EIGHTH AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.6
EIGHTH AMENDMENT TO CREDIT AGREEMENT
THIS EIGHTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is made and entered into
as of December 18, 2010, by and among BUCKEYE PARTNERS, L.P., a Delaware limited
partnership (the “Borrower”), the Subsidiaries of the Borrower that are parties hereto (the
“Guarantors”), the Lenders (as defined below) that are parties hereto, and SUNTRUST BANK,
in its capacity as administrative agent for the Lenders (the “Administrative Agent”).
WITNESSETH:
WHEREAS, the Borrower, the several banks and other financial institutions party
thereto (collectively, the “Lenders”) and the Administrative Agent are parties to that
certain Credit Agreement, dated as of November 13, 2006 (as amended, supplemented and
modified from time to time and in effect immediately prior to the date hereof, the “Credit
Agreement”; capitalized terms used herein and not otherwise defined shall have the meanings
assigned to such terms in the Credit Agreement as amended hereby), pursuant to which the
Lenders have made certain financial accommodations available to the Borrower; and
WHEREAS, the Borrower has requested that the Lenders and the Administrative Agent
amend certain provisions of the Credit Agreement, and subject to the terms and conditions
hereof, the Lenders executing this Amendment are willing to do so;
NOW, THEREFORE, for good and valuable consideration, the sufficiency and receipt of
all of which are acknowledged, the Borrower, the Guarantors, the Lenders executing this
Amendment and the Administrative Agent agree as follows:
1. Amendments to SECTION 1.01 (“Certain Defined Terms”).
(a) Amended Defined Terms.
(i) The definition of the defined term “Debt” set forth in Section 1.01 of the
Credit Agreement is amended by replacing clause (xi) in its entirety with the
following: “(xi) any capital stock of such Person in which such Person has a
mandatory obligation to redeem such stock (provided that, for the avoidance of
doubt, the equity interests of FR Borco Coop Holdings, L.P. shall not constitute
Debt pursuant to this clause (xi) merely because of the existence of the Vopak Put
Right);”.
(ii) Section 1.01 of the Credit Agreement is hereby amended by replacing the
following defined terms in their entirety with the following defined terms.
“Consolidated Net Income” shall mean, with respect to any Person for any
period, the aggregate of the net income (or loss) of such Person and its
Consolidated Subsidiaries after allowances for taxes for such period, determined on
a consolidated basis in accordance with GAAP; provided that there shall be excluded
from such net income (to the extent otherwise included therein) the following: (i)
the net income of any other Person in which such Person or any of its Consolidated
Subsidiaries has an interest (which interest does not cause the net income of such
other Person to be consolidated with the net income of such Person and its
Consolidated Subsidiaries in accordance with GAAP), except to the extent of the
amount of dividends or distributions actually paid in such period by such other
Person to such Person or to a
Consolidated Subsidiary of such Person, as the case may be; (ii) the net income (but
not loss) of any Consolidated Subsidiary of such Person to the extent that the
declaration or payment of dividends or similar distributions or transfers or loans
by that Consolidated Subsidiary is not at the time permitted by operation of the
terms of its charter or any agreement, instrument or Governmental Requirement
applicable to such Consolidated Subsidiary, or is otherwise restricted or prohibited
in each case determined in accordance with GAAP; (iii) the net income (or loss) of
any other Person acquired in a pooling-of-interests transaction for any period prior
to the date of such transaction; (iv) any extraordinary gains or losses, including
gains or losses attributable to Property sales not in the ordinary course of
business; and (v) the cumulative effect of a change in accounting principles
resulting in any gains or losses attributable to write-ups or write-downs of assets
or liabilities. Notwithstanding clause (ii) above, the Consolidated Net Income
attributable to the Bahamas Group shall not be excluded from Consolidated Net Income
by virtue of such clause (ii), except that during any period starting with the 30th
day after the applicable Governmental Authority has disapproved of the payment of a
dividend or similar distribution intended to be made by the Bahamas Group after the
consummation of the Bahamas Acquisition (assuming such disapproval has not been
withdrawn, reversed or superseded by an approval of such payment on or prior to such
30th day), and ending on the earlier of (A) the date that such disapproval has been
withdrawn, reversed or superseded by an approval of such payment and (B) the date
that the payment of another dividend or similar distribution by the Bahamas Group
has been approved by the applicable Governmental Authority, the Consolidated Net
Income attributable to the Bahamas Group, unless otherwise agreed to by the Required
Lenders, shall be reduced immediately and in full, which reduction shall be
effective until such period has concluded (it being understood that the Required
Lenders may agree to reductions only in part or pursuant to a schedule).
“Funded Debt” shall mean for any Person, Debt of such Person and its
Consolidated Subsidiaries (other than the type described in subsection (xiii) of the
definition of Debt), less all obligations of such Person and its Consolidated
Subsidiaries to pay the deferred purchase price of Property or services obtained in
the ordinary course of business, in each case as determined on a consolidated basis
in accordance with GAAP; provided, however, that for the purposes of calculating the
Funded Debt Ratio, Funded Debt will exclude (to the extent otherwise included in
Funded Debt) (i) an amount of Hybrid Securities not to exceed 15% of Consolidated
Total Capitalization, (ii) the lesser of (a) 90% of the value of the Hedged Eligible
Inventory of the Marketing Entities plus 70% of the outstanding accounts receivable
of the Marketing Entities (so long as such accounts receivable have no more than
30-day terms and are not more than 30 days past due), or (b) the amount outstanding
under the Marketing Loans, (iii) performance bonds issued by, and letter of credit
reimbursement obligations incurred by, any Marketing Entities (and guarantees
thereof by the Borrower) with respect to fuel tax liabilities of the Marketing
Entities and obligations of the Marketing Entities under product purchase and/or
supply agreements, in an aggregate amount not to exceed $50,000,000, (iv)
Intermediate Loans in an aggregate amount not to exceed $5,000,000 and (v) the
principal amount of the Bahamas Senior Notes (so long as 100% of the net proceeds of
the Bahamas Senior Notes are held by the Borrower in cash or investments permitted
under Sections 9.03(c) through (f) and such proceeds are not subject
to any liens other than those permitted under sections (ii), (iv), (v), (vi), (xi)
and (xii) of the definition of Excepted Liens) until the earliest of (a) repayment
in full of the Bahamas Senior Notes, (b) consummation of the Bahamas Acquisition or
(c) 120 days after the initial issuance of the Bahamas Senior Notes.
(b) New Defined Terms. Section 1.01 of the Credit Agreement is hereby amended
by adding the following defined terms thereto in the appropriate alphabetical order:
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“Bahamas Acquisition” shall mean the direct or indirect acquisition of all or a
majority of the equity interests in FR Borco Coop Holdings, L.P. by the Borrower
and/or its Restricted Subsidiaries.
“Bahamas Group” shall mean Baproven Ltd. and its Subsidiaries.
“Bahamas Senior Notes” shall mean senior notes to be issued in an aggregate
principal amount up to $850,000,000 the net proceeds of which are intended to be
used to finance a portion of the Bahamas Acquisition.
“Bridge Loan Documents” shall mean the credit agreement and related documents
governing the Bridge Loan Facility.
“Bridge Loan Facility” shall mean a senior unsecured term loan bridge facility,
if any, to be provided by a syndicate of lenders to Borrower to finance all or a
portion of the Bahamas Acquisition.
“Unitholder Agreement” shall mean that certain Unitholders and Operating
Agreement, dated as of April 29, 2008 among FR Borco Xxxx Xxxxxxxx, X.X., XX Borco
Coop Holdings GP Limited, FR Borco Topco, L.P., Vopak Bahamas B.V. and Bahamas Oil
Refining Company International Limited, as the same may be amended, restated,
supplemented or otherwise modified from time to time.
“Vopak Put Right” shall mean the right, pursuant to and under the circumstances
described in the Unitholder Agreement, of Vopak Bahamas B.V. to require the purchase
of all its limited partnership interests in FR Borco Coop Holdings, L.P. by either
FR Borco Topco, L.P. or, at FR Borco Topco, L.P.’s election, FR Borco Coop Holdings,
L.P.
2. Amendment to SECTION 9.02 (“Liens”). (a) Section 9.02(g) of the
Credit Agreement is hereby amended by deleting the word “and” at the end thereof; (b)
Section 9.02(h) of the Credit Agreement is hereby amended by deleting the period at the end
thereof and replacing it with “; and”; and (c) Section 9.02(i) is hereby added to Section
9.02 of the Credit Agreement as follows:
“(i) Liens deemed to exist by reason of any encumbrance or restriction with
respect to equity interests of FR Borco Coop Holdings, L.P. pursuant to the
Unitholder Agreement.”
3. Amendment to SECTION 9.06 (“Nature of Business”). Section 9.06
of the Credit Agreement is hereby amended by adding to the end thereof, the following:
“provided, that the provisions of this Section 9.06 shall not prohibit dissolutions
of Restricted Subsidiaries (i) reasonably to be determined by the Borrower to be in its
best interests, which in any event, could not reasonably be expected to result in a
Material Adverse Effect or (ii) consummated in connection with transactions otherwise
permitted by Section 9.08”.
4. Amendment to SECTION 9.07 (“Restrictive Agreements”). Section
9.07 of the Credit Agreement is hereby amended by deleting it in its entirety and replacing
it with the following:
SECTION 9.07. Restrictive Agreements.
The Borrower will not, and will not permit any Restricted Subsidiary to, directly or
indirectly, enter into, incur or permit to exist any agreement that prohibits,
restricts or imposes any condition upon the ability of any such Restricted
Subsidiary to (i) declare or pay dividends or distributions
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to holders of its equity interests, (ii) make or repay loans or advances to the
Borrower or any other Restricted Subsidiary, to guarantee Debt of the Borrower or
any other such Restricted Subsidiary or (iii) transfer any of its property or assets
to the Borrower or any such Restricted Subsidiary; provided, that the foregoing
shall not apply (A) to restrictions or conditions imposed by law, this Agreement or
any other Loan Document, the Note Agreements, the Indenture (in the case of the Note
Agreements and the Indenture, as in effect on the date hereof), any Hybrid
Securities, the Bridge Loan Documents (solely resulting from the Bridge Loan
Documents containing provisions or restrictions substantially similar to provisions
or restrictions contained in this Agreement), the Unitholder Agreement, or to the
extent such restrictions or conditions apply only to the Marketing Entities, the
Marketing Loan Documents, and (B) customary restrictions and conditions contained in
agreements relating to the sale of any Restricted Subsidiary of the Borrower pending
such sale, provided such restrictions and conditions apply only to the Restricted
Subsidiary that is sold and such sale is permitted hereunder.
5. Amendments to SECTION 9.08 (“Mergers, Etc.”). Section 9.08 of
the Credit Agreement is hereby amended by (a) deleting the word “such” in the fifth line of
such Section and replacing it with the word “a”; and (b) deleting the words “or any
Guarantor” before the period at the end thereof and replacing them with “, any Guarantor
or, in the case of any Restricted Subsidiary that is not a Guarantor, any Restricted
Subsidiary”.
6. Amendment to SECTION 9.17 (“Partnership Agreements”). Section
9.17 of the Credit Agreement is hereby amended by deleting it in its entirety and replacing
it with the following:
SECTION 9.17. Partnership Agreements and Unitholder Agreement.
Without the prior written consent of the Required Lenders, the Borrower shall not
amend the Borrower Partnership Agreement, the General Partner LLC Agreement or the
Unitholder Agreement in any manner that would be materially adverse to the interests
of the Lenders or could otherwise reasonably be expected to have a Material Adverse
Effect.
7. Effectiveness of Amendment. Notwithstanding any other provision
of this Amendment and without affecting in any manner the rights of the Lenders hereunder,
it is understood and agreed that (i) this Amendment as it pertains to (a) amendments of the
defined term “Funded Debt”, (b) the addition of the defined terms “Bahamas Acquisition” and
“Bahamas Senior Notes,” (c) amendments to Section 9.06 of the Credit Agreement, and
(d) amendments to Section 9.08 of the Credit Agreement shall not become effective,
and the Borrower shall have no rights under this Amendment until the Administrative Agent
shall have received (A) reimbursement or payment of its costs and expenses incurred in
connection with the preparation, execution and delivery of this Amendment, including,
without limitation, the reasonable fees and out-of-pocket expenses of outside counsel for
the Administrative Agent with respect thereto and (B) executed counterparts of this
Amendment from the Borrower, the Guarantors and the Required Lenders and (ii) the remaining
portions of Sections 1 through 4 of this Amendment shall not become effective, and the
Borrower shall have no rights under such portions of this Amendment until the conditions
set forth in clause (i) above shall have been satisfied and the Bahamas Acquisition shall
have been consummated.
8. Representations and Warranties. To induce the Lenders and the
Administrative Agent to enter into this Amendment, each of the Borrower, the General
Partner and the Guarantors (collectively, the “Loan Parties”) hereby represents and
warrants to the Lenders and the Administrative Agent that:
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(a) The execution and delivery by such Loan Party of this Amendment and the
performance of this Amendment and the Credit Agreement as amended hereby (i) are within
such Loan Party’s power and authority; (ii) have been duly authorized by all necessary
partnership, limited liability company, partner and/or member action; (iii) are not in
contravention of any provision of such Loan Party’s certificate of formation, certificate
of partnership, partnership agreement, operating agreement or other organizational
documents; (iv) do not violate any law or regulation, or any order or decree of any
Governmental Authority; (v) do not conflict with or result in the breach or termination of,
constitute a default under or accelerate any performance required by, any indenture,
mortgage, deed of trust, lease, agreement or other instrument to which such Loan Party or
any of its Subsidiaries is a party or by which such Loan Party or any such Subsidiary or
any of their respective property is bound; (vi) do not result in the creation or imposition
of any Lien upon any of the property of such Loan Party or any of its Subsidiaries; and
(vii) do not require the consent or approval of any Governmental Authority or any other
Person;
(b) This Amendment has been duly executed and delivered for the benefit of or on
behalf of each Loan Party and constitutes a legal, valid and binding obligation of each
Loan Party, enforceable against such Loan Party in accordance with its terms except as the
enforceability hereof may be limited by bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium and other similar laws of general application relating to or
affecting creditors’ rights and general principles of equity; and
(c) After giving effect to this Amendment, the representations and warranties
contained in the Credit Agreement and the other Loan Documents are true and correct in all
material respects, and no Default or Event of Default has occurred and is continuing as of
the date hereof.
9. Reaffirmations and Acknowledgments.
Each Guarantor consents to the execution and delivery by the Borrower of this
Amendment and jointly and severally ratifies and confirms the terms of its Guaranty with
respect to the Debt now or hereafter outstanding under the Credit Agreement as amended
hereby and all promissory notes issued thereunder. Each Guarantor acknowledges that,
notwithstanding anything to the contrary contained herein or in any other document
evidencing any Debt of the Borrower to the Lenders or any other obligation of the Borrower,
or any actions now or hereafter taken by the Lenders with respect to any obligation of the
Borrower, its Guaranty (i) is and shall continue to be a primary obligation of such
Guarantor, (ii) is and shall continue to be an absolute, unconditional, joint and several,
continuing and irrevocable guaranty of payment, and (iii) is and shall continue to be in
full force and effect in accordance with its terms. Nothing contained herein to the
contrary shall release, discharge, modify, change or affect the original liability of the
Guarantors under the Guaranties.
10. Effect of Amendment. Except as set forth expressly herein, all
terms of the Credit Agreement, as amended hereby, and the other Loan Documents shall be and
remain in full force and effect and shall constitute the legal, valid, binding and
enforceable obligations of the Borrower to the Lenders and the Administrative Agent. The
execution, delivery and effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy of the Lenders under the
Credit Agreement, nor constitute a waiver of any provision of the Credit Agreement. This
Amendment shall constitute a Loan Document for all purposes of the Credit Agreement.
11. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the internal laws of the State of New York and all applicable
federal laws of the United States of America.
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12. No Novation. This Amendment is not intended by the parties to
be, and shall not be construed to be, a novation of the Credit Agreement or an accord and
satisfaction in regard thereto.
13. Counterparts. This Amendment may be executed by one or more of
the parties hereto in any number of separate counterparts, each of which shall be deemed an
original and all of which, taken together, shall be deemed to constitute one and the same
instrument. Delivery of an executed counterpart of this Amendment by facsimile
transmission or by electronic mail in pdf form shall be as effective as delivery of a
manually executed counterpart hereof.
14. Costs and Expenses. The Borrower agrees to pay on demand all
reasonable costs and expenses of the Administrative Agent in connection with the
preparation, execution and delivery of this Amendment, including, without limitation, the
reasonable fees and out-of-pocket expenses of outside counsel for the Administrative Agent
with respect thereto.
15. Binding Nature. This Amendment shall be binding upon and inure
to the benefit of the parties hereto, their respective successors, successors-in-titles,
and assigns.
16. Entire Understanding. This Amendment sets forth the entire
understanding of the parties with respect to the matters set forth herein, and shall
supersede any prior negotiations or agreements, whether written or oral, with respect
thereto.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their
respective authorized officers as of the day and year first above written.
| BORROWER: BUCKEYE PARTNERS, L.P. |
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| By: | Buckeye GP LLC, its general partner | |||
| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxxx, Xx. | |||
| Title: | Vice President and General Counsel | |||
| GUARANTORS: BUCKEYE PIPE LINE COMPANY, L.P. |
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| By: | MAINLINE L.P. its General Partner |
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| By: | MAINLINE GP, INC. its General Partner |
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| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxxx, Xx. | |||
| Title: | Vice President and General Counsel | |||
| BUCKEYE PIPE LINE HOLDINGS, L.P. |
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| By: | MAINLINE L.P. its General Partner |
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| By: | MAINLINE GP, INC. its General Partner |
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| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxxx, Xx. | |||
| Title: | Vice President and General Counsel | |||
[Signature Page to Eighth Amendment to Credit Agreement]
| BUCKEYE GULF COAST HOLDINGS I, LLC |
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| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxxx, Xx. | |||
| Title: | Vice President and General Counsel | |||
| BUCKEYE GULF COAST HOLDINGS II, LLC |
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| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxxx, Xx. | |||
| Title: | Vice President and General Counsel | |||
| BUCKEYE GULF COAST PIPE LINES, L.P. |
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| By: | BUCKEYE GULF COAST HOLDINGS I, LLC its General Partner |
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| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxxx, Xx. | |||
| Title: | Vice President and General Counsel | |||
| BUCKEYE TERMINALS, LLC |
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| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxxx, Xx. | |||
| Title: | Vice President and General Counsel | |||
| NORCO PIPE LINE COMPANY, LLC |
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| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxxx, Xx. | |||
| Title: | Vice President and General Counsel | |||
Signature Page to Eighth Amendment to Credit Agreement
| EVERGLADES PIPE LINE COMPANY, L.P. |
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| By: | MAINLINE L.P. its General Partner |
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| By: MAINLINE GP, INC. its General Partner |
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| By | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxxx, Xx. | |||
| Title: | Vice President and General Counsel | |||
| WOOD RIVER PIPE LINES LLC |
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| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxxx, Xx. | |||
| Title: | Vice President and General Counsel | |||
| BUCKEYE PIPE LINE TRANSPORTATION LLC |
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| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxxx, Xx. | |||
| Title: | Vice President and General Counsel | |||
| BUCKEYE TEXAS PIPE LINE COMPANY, L.P. |
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| By: | BUCKEYE GULF COAST HOLDINGS I, LLC its General Partner |
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| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxxx, Xx. | |||
| Title: | Vice President and General Counsel | |||
| FERRYSBURG TERMINAL, LLC |
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| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxxx, Xx. | |||
| Title: | Vice President and General Counsel | |||
Signature Page to Eighth Amendment to Credit Agreement
| LENDERS: SUNTRUST BANK as Administrative Agent and Lender |
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| By: | /s/ Xxxxxx Xxxxxxx. | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | Vice President | |||
Signature Page to Eighth Amendment to Credit Agreement
| BANK OF AMERICA, N.A., SUCCESSOR BY MERGER TO XXXXXXX XXXXX BANK USA |
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxx | |||
| Title: | Vice President | |||
Signature Page to Eighth Amendment to Credit Agreement
| BNP PARIBAS |
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| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Director | |||
| By: | /s/ J. Xxxxxxxxxxx Xxxxx | |||
| Name: | J. Xxxxxxxxxxx Xxxxx | |||
| Title: | Managing Director | |||
Signature Page to Eighth Amendment to Credit Agreement
| DEUTSCHE BANK AG NEW YORK BRANCH |
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| By: | /s/ Xxxxxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxxxx Xxxxxxxxx | |||
| Title: | Managing Director | |||
| By: | /s/ Xxxx X. Xxx | |||
| Name: | Xxxx X. Xxx | |||
| Title: | Vice President | |||
Signature Page to Eighth Amendment to Credit Agreement
| THE ROYAL BANK OF SCOTLAND plc |
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| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Vice President | |||
Signature Page to Eighth Amendment to Credit Agreement
| XXXXX FARGO BANK, N.A. |
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| By: | /s/ Christian Faith | |||
| Name: | Christian Faith | |||
| Title: | Director | |||
Signature Page to Eighth Amendment to Credit Agreement
