FIRST AMENDMENT
Exhibit 10.2
FIRST AMENDMENT
FIRST AMENDMENT, dated as of October 26, 2006 (this “Amendment”), to the Credit
Agreement, dated as of September 18, 2006 (as amended from time to time prior to the date hereof,
the “Credit Agreement”), among SPI PETROLEUM LLC, a Delaware limited liability company
(“Holdings”), GLOBAL PETROLEUM, INC., a Delaware corporation (the “Borrower”), the
several banks and other financial institutions or entities from time to time parties to the Credit
Agreement (the “Lenders”), JPMORGAN CHASE BANK, N.A., as administrative agent (in such
capacity, the “Administrative Agent”), and PNC BANK, NATIONAL ASSOCIATION, as documentation
agent (in such capacity, the “Documentation Agent”) and as syndication agent (in such
capacity, the “Syndication Agent”).
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to make, and have made,
certain loans and other extensions of credit to the Borrower;
WHEREAS, the Borrower has requested certain amendments to the Credit Agreement as more fully
set forth herein; and
WHEREAS, the Lenders are willing to agree to such amendments on the terms and subject to the
conditions contained in this Amendment.
NOW, THEREFORE, the parties hereto hereby agree to amend the Credit Agreement as follows:
SECTION 1. Defined Terms. Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit Agreement.
SECTION 2. Amendments to Section 5.1. (a) Section 5.1 of the Credit Agreement is
hereby amended by (i) deleting the number “120” in the third line of clause (a) and (ii) inserting
in lieu thereof the number “130”.
(b) Section 5.1 of the Credit Agreement is hereby further amended by inserting the words
“(except in the case of the fiscal quarter ended September 30, 2006, unconsolidated with respect to
Pecos, Inc. and CSOC Inc.)” after the words “its consolidated Subsidiaries” in the third line of
clause (b).
(c) Section 5.1 of the Credit Agreement is hereby further amended by inserting the words
“(except in the case of the fiscal months ended October 31, 2006 and November 30, 2006,
unconsolidated with respect to Pecos, Inc. and CSOC Inc.)” after the words “its Subsidiaries” in
the third line of clause (c).
SECTION 3. Amendments to Section 6.1. (a) Section 6.1 of the Credit Agreement is
hereby amended by (i) deleting clause (a) in its entirety and (ii) inserting in lieu thereof the
following new clause (a):
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Permit the Consolidated Leverage Ratio as at the last day of any period of four
consecutive fiscal quarters of the Borrower, commencing on December 31, 2006, to
exceed 5.00 to 1.00; provided that Consolidated EBITDA shall be calculated
for purposes of the Consolidated Leverage Ratio (a) for each fiscal quarter in such
period ended on or prior to September 30, 2006 after giving pro
forma effect to the Canyon Acquisition and the Pecos Acquisition as though
they had occurred on the first day of such period and (b) for each fiscal quarter in
any such period ended after September 30, 2006 after giving pro forma
effect to any material acquisition as though it had occurred on the first day of
such period.
(b) Section 6.1 of the Credit Agreement is hereby further amended by (i) deleting clause (b)
in its entirety and (ii) inserting in lieu thereof the following new clause (b):
Permit the Consolidated Fixed Charge Coverage Ratio for any period of four consecutive fiscal
quarters of the Borrower (or, (i) in the case of the fiscal quarter ended December 31, 2006, for a
period of such fiscal quarter, (ii) in the case of the fiscal quarter ended March 31, 2007, for a
period of two consecutive fiscal quarters, and, (iii) in the case of the fiscal quarter ended June
30, 2007, for a period of three consecutive fiscal quarters), commencing on December 31, 2006, to
be less than 1.15 to 1.00.
SECTION 4. Conditions to Effectiveness. This Amendment shall become effective upon
the date (the “Effective Date”) on which the last of the following conditions precedent
becomes satisfied:
(a) the Borrower, the Subsidiary Guarantors and the Administrative Agent shall have each
executed and delivered this Amendment and
(b) the Administrative Agent shall have received executed letters with respect to this
Amendment substantially in the form attached hereto as Exhibit A (a “Lender Consent
Letter”) from Lenders constituting the Required Lenders.
The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and such
notice shall be conclusive and binding.
SECTION 5. Representations and Warranties.
(a) In order to induce the Administrative Agent and the Lenders to enter into this Amendment,
each of Holdings and the Borrower hereby represents and warrants to the Administrative Agent and
the Lenders that, after giving effect to this Amendment, (i) the representations and warranties of
each of Holdings and the Borrower made in the Credit Agreement are true and correct in all material
respects on and as of the Effective Date (after giving effect hereto) as if made on and as of the
Effective Date (except where such representations and warranties expressly relate to an earlier
date in which case such representations and warranties were true and correct in all material
respects as of such earlier date) and (ii) no Default has occurred and is continuing; provided that
all references to the “Agreement” in the Credit Agreement and all references to the “Credit
Agreement” in any other
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Loan Document shall be and are deemed to mean the Credit Agreement as amended by this
Amendment.
(b) Each of Holdings, the Borrower and each Subsidiary Guarantor hereby represents and
warrants that: as of the date hereof it has all necessary corporate power and authority to execute
and deliver the Amendment; the execution and delivery by each of Holdings, the Borrower and each
Subsidiary Guarantor of the Amendment have been duly authorized by all necessary corporate action
on its part; and the Amendment has been duly executed and delivered by each of Holdings, the
Borrower and each Subsidiary Guarantor and constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms.
SECTION 6. Continuing Effect of the Credit Agreement. This Amendment shall not
constitute an amendment or waiver of or consent to any provision of the Credit Agreement not
expressly referred to herein and shall not be construed as an amendment, waiver or consent to any
action on the part of each of Holdings, the Borrower and each Subsidiary Guarantor that would
require an amendment, waiver or consent of the Administrative Agent or the Lenders except as
expressly stated herein. Except as expressly amended hereby, the provisions of the Credit
Agreement, as amended by this Amendment, are and shall remain in full force and effect in
accordance with its terms. All references to the “Agreement” in the Credit Agreement and all
references to the “Credit Agreement” in any other Loan Document shall be and are deemed to mean the
Credit Agreement as amended by this Amendment.
SECTION 7. Consent of Subsidiary Guarantors. Each of the Subsidiary Guarantors hereby
(a) consents to the modifications to the Credit Agreement contemplated hereby and (b) acknowledges
and agrees that the Guarantees contained in the Guarantee and Collateral Agreement are, and shall
remain, in full force and effect after giving effect to this Amendment.
SECTION 8. Counterparts. This Amendment may be executed by one or more of the parties
to this Amendment on any number of separate counterparts (including by facsimile), and all of said
counterparts taken together shall be deemed to constitute one and the same instrument.
SECTION 9. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
[The remainder of this page is intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and
delivered by their respective proper and duly authorized officers as of the day and year first
above written.
| SPI PETROLEUM LLC | ||||
| By: | /s/
Xxxxxx
Fastuca |
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| Name: | Xxxxxx
Fastuca |
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| Title: | Treasurer |
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| GLOBAL PETROLEUM, INC. | ||||
| By: | /s/
Xxxxxx
Fastuca |
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| Name: | Xxxxxx
Fastuca |
|||
| Title: | Treasurer |
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| XXXXXX PETROLEUM, INC. | ||||
| By: | /s/
Xxxxxx
Fastuca |
|||
| Name: | Xxxxxx
Fastuca |
|||
| Title: | Treasurer |
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| SPI ACQUISITION LLC | ||||
| By: | /s/
Xxxxxx
Fastuca |
|||
| Name: | Xxxxxx
Fastuca |
|||
| Title: | Treasurer |
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| ETI ACQUISITION LLC | ||||
| By: | /s/
Xxxxxx
Fastuca |
|||
| Name: | Xxxxxx
Fastuca |
|||
| Title: | Treasurer |
|||
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| XXXXXXX FUEL OIL CO. | ||||
| By: | /s/
Xxxxxx
Fastuca |
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| Name: | Xxxxxx
Fastuca |
|||
| Title: | Treasurer |
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| XXXXXXX BROTHERS, INC. | ||||
| By: | /s/
Xxxxxx
Fastuca |
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| Name: | Xxxxxx
Fastuca |
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| Title: | Treasurer |
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| PETROLEUM SUPPLY COMPANY, INC. | ||||
| By: | /s/
Xxxxxx
Fastuca |
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| Name: | Xxxxxx
Fastuca |
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| Title: | Treasurer |
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| CANYON STATE OIL COMPANY, INC. | ||||
| By: | /s/
Xxxxxx
Fastuca |
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| Name: | Xxxxxx
Fastuca |
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| Title: | Treasurer |
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| PECOS, INC. | ||||
| By: | /s/
Xxxxxx
Fastuca |
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| Name: | Xxxxxx
Fastuca |
|||
| Title: | Treasurer |
|||
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| GENERAL PETROLEUM CORPORATION | ||||
| By: | /s/
Xxxxxx
Fastuca |
|||
| Name: | Xxxxxx
Fastuca |
|||
| Title: | Treasurer |
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| RAINIER PETROLEUM CORPORATION | ||||
| By: | /s/
Xxxxxx
Fastuca |
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| Name: | Xxxxxx
Fastuca |
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| Title: | Treasurer |
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| SEDRO-XXXXXXX HOLDINGS CORPORATION | ||||
| By: | /s/
Xxxxxx
Fastuca |
|||
| Name: | Xxxxxx
Fastuca |
|||
| Title: | Treasurer |
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| G.P. ATLANTIC, INC. | ||||
| By: | /s/
Xxxxxx
Fastuca |
|||
| Name: | Xxxxxx
Fastuca |
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| Title: | Treasurer |
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| JPMORGAN CHASE BANK, N.A., as Administrative Agent | ||||
| By: | /s/
Xxxx Xxxxxxxxx |
|||
| Name: | Xxxx
Xxxxxxxxx |
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| Title: | Vice
President |
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EXHIBIT A
LENDER CONSENT LETTER
GLOBAL PETROLEUM, INC. CREDIT AGREEMENT
DATED AS OF SEPTEMBER 18, 2006
GLOBAL PETROLEUM, INC. CREDIT AGREEMENT
DATED AS OF SEPTEMBER 18, 2006
To:
|
JPMorgan Chase Bank, N.A., as Administrative Agent | |
| under the Credit Agreement referred to below |
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of September 18, 2006 (as amended from
time to time prior to the date hereof, the “Credit Agreement”), among SPI PETROLEUM LLC, a
Delaware limited liability company (“Holdings”), GLOBAL PETROLEUM, INC., a Delaware
corporation (the “Borrower”), the several banks and other financial institutions or
entities from time to time parties to the Credit Agreement (the “Lenders”), JPMORGAN CHASE
BANK, N.A., as administrative agent (in such capacity, the “Administrative Agent”), and PNC
Bank, National Association, as documentation agent (in such capacity, the “Documentation
Agent”) and as syndication agent (in such capacity, the “Syndication Agent”).
The Borrower has requested certain amendments to the Credit Agreement on the terms and
conditions described in the Amendment to the Credit Agreement to which this Lender Consent Letter
is attached as Exhibit A (the “Amendment”).
The undersigned Lender hereby consents to the Amendment, and hereby consents to the
Administrative Agent entering into the Amendment pursuant to Section 9.1 of the Credit Agreement.
| Very truly yours, | ||||
| By: | ||||
| Name: | ||||
| Title | ||||
Dated as of October 26, 2006
