Exhibit 10.1
EIGHTH AMENDMENT TO AMENDED AND
RESTATED
LOAN AND SECURITY
AGREEMENT
THIS EIGHTH AMENDMENT TO AMENDED
AND RESTATED LOAN AND SECURITY AGREEMENT (the “Amendment” ) is made
effective as of the 15th day of April, 2008, by and among
FARM & HOME OIL COMPANY LLC , a Pennsylvania
limited liability company ( “F&H” ),
UNIVEST NATIONAL BANK AND TRUST CO., as Agent (
“Agent” ) and UNIVEST NATIONAL BANK AND TRUST
CO., as Lender, WACHOVIA BANK, NATIONAL ASSOCIATION, as Lender,
FULTON BANK, as Lender and CITIZENS BANK OF PENNSYLVANIA, as
a Lender (collectively, the “Lenders” and
each a “Lender” ).
BACKGROUND
A.
F&H, Agent
and the Lenders named therein are parties to that certain Amended
and Restated Loan and Security Agreement dated as of
December 16, 2004 (as amended by that certain First Amendment
to Amended and Restated Loan and Security Agreement dated
January 10, 2005, that certain Second Amendment to Amended and
Restated Loan and Security Agreement dated July 13, 2005, that
certain Third Amendment to Amended and Restated Loan and Security
Agreement dated August 19, 2005, that certain Fourth Amendment
to Amended and Restated Loan and Security Agreement dated
December 7, 2005, that certain Fifth Amendment to Amended and
Restated Loan and Security Agreement dated December 22, 2006,
that certain Sixth Amendment to Amended and Restated Loan and
Security Agreement dated November 20, 2007, that certain
Seventh Amendment to Amended and Restated Loan and Security
Agreement dated February 8, 2008 and as the same may be
further amended, modified, supplemented or restated from time to
time, the “Loan
Agreement” ).
B.
F&H, Agent
and Lenders desire to further amend the Loan Agreement as set forth
herein.
C.
Capitalized terms
used herein and not otherwise defined shall have the meanings
provided for such terms in the Loan Agreement.
NOW, THEREFORE,
intending to be legally bound
hereby, the parties hereto agree as follows:
1.
Division; Sale of Interests;
Consent .
(a)
Pursuant to that
certain (i) plan of division dated April 15, 2008
(the “Plan” ) and (ii) Articles of
Division filed with the Secretary of State of the Commonwealth of
Pennsylvania on or about the date hereof (the “Articles” ), F&H is dividing into
two (2) separate Pennsylvania limited liability companies
pursuant to Section 8961 of the Pennsylvania Limited Liability
Company Law of 1994 (the “Division” ), which limited liability
companies shall be F&H, as the surviving company, and
Farm & Home Retail Oil Company LLC ( “Retail LLC” ) as the new
company.
(b)
From and after
the Division, (i) Retail LLC will engage in the business of
(the “Retail
Business” ) (A) distributing
liquid fuels and propane gas to residential and small commercial
customers, including through cardlock fueling stations, in eastern
Pennsylvania and (B) providing
heating,
ventilating and air conditioning services to residential and small
commercial customers; (ii) F&H will continue to engage in
all of the business it engaged in immediately prior to the
Division, other than the Retail Business and (iii) all of the
assets and liabilities of F&H used in the Retail Business and
listed on Exhibit “A”
hereto will be
transferred and allocated to and assumed by Retail LLC
(collectively, the “Transferred Property”
).
(c)
In addition,
immediately following consummation of the Division, all of the
membership interests in Retail LLC will be sold (the
“Sale”
) by Buckeye
Energy Holdings LLC ( “Buckeye” ) to Inergy Propane, LLC
pursuant to that certain Purchase Agreement dated March 3,
2008 among F&H, Buckeye Energy Holdings LLC and Inergy Propane,
LLC (the “Purchase
Agreement” ).
(d)
The Plan,
Articles and Purchase Agreement are referred to herein,
collectively, as the “Transaction Documents”
. The
copies of the Transaction Documents attached hereto as
Exhibit “B”
are true and
complete copies of such documents, none of which have been modified
or amended.
(e)
Subject to the
terms and conditions of this Amendment, Agent and each Lender
hereby consent to the Division and the Sale, in each case on the
terms and conditions set forth in the Transaction Documents and, as
of the Closing Date (as defined in the Purchase Agreement), release
their liens on that portion of the Collateral constituting
Transferred Property, and acknowledge and agree that Retail LLC is
not subject to the Loan Agreement and other Loan Documents.
Solely for the purpose of avoiding the occurrence of a Default or
Event of Default which would be caused by the Division and the
Sale, Agent and each Lender hereby waive compliance with those
provisions of the Loan Agreement and the other Loan Documents which
would prohibit the Division and the Sale.
2.
F&H Post-Division and
Sale . F&H represents
and warrants to Agent and each Lender that:
(a)
The transactions
contemplated by the Transaction Documents have been or will be
consummated in accordance with the terms and conditions set forth
in the Transaction Documents.
(b)
After giving
effect to the Division and Sale, Buckeye will continue to own all
of the membership interests in F&H.
(c)
After giving
effect to the Division and Sale, except solely with respect to the
Transferred Property, F&H remains the sole legal and beneficial
owner of all assets, properties, rights and remedies owned by
F&H immediately prior to the Division and Sale, subject only to
the liens and encumbrances therein permitted pursuant to the terms
of the Loan Agreement and the other Loan Documents.
(d)
After giving
effect to the Division and Sale, F&H remains directly
responsible for the payment and performance of all indebtedness,
liabilities, obligations and covenants under the Loan Agreement and
each of the other Loan Documents.
(e)
F&H hereby
ratifies and confirms its prior grant to Agent for the benefit of
Agent and each Lender of all of the security interests, liens,
rights, remedies and authorities of Agent
2
and each Lender
with respect to F&H (other than with respect to Retail LLC) and
F&H’s assets (other than with respect to the Transferred
Property) set forth in the Loan Agreement and each of the other
Loan Documents.
(f)
After giving
effect to the Division, the Sale and transfer of the Transferred
Property, F&H continues to have all licenses, permits,
contracts, consents and other approvals necessary for the continued
operation of its business as in effect immediately prior thereto
(except with respect to the Retail Business).
3.
Additional Documents
. On or
before the date hereof, and in addition to all other requirements
set forth in this Amendment, F&H shall execute and deliver, or
cause to be executed and delivered, as applicable, to Agent at
F&H’s sole cost and expense,
(a)
an
officer’s certificate of F&H certifying as true and
correct (i) the Articles, (ii) the Plan,
(iii) incumbency of F&H’s officer’s and
directors and (iv) the resolutions of the members and managers
with respect to the transactions contemplated hereby;
and
(b)
such additional
documents, agreements, assignments, amendments, certificates and
other items as Lenders may reasonably request to evidence or effect
the terms hereof or of any documents executed in connection
herewith,
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