THIRD AMENDMENT TO REVOLVING CREDIT AND SECURITY AGREEMENT
Exhibit 10.13
THIRD AMENDMENT TO REVOLVING CREDIT AND SECURITY AGREEMENT
This Third Amendment to Revolving Credit and Security Agreement is dated the 17th
day of October, 2007, by and among SPI Petroleum LLC, a Delaware limited liability company (the
“Parent”), Maxum Petroleum, Inc. (f/k/a Global Petroleum, Inc.), a Delaware corporation (“MPI”),
Pecos, Inc., a California corporation (“PI”), General Petroleum Corporation, a California
corporation (“GPC”), Rainier Petroleum Corporation, a Washington corporation (“RPC”), Sedro-Xxxxxxx
Holdings Corporation, a Washington corporation (“SWHC”), G.P. Atlantic, Inc., a South Carolina
corporation (“GPAI”), Xxxxxx Petroleum, Inc., a Texas corporation (“SPI-TX”), Xxxxxx Petroleum,
Inc., an Oklahoma corporation (“SPI-OK”), Xxxxxxx Fuel Oil Co., an Illinois corporation (“HFOC”),
Petroleum Supply Company, Inc., an Illinois corporation (“PSCI”), Xxxxxxx Brothers, Inc., an
Illinois corporation (“HBI”), SPI Acquisition LLC, a Delaware limited liability company (“SPIA”),
ETI Acquisition LLC, a Delaware limited liability company (“ETIA”), Canyon State Oil Company, Inc.,
an Arizona corporation (“CSOC”), Petroleum Products, Inc., a West Virginia corporation (“PPI”),
Petroleum Transport, Inc., a West Virginia corporation (“PTI”), and Petroleum Fueling, Inc., a West
Virginia corporation (“PFI”) (the Parent, MPI, PI, GPC, RPC, SWHC, GPAI, SPI-TX, SPI-OK, HFOC,
PSCI, HBI, SPIA, ETIA, CSOC, PPI, PTI and PFI are each, a “Borrower” and collectively, the
“Borrowers”), by PNC Bank, National Association (“PNC”), and the other financial institutions from
time to time party thereto (PNC and the other financial institutions are each, a “Lender” and
collectively, the “Lenders”), PNC as agent for the Lenders (in such capacity, the “Agent”),
JPMorgan Chase Bank, N.A. (“JPMorgan”), Bank of America, N.A. (“BOA”), The CIT Group/Business
Credit, Inc. (“CIT”), LaSalle Business Credit LLC (“LaSalle”), and Xxxxx Fargo Foothill, LLC
(“Xxxxx Fargo”), as co-documentation agents for the Lenders (Xxxxx Fargo, JPMorgan, BOA, CIT and
LaSalle are collectively, the “Co-Documentation Agents”) (the “Third Amendment”).
W I T N E S S E T H:
WHEREAS, the Borrowers (excluding PPI, PTI and PFI), the Lenders, the Agent and the
Co-Documentation Agents entered into that certain Revolving Credit and Security Agreement, dated
September 18, 2006, as amended by that certain (i) First Amendment, dated October 26, 2006, by and
among the Borrowers (excluding PPI, PTI and PFI), the Lenders, the Agent and the Co-Documentation
Agents, and (ii) Second Amendment to Revolving Credit and Security Agreement, dated May 1, 2007, by
and among the Borrowers, the Lenders, the Agent and the Co-Documentation Agents (as further
amended, modified, supplemented or restated from time to time, the “Loan Agreement”); and
WHEREAS, the Borrowers desire to amend certain provisions of the Loan Agreement and the
Lenders and the Agent shall permit such amendments pursuant to the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises contained herein and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. All capitalized terms used herein which are defined in the Loan Agreement shall have the
same meaning herein as in the Loan Agreement unless the context clearly indicates otherwise.
2. Section 1.2 of the Loan Agreement is hereby amended by deleting the following definition
in its entirety and replacing it with the following:
“Acquisition Agreements” shall mean the collective
reference to the Pecos Acquisition Agreement, the Canyon Acquisition
Agreement, the Total Petroleum Acquisition Agreement, the Farmington
Acquisition Agreement and all other acquisition agreements executed
in connection with Permitted Acquisitions.
3. Section 1.2 of the Loan Agreement is hereby amended by inserting the following
definitions:
“Farmington” shall mean Farmington Oil Company, a New
Mexico corporation.
“Farmington Acquisition” shall mean the acquisition by
SPI-OK of certain of the business and operating assets of Farmington
pursuant to the terms of the Farmington Acquisition Agreement.
“Farmington Acquisition Agreement” shall mean the Asset
Purchase Agreement, by and among Farmington, SPI-OK and the other
Persons that are parties thereto.
“MPI” shall mean Maxum Petroleum, Inc. (f/k/a Global
Petroleum, Inc.), a Delaware corporation.
“SPI-OK” shall mean Xxxxxx Petroleum, Inc., an Oklahoma
corporation.
4. Section 2.1(a)(y)(i)(A)(1) of the Loan Agreement is hereby deleted in its entirety and in
its stead is inserted the following:
| (1) | Advances relating to Extended Term Receivables shall not exceed $30,000,000 outstanding at any time and |
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5. Section 4.16 of the Loan Agreement is hereby deleted in its entirety and in its stead is
inserted the following:
4.16 Inventory.
If and to the extent any Inventory held for sale or lease has
been produced by any Borrower, it has been and will be produced by
such Borrower in accordance with the Federal Fair Labor Standards
Act of 1938, as amended, and all rules, regulations and orders
thereunder.
6. The first sentence of Section 5.5(a) of the Loan Agreement is hereby deleted in its
entirety and in its stead is inserted the following:
The pro forma balance sheet of Borrowers and their consolidated
Subsidiaries on a consolidated basis at the Parent level (the
“Pro Forma Balance Sheet”) when furnished to Agent in
accordance herewith shall reflect the consummation of the
transactions contemplated by the Pecos Acquisition Agreement, the
Canyon Acquisition Agreement and the Total Petroleum Acquisition
Agreement, under this Agreement and under the JPM Credit Agreement
(collectively being referred to herein as the
“Transactions”) and shall fairly reflect in all material
respects the financial condition of Borrowers and their consolidated
Subsidiaries on a consolidated basis as of the Second Amendment
Closing Date after giving effect to the Transactions, and is to be
prepared in accordance with GAAP (subject to the absence of
footnotes, the application of SFAS 133 and 130 and normal year-end
audit adjustments).
7. Section 7.1(a)(ii)(G) of the Loan Agreement is hereby deleted in its entirety and in its
stead is inserted the following:
(G) immediately prior to and after giving effect to such
Permitted Acquisition (including the payment of any prospective
portion of the purchase price or earn-outs), merger or
consolidation, except the Total Petroleum Acquisition and the
Farmington Acquisition, the Borrowers shall have in excess of Fifty
Million and 00/100 Dollars ($50,000,000.00) of Undrawn Availability;
8. Section 7.1(a)(ii)(I) of the Loan Agreement is hereby deleted in its entirety and in its
stead is inserted the following:
(I) the Aggregate Consideration paid by any such Borrower for
all such Permitted Acquisitions, mergers or consolidations,
excluding the Total Petroleum Acquisition and the Farmington
Acquisition, shall not exceed Twenty Million and
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00/100 Dollars ($20,000,000.00) in the aggregate in any fiscal
year of the Borrowers and Fifty Million and 00/100 Dollars
($50,000,000.00) in the aggregate during the Term.
9. Section 7.4 of the Loan Agreement is hereby deleted in its entirety and in its stead is
inserted the following:
7.4 Investments.
Except as permitted under Section 7.1(a), purchase or acquire
obligations or stock of, or any other interest in, any Person,
except (any of the following is referred to herein as a
“Permitted Investment”): (a) obligations issued or
guaranteed by the United States of America or any agency thereof,
(b) commercial paper with maturities of not more than 180 days and a
published rating of not less than A-1 or P-1 (or the equivalent
rating), (c) certificates of time deposit and bankers’ acceptances
having maturities of not more than 180 days and repurchase
agreements backed by United States government securities of a
commercial bank if (i) such bank has a combined capital and surplus
of at least $500,000,000, or (ii) its debt obligations, or those of
a holding company of which it is a Subsidiary, are rated not less
than A (or the equivalent rating) by a nationally recognized
investment rating agency, (d) U.S. money market funds that invest
solely in obligations issued or guaranteed by the United States of
America or an agency thereof, (e) (i) investments in Borrowers; and
(ii) investments in Subsidiaries of Borrowers in the ordinary course
of business and if and only if any such Subsidiaries are Loan
Parties, (f) investments in Excluded Foreign Subsidiaries in an
aggregate amount not to exceed $6,000,000, (g) investments in newly
created Securitization Subsidiaries contemplated by the
Securitization Documents to the extent reasonably required thereby,
(h) other investments in existence on the Closing Date and described
in Schedule 7.4, (i) investments comprised of notes payable,
or stock or other securities issued by account debtors to such
Borrower pursuant to negotiated agreements with respect to
settlement of such account debtor’s Receivables, with all of the
foregoing arising in the ordinary course of business of Borrower,
(j) loans to employees, officers, and directors to buy equity
interests in Parent as long as no cash is transferred to any such
Persons in connection with the making of such loans, (k) investments
received in connection with the bankruptcy or reorganization of
suppliers and customers or in settlement of delinquent obligations
of, and other disputes with, customers and suppliers, with all of
the foregoing arising in the ordinary course of business of
Borrower, (l) investments consisting of endorsements for collection
or deposit in the ordinary course of business and with respect to
negotiable instruments for collection,
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(m) investments consisting of non-speculative hedging
agreements relating to the sale and purchase of fuel inventory in
the ordinary course of business of the Borrowers and otherwise
consistent with their past business practices, (n) securities and
other investments that Borrowers may acquire in connection with
disposition of assets that are permitted hereunder as long as all
conditions attendant to any such permitted transaction are and
remain satisfied, (o) loans or investments in an amount otherwise
permitted to be used for distributions hereunder (and with a
commensurate reduction of any such amount permitted for
distributions, as long as the recipient of the loan or investment is
the same party that would be eligible to receive distributions
pursuant to the terms and conditions hereof, (p) investments
otherwise permitted by Section 7.5 hereof and (q) other investments
not exceeding $1,000,000 in the aggregate in any fiscal year of the
Borrowing Agent as long as no Default is in existence prior to the
making thereof or would otherwise rise thereupon.
10. The first sentence of Section 9.7 of the Loan Agreement is hereby deleted in its entirety
and in its stead is inserted the following:
Furnish Agent within one hundred (100) days after the end of
each fiscal year of Borrowers (except in case of the fiscal year of
the Borrowers ended (y) June 30, 2006, within one hundred thirty
(130) days after the end of such fiscal year of the Borrowers and
(z) June 30, 2007, within one hundred sixty (160) days after the end
of such fiscal year of the Borrowers), financial statements of
Borrowers on a consolidated basis, at the Parent level, including,
but not limited to, statements of income and stockholders’ equity
and cash flow from the beginning of the current fiscal year to the
end of such fiscal year and the balance sheet as at the end of such
fiscal year, including supplemental schedules to reflect the
consolidating balance sheet and statement of income, all prepared in
accordance with GAAP (subject to the standards in Section 6.9
hereof) and reported upon without qualification by an independent
certified public accounting firm selected by Borrowers and
satisfactory to Agent (the “Accountants”).
11. The schedules to the Loan Agreement are hereby amended, such that the information set
forth on each of the correspondingly numbered schedules to the Loan Agreement shall be
supplemented by the addition thereto of the information set forth on the correspondingly numbered
schedules attached hereto as Attachment B, as appropriate and, if necessary.
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12. The provisions of Sections 2 through 11 of this Third Amendment shall not become
effective until the Agent has received the following items, each in form and substance reasonably
acceptable to the Agent and its counsel:
(a) this Third Amendment, duly executed by each of the Borrowers and each of the Lenders;
(b) the documents and conditions listed in the Preliminary Closing Agenda set forth
on Attachment A attached hereto and made a part hereof;
(c) payment of all fees and expenses owed to the Agent and its counsel in
connection with this Third Amendment; and
(d) such other documents as may be reasonably requested by the Agent.
13. Each Borrower hereby reconfirms and reaffirms each of the representations and warranties
made by it in or pursuant to the Loan Agreement and any related documents to which it is a party,
and each of the representations and warranties made to the Lenders contained in any certificate,
document or financial or other statement furnished at any time under or in connection with the
Loan Agreement or any related agreement, are true and correct in all material respects on and as
of such date as if made on and as of such date, other than such representations and warranties
relating to a specific earlier time and in such case such representations and warranties shall
continue to be true in all material respects as of such earlier date, except as such
representations and warranties may have heretofore been amended, modified or waived in writing in
accordance with the Loan Agreement.
14. Each Borrower acknowledges and agrees that each and every document, instrument or
agreement, which at any time has secured the Obligations including, without limitation, the Loan
Agreement and the Mortgages hereby continue to secure the Obligations.
15. Each Borrower hereby represents and warrants to the Lenders and the Agent that (i) such
Borrower has the full power, authority and legal right to enter into this Third Amendment and to
perform all its respective Obligations hereunder, (ii) the officers of such Borrower executing
this Third Amendment have been duly authorized to execute and deliver the same and bind such
Borrower with respect to the provisions hereof, (iii) the execution and delivery hereof by such
Borrower and the performance and observance by such Borrower of the provisions hereof and of the
Loan Agreement and all documents executed or to be executed therewith (a) are within such
Borrower’s corporate powers, have been duly authorized, are not in contravention of law or the
terms of such Borrower’s by-laws, certificate of incorporation, operating agreement or other
documents relating to such Borrower’s formation, all as applicable, or to the conduct of such
Borrower’s business or of any material agreement or undertaking to which such Borrower is a party
or by which such Borrower is bound, and (b) will not conflict with nor result in any breach in any
of the provisions of or constitute a default under or result in the creation of any Lien except
Permitted Encumbrances upon any asset of such Borrower under the provisions of any agreement,
charter document, operating agreement, instrument, by-law, or other instrument to which such
Borrower is a party or by which it or its property may be bound, and (iv) this Third Amendment,
the Loan Agreement and the documents executed or to be
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executed by such Borrower in connection herewith or therewith constitute the legal, valid and
binding obligations of such Borrower enforceable in accordance with their terms, except as such
enforceability may be limited by any applicable bankruptcy, insolvency, moratorium or similar laws
affecting creditors’ rights generally.
16. Each Borrower represents and warrants that (i) no Event of Default has occurred and is
continuing under the Loan Agreement, nor will any occur as a result of the execution and delivery
of this Third Amendment or the performance or observance of any provision hereof and (ii) it
presently has no known claims or actions of any kind at law or in equity against the Lenders or
the Agent arising out of or in any way relating to the Loan Agreement or the Other Documents.
17. Each reference to the Loan Agreement that is made in the Loan Agreement or any other
document executed or to be executed in connection therewith shall hereafter be construed as a
reference to the Loan Agreement as amended hereby.
18. The agreements contained in this Third Amendment are limited to the specific agreements
made herein. Except as amended hereby, all of the terms and conditions of the Loan Agreement and
the Other Documents shall remain in full force and effect. This Third Amendment amends the Loan
Agreement and is not a novation thereof.
19. This Third Amendment may be executed in any number of counterparts and by the different
parties hereto on separate counterparts each of which, when so executed, shall be deemed to be an
original, but all such counterparts shall constitute but one and the same instrument.
20. This Third Amendment shall be governed by, and shall be construed and enforced in
accordance with, the Laws of the State of New York without regard to the principles of the
conflicts of law thereof. Each Borrower hereby consents to the jurisdiction and venue of any
federal or state court located in the County of New York, State of New York with respect to any
suit arising out of or mentioning this Third Amendment.
[INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, and intending to be legally bound, the parties hereto have caused this
Third Amendment to be duly executed by their duly authorized officers the day and year first above
written.
| SPI Petroleum LLC, a Delaware limited liability company |
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| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Treasurer | |||
| Maxum Petroleum, Inc., a Delaware corporation |
||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Treasurer | |||
| Xxxxxx Petroleum, Inc., a Texas corporation |
||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Treasurer | |||
| Xxxxxx Petroleum, Inc., an Oklahoma corporation |
||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Treasurer | |||
| SPI Acquisition LLC, a Delaware limited liability company |
||||
| By: | SPI Petroleum LLC | |||
| Its: | Managing Member |
|||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Treasurer | |||
| ETI Acquisition LLC, a Delaware limited liability company |
||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Treasurer | |||
| Xxxxxxx Fuel Oil Co., an Illinois corporation |
||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Treasurer | |||
| Xxxxxxx Brothers, Inc., an Illinois corporation |
||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Treasurer | |||
| Petroleum Supply Company, Inc., an Illinois corporation |
||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Treasurer | |||
| Canyon State Oil Company, Inc., an Arizona corporation |
||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Treasurer | |||
| Pecos, Inc., a California corporation |
||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Treasurer | |||
| General Petroleum Corporation, a California corporation |
||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Treasurer | |||
| Rainier Petroleum Corporation, a Washington corporation |
||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Treasurer | |||
| Sedro-Xxxxxxx Holdings Corporation, a Washington corporation |
||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Treasurer | |||
| G.P. Atlantic, Inc., a South Carolina corporation |
||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Treasurer | |||
| Petroleum Products, Inc., a West Virginia corporation |
||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Treasurer | |||
| Petroleum Transport, Inc., a West Virginia corporation |
||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Treasurer | |||
| Petroleum Fueling, Inc., a West Virginia corporation |
||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Treasurer | |||
| PNC Bank, National Association, as Agent and as Lender |
||||
| By: | /s/ Xxxxxxxx X. XxXxxxxx | |||
| Name: | Xxxxxxxx X. XxXxxxxx | |||
| Title: | Vice President | |||
| JPMorgan Chase Bank, N.A., as Co-Documentation Agent and as Lender |
||||
| By: | /s/ J. Xxxxx Xxxx | |||
| Name: | J. Xxxxx Xxxx | |||
| Title: | Vice President | |||
| LaSalle Business Credit LLC, as Co-Documentation Agent and as Lender |
||||
| By: | /s/ Xxxxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxxxx X. Xxxxxxxx | |||
| Title: | AVP | |||
| Bank of America, N.A., as Co-Documentation Agent and as Lender |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | SVP | |||
| The CIT Group/Business Credit, Inc., as Co-Documentation Agent and as Lender |
||||
| By: | /s/ Xxxx Xxxx | |||
| Name: | Xxxx Xxxx | |||
| Title: | Vice President | |||
| Xxxxx Fargo Foothill, LLC, as Co-Documentation Agent and as Lender |
||||
| By: | /s/ Xxxxx Xxxx | |||
| Name: | Xxxxx Xxxx | |||
| Title: | Vice President | |||
| Comerica Bank, as Lender |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Vice President | |||
| North Fork Business Capital, as Lender |
||||
| By: | /s/ Xxxx Xxxxx | |||
| Name: | Xxxx Xxxxx | |||
| Title: | Vice President | |||
