Exhibit 10.2
SEVENTH AMENDMENT TO AMENDED
AND RESTATED
LOAN AND SECURITY AGREEMENT
THIS SEVENTH AMENDMENT TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (the
“Amendment” ) is made effective as of the 8th
day of February, 2008, by and among FARM & HOME OIL
COMPANY LLC , a Pennsylvania limited liability company,
successor by merger to FARM & HOME OIL 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.
Farm & Home Oil Company, predecessor to Farm &
Home Oil Company LLC ( “Farm and Home” ), 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 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.
Merger; Sale of Interests;
Consent .
(a)
Pursuant to that certain (i) Agreement of Merger dated
February 6, 2008 among F&H and Farm and Home (the
“Merger Agreement” ) and (ii) Certificate
of Merger filed with the Secretary of State of the Commonwealth of
Pennsylvania on February 7, 2008 (the “Articles of
Merger” ), Farm and Home (formerly the Borrower under the
Loan Agreement) merged with and into F&H, with F&H being
the surviving entity (the “Merger” ).
(b)
On or about the date hereof, Buckeye Energy Holdings LLC, a
Delaware limited liability company ( “Buckeye” )
purchased all of the membership interests in F&H (the
“Acquisition” ), pursuant to that certain
Purchase Agreement dated December 21, 2007 (the
“Purchase Agreement” ) among Buckeye, Farm and
Home, Richard A. Longacre and the other Sellers referred to
therein.
(c)
The Merger Agreement, Articles of Merger and Purchase Agreement are
referred to herein, collectively, as the “Transaction
Documents” . The copies of the Transaction
Documents attached hereto as Exhibit “A ” are true
and complete copies of such documents, none of which have been
modified or amended.
(d)
Subject to the terms and conditions of this Amendment, Agent and
each Lender hereby consent to the Merger and the Acquisition on the
terms and conditions set forth in the Transaction Documents.
Solely for the purpose of avoiding the occurrence of a Default or
Event of Default which would be caused by the Merger and the
Acquisition, Agent and each Lender hereby waive compliance with
those provisions of the Loan Agreement and the other Loan Documents
which would prohibit the Merger and the Acquisition.
2.
F&H Post-Merger and
Acquisition . F&H represents and warrants to
Agent and each Lender that:
(a)
The transactions contemplated by the Transaction Documents have
been consummated in accordance with the terms and conditions set
forth in the Transaction Documents.
(b)
As a result of the Merger, F&H succeeded to all assets,
properties, rights and remedies of Farm and Home, including,
without limitation, all assets of Farm and Home previously granted,
pledged or assigned by Farm and Home to Agent as Collateral, and
F&H is the sole legal and beneficial owner of such assets,
properties, rights and remedies, subject only to the liens and
encumbrances therein permitted pursuant to the terms of the Loan
Agreement and the other Loan Documents.
(c)
As a result of the Merger, F&H succeeded to and is directly
responsible for the payment and performance of all indebtedness,
liabilities, obligations and covenants of Farm and Home, including,
without limitation, all sums advanced and outstanding, or to be
advanced thereafter, under the Loan Agreement or any of the other
Loan Documents and all other obligations and covenants of Farm and
Home to Agent and Lenders under the Loan Agreement or any of the
other Loan Documents.
3.
F&H as Borrower .
(a)
Effective as of the date hereof, F&H shall be for all purposes
the “Borrower” under the Loan Agreement. By its
execution hereof, F&H hereby becomes a party to and agrees to
be bound by the Loan Agreement and each of the other Loan
Documents.
(b)
F&H ratifies, confirms and assumes direct liability for all
indebtedness, liabilities and covenants of Borrower under the Loan
Agreement and each of the other Loan Documents. F&H
covenants and agrees to perform all covenants and agreements of
Borrower under the Loan Agreement and each of the other Loan
Documents all in accordance with the terms thereof. F&H
hereby recites all representations and warranties set forth in the
Loan Agreement (as modified by the updated schedules attached
hereto) and each of the other Loan Documents as of the date hereof,
as if F&H were the original Borrower thereunder and agrees to
be bound by all of the terms, conditions, covenants, restrictions,
waivers and consents set forth in the Loan Agreement and each of
the other Loan Documents.
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(c)
F&H hereby grants to Agent for the benefit of Agent and each
Lender all of the rights, remedies and authorities of Agent and
each Lender with respect to F&H and F&H’s assets set
forth in the Loan Agreement and each of the other Loan Documents
including without limitation, the right to exercise all powers of
attorney with respect to F&H set forth therein and the right to
exercise the remedies set forth in Sections 7.2, 7.3, 7.4 and 7.5 of the
Loan Agreement.
(d)
F&H agrees that all notices to which it may be entitled under
the Loan Agreement, the other Loan Documents or otherwise, may be
sent to them at the address set forth in Section 10.3(b) of the Loan
Agreement.
4.
Security Interest in
Collateral . To secure the prompt payment and
performance to Agent and each Lender of the Obligations, F&H
hereby assigns, pledges and grants to Agent for its benefit and for
the ratable benefit of each Lender a continuing security interest
in and to all of the following, whether now owned or existing or
hereafter acquired or arising and wheresoever located:
(a)
All now owned and hereafter acquired right, title and interest of
F&H in, to and in respect of all: accounts (including health
care insurance receivables), interest in goods represented by
accounts, returned, reclaimed or repossessed goods with respect
thereto and rights as an unpaid vendor; contract rights; chattel
paper; general intangibles (including, but not limited to payment
intangibles, tax and duty refunds, registered and unregistered
patents, trademarks, service marks, copyrights, trade names,
applications for the foregoing, trade secrets, goodwill, processes,
drawings, blueprints, customer lists, licenses, whether as licensor
or licensee, choses in action and other claims, existing and future
leasehold interests in equipment and fixtures and goodwill); stock
and other ownership interests in subsidiaries and other entities;
documents (including bills of lading, warehouse receipts and other
documents of title); instruments; investment property and financial
assets of every kind; insurance policies (including, without
limitation, the cash surrender value of all life insurance
policies); letters of credit, bankers’ acceptances,
guaranties and letter of credit rights, and all supporting
obligations and rights to receive payment thereunder; cash monies,
deposits, securities, bank accounts, deposit accounts, reserves and
credits; all property now or hereafter held in any capacity by
Agent or Lenders, any of their affiliates or any entity which, at
any time, participates in Agent’s or any Lender’s
financing of F&H or at any other depository or other
institution; agreements or property securing or relating to any of
the items referred to above; all commercial tort claims of F&H
based on or arising in connection with any of the matters described
on Schedule 4.3(a) , and
all judgments, orders and awards issued in connection
therewith;
(b)
All now owned and hereafter acquired right, title and interest of
F&H in, to and in respect of all goods of F&H including,
without limitation, all (i) inventory, wherever located,
whether now owned or hereafter acquired, of whatever kind, nature
or description, including, without limitation, all raw materials,
work-in-process, finished goods, and materials to be used or
consumed in F&H’s business; all returned or repossessed
goods and all names or marks affixed to or to be affixed thereto
for purposes of selling same by the seller, manufacturer, lessor or
licensor thereof and (ii) equipment and fixtures wherever
located, whether now owned or hereafter acquired, including,
without limitation, all machinery, motor vehicles, and furniture
and any and all additions, substitutions, replacements (including
spare parts) and accessions thereof and thereto;
(c)
Without in any way limiting the generality of any of the foregoing,
all now owned or hereafter acquired right, title and interest of
F&H in, to and in respect of all (i) margin deposits and
accounts maintained by F&H with any party (including, without
limitation, all
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Approved
Margin Deposits); (ii) Derivatives Contracts;
(iii) delivery contracts with F&H’s customers; and
(iv) F&H’s customer list;
(d)
All now owned and hereafter acquired right, title and interests of
F&H in, to and in respect of any personal property in or upon
which Agent or any Lender has or may hereafter have a security
interest, lien or right of setoff;
(e)
All present and future books and records relating to any of the
above including, without limitation, all computer programs, printed
output and computer readable data in the possession or control of
F&H, any computer service bureau or other third party; and
(f)
All products and proceeds of the foregoing in whatever form and
wherever located, including, without limitation, all insurance
proceeds and all claims against third parties for loss or
destruction of or damage to any of the foregoing.
Without in any way limiting the generality of
the foregoing, (a) in no event will any existing or future
Hedging Agreements with Agent or any Lender, any affiliate of Agent
or any Lender or any participant with Agent or any Lender in
respect of this Agreement be deemed Collateral; and
(b) notwithstanding the foregoing grant of a security
interest, (i) no account, instrument, chattel paper or other
obligation or property of any kind due from, owed by, or belonging
to, a Sanctioned Person or (ii) any lease in which the lessee
is a Sanctioned Person shall be Collateral.
Lender may reject or refuse to accept any
Collateral for credit toward payment of the Obligations that is an
account, instrument, chattel paper, lease, or other obligation or
property of any kind due from, owed by, or belonging to, a
Sanctioned Person.
5.
CONFESSION OF JUDGMENT
. F&H HEREBY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR
THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF
PENNSYLVANIA, OR IN ANY OTHER JURISDICTION WHICH PERMITS THE ENTRY
OF JUDGMENT BY CONFESSION, TO APPEAR FOR F&H AT ANY TIME AFTER
THE OCCURRENCE OF AN EVENT OF DEFAULT UNDER THE LOAN AGREEMENT IN
ANY ACTION BROUGHT AGAINST F&H ON THE NOTES OR THE LOAN
DOCUMENTS AT THE SUIT OF AGENT OR ANY LENDER, WITH OR WITHOUT
COMPLAINT OR DECLARATION FILED, WITHOUT STAY OF EXECUTION, AS OF
ANY TERM OR TIME, AND THEREIN TO CONFESS OR ENTER JUDGMENT AGAINST
F&H FOR THE ENTIRE UNPAID OUTSTANDING PRINCIPAL AMOUNT OF THE
NOTES AND ALL OTHER SUMS TO BE PAID BY F&H TO OR ON BEHALF OF
AGENT AND/OR ANY LENDER PURSUANT TO THE TERMS OF THE NOTES OR OF
THE LOAN DOCUMENTS AND ALL ARREARAGES OF INTEREST THEREON, TOGETHER
WITH ALL COSTS AND OTHER EXPENSES AND AN ATTORNEY’S
COLLECTION COMMISSION OF TEN PERCENT (10%) OF THE AGGREGATE AMOUNT
OF THE FOREGOING SUMS, BUT IN NO EVENT LESS THAN $5,000.00; AND FOR
SO DOING THIS AMENDMENT OR A COPY HEREOF VERIFIED BY AFFIDAVIT
SHALL BE A SUFFICIENT WARRANT.
THE AUTHORITY GRANTED HEREIN
TO CONFESS JUDGMENT SHALL NOT BE EXHAUSTED BY ANY EXERCISE THEREOF
BUT S
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