the
Lenders under the Credit Agreement, nor constitute a waiver of any provision of the
Credit Agreement. This Amendment shall constitute a Loan Document for all purposes of the
Credit Agreement.
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6. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the internal laws of the State of New York and all applicable
federal laws of the United States of America.
7. No Novation. This Amendment is not intended by the parties to
be, and shall not be construed to be, a novation of the Credit Agreement or an accord and
satisfaction in regard thereto.
8. Counterparts. This Amendment may be executed by one or more of
the parties hereto in any number of separate counterparts, each of which shall be deemed an
original and all of which, taken together, shall be deemed to constitute one and the same
instrument. Delivery of an executed counterpart of this Amendment by facsimile
transmission or by electronic mail in pdf form shall be as effective as delivery of a
manually executed counterpart hereof.
9. Costs and Expenses. The Borrower agrees to pay on demand all
reasonable 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 outside counsel for the Administrative Agent
with respect thereto.
10. Binding Nature. This Amendment shall be binding upon and inure
to the benefit of the parties hereto, their respective successors, successors-in-titles,
and assigns.
11. Entire Understanding. This Amendment sets forth the entire
understanding of the parties with respect to the matters set forth herein, and shall
supersede any prior negotiations or agreements, whether written or oral, with respect
thereto.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their
respective authorized officers as of the day and year first above written.
| BORROWER: BUCKEYE PARTNERS, L.P. By: Buckeye GP LLC, its general partner |
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| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxxx, Xx. | |||
| Title: | Vice President and General Counsel | |||
| GUARANTORS: BUCKEYE PIPE LINE COMPANY, L.P. |
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| By: | MAINLINE L.P. its General Partner |
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| By: | MAINLINE GP, INC. its General Partner |
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| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxxx, Xx. | |||
| Title: | Vice President and General Counsel | |||
| BUCKEYE PIPE LINE HOLDINGS, L.P. | ||||||
| By: | MAINLINE L.P. its General Partner |
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| By: | MAINLINE GP, INC. its General Partner |
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| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxxx, Xx. | |||
| Title: | Vice President and General Counsel | |||
[Signature Page to Seventh Amendment to Credit Agreement]
| BUCKEYE GULF COAST HOLDINGS I, LLC |
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| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxxx, Xx. | |||
| Title: | Vice President and General Counsel | |||
| BUCKEYE GULF COAST HOLDINGS II, LLC |
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| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxxx, Xx. | |||
| Title: | Vice President and General Counsel | |||
| BUCKEYE GULF COAST PIPE LINES, L.P. By: BUCKEYE GULF COAST HOLDINGS I, LLC its General Partner |
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| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxxx, Xx. | |||
| Title: | Vice President and General Counsel | |||
| BUCKEYE TERMINALS, LLC |
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| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxxx, Xx. | |||
| Title: | Vice President and General Counsel | |||
| NORCO PIPE LINE COMPANY, LLC |
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| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxxx, Xx. | |||
| Title: | Vice President and General Counsel | |||
[Signature Page to Seventh Amendment to Credit Agreement]
| EVERGLADES PIPE LINE COMPANY, L.P. | ||||||
| By: | MAINLINE L.P. its General Partner |
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| By: | MAINLINE GP, INC. its General Partner |
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| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxxx, Xx. | |||
| Title: | Vice President and General Counsel | |||
| WOOD RIVER PIPE LINES LLC |
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| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxxx, Xx. | |||
| Title: | Vice President and General Counsel | |||
| BUCKEYE PIPE LINE TRANSPORTATION LLC |
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| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxxx, Xx. | |||
| Title: | Vice President and General Counsel | |||
| BUCKEYE TEXAS PIPE LINE COMPANY, L.P. By: BUCKEYE GULF COAST HOLDINGS I, LLC its General Partner |
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| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxxx, Xx. | |||
| Title: | Vice President and General Counsel | |||
| FERRYSBURG TERMINAL, LLC |
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| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxxx, Xx. | |||
| Title: | Vice President and General Counsel | |||
[Signature Page to Seventh Amendment to Credit Agreement]
| LENDERS: SUNTRUST BANK as Administrative Agent and Lender |
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| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | Vice President | |||
[Signature Page to Seventh Amendment to Credit Agreement]
| BANK OF AMERICA, N.A., SUCCESSOR BY MERGER TO XXXXXXX XXXXX BANK USA |
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxx | |||
| Title: | Vice President | |||
[Signature Page to Seventh Amendment to Credit Agreement]
| CITIBANK, N.A. |
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| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Attorney-in-Fact | |||
[Signature Page to Seventh Amendment to Credit Agreement]
| BNP PARIBAS |
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| By: | /s/ Xxxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxxx | |||
| Title: | Director | |||
| By: | /s/ Xxxx Xxxxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxx Xxxxxxxx | |||
| Title: | Vice President | |||
[Signature Page to Seventh Amendment to Credit Agreement]
| JPMORGAN CHASE BANK, N.A. |
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| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | Senior Underwriter | |||
[Signature Page to Seventh Amendment to Credit Agreement]
| DEUTSCHE BANK AG NEW YORK BRANCH |
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| By: | /s/ Xxxxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxxxx Xxxxxxxxx | |||
| Title: | Managing Director | |||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | Director | |||
[Signature Page to Seventh Amendment to Credit Agreement]
| THE ROYAL BANK OF SCOTLAND plc |
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| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Vice President | |||
[Signature Page to Seventh Amendment to Credit Agreement]
| THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. |
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| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Authorized Signatory | |||
[Signature Page to Seventh Amendment to Credit Agreement]
| XXXXXX XXXXXXX BANK |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Authorized Signatory | |||
[Signature Page to Seventh Amendment to Credit Agreement]
| XXXXX FARGO BANK, N.A. |
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| By: | /s/ Xxxxxxxxx Faith | |||
| Name: | Xxxxxxxxx Faith | |||
| Title: | Director | |||
[Signature Page to Seventh Amendment to Credit Agreement]
| UBS AG, STAMFORD BRANCH |
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| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Associate Director, Banking Products Services, US | |||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Associate Director, Banking Products Services, US | |||
[Signature Page to Seventh Amendment to Credit Agreement]
| XXXXXXX STREET CREDIT CORPORATION |
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| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Authorized Signatory | |||
[Signature Page to Seventh Amendment to Credit Agreement]
