THIRDAMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.1
Execution Version
THIRD AMENDMENT TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT (this Amendment), dated as of July 26, 2016, is by and among CROSSAMERICA PARTNERS LP (formerly known as Lehigh Gas Partners LP), a Delaware limited partnership (the Partnership), LEHIGH GAS WHOLESALE SERVICES, INC., a Delaware corporation (Services and together with the Partnership, the Borrowers), the Material Domestic Subsidiaries of the Borrowers party hereto (collectively, the Guarantors), the Lenders (as defined below) party hereto and CITIZENS BANK OF PENNSYLVANIA, as administrative agent on behalf of the Lenders under the Credit Agreement (as hereinafter defined) (in such capacity, the Administrative Agent). Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Credit Agreement.
W I T N E S S E T H
WHEREAS, the Borrowers, the Guarantors, certain banks and financial institutions from time to time party thereto (the Lenders) and the Administrative Agent are parties to that certain Third Amended and Restated Credit Agreement dated as of March 4, 2014 (as amended by that certain First Amendment to Third Amended and Restated Credit Agreement dated as of July 2, 2014, that certain Waiver, Second Amendment to Third Amended and Restated Credit Agreement and Joinder dated as of September 30, 2014 and as may be further amended, modified, extended, restated, replaced, or supplemented from time to time, the Credit Agreement);
WHEREAS, the Credit Parties have requested that the Required Lenders amend certain provisions of the Credit Agreement; and
WHEREAS, the Required Lenders are willing to make such amendments to the Credit Agreement, in accordance with and subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the agreements hereinafter set forth, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
AMENDMENT TO CREDIT AGREEMENT
1.1 Amendment to Section 6.14. The reference to $250,000 contained in clause (e) of Section 6.14 of the Credit Agreement is hereby amended to read $500,000, and the reference to $500,000 contained in clause (e) of Section 6.14 of the Credit Agreement is hereby amended to read $2,000,000.
ARTICLE II
CONDITIONS TO EFFECTIVENESS
2.1 Closing Conditions. This Amendment shall become effective as of the day and year set forth above (the Third Amendment Effective Date) upon satisfaction of the following conditions (in each case, in form and substance reasonably acceptable to the Administrative Agent):
(a) Executed Amendment. The Administrative Agent shall have received a copy of this Amendment duly executed by each of the Credit Parties, the Required Lenders and the Administrative Agent.
(b) Default. Both before and after giving effect to this Amendment, no Default or Event of Default shall exist.
(c) Fees and Expenses. The Administrative Agent shall have received from the Borrowers such fees and expenses that are payable in connection with the consummation of the transactions contemplated hereby and King & Spalding LLP shall have received from the Borrowers payment of all outstanding fees and expenses previously incurred and all fees and expenses incurred in connection with this Amendment for which invoices (including estimated expenses) have been presented to the Borrowers at least two (2) days before the Third Amendment Effective Date unless otherwise agreed by the Borrowers and the Administrative Agent.
(d) Miscellaneous. All other documents and legal matters in connection with the transactions contemplated by this Amendment shall be reasonably satisfactory in form and substance to the Administrative Agent and its counsel.
ARTICLE III
MISCELLANEOUS
3.1 Amended Terms. On and after the Amendment Effective Date, all references to the Credit Agreement in each of the Credit Documents shall hereafter mean the Credit Agreement as amended by this Amendment. Except as specifically amended hereby or otherwise agreed, the Credit Agreement is hereby ratified and confirmed and shall remain in full force and effect according to its terms. This Amendment shall not (a) be construed as a waiver of any breach, Default or Event of Default, (b) affect the right of the Lenders to demand compliance by the Credit Parties with all terms and conditions of the Credit Documents, except as specifically modified by this Amendment, (c) be deemed a waiver of any transaction or future action on the part of the Credit Parties requiring the Lenders or the Required Lenders consent or approval under the Credit Documents, or (d) be deemed or construed to be a waiver or release of, or a limitation upon, the Administrative Agents or the Lenders exercise of any rights or remedies under the Credit Agreement or any other Credit Document, whether arising as a consequence of any Default or Event of Default which may now exist or otherwise, all such rights and remedies hereby being expressly reserved.
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3.2 Representations and Warranties of Credit Parties. Each of the Credit Parties represents and warrants as follows:
(a) It has taken all necessary action to authorize the execution, delivery and performance of this Amendment.
(b) This Amendment has been duly executed and delivered by such Person and constitutes such Persons legal, valid and binding obligation, enforceable in accordance with its terms, except as such enforceability may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).
(c) No consent, approval, authorization or order of, or filing, registration or qualification with, any court or governmental authority or third party is required in connection with the execution, delivery or performance by such Person of this Amendment.
(d) The representations and warranties set forth in Article III of the Credit Agreement are true and correct as of the date hereof (except for those which expressly relate to an earlier date).
(e) Both before and after giving effect to this Amendment, no event has occurred and is continuing which constitutes a Default or an Event of Default.
(f) The Security Documents continue to create a valid security interest in, and Lien upon, the Collateral, in favor of the Administrative Agent, for the benefit of the Lenders, which security interests and Liens are perfected in accordance with the terms of the Security Documents and prior to all Liens other than Permitted Liens.
(g) The Credit Party Obligations are not reduced or modified by this Amendment and are not subject to any offsets, defenses or counterclaims.
3.3 Reaffirmation of Credit Party Obligations. Each Credit Party hereby ratifies the Credit Agreement and acknowledges and reaffirms (a) that it is bound by all terms of the Credit Agreement applicable to it and (b) that it is responsible for the observance and full performance of its respective Credit Party Obligations.
3.4 Credit Document. This Amendment shall constitute a Credit Document under the terms of the Credit Agreement.
3.5 Expenses. The Borrowers agree to pay 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 expenses of the Administrative Agents legal counsel.
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3.6 Further Assurances. The Credit Parties agree to promptly take such action, upon the request of the Administrative Agent, as is necessary to carry out the intent of this Amendment.
3.7 Entirety. This Amendment and the other Credit Documents embody the entire agreement among the parties hereto and supersede all prior agreements and understandings, oral or written, if any, relating to the subject matter hereof.
3.8 Counterparts; Telecopy. This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. Delivery of an executed counterpart to this Amendment by telecopy or other electronic means shall be effective as an original and shall constitute a representation that an original will be delivered.
3.9 No Actions, Claims, Etc. As of the date hereof, each of the Credit Parties hereby acknowledges and confirms that it has no knowledge of any actions, causes of action, claims, demands, damages and liabilities of whatever kind or nature, in law or in equity, against the Administrative Agent, the Lenders, or the Administrative Agents or the Lenders respective officers, employees, representatives, agents, counsel or directors arising from any action by such Persons, or failure of such Persons to act under the Credit Agreement on or prior to the date hereof.
3.10 GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
3.11 Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
3.12 Consent to Jurisdiction; Service of Process; Waiver of Jury Trial. The jurisdiction, service of process and waiver of jury trial provisions set forth in Sections 9.13 and 9.16 of the Credit Agreement are hereby incorporated by reference, mutatis mutandis.
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CROSSAMERICA PARTNERS LP
THIRD AMENDMENT TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT
IN WITNESS WHEREOF the parties hereto have caused this Amendment to be duly executed on the date first above written.
BORROWERS: | CROSS AMERICA PARTNERS LP, | |||||
a Delaware limited partnership | ||||||
By: CrossAmerica GP LLC, its general partner | ||||||
By: | /s/ Evan Smith | |||||
Name: | Evan Smith | |||||
Title: | Vice President and Treasurer | |||||
LEHIGH GAS WHOLESALE SERVICES, INC., a Delaware corporation | ||||||
By: | /s/ Evan Smith | |||||
Name: | Evan Smith | |||||
Title: | Vice President and Treasurer |
CROSSAMERICA PARTNERS LP
THIRD AMENDMENT TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT
GUARANTORS: | LGP OPERATIONS LLC, | |||||
a Delaware limited liability company | ||||||
LEHIGH GAS WHOLESALE LLC, | ||||||
a Delaware limited liability company | ||||||
EXPRESS LANE, INC., | ||||||
a Florida corporation | ||||||
LGP REALTY HOLDING GP LLC, | ||||||
a Delaware limited liability company | ||||||
MINNESOTA NICE HOLDINGS INC., | ||||||
a Delaware corporation | ||||||
ERICKSON OIL PRODUCTS, INC., | ||||||
a Wisconsin corporation | ||||||
FREEDOM VALU CENTERS, INC., | ||||||
a Wisconsin corporation | ||||||
PETROLEUM MARKETERS INCORPORATED, a Virginia corporation | ||||||
PM TERMINALS, INC., | ||||||
a Virginia corporation | ||||||
PM PROPERTIES, INC., | ||||||
a Virginia corporation | ||||||
STOP IN FOOD STORES, INC., | ||||||
a Virginia corporation | ||||||
CAP OPERATIONS, INC., | ||||||
a Delaware corporation | ||||||
NTI DROP DOWN ONE, LLC, | ||||||
a Delaware limited liability company | ||||||
NTI DROP DOWN TWO, LLC, | ||||||
a Delaware limited liability company | ||||||
NTI DROP DOWN THREE, LLC, | ||||||
a Delaware limited liability company | ||||||
M & J OPERATIONS, LLC, | ||||||
a Delaware limited liability company | ||||||
CAP WEST VIRGINIA HOLDINGS, LLC, | ||||||
a Delaware limited liability company | ||||||
By: | /s/ Evan Smith | |||||
Name: | Evan Smith | |||||
Title: | Vice President and Treasurer |
CROSSAMERICA PARTNERS LP
THIRD AMENDMENT TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT
LGP REALTY HOLDINGS LP, a Delaware limited partnership | ||||
By: | LGP Realty Holding GP LLC, its general partner | |||
By: | /s/ Evan Smith | |||
Name: | Evan Smith | |||
Title: | Vice President and Treasurer |
ADMINISTRATIVE AGENT: | CITIZENS BANK OF PENNSYLVANIA, as Lender and as Administrative Agent on behalf of the Lenders | |||||
By: | /s/ Dale R. Carr | |||||
Name: | Dale R. Carr | |||||
Title: | Senior Vice President |
LENDER: | WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Lender | |||||
By: | /s/ Mark Holm | |||||
Name: | Mark Holm | |||||
Title: | Managing Director |
LENDER: | PEOPLES UNITED BANK, N.A., as a Lender | |||||
By: | /s/ James Riley | |||||
Name: | James Riley | |||||
Title: | Senior Vice President |
LENDER: | The Bank of Tokyo Mitsubishi UFJ LTD., as a Lender | |||||
By: | /s/ Sherwin Brandford | |||||
Name: | Sherwin Brandford | |||||
Title: | Director |
LENDER: | BARCLAYS BANK PLC, as a Lender | |||||
By: | /s/ May Huang | |||||
Name: | May Huang | |||||
Title: | Assistant Vice President |
LENDER: | BANK OF AMERICA, N.A, as a Lender | |||||
By: | /s/ Susan S. Jarboe | |||||
Name: | Susan S. Jarboe | |||||
Title: | Senior Vice President |
LENDER: | CAPITAL ONE, NATIONAL ASSOCIATION, as a Lender | |||||
By: | /s/ Jennifer Campbell | |||||
Name: | Jennifer Campbell | |||||
Title: | Senior Vice President |
LENDER: | FIFTH THIRD BANK, as a Lender | |||||
By: | /s/ Mike Ross | |||||
Name: | Mike Ross | |||||
Title: | Senior Vice President |
LENDER: | FIRST NIAGARA BANK N.A., | |||||
as a Lender | ||||||
By: | /s/ Robert Bauer | |||||
Name: | Robert Bauer | |||||
Title: | First Vice President |
LENDER: | JPMORGAN CHASE BANK, N.A., | |||||
as a Lender | ||||||
By: | /s/ Tony Yung | |||||
Name: | Tony Yung | |||||
Title: | Executive Director |
LENDER: | KEYBANK NATIONAL ASSOCIATION, | |||||
as a Lender | ||||||
By: | /s/ George E. McKean | |||||
Name: | George E. McKean | |||||
Title: | Senior Vice President |
LENDER: | ROYAL BANK OF CANADA, as a Lender | |||||
By: | /s/ Nikhil Madhok | |||||
Name: | Nikhil Madhok | |||||
Title: | Authorized Signatory |
LENDER: | RAYMOND JAMES BANK, N.A., as a Lender | |||||
By: | /s/ Scott G. Axelrod | |||||
Name: | Scott G. Axelrod | |||||
Title: | Senior Vice President |