SECOND AMENDMENT TO REVOLVING CREDIT AND SECURITY AGREEMENT
Exhibit 10.6
SECOND AMENDMENT TO REVOLVING CREDIT AND SECURITY AGREEMENT
This Second Amendment to Revolving Credit and Security Agreement is dated the 1st
day of May, 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”), 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 “Second 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 First Amendment, dated October 26, 2006 (as further
amended, modified, or supplemented 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 definitions
in their entirety and replacing them with the following:
“Acquisition Agreements” shall mean the collective
reference to the Pecos Acquisition Agreement, the Canyon Acquisition
Agreement and the Total Petroleum Acquisition Agreement.
“Eurodollar Rate” shall mean for any Eurodollar Rate
Loan for the then current Interest Period relating thereto the
interest rate per annum determined by Agent by dividing (the
resulting quotient rounded upwards, if necessary, to the nearest
1/100th of 1% per annum) (i) the rate which appears on the Bloomberg
Page BBAM1 (or on such other substitute Bloomberg page that displays
rates at which U.S. dollar deposits are offered by leading banks in
the London interbank deposit market), or the rate which is quoted by
another source selected by the Agent which has been approved by the
British Bankers’ Association as an authorized information vendor for
the purpose of displaying rates at which U.S. dollar deposits are
offered by leading banks in the London interbank deposit market (an
“Alternate Source”), at approximately 11:00 a.m., London time, two
(2) Business Days prior to the commencement of such Interest Period
as the London interbank offered rate for U.S. Dollars for an amount
comparable to such Eurodollar Rate Loan and having a borrowing date
and a maturity comparable to such Interest Period (or if there
shall at any time, for any reason, no longer exist a Bloomberg Page
BBAM1 (or any substitute page) or any Alternate Source, a comparable
replacement rate determined by the Agent at such time (which
determination shall be conclusive absent manifest error)), by (ii) a
number equal to 1.00 minus the Reserve Percentage. The Eurodollar
Rate may also be expressed by the following formula:
| Eurodollar Rate = | Average of London interbank offered rates quoted by Bloomberg as shown on Bloomberg page BBAM1 or appropriate successor | |||||
“Holdings” shall mean Maxum Petroleum, Inc. (f/k/a
Global Petroleum, Inc.), a Delaware corporation.
“JPM Secured Parties” shall mean the JPM Administrative
Agent and the JPM Lenders.
“Management Agreement” shall mean that certain
Professional Services Agreement dated as of September 18, 2006, as
amended by that certain letter dated April 27, 2007, by and among
NCA II Management, LLC, a Washington limited liability company, Waud
Capital Partners, L.L.C., a Delaware limited
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liability company, RBCP Energy Fund Investments, LP, a Delaware
limited partnership, Holdings, Xxxxxx Petroleum, Inc., an Oklahoma
corporation, and the Parent.
“Maximum Revolving Advance Amount” shall mean Two
Hundred Thirty Five Million and 00/100 Dollars ($235,000,000.00), or
such higher amount, which may result from the provisions of Section
2.24 hereof.
“Other Documents” shall mean the Revolving Credit Note,
any Guaranty, any Guarantor Security Agreement, the Collateral
Assignment, the Intercreditor Agreement, the Mortgages and any and
all other agreements, instruments and documents, including, without
limitation, guaranties, pledges, collateral assignments, powers of
attorney, consents, and all other writings heretofore, now or
hereafter executed and delivered by any Borrower or any Loan Party
in favor of Agent or any Lender as required by this Agreement or any
of the foregoing in respect of the implementation or performance
hereof or thereof.
“Pricing Increment” means:
(A) for and with respect to Revolving Advances, the percentage
per annum (with respect to Domestic Rate Loans or Eurodollar Rate
Loans, as the case may be) determined by reference to the Fixed
Charge Coverage Ratio as set forth below:
| Domestic | Eurodollar | |||||||
| Fixed Charge Coverage Ratio | Rate Loans | Rate Loans | ||||||
less than 1.25 to 1.00 |
0.25 | % | 2.00 | % | ||||
greater than or equal to 1.25 to 1.00 but less
than 1.50 to 1.00 |
0.00 | % | 1.75 | % | ||||
greater than or equal to 1.50 to 1.00 but less
than 1.75 to 1.00 |
0.00 | % | 1.50 | % | ||||
greater than or equal to 1.75 to 1.00 |
0.00 | % | 1.25 | % | ||||
; and
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(B) for and with respect to the Letter of Credit Fees for the
ratable benefit of the Lenders as set forth in Section 3.2(a)(x),
the percentage per annum determined by reference to the Fixed Charge
Coverage Ratio as set forth below:
| Letter of Credit Fee for | ||||
| Ratable Benefit of | ||||
| Fixed Charge Coverage Ratio | Lenders | |||
less than 1.25 to 1.00 |
2.00 | % | ||
greater than or equal to 1.25 to 1.00
but less than 1.50 to 1.00 |
1.75 | % | ||
greater than or equal to 1.50 to 1.00
but less than 1.75 to 1.00 |
1.50 | % | ||
greater than or equal to 1.75 to 1.00 |
1.25 | % | ||
; and
(C) for and with respect to the facility fees relating to the
Revolving Advances for the ratable benefit of the Lenders as set
forth in Section 3.3, the percentage per annum determined by
reference to the Fixed Charge Coverage Ratio as set forth below:
| Facility Fee for Ratable | ||||
| Fixed Charge Coverage Ratio | Benefit of Lenders | |||
less than 1.25 to 1.00 |
0.375 | % | ||
greater than or equal to 1.25 to 1.00
but less than 1.50 to 1.00 |
0.250 | % | ||
greater than or equal to 1.50 to 1.00
but less than 1.75 to 1.00 |
0.250 | % | ||
greater than or equal to 1.75 to 1.00 |
0.250 | % | ||
From the Second Amendment Closing Date until three Business
Days following the date on which the Agent receives the Borrowers’
quarterly financial statements and a duly executed Compliance
Certificate as of June 30, 2007, the Pricing Increment shall be
determined based on a Fixed Charge Coverage Ratio greater than or
equal to 1.50 to 1.00 but less than 1.75 to 1.00. Thereafter, the
Pricing Increment shall be determined, quarterly, based on the most
recent quarterly financial statements delivered
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by the Borrowers under Section 9.8 determined for the
nine-month period ending June 30, 2007 and for each twelve-month
period ending on the last day of each September, December, March and
June thereafter; provided, however, that (i) each
change in the Pricing Increment shall be effective three Business
Days after the date on which the Agent receives the relevant
financial statements and a duly executed Compliance Certificate
demonstrating such ratio (including during any Interest Period), and
(ii) the Pricing Increment shall be determined on the basis of a
Fixed Charge Coverage Ratio of less than 1.25 to 1.00 for so long as
the Agent has not received the information described in clause (i)
of this proviso as and when required under Section 9.8 (without
prejudice to the Lenders’ right to charge interest at the Default
Rate as provided in Section 3.1 and charge Default Letter of Credit
Fees as provided in Section 3.2).
3. Section 1.2 of the Loan Agreement is hereby amended by inserting the following
definitions:
“Alternate Source” shall have the meaning assigned to
that term in the definition of Eurodollar Rate.
“Collateral Assignment” shall mean that certain
Collateral Assignment of Contract Rights, executed and delivered by
PPI to the Agent with respect to the Supply Agreement, together with
all amendments, supplements, modifications, substitutions and
replacements thereto and thereof.
“Loan Agreement” shall mean this Revolving Credit and
Security Agreement, as the same may be amended, modified or
supplemented from time to time.
“PFI” shall mean Petroleum Fueling, Inc., a West
Virginia corporation.
“PPI” shall mean Petroleum Products, Inc., a West
Virginia corporation.
“PTI” shall mean Petroleum Transport, Inc., a West
Virginia corporation.
“Second Amendment Closing Date” shall mean May 1, 2007.
“Supply Agreement” shall mean that certain Master
Retailer Supply Agreement, dated May 1, 2007, made by and among PPI,
FSI Limited Liability Company, a West Virginia limited liability
company, OSI Limited Liability Company, a West
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Virginia limited liability company, and M&J Operations, LLC, a
West Virginia limited liability company, as may be amended,
supplemented or otherwise modified from time to time.
“Suppressed Availability” shall mean a Dollar amount
equal to the Formula Amount minus the Maximum Revolving Advance
Amount, provided that such number cannot be less than Zero and
00/100 Dollars ($0.00).
“Total Petroleum Acquisition” shall mean the
acquisition by MPI of all of the capital stock of PFI, PPI and PTI
pursuant to the terms of the Total Petroleum Acquisition Agreement.
“Total Petroleum Acquisition Agreement” shall mean the
Stock Purchase Agreement dated as of May 1, 2007, by and among the
Total Petroleum Seller, PPI, PTI and MPI.
“Total Petroleum Acquisition Documents” shall mean the
Total Petroleum Acquisition Agreement and all other documents,
agreements and instruments executed in connection with the Total
Petroleum Acquisition Agreement.
“Total Petroleum Seller” shall mean Xxxxxxx X. Xxxxxx,
III, an individual.
4. The Loan Agreement is hereby amended by deleting all references to “this Agreement” and
replacing such references with references to “this Loan Agreement”.
5. The Loan Agreement is hereby amended by deleting all references to “the Credit Agreement”
and replacing such references with references to “the Loan Agreement”.
6. The Loan Agreement is hereby amended by deleting all references to “Global Petroleum,
Inc.” and replacing such references with references to “Maxum Petroleum, Inc. (f/k/a Global
Petroleum, Inc.)”.
7. Section 2.1(a)(y)(ii)(B) of the Loan Agreement is hereby deleted in its entirety and in
its stead is inserted the following:
(B) $45,000,000.00,
minus
8. Section 2.22 of the Loan Agreement is hereby deleted in its entirety and in its stead is
inserted the following:
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2.22 Use of Proceeds.
Borrowers shall apply the proceeds of Advances to (i) repay
existing indebtedness owed to the Existing Lenders, existing
subordinated indebtedness and existing purchase money indebtedness,
(ii) consummate the Transactions, (iii) pay fees and expenses
relating to this transaction, (iv) consummate the acquisition
transactions for which Borrower shall have obtained the requisite
consent or as otherwise permitted hereunder, and (v) provide for
their working capital and other general corporate needs.
9. Section 5.5 of the Loan Agreement is hereby deleted in its entirety and in its stead is
inserted the following:
5.5 Financial Statements.
(a) 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 Acquisition Agreements, 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). The Pro Forma
Balance Sheet has been certified as accurate, complete and correct
in all material respects by the President and Chief Financial
Officer on behalf of Parent.
(b) The annual (x) cash flow projections, (y) income
projections and (z) a projected balance sheet of the Borrowers
prepared on a consolidated basis at the Parent level for the fiscal
years ending June 30, 2007 and June 30, 2008, copies of which are
annexed hereto as Exhibit 5.5(b) (the
“Projections”), were prepared by Parent, are based on
underlying assumptions which were believed to be reasonable as of
the date made, and reflect Parent’s judgment, based on assumptions
which were believed to be reasonable at the time made regarding what
was believed to be at such time a reasonably likely set of results
for the projected period, provided, however, since
such Projections are by their nature prospective and contingent on a
wide range of factors, actual results therefore may vary
significantly, provided, further, nothing
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has occurred in the interval between the date of determination
of the reasonableness of the assumptions referenced above and the
date of the delivery of the Projections to Agent to render Parent’s
belief regarding the foregoing assumptions no longer reasonable.
The Projections together with the Pro Forma Balance Sheet, are
referred to as the “Pro Forma Financial Statements”.
10. Section 6.10 of the Loan Agreement is hereby deleted in its entirety and in its stead is
inserted the following:
6.10 Exercise and Maintenance of Rights.
Enforce all of its rights under each Acquisition Agreement and
any indemnification agreement and escrow agreement in connection
therewith including, but not limited to, all indemnification rights
and escrow rights and pursue all remedies available to it with
diligence and in good faith in connection with the enforcement of
any such rights, in each case as such Borrower may, in its good
faith business judgment, determine, and discharge its duties and
obligations under the Affiliation Agreements in its good faith
business judgment and maintain the Affiliation Agreements in full
force and effect; provided, however, if any Borrower decides not to
enforce any right of a material nature under the Acquisition
Agreements, such Borrower shall keep Agent informed of any such
material developments.
11. Article 6 of the Loan Agreement is hereby amended by inserting the following new Section
6.15:
6.15 Collection Accounts.
Within 60 days (or such longer time period as reasonably
determined by Agent) after the Second Amendment Closing Date the
Agent shall have received evidence reasonably satisfactory to the
Agent that PPI, PTI and PFI have directed all of PPI’s, PTI’s and
PFI’s Customers to remit payments to the Blocked Accounts.
12. 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, the Borrowers
shall have in excess of Fifty Million and 00/100 Dollars
($50,000,000.00) of Undrawn Availability;
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13. 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, shall not exceed Twenty
Million and 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.
14. Section 7.6 of the Loan Agreement is hereby deleted in its entirety and in its stead is
inserted the following:
7.6 Capital Expenditures.
Contract for, purchase or make any expenditure or commitments
for fixed or capital assets (including capitalized leases and
transactions encompassing indebtedness relating to any financed
purchase) in any fiscal year in an aggregate amount for all
Borrowers in excess of $35,000,000.00 for such fiscal year;
provided that no such capital expenditures shall be
permitted to be made at such time when an Event of Default is then
occurring and is continuing or would otherwise arise upon the making
of any such expenditure, provided, further,
reinvestment of proceeds by a Borrower of asset dispositions
pursuant hereto and use of insurance proceeds for the foregoing
expenditures (but in each case only to the extent of the amount of
proceeds actually received from the applicable disposition or the
applicable insurance payment) shall be subject to no Event of
Default having occurred or being continued, but when properly made
shall not be included for purposes of determining compliance with
the provisions of this Section.
15. The first paragraph of Section 7.7 of the Loan Agreement is hereby amended by deleting
the phrase “(plus any amount accrued by unpaid due to a prior Default or Event of Default)” and in
its stead inserting the phrase “(plus any amount accrued but unpaid due to a prior Default or
Event of Default)”.
16. Section 7.19 of the Loan Agreement is hereby deleted in its entirety and in its stead is
inserted the following:
7.19 Other Agreements.
Enter into any material amendment, waiver or modification of
the Acquisition Agreements, the Affiliation Agreements or any
agreements or documents relating to any of the foregoing in a manner
materially adverse to the interests of Agent and Lenders.
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17. Section 9.2 of the Loan Agreement is hereby deleted in its entirety and in its stead is
inserted the following:
9.2 Schedules.
Deliver to Agent on or before the twentieth (20th) day of each
month as and for the prior month (a) accounts receivable agings
reconciled to the general ledger; (b) accounts payable schedules
reconciled to the general ledger; (c) Inventory reports regarding
warehouse locations and regarding Designated Supply Contracts
Locations; (d) hedging activities report and data and other
information regarding unhedged positions as Agent shall deem
advisable or appropriate under the then existing circumstances; and
(e) a consolidated monthly Borrowing Base Certificate, including
ineligible calculations (which shall be calculated as of the last
day of such prior month and which, in any event, remains subject to
review and approval by Agent), in each of the foregoing cases in
form acceptable to Agent. If at any time after the sixtieth
(60th) day following the Second Amendment Closing Date
the sum of (y) Undrawn Availability plus (z) Suppressed Availability
is less than $35,000,000, Borrowers shall also deliver to Agent on a
weekly basis on Friday of each week relating to the prior week’s
activities (consisting of the seven days commencing on Monday of
such prior week and ending on Sunday of such week): (a) a Borrowing
Base Certificate (which remains subject to review and approval by
Agent); (b) a report regarding sales, collections and credits; (c)
an Inventory report regarding fuel listing amounts in both dollar
value and in gallons quantity for Designated Supply Contracts
Locations, Pathway Network locations, remote site tanks and marine
terminal tanks. In addition, each Borrower will deliver to Agent at
such intervals as Agent may require as Agent shall reasonably
determine: (i) confirmatory assignment schedules, (ii) copies of
Customer’s invoices, (iii) evidence of shipment or delivery, and
(iv) such further schedules, documents and/or information regarding
the Collateral as Agent may require including, without limitation,
trial balances and test verifications. In connection with its
review and approval of the Borrowing Base Certificate that the
Borrowers supply to Agent, and without limitation of the other
rights of Agent hereunder with respect to the Collateral, Agent
shall have the right to confirm and verify all Receivables by any
manner and through any medium it considers advisable and do whatever
it may deem reasonably necessary to protect its interests hereunder.
The items to be provided under this Section are to be in form
satisfactory to Agent and executed by each Borrower and delivered to
Agent from time to time solely for Agent’s convenience in
maintaining records of the Collateral, and any Borrower’s failure to
deliver any of such
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items to Agent shall not affect, terminate, modify or otherwise
limit Agent’s Lien with respect to the Collateral. Without limiting
the generality of the foregoing, any of the foregoing reports
relative to Receivables of Borrower shall identify, as a separate
subcategory within such report, Receivables arising from each of the
Designated Supply Contracts, and any of the foregoing reports
relative to Inventory of Borrower shall identify, as a separate
subcategory within such report, Inventory located at each of the
Designated Supply Contracts Locations.
18. “Annex A” to the Loan Agreement is hereby deleted and in its stead is inserted “Annex
A” attached hereto.
19. The following 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. Schedule 1.2.1 – Mortgaged
Properties; Schedule 1.2.2 – Permitted Encumbrances; Schedule 1.2.3 – Customers Re: Extended Term
Receivables; Schedule 1.2.4 – Designated Supply Contracts; Schedule 4.1 – Commercial Tort Claims;
Schedule 4.5 – Equipment and Inventory Locations; Schedule 4.15(c) – Location of Executive
Offices; Schedule 4.19(a) – Real Property; Schedule 5.2(a) – States of Qualification and Good
Standing; Schedule 5.2(b) – Subsidiaries; Schedule 5.4 – Federal Tax Identification Numbers;
Schedule 5.6 – Prior Names; Schedule 5.7 – Environmental Matters; Schedule 5.8(b) – Litigation;
Schedule 5.8(d) – Plans; Schedule 5.9 – Intellectual Property, Source Code Escrow Agreements;
Schedule 5.10 – Licenses and Permits; Schedule 5.14 – Labor Disputes; Schedule 5.24 – Bailees of
Prepaid Fuel Inventory; Schedule 7.3 – Guaranties; Schedule 7.4 – Investments; Schedule 7.8 –
Indebtedness; and Schedule 7.10 – Affiliate Transactions.
20. “Exhibit A” to the Loan Agreement is hereby deleted and in its stead is inserted
“Exhibit A” attached hereto.
21. “Exhibit 5.5(c)” to the Loan Agreement (Financial Projections) is hereby deleted and in
its stead is inserted “Exhibit 5.5” attached hereto.
22. “Exhibit 8.1(k)” to the Loan Agreement (Financial Condition Certificate) is hereby
deleted and in its stead is inserted “Exhibit 8.1(k)” attached hereto.
23. “Exhibit 16.3” to the Loan Agreement (Commitment Transfer Supplement) is hereby deleted
and in its stead is inserted “Exhibit 16.3” attached hereto.
24. The provisions of Sections 2 through 23 of this Second 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 Second Amendment, duly executed by each of the Borrowers and each of the Lenders;
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(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 Second Amendment; and
(d) such other documents as may be reasonably requested by the Agent.
25. 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 this
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.
26. 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.
27. 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 Second Amendment and to
perform all its respective Obligations hereunder, (ii) the officers of such Borrower executing
this Second 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 Second Amendment,
the Loan Agreement and the documents executed or to be executed by such Borrower in connection
herewith or therewith constitute the legal, valid and binding obligation 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.
28. 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
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delivery of this Second 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.
29. 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. Each of PPI, PTI and PFI hereby confirm by
executing this Second Amendment that, on and after the date hereof, each of PPI, PTI and PFI shall
be a “Borrower” under the Loan Agreement and each of the Other Documents.
30. The agreements contained in this Second 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 Second Amendment amends the Loan
Agreement and is not a novation thereof.
31. This Second 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.
32. This Second 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 Second Amendment.
[INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, and intending to be legally bound, the parties hereto have caused this
Second 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 | ||||||||
| 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: Maxum Petroleum, Inc. | ||||||||
| 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: | ||||||
| Title: | ||||||
| Xxxxxxx Brothers, Inc., an Illinois corporation | ||||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||||
| Name: | ||||||
| Title: | ||||||
| Petroleum Supply Company, Inc., an Illinois corporation | ||||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||||
| Name: | ||||||
| Title: | ||||||
| Canyon State Oil Company, Inc., an Arizona corporation | ||||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||||
| Name: | ||||||
| Title: | ||||||
| Pecos, Inc., a California corporation | ||||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||||
| Name: | ||||||
| Title: | ||||||
| General Petroleum Corporation, a California corporation | ||||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||||
| Name: | ||||||
| Title: | ||||||
| Rainier Petroleum Corporation, a Washington corporation | ||||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||||
| Name: | ||||||
| Title: | ||||||
| Sedro-Xxxxxxx Holdings Corporation, a Washington corporation |
||||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||||
| Name: | ||||||
| Title: | ||||||
| G.P. Atlantic, Inc., a South Carolina corporation | ||||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||||
| Name: | ||||||
| Title: | ||||||
| Petroleum Products, Inc., a West Virginia corporation | ||||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||||
| Name: | ||||||
| Title: | ||||||
| Petroleum Transport, Inc., a West Virginia corporation | ||||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||||
| Name: | ||||||
| Title: | ||||||
| Petroleum Fueling, Inc., a West Virginia corporation | ||||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||||
| Name: | ||||||
| Title: | ||||||
| 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/ Xxxxx Xxxxxxxxxxx | |||||
| Name: | Xxxxx Xxxxxxxxxxx
|
|||||
| Title: | Senior
Vice President
|
|||||
| Bank of America, N.A., as Co-Documentation Agent and as Lender | ||||||
| By: | /s/ Xxxxxx Xxxxxx | |||||
| Name: | Xxxxxx Xxxxxx
|
|||||
| Title: | Vice
President
|
|||||
| 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: | ||||||
| Title: | ||||||
| North Fork Business Capital, as Lender | ||||||
| By: | /s/ Xxxx Xxxxx | |||||
| Name: | ||||||
| Title: | ||||||
ANNEX A
BORROWERS
SPI Petroleum LLC
Maxum Petroleum, Inc.
Pecos, Inc.
General Petroleum Corporation
Rainier Petroleum Corporation
Sedro-Xxxxxxx Holdings Corporation
G.P. Atlantic, Inc.
Xxxxxx Petroleum, Inc. (Texas)
Xxxxxx Petroleum, Inc. (Oklahoma)
Xxxxxxx Fuel Oil Co.
Petroleum Supply Company, Inc.
Xxxxxxx Brothers, Inc.
SPI Acquisition LLC
ETI Acquisition LLC
Canyon State Oil Company, Inc.
Petroleum Products, Inc.
Petroleum Transport, Inc.
Petroleum Fueling, Inc.
Maxum Petroleum, Inc.
Pecos, Inc.
General Petroleum Corporation
Rainier Petroleum Corporation
Sedro-Xxxxxxx Holdings Corporation
G.P. Atlantic, Inc.
Xxxxxx Petroleum, Inc. (Texas)
Xxxxxx Petroleum, Inc. (Oklahoma)
Xxxxxxx Fuel Oil Co.
Petroleum Supply Company, Inc.
Xxxxxxx Brothers, Inc.
SPI Acquisition LLC
ETI Acquisition LLC
Canyon State Oil Company, Inc.
Petroleum Products, Inc.
Petroleum Transport, Inc.
Petroleum Fueling, Inc.
