Exhibit 10.2
CONFORMED COPY
AMENDED AND RESTATED MANAGEMENT AGREEMENT
Dated as of October 4, 2001
Between
BUCKEYE PIPE LINE COMPANY, L.P.
and
BUCKEYE PIPE LINE COMPANY
TABLE OF CONTENTS
Article I Appointment of the Manager 1
Article II Power and Duties of the Manager
2.01 Powers of the Manager 1
2.02 Duties of the Manager 2
2.03 Outside Activities 3
Article III Liability of the Manager; Indemnification 4
3.01 Liability of the Manager 4
3.02 Indemnification 4
Article IV Reimbursement 5
Article V No Interest Conveyed to the Manager 5
Article VI Termination; Successor Manager 5
6.01 Termination 5
6.02 Successor Manager 6
Article VII Reports, Records and Access 6
Article VIII General Provisions 6
8.01 Reliance by Third Parties 6
8.02 Address and Notices 6
8.03 Headings 6
8.04 Binding Effect 6
8.05 Integration 6
8.06 Waiver 6
8.07 Counterparts 7
8.08 Accounting Principles 7
8.09 Severability 7
8.10 Applicable Law 7
(i)
AMENDED AND RESTATED MANAGEMENT AGREEMENT
THIS AMENDED AND RESTATED MANAGEMENT AGREEMENT (this
"Agreement"), dated as of October 4, 2001, is entered into
between BUCKEYE PIPE LINE COMPANY, L.P., a Delaware limited
partnership (the "Partnership"), and BUCKEYE PIPE LINE COMPANY, a
Delaware corporation (the "Manager").
WITNESSETH:
WHEREAS, the Partnership was formed to engage in any lawful
activity for which limited partnerships may be organized under
the laws of the State of Delaware; and
WHEREAS, the Partnership wishes to appoint the Manager to
manage, operate, direct and exercise full and exclusive control
over the business and affairs of the Partnership, and the Manager
wishes to accept such appointment, in accordance with the terms
and conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto, intending to be legally
bound hereby, agree as follows:
ARTICLE I
Appointment of the Manager
The Partnership hereby appoints the Manager as the
Partnership's managing agent, and the Manager accepts its
appointment by the Partnership, to manage, operate, direct and
exercise full and exclusive control over the business and affairs
of the Partnership, subject to the restrictions contained in the
Partnership Agreement (hereinafter defined).
ARTICLE II
Powers and Duties of the Manager
2.01 Powers of the Manager. Subject to such limitations
as may be imposed by law, this Agreement or the Agreement of
Limited Partnership, dated as of March 25, 1998 (as amended from
time to time, the "Partnership Agreement"), between the Manager
and Buckeye Partners, L.P., a Delaware limited partnership
("Buckeye Partners"), the Manager 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;
(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 with,
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 make allocations of income and deductions of
the Partnership and make distributions in accordance with the
Partnership Agreement;
(i) to utilize the services of officers and
employees of the Manager or of any other entities 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 its partners;
(k) to form, participate in or contribute or loan
cash or property to limited or general partnerships, limited
liability companies, corporations, other entities, joint ventures
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 Manager deems appropriate or necessary and subject to any
express restrictions on such powers as provided in the
Partnership Agreement. The parties hereto acknowledge that so
long as the Manager is the general partner of the Partnership
under the Partnership Agreement (the "General Partner"), the
Manager shall have and be entitled to exercise all of the same
hereunder as the General Partner is entitled to have and entitled
to exercise under the Partnership Agreement.
2.02 Duties of the Manager. The Manager shall manage the
business and affairs of the Partnership in the manner which the
Manager deems appropriate or necessary. Without limiting the
generality of the foregoing, the Manager's duties shall include
the following:
(a) to take possession of the assets and properties
of the Partnership;
(b) to staff and operate the business of the
Partnership with the officers and employees of the Manager or of
other entities;
(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;
(f) to prepare, on an annual and quarterly basis,
financial statements of the Partnership, which, in the case of
annual financial statements, shall have been audited by a
nationally recognized firm of independent certified public
accountants selected by the Manager, and to furnish to the
Partnership such other information and reports concerning the
conduct of the business and affairs of the Partnership as the
Partnership shall reasonably require;
(g) to deposit all funds of the Partnership in such
account or accounts as shall be designated by the Manager (which
funds shall not be commingled with the funds of the Manager);
(h) to maintain records of the assets owned by the
Partnership and books of account and to make such records and
books of account available for inspection by the Partnership or
its duly authorized representatives during regular business hours
at the principal office of the Manager;
(i) to prepare and distribute in a timely manner to
all partners of the Partnership tax information reasonably
required for federal, state and local income tax reporting
purposes;
(j) to cause to be filed such certificates and to do
such other acts as may be required by law to qualify and maintain
the Partnership as a limited partnership in all relevant
jurisdictions; and
(k) to conduct the business and affairs of the
Partnership in accordance with the Partnership Agreement and all
applicable laws, rules and regulations;
in each case in such a manner as the Manager deems appropriate or
necessary.
2.03 Outside Activities. Subject to such limitations as
may be imposed pursuant to the terms of the Partnership
Agreement, the Manager shall be entitled to and may have business
interests and engage in business activities in addition to those
relating to the business of the Partnership, including business
interests and activities in direct competition with the
Partnership, for its 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 any of its
partners. Neither the Partnership nor any of its partners shall
have any rights by virtue of this Agreement or the relationship
created hereby in any such business interests.
ARTICLE III
Liability of the Manager; Indemnification
3.01 Liability of the Manager. Notwithstanding anything
to the contrary in this Agreement, and except to the extent
required by applicable law, neither the Manager, any affiliate of
the Manager, any person who is or was a director, officer,
employee or agent of the Manager or any such affiliate or any
person who is or was serving at the request of the Manager or any
such affiliate as a director, officer, partner, trustee, employee
or agent of another person (each an "Indemnitee" and
collectively, the "Indemnitees") shall be liable to the
Partnership or any of its partners 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 action or omission involves bad faith or
willful misconduct.
3.02 Indemnification.
(a) The Partnership shall, to the fullest 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 the Indemnitee's status as (x) a general partner or
affiliate thereof or (y) a director, officer, partner, employee,
or agent of the Manager or an affiliate or (z) a person serving
at the request of the Manager in another entity in a similar
capacity and which relates 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 demand, claim, action, suit or proceeding does
not involve the gross negligence or willful misconduct of such
Indemnitee).
(b) Expenses (including legal fees and expenses)
incurred in defending any proceeding subject to Section 3.02(a)
shall be paid by the Partnership in advance of the final
disposition of such 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.
(c) The indemnification provided by Section 3.02(a)
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.
(d) 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 such Indemnitees in
connection with the Partnership's activities, whether or not the
Partnership would have the power to indemnify such Indemnitees
against such liability under the provisions of this Agreement.
(e) An Indemnitee shall not be denied
indemnification in whole or in part under Section 3.02(a) 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 and the
Partnership Agreement.
(f) The provisions of this Article III 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.
(g) As used in this Agreement, the term "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.
ARTICLE IV
Reimbursement
Except as otherwise provided in the Exchange Agreement,
dated as of August 12, 1997, among the Partnership, the Manager
and certain of their affiliates, the Partnership shall promptly
reimburse the Manager for all costs and expenses (direct or
indirect) incurred by the Manager which are directly or
indirectly related to the business or activities of the
Partnership (including, without limitation, expenses, direct or
indirect, reasonably allocated to the Manager by its affiliates).
The Partnership shall also promptly reimburse any former Manager
for all such costs incurred by it after a successor becomes the
Manager hereunder. If the former Manager has been removed, these
costs may include any severance costs required as a result of
such former Manager ceasing to be the Manager of the Partnership.
ARTICLE V
No Interest Conveyed to the Manager
This Agreement is a management agreement only and does not
convey to the Manager any right, title or interest in or to any
assets of the Partnership, except that the Manager shall have and
is hereby granted a license to enter upon and use such assets for
the purpose of performing its duties and obligations hereunder.
ARTICLE VI
Termination; Successor Manager
6.01 Termination. Upon dissolution and liquidation of the
Partnership, this Agreement shall terminate.
6.02 Successor Manager. In the event the General Partner
withdraws or is removed from the Partnership and a successor
becomes the General Partner, the successor General partner shall
automatically become the Manager of the Partnership and shall
succeed to all of the rights and obligations of the Manager
hereunder (provided that such succession shall not affect the
rights of any former Manager to reimbursement provided by Article
IV hereof), and the former Manager and its successor shall
execute an instrument evidencing such succession. As soon as
practicable after the effective date of such succession, the
former Manager shall, at the cost and expense of the Partnership,
deliver all records, data and information pertaining to the
business and affairs of the Partnership to the successor Manager.
ARTICLE VII
Reports, Records and Access
The Manager shall prepare, maintain and furnish all reports,
records and information required by the Partnership Agreement.
ARTICLE VIII
General Provisions
8.01 Reliance by Third Parties. Notwithstanding anything
to the contrary in this Agreement, no lender, purchaser or other
person shall be required to look to the application of proceeds
hereunder or to verify any representation by the Manager as to
the extent of the interest in the Partnership's assets that the
Manager is entitled to encumber, sell or otherwise use, and any
such lender, purchaser or other person shall be entitled to rely
exclusively on the representations of the Manager as to its
authority to enter into such financing or sale arrangements and
shall be entitled to deal with the Manager, without joinder of
any other persons, as if it were the sole party in interest
therein, both legally and beneficially.
8.02 Address and Notices. Any notice under this Agreement
to the Partnership or the Manager shall be deemed given if
received by it in writing at the principal office of the
Partnership designated in the Partnership Agreement.
8.03 Headings. All article or section headings in this
Agreement are for convenience only and shall not be deemed to
control or affect the meaning or construction of any of the
provisions hereof.
8.04 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 as provided in
Section 6.02.
8.05 Integration. This Agreement constitutes the entire
agreement among the parties pertaining to the subject matter
hereof and supersedes all prior agreements and understandings
pertaining thereto.
8.06 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 a waiver of any such
breach or of any other covenant, duty, agreement or condition.
8.07 Counterparts. This Agreement may be executed in any
number of counterparts, all of which together shall constitute
one agreement binding on the parties hereto.
8.08 Accounting Principles. All financial reports
requested to be rendered under this Agreement shall be prepared
in accordance with generally accepted accounting principles.
8.09 Severability. If any provision of this Agreement is
or becomes invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions
hereof, or of such provision in other respects, shall not be
affected thereby.
8.10 Applicable Law. This Agreement shall be governed by
and construed and enforced in accordance with the laws of the
Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, this Agreement has been duly executed by
the parties hereto as of the date first above written.
PARTNERSHIP:
BUCKEYE PIPE LINE COMPANY, L.P.
By: BUCKEYE PIPE LINE COMPANY,
As General Partner
By:/s/ Stephen C. Muther
Stephen C. Muther
Senior Vice President-Administration,
General Counsel and Secretary
MANAGER:
BUCKEYE PIPE LINE COMPANY
By:/s/ Stephen C. Muther
Stephen C. Muther
Senior Vice President-Administration,
General Counsel and Secretary