Exhibit 10.1
CONFORMED COPY
AMENDED AND RESTATED AGREEMENT
OF
LIMITED PARTNERSHIP
OF
BUCKEYE PIPE LINE COMPANY, L.P.
(As Amended and Restated Through March 25, 1998)
BUCKEYE PIPE LINE COMPANY, L.P.
TABLE OF CONTENTS
Formation 4
Name 4
Principal Office; Registered Office 4
Term 4
Organizational Certificate 5
Partnership Interests 5
Purpose 5
Capital Contributions 5
No Preemptive Rights 5
No Interest 6
Loans from Partners 6
No Withdrawal 6
Distributions 6
Tax Allocations 6
Preparation of Tax Returns 6
Tax Elections 7
Tax Controversies 7
Powers of General Partner 7
Duties of General Partner 8
Reliance by Third Parties 9
Compensation and Reimbursement of the General Partner 9
Partnership Funds 10
Outside Activities; Contracts with Affiliates; Loans to
or from Affiliates 10
Tax Basis and Value Determinations 11
Resolution of Conflicts of Interest; Standard of Care 12
Other Matters Concerning the General Partner 12
Limited Liability; Indemnification 13
Limitation of Liability 14
Management of Business 14
Outside Activities 14
Return of Capital 14
Books, Records and Accounting 15
Fiscal Year 15
Reports 15
Transfer of Partnership Interests 15
Successor Partners 16
Withdrawal or Removal of the General Partner 16
Sale of Former General Partner's Interest 16
Dissolution 17
Reconstitution 18
Liquidation 19
Distribution in Kind 20
Cancellation of Certificate of Limited Partnership 20
Return of Capital 20
Waiver of Partition 20
Amendment of Partnership Agreement 20
Amendments Which May Be Adopted Solely by the General
Partner 20
Other Amendments 21
Opinions Regarding Taxation as a Partnership 22
Address and Notices 22
Headings 22
Binding Effect 22
Integration 22
Waiver 22
Counterparts 22
Severability 22
Applicable Law 22
AMENDED AND RESTATED
AGREEMENT
OF
LIMITED PARTNERSHIP
OF
BUCKEYE PIPE LINE COMPANY, L.P.
THIS AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP, dated of December 23, 1986 (as amended and restated
through March 25, 1998), is entered into by and among BUCKEYE
PIPE LINE COMPANY, a Delaware corporation, and BUCKEYE PARTNERS,
L.P., a Delaware limited partnership.
ARTICLE I Definitions
The following definitions shall for all purposes,
unless otherwise clearly indicated to the contrary, apply to the
terms used in this Agreement.
"Affiliate" means, with respect to any Person, any
other Person that directly or indirectly controls, is controlled
by, or is under common control with the Person in question;
provided, however, that, for purposes of the restrictive
provisions of Sections 7.5, 7.6 and 7.8, neither the Limited
Partner nor any of its subsidiaries shall be deemed to be
Affiliates of the General Partner. As used herein, the term
"control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and
policies of a Person, whether through ownership of voting
securities, by contract or otherwise. For purposes of this
Agreement, Buckeye Pipe Line Services Company, a Pennsylvania
corporation which provides services to the General Partner, shall
be deemed an Affiliate of the General Partner.
"Agreed Value" of any Contributed Property means the
fair market value of such property as of the time of contribution
(or, in the case of cash, the amount thereof), as determined by
the General Partner using such reasonable method of valuation as
it may adopt.
"Agreement" means this amended and restated agreement
of limited partnership, as amended or amended and restated from
time to time.
"Capital Contribution" means any Contributed Property
which a Partner contributes to the Partnership.
"Certificate of Limited Partnership" means the Amended
and Restated Certificate of Limited Partnership filed with the
Secretary of State of the State of Delaware as described in the
first sentence of Section 2.5, as amended or amended and restated
from time to time.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Contributed Property" means any cash, property or
other consideration (in such form as may be permitted under the
Delaware Act) contributed to the Partnership.
"Contributing Partner" means any Partner contributing
Contributed Property to the Partnership.
"Conveyance Agreement" means the conveyance agreement,
dated as of November 18, 1986, between the Original Limited
Partner and the Partnership.
"Delaware Act" means the Delaware Revised Uniform
Limited Partnership Act, as amended from time to time, and any
successor to such Act.
"Designated Expenses" means all costs and expenses
(direct or indirect) incurred by the General Partner which are
directly or indirectly related to the formation, capitalization,
business or activities of the Partnership (including, without
limitation, expenses, direct or indirect, reasonably allocated to
the General Partner by its Affiliates); provided, however, that
Designated Expenses shall not include (a) any cost or expense for
which the General Partner is not entitled to be reimbursed by
reason of the proviso at the end of Section 7.10(b); (b) any cost
or expense for which the General Partner and its Affiliates are
not entitled to be reimbursed pursuant to the terms of the
Exchange Agreement; or (c) severance costs not permitted to be
reimbursed pursuant to the Management Agreement in connection
with the withdrawal of the General Partner.
"Exchange Agreement" means the Exchange Agreement,
dated as of August 12, 1997, among the Partnership, the General
Partner, the Limited Partner, the Limited Partner's other
operating partnerships, the MLP General Partner and Glenmoor Ltd.
(formerly BMC Acquisition Company), a Delaware corporation, as
amended or amended and restated from time to time.
"General Partner" means Pipe Line, in its capacity as
the general partner of the Partnership and in its capacity as
manager pursuant to the Management Agreement, and any successor
to Pipe Line as such general partner and manager.
"Indemnitee" means the General Partner, any Affiliate
of the General Partner, any Person who is or was a director,
officer, employee or agent of the General Partner or any such
Affiliate, or any Person who is or was serving at the request of
the General Partner or any such Affiliate as a director, officer,
partner, trustee, employee or agent of another Person.
"Limited Partner" means the MLP, in its capacity as the
limited partner of the Partnership, and any successor to the MLP
as such limited partner.
"Liquidator" has the meaning specified in Section 12.3.
"Management Agreement" means the management agreement,
dated as of November 18, 1986, between the Partnership and the
General Partner, pursuant to which the General Partner will
manage the Partnership, as amended or amended and restated from
time to time.
"MLP" means Buckeye Partners, L.P., a Delaware limited
partnership.
"MLP Agreement" means the amended and restated
agreement of limited partnership, dated as of the date hereof,
governing the rights and obligations of the partners of the MLP
and certain related matters, as amended or amended and restated
from time to time.
"MLP General Partner" means Buckeye Management Company,
a Delaware corporation, in its capacity as general partner of the
MLP, and any successor to Buckeye Management Company as such
general partner.
"Net Agreed Value" means, with respect to any
Contributed Property, the Agreed Value of such Contributed
Property reduced by any indebtedness either assumed by the
Partnership upon contribution of such Contributed Property or to
which such Contributed Property is subject when contributed.
"Opinion of Counsel" means a written opinion of counsel
(who may be regular counsel of the General Partner or any of its
Affiliates) acceptable to the General Partner.
"Original Limited Partner" means Buckeye Pipe Line
Company, an Ohio corporation.
"Partner" means the General Partner or the Limited
Partner.
"Partnership" means Buckeye Pipe Line Company, L.P., a
Delaware limited partnership.
"Partnership Interest" means a general partner's or
limited partner's interest in the Partnership.
"Person" means an individual, a corporation, a limited
liability company, a partnership, a trust, an unincorporated
organization, an association or any other entity.
"Pipe Line" means Buckeye Pipe Line Company, a Delaware
corporation.
ARTICLE II Organizational Matters
2.1 Formation. Subject to the provisions of this Agreement, the
General Partner and Original Limited Partner originally formed
the Partnership as a limited partnership pursuant to the
provisions of the Delaware Act. The Original Limited Partner's
limited partnership interest in the Partnership was transferred
(by operation of law) to an Affiliate and the MLP purchased such
limited partnership interest. The Partners, pursuant to the
authority contained in Article XIII of this Agreement, do hereby
amend and restate this Agreement in its entirety to continue the
Partnership as a limited partnership pursuant to the provisions
of the Delaware Act and to set forth the rights and obligations
of the Partners and certain matters related thereto. Except as
expressly provided herein to the contrary, the rights and
obligations of the Partners and the administration, dissolution
and termination of the Partnership shall be governed by the
Delaware Act.
2.2 Name. The name of the Partnership shall be, and the
business of the Partnership shall be conducted under the name of,
"Buckeye Pipe Line Company, L.P."; provided, however, that (a)
the Partnership's business may be conducted under any other name
or names deemed advisable by the General Partner, (b) the General
Partner in its sole discretion may change the name of the
Partnership at any time and from time to time and (c) the name
under which the Partnership conducts business shall include
"Ltd." or "Limited Partnership" (or similar words or letters)
where necessary for purposes of maintaining the limited liability
status of the Limited Partner or otherwise complying with the
laws of any jurisdiction that so requires.
2.3 Principal Office; Registered Office. (a) The principal
office of the Partnership shall be 0000 Xxxxxxxx Xxxxxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxx 00000, or such other place as the General
Partner may from time to time designate. The Partnership may
maintain offices at such other places as the General Partner
deems advisable.
(b) The address of the Partnership's registered office
in the State of Delaware shall be the Corporation Trust Center,
0000 Xxxxxx Xxxxxx, xx xxx Xxxx xx Xxxxxxxxxx, Xxxxxx of Xxx
Xxxxxx, Xxxxxxxx 00000, and the name of the Partnership's
registered agent for service of process at such address shall be
The Corporation Trust Company.
2.4 Term. The Partnership shall continue in existence until the
close of Partnership business on December 31, 2036 or until the
earlier termination of the Partnership in accordance with the
provisions of Article XII.
2.5 Organizational Certificate. An Amended and Restated
Certificate of Limited Partnership of the Partnership has been
filed with the Secretary of State of the State of Delaware as
required by the Delaware Act. The General Partner shall cause to
be filed such other certificates or documents as may be required
for the formation, operation and qualification of a limited
partnership in Delaware and any other state in which the
Partnership may elect to do business. The General Partner shall
thereafter file any necessary amendments to the Certificate of
Limited Partnership and such other certificates and documents and
do all things requisite to the maintenance of the Partnership as
a limited partnership (or as a partnership in which the Limited
Partner has limited liability) under the laws of Delaware and any
other state in which the Partnership may elect to do business.
2.6 Partnership Interests. Effective as of the date hereof, the
Limited Partner has a 99% Partnership Interest and the General
Partner has a 1% Partnership Interest.
ARTICLE III Purpose
The purpose and business of the Partnership shall be to
engage in any lawful activity for which limited partnerships may
be organized under the Delaware Act.
ARTICLE IV Capital Contributions
4.1 Capital Contributions. (a) Prior to the date hereof, the
Original Limited Partner contributed to the Partnership certain
assets and the Partnership assumed certain liabilities pursuant
to the Conveyance Agreement, and the General Partner contributed
to the Partnership an amount equal to 1/99th of the Net Agreed
Value of the Capital Contribution then being made by the Original
Limited Partner.
(b) Whenever a Partner makes a Capital Contribution
(other than Capital Contributions required by Section 4.1(a)),
the other Partner shall contribute to the Partnership Contributed
Property such that the Net Agreed Value of the Capital
Contribution then being made by the General Partner is equal to
1/99th of the Net Agreed Value of the Capital Contribution then
being made by the Limited Partner, unless the General Partner
receives an Opinion of Counsel that the failure to make such
additional Capital Contribution would not result in the
Partnership being treated as an association taxable as a
corporation for federal income tax purposes.
4.2 No Preemptive Rights. No Partner shall have any preemptive,
preferential or other right with respect to the issuance or sale
of securities that may be issued or sold by the Partnership.
4.3 No Interest. No interest shall be paid by the Partnership
on Capital Contributions.
4.4 Loans from Partners. Loans or other advances by a Partner
to or for the account of the Partnership shall not be considered
Capital Contributions.
4.5 No Withdrawal. No Partner shall be entitled to withdraw any
part of its Capital Contributions or to receive any distributions
from the Partnership except as provided herein.
ARTICLE V Distributions
5.1 Distributions. (a) From time to time, not less often than
quarterly, the General Partner shall review the Partnership's
accounts to determine whether distributions are appropriate. The
General Partner may make such cash distributions as it, in its
sole discretion, may determine, without being limited to current
or accumulated income or gains, from any Partnership funds,
including, without limitation, Partnership revenues, Capital
Contributions or borrowed funds. In its sole discretion, the
General Partner may also distribute to the Partners other
Partnership property or securities of the Partnership or other
entities.
All distributions shall be made concurrently to both
Partners and shall be made 99% to the Limited Partner and 1% to
the General Partner.
(b) Amounts paid pursuant to Section 7.4 or the
Management Agreement shall not be deemed to be distributions for
purposes of this Agreement.
ARTICLE VI Income Tax Matters
6.1 Tax Allocations. For federal income tax purposes, each item
of income, gain, loss, deduction and credit of the Partnership
shall be allocated 99% to the Limited Partner and 1% to the
General Partner.
6.2 Preparation of Tax Returns. The General Partner shall
arrange for the preparation and timely filing of all returns of
Partnership income, gains, losses, deductions, credits and other
items necessary for federal and state income tax purposes and
shall use all reasonable efforts to furnish to the Limited
Partner within 90 days after the close of the taxable year the
tax information reasonably required for federal and state income
tax reporting purposes. The classification, realization and
recognition of income, gains, losses, deductions, credits and
other items shall be on the accrual method of accounting for
federal income tax purposes, unless the General Partner shall
determine otherwise in its sole discretion.
6.3 Tax Elections. Except as otherwise provided herein, the
General Partner shall, in its sole discretion, determine whether
to make any available election.
6.4 Tax Controversies. Subject to the provisions hereof, the
General Partner is designated as the Tax Matters Partner (as
defined in Section 6231 of the Code) and is authorized and
required to represent the Partnership (at the Partnership's
expense) in connection with all examinations of the Partnership's
affairs by tax authorities, including resulting administrative
and judicial proceedings, and to expend Partnership funds for
professional services and costs associated therewith. The
Limited Partner agrees to cooperate with the General Partner and
to do or refrain from doing any and all things reasonably
required by the General Partner to conduct such proceedings.
ARTICLE VII Management and Operation of Business;
Indemnification
7.1 Powers of General Partner. Except as otherwise expressly
provided in this Agreement, all powers to control and manage the
business and affairs of the Partnership shall be exclusively
vested in the General Partner, and the Limited Partner shall not
have any power to control or manage the business and affairs of
the Partnership.
In addition to the powers now or hereafter granted a general
partner of a limited partnership under applicable law or which
are granted to the General Partner under any other provisions of
this Agreement, the General Partner is hereby authorized and
empowered, in the name of and on behalf of the Partnership, to do
and perform any and all acts and things which it deems
appropriate or necessary in the conduct of the business and
affairs of the Partnership, including, without limitation, the
following:
(a) to lend or borrow money, to assume, guarantee or otherwise
become liable for indebtedness and other liabilities and to issue
evidences of indebtedness;
(b) to buy, lease (as lessor or lessee), sell, mortgage,
encumber or otherwise acquire or dispose of any or all of the
assets of the Partnership (subject to the provisions of Article
XIV);
(c) to own, use and invest the assets of the Partnership;
(d) to purchase or sell products, services and supplies;
(e) to make tax, regulatory and other filings, and to render
periodic and other reports to governmental agencies or bodies
having jurisdiction over the assets or business of the
Partnership;
(f) to open, maintain and close bank accounts and to draw checks
and other orders for the payment of money;
(g) to negotiate, execute and perform any contracts, conveyances
or other instruments;
(h) to distribute Partnership cash;
(i) to utilize the services of officers and employees of the
General Partner or of any other Persons and to select and dismiss
employees (if any) and outside attorneys, accountants,
consultants and contractors;
(j) to maintain insurance for the benefit of the Partnership and
the Partners;
(k) to form, participate in or contribute or loan cash or
property to limited or general partnerships, joint ventures,
corporations or similar arrangements;
(l) to expand the business activities in which the Partnership
is engaged or engage in new business activities by acquisition or
internal development; and
(m) to conduct litigation and incur legal expenses and otherwise
deal with or settle claims or disputes;
in each case at such times and upon such terms and conditions as
the General Partner deems appropriate or necessary, and subject
to any express restrictions contained elsewhere in this
Agreement.
7.2 Duties of General Partner. The General Partner shall manage
the business and affairs of the Partnership in the manner the
General Partner deems appropriate or necessary. Without limiting
the generality of the foregoing, the General Partner's duties
shall include the following:
(a) to take possession of the assets of the Partnership;
(b) to staff and operate the business of the Partnership with
the officers and employees of the General Partner or of other
Persons;
(c) to render or cause to be rendered engineering, environmental
and other technical services and perform or cause to be performed
financial, accounting, logistical and other administrative
functions for the Partnership;
(d) to render such reports and make such periodic and other
filings as may be required under applicable federal, state and
local laws, rules and regulations;
(e) to provide or cause to be provided purchasing, procurement,
repair, and other services for the Partnership; and
(f) to conduct the business and affairs of the Partnership in
accordance with this Agreement and all applicable laws, rules and
regulations;
in each case in such a manner as the General Partner deems
appropriate or necessary.
7.3 Reliance by Third Parties. Notwithstanding anything to the
contrary in this Agreement, any Person dealing with the
Partnership shall be entitled to assume that the General Partner
has full power and authority to encumber, sell or otherwise use
in any manner any and all assets of the Partnership and to enter
into any contracts on behalf of the Partnership, and such Person
shall be entitled to deal with the General Partner as if it were
the Partnership's sole party in interest, both legally and
beneficially. The Limited Partner hereby waives any and all
defenses or other remedies which may be available against such
Person to contest, negate or disaffirm any action of the General
Partner in connection with any such dealing. In no event shall
any Person dealing with the General Partner or its
representatives be obligated to ascertain that the terms of this
Agreement have been complied with or to inquire into the
necessity or expedience of any act or action of the General
Partner or its representatives. Each and every certificate,
document or other instrument executed on behalf of the
Partnership by the General Partner or its representatives shall
be conclusive evidence in favor of any and every Person relying
thereon or claiming thereunder that (a) at the time of the
execution and delivery of such certificate, document or
instrument, this Agreement was in full force and effect, (b) the
Person executing and delivering such certificate, document or
instrument was duly authorized and empowered to do so for and on
behalf of the Partnership and (c) such certificate, document or
instrument was duly executed and delivered in accordance with the
terms and provisions of this Agreement and is binding upon the
Partnership.
7.4 Compensation and Reimbursement of the General Partner. (a)
Except as provided in this Section 7.4 or elsewhere in this
Agreement, the Management Agreement or any other agreement
contemplated or permitted hereby, the General Partner shall not
be compensated for its services as General Partner to the
Partnership.
(b) The General Partner shall be promptly reimbursed
for all Designated Expenses, in addition to any reimbursement as
a result of indemnification in accordance with Section 7.10
hereof or Section 3.02 of the Management Agreement. The General
Partner shall determine such Designated Expenses in any
reasonable manner determined by it.
(c) The General Partner may propose and adopt fringe
benefit plans, including, without limitation, plans comparable to
those that covered employees employed by the predecessor to the
Partnership and plans involving the issuance of direct or
indirect equity interests in the Partnership, for the benefit of
employees of the Partners, the Partnership or any of their
respective Affiliates, in respect of services performed, or
obligated to be performed, directly or indirectly, for the
benefit of the Partnership.
7.5 Partnership Funds. The funds of the Partnership shall be
deposited in such account or accounts as shall be designated by
the General Partner, and shall not be commingled with the funds
of the General Partner or any of its Affiliates. All withdrawals
from or charges against such accounts shall be made by the
General Partner or by its agents, which agents may be Affiliates
of the General Partner. Funds of the Partnership may be invested
as determined by the General Partner.
7.6 Outside Activities; Contracts with Affiliates; Loans to or
from Affiliates. (a) The General Partner shall not have any
business interests or engage in any business activities except
for those relating to the Partnership.
(b) Any Affiliate of the General Partner and any
director, officer, partner or employee of the General Partner or
any of its Affiliates shall be entitled to and may have business
interests and engage in business activities in addition to those
relating to the Partnership, including business interests and
activities in direct competition with the Partnership, for their
own account and for the account of others, without having or
incurring any obligation to offer any interest in such businesses
or activities to the Partnership or either Partner. Neither the
Partnership nor either of the Partners shall have any rights by
virtue of this Agreement or the partnership relationship governed
hereby in any such business interests.
(c) The Limited Partner hereby approves, ratifies and
confirms the execution, delivery and performance of the
Conveyance Agreement and the Management Agreement and agrees that
the General Partner is authorized to execute, deliver and perform
the other agreements, acts, transactions and matters contemplated
hereby on behalf of the Partnership without any further approval
or vote of the Limited Partner, notwithstanding any other
provision of this Agreement.
(d) Subject to the provisions of Section 7.4(a), the
General Partner and its Affiliates may enter into contracts with,
or render services to, the Partnership, provided that such
contracts or services are on terms that are fair and reasonable
to the Partnership. The contracts and services approved,
ratified or confirmed pursuant to Section 7.6(c) shall be deemed
to satisfy the terms of this Section 7.6(d).
(e) Neither the General Partner nor any of its
Affiliates shall sell, transfer or convey property to, or
purchase property from, the Partnership, directly or indirectly,
except pursuant to transactions that are fair and reasonable to
the Partnership. The conveyance of property pursuant to the
Conveyance Agreement shall be deemed to satisfy the terms of this
Section 7.6(e).
(f) The General Partner or any of its Affiliates may
lend to the Partnership funds needed by the Partnership for such
periods of time as the General Partner may determine; provided,
however, that such General Partner or Affiliate may not charge
the Partnership interest greater than the rate (including points
or other financing charges or fees) that would be charged to the
Partnership by unrelated lenders on comparable loans. The
Partnership shall reimburse the General Partner or its Affiliate,
as the case may be, for any costs incurred by the General Partner
or Affiliate in connection with the borrowing of funds obtained
by such General Partner or Affiliate and loaned to the
Partnership.
(g) The Partnership may lend funds to the General
Partner or any of its Affiliates; provided, however, that the
Partnership may not lend funds to the General Partner or an
Affiliate unless such funds consist of funds available after
provision for working capital and such reserves as the General
Partner deems appropriate and such loan shall bear interest at
the rate (including points or other financing charges or fees)
that the General Partner would be charged by unrelated lenders on
comparable loans.
7.7 Tax Basis and Value Determinations. To the extent that the
General Partner is required pursuant to the provisions of this
Agreement to establish fair market values or allocate amounts
realized, tax basis, Agreed Values or Net Agreed Values, the
General Partner shall establish such values and make such
allocations in a manner that is reasonable and fair to the
Limited Partner, taking into account all applicable laws,
governmental regulations, rulings and decisions. The General
Partner may, in its sole discretion, modify or revise such
allocations in order to comply with such laws, governmental
regulations, rulings or decisions or to the extent it otherwise
deems such modification or revision appropriate or necessary.
The General Partner is authorized, to the extent deemed by it to
be appropriate or necessary, to utilize the services of an
independent appraiser in establishing such values or allocations
and the General Partner shall in such cases be entitled to rely
on the values or allocations established by such independent
appraiser.
7.8 Resolution of Conflicts of Interest; Standard of Care. (a)
Unless otherwise expressly provided in this Agreement, the
Management Agreement or any other agreement contemplated hereby,
(i) whenever a conflict of interest exists or arises between the
General Partner or any of its Affiliates, on the one hand, and
the Partnership or the Limited Partner, on the other hand, or
(ii) whenever this Agreement, the Management Agreement or any
other agreement contemplated hereby provides that the General
Partner or any of its Affiliates shall act in a manner which is,
or provide terms which are, fair and/or reasonable to the
Partnership or the Limited Partner, the General Partner or such
Affiliate shall resolve such conflict of interest, take such
action or provide such terms considering, in each case, the
relative interests of each party to such conflict, agreement,
transaction or situation and the benefits and burdens relating to
such interests, any customary or accepted industry practices, and
any applicable generally accepted accounting or engineering
practices or principles, and in the absence of bad faith by the
General Partner or such Affiliate, the resolution, action or
terms so made, taken or provided by the General Partner or such
Affiliate shall not constitute a breach of this Agreement or any
other agreement contemplated hereby or a breach of any standard
of care or duty imposed hereby or under the Delaware Act or any
other applicable law, rule or regulation.
(b) Whenever this Agreement, the Management Agreement
or any other agreement contemplated hereby provides that the
General Partner or any of its Affiliates is permitted or required
to make a decision (i) in its "discretion" or under a grant of
similar authority or latitude, the General Partner or such
Affiliate shall be entitled, to the extent permitted by
applicable law, to consider only such interests and factors as it
desires and shall have no duty or obligation to give any
consideration to any interest of or factors affecting the
Partnership or the Limited Partner, or (ii) in its "good faith"
or under another express standard, the General Partner or such
Affiliate shall act under such express standard and, except as
required by applicable law, shall not be subject to any other or
different standards imposed by this Agreement, any other
agreement contemplated hereby or applicable law.
7.9 Other Matters Concerning the General Partner. (a) The
General Partner may rely and shall be protected in acting or
refraining from acting upon any certificate, document or other
instrument believed by it to be genuine and to have been signed
or presented by the proper party or parties.
(b) The General Partner may consult with legal
counsel, accountants, appraisers, management consultants,
investment bankers, and other consultants and advisors selected
by it and any opinion or advice of any such Person as to matters
which the General Partner believes to be within such Person's
professional or expert competence shall be full and complete
authorization and protection with respect to any action taken or
suffered or omitted by the General Partner hereunder in good
faith and in accordance with such opinion or advice.
(c) The General Partner may exercise any of the powers
granted to it by this Agreement and perform any of the duties
imposed upon it hereunder either directly or by or through its
agents, and the General Partner shall not be responsible for any
misconduct or negligence on the part of any such agent appointed
by the General Partner in good faith.
7.10 Limited Liability; Indemnification. (a) Notwithstanding
anything to the contrary in this Agreement, and except to the
extent required by applicable law, no Indemnitee shall be liable
to the Partnership or any Partner for any action taken or omitted
to be taken by such Indemnitee, provided that such Indemnitee
acted in good faith and such action or omission does not involve
the gross negligence or willful misconduct of such Indemnitee.
The termination of any action, suit or proceeding by judgment,
order, settlement, conviction or upon a plea of nolo contendere,
or its equivalent, shall not, of itself, create a presumption
that an Indemnitee did not act in good faith or that an action or
omission involves gross negligence or willful misconduct.
(b) The Partnership shall, to the extent permitted by
applicable law, indemnify each Indemnitee against expenses
(including legal fees and expenses), judgments, fines and amounts
paid in settlement, actually and reasonably incurred by such
Indemnitee, in connection with any threatened, pending or
completed claim, demand, action, suit or proceeding to which such
Indemnitee was or is a party or is threatened to be made a party,
by reason of (i) such Indemnitee's status as a General Partner,
any Affiliate of the General Partner, any Person who is or was a
director, officer, employee or agent of the General Partner or
any such Affiliate, or any Person who is or was serving at the
request of the General Partner or any such Affiliate as a
director, officer, partner, trustee, employee or agent of another
Person or (ii) any action taken or omitted to be taken by such
Indemnitee in any capacity referred to in clause (i) of this
Section 7.10(b), relating to this Agreement or the property,
business, affairs or management of the Partnership (provided the
Indemnitee acted in good faith and the act or omission which is
the basis of such action, suit or proceeding does not involve the
gross negligence or willful misconduct of such Indemnitee).
(c) Expenses (including legal fees and expenses)
incurred in defending any claim, demand, action, suit or
proceeding subject to Section 7.10(b) shall be paid by the
Partnership in advance of the final disposition of such claim,
demand, action, suit or proceeding upon receipt of an undertaking
(which need not be secured) by or on behalf of the Indemnitee to
repay such amount if it shall ultimately be determined, by a
court of competent jurisdiction, that the Indemnitee is not
entitled to be indemnified by the Partnership as authorized
hereunder.
(d) The indemnification provided by Section 7.10(b)
shall be in addition to any other rights to which an Indemnitee
may be entitled and shall continue as to an Indemnitee who has
ceased to serve in a capacity for which the Indemnitee is
entitled to indemnification and shall inure to the benefit of the
heirs, successors, assigns, administrators and personal
representatives of the Indemnitee.
(e) To the extent commercially reasonable, the
Partnership shall purchase and maintain insurance on behalf of
the Indemnitees against any liability which may be asserted
against or expense which may be incurred by an Indemnitee in
connection with the Partnership's activities, whether or not the
Partnership would have the power to indemnify an Indemnitee
against such liability under the provisions of this Agreement.
(f) An Indemnitee shall not be denied indemnification
in whole or in part under Section 7.10(b) because the Indemnitee
had an interest in the transaction with respect to which the
indemnification applies if the transaction was otherwise
permitted by the terms of this Agreement.
(g) The provisions of this Section 7.10 are for the
benefit of the Indemnitees and the heirs, successors, assigns,
administrators and personal representatives of the Indemnitees
and shall not be deemed to create any rights for the benefit of
any other Persons.
ARTICLE VIII Rights and Obligations of the Limited Partner
8.1 Limitation of Liability. The Limited Partner shall have no
liability under this Agreement (including, without limitation,
liability under Section 7.10) except as provided in Section 4.1.
8.2 Management of Business. The Limited Partner shall not take
part in the operation, management or control (within the meaning
of the Delaware Act) of the Partnership's business, transact any
business in the Partnership's name or have the power to sign
documents for or otherwise bind the Partnership.
8.3 Outside Activities. The Limited Partner shall be entitled
to and may have business interests and engage in business
activities in addition to those relating to the Partnership,
including business interests and activities in direct competition
with the Partnership. Neither the Partnership nor the General
Partner shall have any rights by virtue of this Agreement or the
Partnership relationship created hereby in any business ventures
of the Limited Partner.
8.4 Return of Capital. The Limited Partner shall not be
entitled to the withdrawal or return of its Capital Contribution,
except to the extent, if any, that distributions made pursuant to
this Agreement or upon termination of the Partnership may be
considered as such by law and then only to the extent provided
for in this Agreement.
ARTICLE IX Books, Records, Accounting and Reports
9.1 Books, Records and Accounting. The General Partner shall
keep or cause to be kept books and records with respect to the
Partnership's business, which books and records shall at all
times be kept at the principal office of the Partnership. Any
books and records maintained by the Partnership in the regular
course of its business, including books of account and records of
Partnership proceedings, may be kept on, or be in the form of,
punch cards, disks, magnetic tape, photographs, micrographics or
any other information storage device, provided that the records
so kept are convertible into clearly legible written form within
a reasonable period of time. The books of the Partnership shall
be maintained, for financial reporting purposes, on the accrual
basis, or on a cash basis adjusted periodically to an accrual
basis, as the General Partner shall determine in its sole
discretion, in accordance with generally accepted accounting
principles and applicable law.
9.2 Fiscal Year. The fiscal year of the Partnership for
financial reporting purposes shall be the calendar year, unless
the General Partner shall determine otherwise in its sole
discretion.
9.3 Reports. (a) As soon as practicable, but in no event later
than 90 days after the close of each fiscal year, the General
Partner shall deliver to the Limited Partner reports containing
financial statements of the Partnership for the fiscal year,
presented in accordance with generally accepted accounting
principles, including a balance sheet, statement of income,
statement of Partners' capital and statement of changes in
financial position, such statements to be audited by a nationally
recognized firm of independent public accountants selected by the
General Partner.
(b) As soon as practicable, but in no event later than
45 days after the close of each calendar quarter, except the last
calendar quarter of each fiscal year, the General Partner shall
deliver to the Limited Partner a quarterly report for the
calendar quarter containing such financial and other information
as the General Partner deems appropriate.
ARTICLE X Transfer of Partnership Interests; Successor Partners
10.1 Transfer of Partnership Interests. Neither Partner may
transfer any of its Partnership Interest unless (a) all of its
Partnership Interest is being transferred and the transferee
assumes all of the rights and obligations of such Partner
hereunder, (b) the transfer is to an Affiliate of such Partner or
is in connection with a Partner's merger or consolidation with,
or a transfer of all or substantially all of a Partner's assets
to, another Person, or the transfer is approved by the other
Partner, and (c) the Partnership receives an Opinion of Counsel
that such transfer would not result in the loss of limited
liability of the Limited Partner or cause the Partnership to be
treated as an association taxable as a corporation for federal
income tax purposes.
10.2 Successor Partners. Any Person becoming a successor General
Partner pursuant to Section 11.1 or the proviso to Section 12.1
or the transferee of the entire Partnership Interest of a Partner
pursuant to Section 10.1 shall be admitted to the Partnership as
a successor Partner, effective as of the date an amendment or
restatement of the Certificate of Limited Partnership is filed
with the Secretary of State of the State of Delaware effecting
such substitution; provided, however, that no such successor
shall be so admitted until it has agreed in writing to assume the
former Partner's obligations hereunder. This Agreement and the
Certificate of Limited Partnership shall be amended as
appropriate to reflect the termination of the former Partner and
the admission of the successor Partner.
ARTICLE XI Withdrawal or Removal of the General Partner
11.1 Withdrawal or Removal of the General Partner. (a) Subject
to regulatory approval, upon the withdrawal of the MLP General
Partner from the Limited Partner, the General Partner shall
withdraw from the Partnership, effective as of the date on which
the MLP General Partner's withdrawal is effective. If a
successor MLP General Partner is approved as permitted by Section
13.1(a) of the MLP Agreement, the Person so approved (or its
designated Affiliate) shall become the successor General Partner.
If no successor MLP General Partner is approved, the Partnership
shall be dissolved pursuant to Section 12.1.
(b) The removal of the MLP General Partner from the
Limited Partner shall also constitute the removal of the General
Partner from the Partnership, effective as of the date on which
the MLP General Partner's removal is effective. The Person
approved as successor MLP General Partner (or its designated
Affiliate) shall become the successor General Partner.
11.2 Sale of Former General Partner's Interest. If any Person
becomes a successor General Partner pursuant to Section 11.1 or
12.2 or the proviso to Section 12.1, such successor shall
purchase from the former General Partner, and the former General
Partner shall sell to such successor, the Partnership Interest of
the former General Partner for an amount in cash equal to the
fair market value thereof, determined as of the effective date of
the departure of the former General Partner. Such fair market
value shall be determined by agreement between the former General
Partner and its successor or, failing agreement within 30 days
after the date the successor General Partner is so admitted, by a
firm of independent appraisers jointly selected by the former
General Partner and its successor (or, if the former General
Partner and its successor cannot agree on the selection of such a
firm within 45 days after the date the successor General Partner
is so admitted, by a firm of independent appraisers selected by
two firms, one of which will be selected by the former General
Partner and the other of which will be selected by the
successor).
ARTICLE XII Dissolution and Liquidation
12.1 Dissolution. The Partnership shall be dissolved, and its
affairs wound up, upon:
(a) expiration of its term as provided in Section 2.4;
(b) withdrawal of the General Partner pursuant to Section 11.1
(unless a Person becomes a successor General Partner prior to or
on the effective date of such withdrawal);
(c) bankruptcy or dissolution of the General Partner, or any
other event that results in the General Partner ceasing to be a
general partner in the Partnership (other than by reason of a
withdrawal or removal pursuant to Section 11.1 or a transfer
pursuant to Section 10.1);
(d) an election by the General Partner to dissolve the
Partnership which is approved by the Limited Partner; or
(e) dissolution of the Limited Partner (unless the Limited
Partner (if a partnership) is continued or reconstituted in
accordance with its partnership agreement);
provided, however, that the Partnership shall not be dissolved
upon an event described in Section 12.1(b) if, within 90 days of
such event, the Limited Partner agrees in writing to continue the
business of the Partnership and to the appointment of a successor
General Partner.
For purposes of this Section 12.1, bankruptcy of the General
Partner shall be deemed to have occurred when (i) it commences a
voluntary proceeding seeking liquidation, reorganization or other
relief under any bankruptcy, insolvency or other similar law now
or hereafter in effect, (ii) it seeks, consents to or acquiesces
in the appointment of a trustee, receiver or liquidator for it or
for all or any substantial part of its properties, (iii) it is
adjudged a bankrupt or insolvent, or has entered against it a
final and nonappealable order for relief, under any bankruptcy,
insolvency or similar law now or hereafter in effect, (iv) it
executes and delivers a general assignment for the benefit of its
creditors, (v) it files an answer or other pleading admitting or
failing to contest the material allegations of a petition filed
against it in any involuntary proceeding of the nature described
in clause (i) above, or (vi)(1) any involuntary proceeding of the
nature described in clause (i) above has not been dismissed 120
days after the commencement thereof or (2) the appointment
without its consent or acquiescence of a trustee, receiver or
liquidator for it or for all or any substantial part of its
properties has not been vacated or stayed within 90 days of such
appointment, or (3) such appointment has been stayed but is not
vacated within 90 days after the expiration of any such stay.
12.2 Reconstitution. Upon dissolution of the Partnership in
accordance with Section 12.1(b) or (c), and a failure of all
Partners to agree to continue the business of the Partnership and
to the appointment of a successor General Partner as provided in
the proviso to Section 12.1, then within 180 days after the event
described in Section 14.1(b) or (c), the remaining Partners may
elect to reconstitute the Partnership and continue its business
by forming a new partnership on terms identical to those set
forth in this Agreement and having as a general partner a Person
approved by such Partners. Upon any such election by such
Partners, all Partners shall be bound thereby and shall be deemed
to have consented thereto. Unless such an election is made
within such 180-day period, the Partnership shall conduct only
activities necessary to wind up its affairs. If such an election
is made within such 180-day period, then (a) the reconstituted
partnership shall continue until the end of the term set forth in
Section 2.4 unless earlier dissolved in accordance with this
Article XII and (b) all necessary steps shall be taken to cancel
this Agreement and the Certificate of Limited Partnership and to
enter into a new partnership agreement and certificate of limited
partnership; provided that the right to reconstitute and to
continue the business of the Partnership shall not exist and may
not be exercised unless the Partnership has received an Opinion
of Counsel that (i) the exercise of the right would not result in
the loss of limited liability of the Limited Partner and (ii)
neither the Partnership nor the reconstituted partnership would
be treated as an association taxable as a corporation for federal
income tax purposes.
12.3 Liquidation. Upon dissolution of the Partnership, unless
the Partnership is reconstituted pursuant to Section 12.2, the
General Partner, or in the event the General Partner has
withdrawn from the Partnership, been removed or dissolved or
become bankrupt (as defined in Section 12.1), a liquidator or
liquidating committee approved by the Limited Partner shall be
the liquidator of the Partnership (the "Liquidator"). The
Liquidator (if other than the General Partner) shall be entitled
to receive such compensation for its services as may be approved
by the Limited Partner. The Liquidator shall agree not to resign
at any time without 15 days' prior written notice and (if other
than the General Partner) may be removed at any time, with or
without cause, by notice of removal approved by the Limited
Partner. Upon dissolution, resignation or removal of the
Liquidator, a successor and substitute Liquidator (who shall have
and succeed to all rights, powers and obligations of the original
Liquidator) shall, within 30 days thereafter, be approved by the
Limited Partner. Except as expressly provided in this Article
XII, the Liquidator approved in the manner provided herein shall
have and may exercise, without further authorization or approval
of any of the parties hereto, all of the powers conferred upon
the General Partner under the terms of this Agreement (but
subject to all of the applicable limitations, contractual and
otherwise, upon the exercise of such powers, other than the
limitation on sale set forth in Article XIV) to the extent
appropriate or necessary in the good faith judgment of the
Liquidator to carry out the duties and functions of the
Liquidator hereunder for and during such period of time as shall
be reasonably required in the good faith judgment of the
Liquidator to complete the winding-up and liquidation of the
Partnership as provided for herein. The Liquidator shall
liquidate the assets of the Partnership and apply and distribute
the proceeds of such liquidation in the following order of
priority, unless otherwise required by mandatory provisions of
applicable law:
(a) to creditors of the Partnership (including Partners); and
(b) to the Partners, 99% to the Limited Partner and 1% to the
General Partner;
provided, however, that the Liquidator may place in escrow a
reserve of cash or other assets of the Partnership for contingent
liabilities in an amount determined by the Liquidator to be
appropriate for such purposes.
12.4 Distribution in Kind. Notwithstanding the provisions of
Section 12.3 requiring the liquidation of the assets of the
Partnership, but subject to the order of priorities set forth
therein, if on dissolution of the Partnership the Liquidator
determines that an immediate sale of part or all of the
Partnership's assets would be impractical or would cause undue
loss to the Partners, the Liquidator may, in its sole discretion,
defer for a reasonable time the liquidation of any assets except
those necessary to satisfy liabilities of the Partnership and
may, in its sole discretion, distribute to the Partners, as
tenants in common, in lieu of cash, and as their interests may
appear in accordance with the provisions of Section 12.3(b),
undivided interests in such Partnership assets as the Liquidator
deems not suitable for liquidation. Any distributions in kind
shall be subject to such conditions relating to the disposition
and management thereof as the Liquidator deems reasonable and
equitable and to any joint ownership agreements or other
agreements governing the ownership and operation of such
properties at such time. The Liquidator shall determine the fair
market value of any property distributed in kind using such
reasonable method of valuation as it may adopt.
12.5 Cancellation of Certificate of Limited Partnership. Upon
the completion of the distribution of Partnership property
pursuant to Sections 12.3 and 12.4, the Partnership shall be
terminated, and the Liquidator (or the Limited Partner if
necessary) shall cause the cancellation of the Certificate of
Limited Partnership and all qualifications of the Partnership as
a foreign limited partnership in jurisdictions other than the
State of Delaware and shall take such other actions as may be
necessary to terminate the Partnership.
12.6 Return of Capital. The General Partner shall not be
personally liable for the return of the Capital Contributions of
the Limited Partner, or any portion thereof, it being expressly
understood that any such return shall be made solely from
Partnership assets.
12.7 Waiver of Partition. Each Partner hereby waives any rights
to partition of the Partnership property.
ARTICLE XIII Amendment of Partnership Agreement
13.1 Amendments Which May Be Adopted Solely by the General
Partner. The General Partner may amend any provision of this
Agreement without the consent of the Limited Partner, and may
execute, swear to, acknowledge, deliver, file and record whatever
documents may be required in connection therewith, to reflect:
(a) a change in the name of the Partnership, in the location of
the principal place of business of the Partnership or in the
registered office or registered agent of the Partnership;
(b) a change that the General Partner deems appropriate or
necessary to (i) qualify, or continue the qualification of, the
Partnership as a limited partnership (or a partnership in which
the Limited Partner has limited liability) under the laws of any
state or jurisdiction or (ii) ensure that the Partnership will
not be treated as an association taxable as a corporation for
federal income tax purposes;
(c) a change that the General Partner in its sole discretion
deems appropriate or necessary to satisfy any requirements,
conditions or guidelines contained in any order, rule or
regulation of any federal or state agency or contained in any
federal or state statute;
(d) a change that is appropriate or necessary, as determined by
an Opinion of Counsel, to prevent the Partnership, the General
Partner, its Affiliates and their respective directors and
officers from in any manner being subjected to the provisions of
the Investment Company Act of 1940, as amended, the Investment
Advisers Act of 1940, as amended, or "plan asset" regulations
adopted under the Employee Retirement Income Security Act of
1974, as amended, whether or not substantially similar to plan
asset regulations currently applied or proposed by the United
States Department of Labor;
(e) a change that is required or contemplated by any provision
of this Agreement, including, without limitation, Section 10.2;
(f) a change that in the good faith opinion of the General
Partner does not adversely affect the Limited Partner in any
material respect; or
(g) any changes or events similar to the foregoing.
13.2 Other Amendments. Amendments to this Agreement (other than
amendments adopted pursuant to Section 13.1) shall be effective
only when approved by both Partners.
ARTICLE XIV Sale of All Assets
Without the prior approval of the Limited Partner, the
General Partner shall not, acting on behalf of the Partnership,
sell or otherwise dispose of, or consent to the sale or other
disposition of, all or substantially all of the assets owned
directly or indirectly by the Partnership.
ARTICLE XV General Provisions
15.1 Opinions Regarding Taxation as a Partnership.
Notwithstanding any other provisions of this Agreement, the
requirement, as a condition to any action proposed to be taken
under this Agreement, that the Partnership receive an Opinion of
Counsel that the proposed action would not result in the
Partnership being treated as an association taxable as a
corporation for federal income tax purposes (a) shall not be
applicable to the extent that the Partnership is at such time
treated in all material respects as an association taxable as a
corporation for federal income tax purposes and (b) shall be
deemed satisfied by an Opinion of Counsel containing conditions,
limitations and qualifications which are acceptable to the
General Partner in its sole discretion.
15.2 Address and Notices. Any notice to the Partnership, the
General Partner or the Limited Partner shall be deemed given if
received by it in writing at the principal office of the
Partnership designated pursuant to Section 2.3.
15.3 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.
15.4 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their successors
and assigns.
15.5 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.
15.6 Waiver. 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 waiver of any such breach or any
other covenant, duty, agreement or condition.
15.7 Counterparts. This Agreement may be executed in any number
of counterparts, all of which together shall constitute one
agreement binding on both of the parties hereto. Each party
shall become bound by this Agreement immediately upon affixing
its signature hereto.
15.8 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.
15.9 Applicable Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State
of Delaware.
IN WITNESS WHEREOF, this Agreement has been duly executed by
the Partners as of the date first above written.
BUCKEYE PIPE LINE COMPANY
as General Partner
By: /S/ C. Xxxxxxx Xxxxxx
President
BUCKEYE PARTNERS, L.P.,
as Limited Partner
By BUCKEYE MANAGEMENT COMPANY,
as General Partner
By: /S/ Xxxxxx X. Xxxxxx
Senior Vice President