Exhibit 10.1


 


FIFTH
AMENDED AND RESTATED EXCHANGE AGREEMENT


 


THIS FIFTH
AMENDED AND RESTATED EXCHANGE AGREEMENT (this “Agreement”), dated as of October 15, 2008, is entered into
among BUCKEYE GP HOLDINGS L.P., a Delaware limited partnership (“Holdco”), BUCKEYE
GP LLC, a Delaware limited liability company (the “General Partner”), BUCKEYE
PARTNERS, L.P., a Delaware limited partnership (the “Partnership”), MAINLINE
L.P., a Delaware limited partnership (the “OLP GP”), BUCKEYE PIPE LINE COMPANY,
L.P., a Delaware limited partnership (“BPLCLP”), LAUREL PIPE LINE COMPANY,
L.P., a Delaware limited partnership (“Laurel”), EVERGLADES PIPE LINE COMPANY,
L.P., a Delaware limited partnership (“Everglades”), and BUCKEYE PIPE LINE
HOLDINGS, L.P., a Delaware limited partnership (collectively with BPLCLP,
Laurel, and Everglades, the “Operating Partnerships”).


 


WITNESSETH:


 


WHEREAS,
Buckeye Pipe Line Company LLC, a Delaware limited liability company (the “Former
GP”), Buckeye Management Company LLC,
a Delaware limited liability company (“BMC”),
Glenmoor LLC, a Delaware limited liability company (“Glenmoor”),
the Partnership and the Operating Partnerships entered into the Exchange
Agreement, dated as of August 12, 1997 (the “Original Agreement”), the
transactions contemplated by which were consummated on such date effective as
of 11:59 P.M.;


 


WHEREAS,
the Original Agreement was amended and restated in its entirety on May 2,
2002, as of May 4, 2004, as of December 15, 2004 and as of August 9,
2006 (as so amended and restated, the “Prior Agreement”);


 


WHEREAS,
the Partnership is governed pursuant to an Amended and Restated Agreement of
Limited Partnership (the “Master Partnership Agreement”), dated as of April 14, 2008, between the
General Partner and the limited partners of the Partnership (the “Limited
Partners”), as amended; the Operating Partnerships, are governed pursuant to
similar Amended and Restated Agreements of Limited Partnership, each dated as
of August 9, 2006, as
amended, between the OLP GP and the Partnership (collectively, the “Operating
Partnership Agreements”);


 


WHEREAS,
in connection with the Original Agreement, the Partnership (i) issued
limited partnership units of the Partnership (“LP Units”) to Buckeye Pipe Line
Services Company, a Pennsylvania corporation (the “Company”), whose shares of
capital stock are owned by the Buckeye Pipe Line Services Company Employee
Stock Ownership Plan Trust (referred to herein as the “ESOP”) in exchange for
shares of Glenmoor stock (the “Exchange Shares”), and (ii) contributed an
undivided interest in the Exchange Shares to the Operating Partnerships as of
the date of the Original Agreement;


 


WHEREAS,
the Operating Partnerships transferred and assigned the Exchange Shares to the
Former GP as of the date of the Original Agreement in exchange for the release
of certain obligations that the Partnership had to BMC (as the former general
partner of the Partnership) and the Former GP, and the Operating Partnerships
had to the Former GP; Glenmoor and BMC caused the Former GP to receive the Exchange
Shares and to release such obligations of the 


 

















 


Partnership
and the Operating Partnerships; and the Exchange Shares were further
transferred by the Former GP to BMC and by BMC to Glenmoor;


 


WHEREAS,
the General Partner was the general partner of the Operating Partnerships, and
pursuant to an Amended & Restated Contribution, Conveyance and
Assumption Agreement dated August 9,
2006, assigned its general partner interests in the Operating Partnerships and
all its right, title and interest in the Prior Agreement, to the extent
relating to the role of general partner of the Operating Partnerships, to the
OLP GP (the “Assignment Agreement”);


 


WHEREAS,
Holdco became a party to this Agreement on August 18, 2006, when MainLine
Sub LLC, the former party to this Agreement and a wholly owned subsidiary of
Holdco, was merged with and into Holdco; and


 


WHEREAS,
the parties to the Prior Agreement desire to amend and restate the Prior
Agreement in its entirety to amend the provisions of this Agreement allocating responsibility
for the compensation of certain executives.


 


NOW,
THEREFORE, the parties hereto, intending to be legally
bound, hereby agree as follows:


 


ARTICLE I

THE EXCHANGE


 


Upon
the terms and subject to the conditions of this Agreement, the Operating Partnerships
have transferred and assigned the Exchange Shares to the Former GP in exchange
for the release of certain obligations of the Partnership to BMC (as the former
general partner of the Partnership) and the Former GP, and of the Operating
Partnerships to the Former GP, as set forth in Article II below.


 


ARTICLE II

RELEASE OF OBLIGATIONS


 


2.01         Obligations
to Reimburse for Executive Compensation. 
(a) Upon the terms and subject to the conditions of this Agreement,
the General Partner and the OLP GP, for themselves and their affiliates,
successors and assigns, hereby confirm that they have irrevocably released,
relinquished and discharged the Partnership and the Operating Partnerships from
any and all liability, obligation, claim, demand, action or suit of any kind or
nature, in law or in equity, whatsoever, known or unknown, which may be
asserted for or on account of or arising out of or in any manner relating to
the Partnership’s and/or the Operating Partnerships’ obligations pursuant to Section 7.4(b) of
the Master Partnership Agreement and the Operating Partnership Agreements or
otherwise to reimburse the General Partner, the OLP GP or their affiliates for
total compensation, including all benefits, paid for the four highest salaried
officers performing duties for the General Partner with respect to the
functions of operations, finance, legal, marketing and business development,
treasury, or performing the function of President of the General Partner (“Executive
Compensation Liabilities”) for the period beginning on the date of the
Original Agreement and continuing through December 31, 2008.  Nothing in this Section 2.01(a) shall
be deemed to have waived the obligations of the Partnership and the Operating
Partnerships to reimburse the General Partner and the OLP GP for (i) employee
fringe benefits and retirement benefits for their executives relating to
services performed prior to the date of the 


 


2

















 


Original
Agreement, (ii) obligations under severance agreements with their
executives to the extent currently reimbursable under the Master Partnership
Agreement or (iii) any obligations in respect of their executives which
are not related to compensation, including, without limitation, indemnification
obligations (collectively, the “Excluded Obligations”).


 


(b)           The
Partnership and the Operating Partnerships hereby reassume all Executive
Compensation Liabilities arising on and after January 1, 2009; provided,
however, that for the avoidance of doubt, such reassumption shall not
include (i) any obligations of Holdco, MainLine Management LLC or the
General Partner to any of the Executives pursuant to employment or severance
agreements or arrangements (other than the Excluded Obligations) entered into
between Holdco, MainLine Management LLC or the General Partner and such
Executive prior to January 1, 2009, or (ii) any bonus payments to the
Executives for 2008, in each case regardless of when such obligations become
payable. In consideration of such reassumption, beginning with the calendar
year starting January 1, 2009, Holdco shall make an annual payment
calculated in accordance with Schedule A hereto, which amount may be
paid on such terms and in such installments during or after any calendar year
as may be mutually agreed by Holdco and the Partnership (the “Annual Fixed
Payment”).  The Partnership and the
Operating Partnerships acknowledge that so long as Holdco has no operations
separate from its ownership of the General Partner, the Executive Compensation
Liabilities assumed by the Partnership and the Operating Partnerships shall
include all compensation and benefits payable to such officers, and the Annual
Fixed Payment shall be deemed to include reimbursement by Holdco to the
Partnership and the Operating Partnerships in respect of total compensation
payable to the same persons for any services performed by such persons as
officers of Holdco.


 


(c)           Holdco,
the General Partner and the OLP GP agree, unless the General Partner is removed
as general partner of the Partnership, to perform the executive level functions
referred to in Section 2.01(a) for the benefit of the Partnership and
the Operating Partnerships in a manner satisfactory to the board of directors
of the General Partner.


 


2.02         ESOP
Obligations Generally.  As of December 15,
2004, Holdco acknowledges that it has received all reimbursements due to it
from the Partnership and the Operating Partnerships pursuant to the terms of
the Prior Agreement in respect of (i) cash contributions made or to be
made by the Company to the ESOP pursuant to the terms of the ESOP trust
agreement, as necessary for the ESOP to make all payments of principal,
interest and premium due under the Note Agreement, dated as of May 4,
2004, among the ESOP, The Prudential Insurance Company of America, Pruco Life
Insurance Company and Pruco Life Insurance Company of New Jersey (the “Note
Agreement”), (ii) cash deposits made or to be made by the Company pursuant
to an obligation to maintain a minimum value of collateral pledged to secure
the obligations of the ESOP or the Company in respect of the Note Agreement, (iii) income
taxes incurred by the Company on the sale of LP Units made to satisfy the
redemption obligations described in Section 2.03 below, and (iv) routine
administrative charges and expenses common to employee stock ownership plans
incurred in connection with the operation of the ESOP.  Each of Holdco, the General Partner and the
OLP GP hereby release, relinquish and discharge the Partnership and the
Operating Partnerships from any and all further liability, obligation, claim,
demand, action or suit of any kind or nature, in law or in equity, whatsoever,
known or unknown, which may be asserted for or on account of or arising out of
or in any manner relating to the foregoing obligations under the Prior
Agreement.


 


3

















 


2.03         No
ESOP Contributions for Departing Employees. 
Holdco, the General Partner and the OLP GP acknowledge that neither the
Partnership nor the Operating Partnerships shall be obligated to reimburse
Holdco, the General Partner or the OLP GP for obligations to redeem the ESOP
accounts of departing employees upon the termination of their employment with
the Company, or for any other costs or expenses of or relating to the operation
of the ESOP other than those specified in Section 2.02 above.


 


2.04         Representations
and Warranties.  Holdco, the General
Partner and the OLP GP hereby represent and warrant to the Partnership and the
Operating Partnerships, as of the date of the Original Agreement, that (a) neither
the Company nor any entity treated as a single employer with the Company under
Sections 414(b), 414(c), 414(m), or 414(o) of the Internal Revenue Code of
1986, as amended (the “Code”), or Section 4001(b) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), has incurred any
liability under any provision of ERISA or other applicable law relating to the
ESOP; (b) the ESOP has been administered, in all material respects, in
compliance with its terms and complies, both in form and operation, with the
applicable provisions of ERISA (including, without limitation, the funding and
prohibited transactions provisions thereof), the Code and other applicable
laws; and (c) the ESOP has been determined by the Internal Revenue Service
to be qualified within the meaning of Section 401 of the Code, and none of
Holdco, the General Partner or the OLP GP is aware of any fact or circumstances
which would adversely affect the qualified status of the ESOP.


 


ARTICLE III

AGREEMENT TO ACT AS GENERAL PARTNER


 


3.01         Failure
to Act as General Partner Over the ESOP Period.  Except to the extent this obligation is
assumed by a successor general partner(s) pursuant to Section 3.02,
the General Partner and the OLP GP shall continue to serve as the general
partner of the Partnership and the Operating Partnerships, respectively, until
all principal, interest and premium is paid in full under the Note Agreement
and under any agreements or instruments replacing the Note Agreements have been
repaid, unless the Partnership shall be sooner dissolved under Section 14.1(d) of
the Master Partnership Agreement.  Each
Party hereto hereby (i) consents to the transactions set forth in the
Assignment Agreement, including the assignment of all general partner interests
in the Operating Partnerships by the General Partner to the OLP GP, and (ii) agrees
that the consummation of such transactions did not violate any provision of the
Prior Agreement.


 


3.02         Assumption
of Obligations by a Successor General Partner.  If the General Partner or the OLP GP is
removed as general partner of the Partnership or one or more of the Operating
Partnerships, respectively, during the ESOP Period (but not if the General
Partner or the OLP GP voluntarily withdraws as general partner) pursuant to Section 13.1(b) of
the Master Partnership Agreement, or if the General Partner or the OLP GP
transfers its general partner interests in the Partnership or the Operating
Partnerships pursuant to Section 11.1 of the Master Partnership Agreement,
the General Partner or the OLP GP may cause the successor general partner of
the Partnership and the Operating Partnerships, respectively, to assume its
respective obligations, liabilities and duties under this Agreement.


 


4

















 


ARTICLE IV

GENERAL PROVISIONS


 


4.01         Entire
Agreement.  This Agreement supersedes
all prior discussions and agreements among the parties hereto with respect to
the subject matter hereof and contains the sole and entire agreement among the
parties hereto with respect to the subject matter hereof.


 


4.02         Headings.  The headings used in this Agreement have been
inserted for convenience of reference only and do not define or limit the
provisions hereof.


 


4.03         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 writing signed by each of the parties hereto.


 


4.04         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.


 


4.05         Governing
Law.  This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware
applicable to a contract executed and performed in such State, without giving
effect to the conflicts of laws principles thereof.


 


4.06         Counterparts.  This Agreement may be executed in any number
of counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.


 


[signatures follow on next page]


 


5

















 


IN
WITNESS WHEREOF,  each party
hereto has caused this Agreement amending and restating the Prior Agreement to
be signed by its officer duly authorized as of the date first above written.


 


	
   

  	
  BUCKEYE GP HOLDINGS L.P.

  
	
   

  	
   

  
	
   

  	
  By: MAINLINE MANAGEMENT LLC,

  
	
   

  	
  as General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Forrest E. Wylie

  
	
   

  	
  Name: Forrest
  E. Wylie

  
	
   

  	
  Title: Chief
  Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BUCKEYE GP LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Forrest E. Wylie

  
	
   

  	
  Name: Forrest
  E. Wylie

  
	
   

  	
  Title: Chief
  Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MAINLINE L.P.

  
	
   

  	
   

  
	
   

  	
  By: MAINLINE GP, INC.,

  
	
   

  	
  as General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Forrest E. Wylie

  
	
   

  	
  Name: Forrest
  E. Wylie

  
	
   

  	
  Title: Chief
  Executive Officer

  
	
   

  	
   

  
	
   

  	
  BUCKEYE PARTNERS, L.P.

  
	
   

  	
   

  
	
   

  	
  By: BUCKEYE GP LLC,

  
	
   

  	
  as General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stephen C. Muther

  
	
   

  	
  Name: Stephen
  C. Muther

  
	
   

  	
  Title: President

  



 


[SIGNATURES
CONTINUE ONTO NEXT PAGE]


 


[Fifth Amended and
Restated Exchange Agreement]


 

















 


[SIGNATURES
CONTINUED FROM PREVIOUS PAGE]


 


 


	
   

  	
  BUCKEYE
  PIPE LINE COMPANY, L.P.

  
	
   

  	
   

  
	
   

  	
  By:
  MAINLINE L.P.,

  
	
   

  	
  as
  General Partner

  
	
   

  	
   

  
	
   

  	
  By:
  MAINLINE GP, INC.,

  
	
   

  	
  as
  General Partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stephen C.
  Muther

  
	
   

  	
  Name: Stephen
  C. Muther

  
	
   

  	
  Title: President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LAUREL PIPE LINE COMPANY, L.P.

  
	
   

  	
   

  
	
   

  	
  By: MAINLINE L.P.,

  
	
   

  	
  as General Partner

  
	
   

  	
   

  
	
   

  	
  By: MAINLINE GP, INC.,

  
	
   

  	
  as General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stephen C. Muther

  
	
   

  	
  Name: Stephen
  C. Muther

  
	
   

  	
  Title: President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EVERGLADES PIPE LINE COMPANY,
  L.P.

  
	
   

  	
   

  
	
   

  	
  By: MAINLINE L.P.,

  
	
   

  	
  as General Partner

  
	
   

  	
   

  
	
   

  	
  By: MAINLINE GP, INC.,

  
	
   

  	
  as General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stephen C. Muther

  
	
   

  	
  Name: Stephen
  C. Muther

  
	
   

  	
  Title: President

  



 


[SIGNATURES
CONTINUE ONTO NEXT PAGE]


 


[Fifth Amended and
Restated Exchange Agreement]


 

















 


[SIGNATURES
CONTINUED FROM PREVIOUS PAGE]


 


	
   

  	
  BUCKEYE PIPE LINE HOLDINGS,
  L.P.

  
	
   

  	
   

  
	
   

  	
  By: MAINLINE L.P.,

  
	
   

  	
  as General Partner

  
	
   

  	
   

  
	
   

  	
  By: MAINLINE GP, INC.,

  
	
   

  	
  as General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stephen C. Muther

  
	
   

  	
  Name: Stephen
  C. Muther

  
	
   

  	
  Title: President

  



 


[Fifth Amended and
Restated Exchange Agreement]


 

















 


Schedule
A


 


Calculation
of Annual Fixed Payment


 


	
   

  	
   

  	
  Assumed

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Salaries

  	
   

  	
  Actual 2009

  	
   

  
	
   

  	
   

  	
  Sample

  	
   

  	
  Salaries

  	
   

  
	
   

  	
   

  	
  Calculation*

  	
   

  	
  Calculation**

  	
   

  
	
  Aggregate Annual
  Base Salaries for four highest paid executives

  	
   

  	
  $

  	
  1,350,000

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Benefits

  	
   

  	
  30

  	
  %

  	
  30

  	
  %

  
	
  Plus: Benefits

  	
   

  	
  405,000

  	
   

  	
  —

  	
   

  
	
  Total Base and
  Benefits

  	
   

  	
  $

  	
  1,755,000

  	
   

  	
  $

  	
  —

  	
   

  
	
  Cushion

  	
   

  	
  15.0

  	
  %

  	
  15.0

  	
  %

  
	
  Base +
  Benefits + Cushion

  	
   

  	
  $

  	
  2,018,250

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Annual Incentive
  Compensation Opportunity (1)

  	
   

  	
  $

  	
  1,350,000

  	
   

  	
  $

  	
  —

  	
   

  
	
  Cushion

  	
   

  	
  15.0

  	
  %

  	
  15.0

  	
  %

  
	
  Annual
  Incentive Compensation + Cushion

  	
   

  	
  $

  	
  1,552,500

  	
   

  	
  $

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fixed
  Annual Payment

  	
   

  	
  $

  	
  3,570,750

  	
   

  	
  $

  	
  —

  	
   

  



 






(1) 100 percent of
Aggregate Annual Base Salaries


 


* The total salary amount in this column is only for
the purpose of showing a sample calculation. The actual 2009 aggregate
annualized Base Salaries for the four highest paid executives will be set by
the Compensation Committee of Buckeye GP LLC and will differ from the sample
amount above. The included salaries are for the Chief Executive Officer,
President, Chief Financial Officer and Chief Operating Officer.


 


** Upon determination of the actual 2009 aggregate
annualized Base Salaries for the four highest paid executives, this Schedule
shall be revised by the Partnership and the Provider with the sum of those
amounts and will become the Final Schedule A to this Agreement. Such update
will not be deemed an amendment of this Agreement.