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NON-COMPETITION
AGREEMENT
THIS NON-COMPETITION AGREEMENT (this
“ Agreement ”), is entered into and effective on
September 17, 2007 (the “ Effective Date ”), by and between Suburban Propane, L.P., a
Delaware limited partnership with its principal place of business
at 240 Route 10 West, Whippany, New Jersey 07981 (“
Suburban
”), and Plains LPG Services,
L.P., a Delaware limited
partnership with its principal place of business at Plains
Midstream Plaza, Suite 1400, 607 – 8th Avenue SW, Calgary,
Alberta T2P 0A7 (“ Buyer ”). Buyer and Suburban are referred to
collectively herein as the “ Parties ” or individually as a “
Party
.” Capitalized terms used herein
which are defined in the Purchase and Sale Agreement dated
September 17, 2007 by and among Suburban Pipeline LLC
(“ SPLLC ”), Suburban (Suburban and SPLLC
collectively “ Sellers ”) and Buyer (the “
Purchase
Agreement ”) and
not otherwise defined herein shall have the respective meanings
assigned to them therein.
WHEREAS, Sellers and Buyer are parties
to the Purchase Agreement, pursuant to which Buyer will purchase
substantially all of the assets generally known as the Tirzah,
South Carolina Propane Storage Facility (the “
Facility
”) and related pipeline,
facilities and Contracts (the “ Acquired Assets ”), as further described therein;
and
WHEREAS, Buyer desires to obtain the
agreement of Suburban not to compete with the Facility for a period
of time after the Closing, upon the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of
the premises and the mutual covenants herein contained, the Parties
agree as follows:
Section 1. Term . This
Agreement shall expire on the fifth anniversary of the Closing Date
(the “ Term ”).
Section 2. Definitions .
“ Commitment ” means (a) options, warrants, convertible
securities, exchangeable securities, subscription rights,
conversion rights, exchange rights or other Contracts that could
require a Person to issue any of its Equity Interests or to sell
any Equity Interests it owns in another Person; (b) any other
securities convertible into, exchangeable or exercisable for, or
representing the right to subscribe for any Equity Interest of a
Person or owned by a Person; (c) statutory pre-emptive rights or
pre-emptive rights granted under a Person’s Organizational
Documents; and (d) stock appreciation rights, phantom stock, profit
participation, or other similar rights with respect to a
Person.
“Confidential
Information” has
the meaning set forth in that certain Confidentiality Agreement,
dated July 11, 2006, between the Parties.
“ Equity Interest ” means (a) with respect to a corporation,
any and all shares of capital stock and any Commitments with
respect thereto, (b) with respect to a partnership, limited
liability company, trust or similar Person, any and all units,
interests or other partnership/limited
liability company interests, and any
Commitments with respect thereto, and (c) any other direct
equity ownership or participation in a Person.
“Midstream
Company” means a
Person engaged in the storage, transportation and/or processing of
petroleum-based products.
“Wholesale Propane
Business” means
the sale of propane by Suburban or its Affiliates to customers who
Suburban then knows, or has reason to know, intend to resell such
propane to third parties rather than use such propane for those
customers’ own purposes; provided, however, that Wholesale
Propane Business shall not include any (a) propane sales,
regardless of the nature of the customer, sold and invoiced by
Suburban’s owned retail outlets (customer service centers),
and (b) propane sales to end-users who do not resell.
Section 3. Agreement Not to Compete . Subject to the successful consummation of the
Closing, Suburban agrees that, during the Term, without the prior
written consent of Buyer, (i) neither Suburban nor its Affiliates
will, directly or indirectly, own, conduct or operate a Wholesale
Propane Business in the states of South Carolina, North Carolina,
Georgia or Virginia, and (ii) neither Suburban nor its Affiliates
will, directly or indirectly, own, operate, construct, finance, or
assist in the ownership, operation, construction or finance of,
propane storage facilities in the states of South Carolina, North
Carolina, Georgia or Virginia which are competitive with the
Caverns, other than propane storage facilities used exclusively to
store propane intended by Suburban to be sold (A) by
Suburban’s or its Affiliate’s owned retail outlets
(customer service centers),
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