Second Amendment to the Fourth Amended and Restated Credit Agreement, dated as of June 17, 2019
Exhibit 10.21
EXECUTION VERSION
SECOND AMENDMENT
SECOND AMENDMENT, dated as of June 17, 2019 (this “Amendment”), to the FOURTH AMENDED AND RESTATED CREDIT AGREEMENT, dated as of July 2, 2018 (as amended pursuant to the Amended and Restated First Amendment and Waiver thereto, dated as of March 12, 2019 and as may be further amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among PETROLEUM HEAT AND POWER CO., INC., a Minnesota corporation (the “Borrower”), the other Loan Parties (as defined therein) party thereto, the lenders from time to time parties thereto (the “Lenders”), JPMORGAN CHASE BANK, N.A., as administrative agent (the “Administrative Agent”), and the other parties named therein.
RECITALS
WHEREAS, the Borrower, the Lenders, the Administrative Agent, and the other parties named therein are party to the Credit Agreement;
WHEREAS, Regions Bank (the “Exiting Lender”) has notified the Borrower in its capacity as a Lender under the Credit Agreement that (i) it intends to assign (or has assigned) 100% of its Term Loans and Revolving Commitment thereunder pursuant to Section 12.1 thereof and (ii) accordingly, it is requesting that the Borrower deposit up to $500,000 in an account for the benefit of the Exiting Lender to cash collateralize certain obligations of the Borrower under certain Commodity Hedging Agreements previously entered into with the Exiting Lender (the “Cash Collateralization Transaction”);
WHEREAS, the Borrower has requested certain amendments of the Credit Agreement including, among other things, changes required to permit the Borrower to consummate the Cash Collateralization Transaction; and
WHEREAS, the requisite Lenders have agreed to such amendments on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and obligations herein set forth and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
1.Defined Terms. Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to them in the Credit Agreement.
2.Amendment. Subject to the satisfaction of the conditions precedent set forth in Section 3 below, on the Effective Date, it is agreed that the Credit Agreement shall be amended as follows:
(a)Section 1.1 of the Credit Agreement is hereby amended by adding the following defined terms in alphabetical order:
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(i)“Regions Cash Collateral Account” means the account established by the Borrower from time to time for the purpose of cash collateralizing obligations with respect to certain Commodity Hedging Agreements previously entered into with Regions Bank (such obligations, the “Regions Hedge Obligations”).
(ii)“Regions Hedge Obligations” has the meaning specified in the definition of “Regions Cash Collateral Account”.
(b)Section 6.21(a)(xi) of the Credit Agreement is hereby amended and restated as follows:
“(xi) Liens on up to $500,000 of cash on deposit in the Regions Cash Collateral Account securing the Regions Hedge Obligations;”
3. Conditions to Effectiveness of the Amendment. The Amendment shall become effective as of the date (the “Effective Date”) when, and only when, each of the following conditions precedent shall have been satisfied:
(a)The Administrative Agent shall have received an executed counterpart hereof from the Loan Parties and the Required Lenders;
(b) On the Effective Date, the representations and warranties set forth in Section 4 below shall be true and correct in all material respects;
(c)Since September 30, 2018, both immediately before and after giving effect to this Amendment, there has not occurred any event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect; and
(d)The Exiting Lender shall have assigned 100% of its Term Loans and Revolving Commitments to another Lender under the Credit Agreement in accordance with Section 12.1 thereof.
4.Representations and Warranties. The Borrower hereby represents and warrants, on and as of the Effective Date, that (i) the representations and warranties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the Effective Date, both immediately before and after giving effect to this Amendment (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty shall be true and correct in all material respects as of such date), (ii) this Amendment has been duly authorized, executed and delivered by the Loan Parties and constitutes the legal, valid and binding obligation of each Loan Party enforceable against it in accordance with its terms and (iii) no Default or Event of Default shall have occurred and be continuing on the Effective Date, both immediately before and after giving effect to this Amendment.
5.Acknowledgement and Confirmation of the Loan Parties. Each Loan Party hereby confirms and agrees that, after giving effect to this Amendment, the Credit Agreement
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and the other Loan Documents to which it is a party remain in full force and effect and enforceable against such Loan Party in accordance with their respective terms and shall not be discharged, diminished, limited or otherwise affected in any respect, and represents and warrants to the Lenders that it has no knowledge of any claims, counterclaims, offsets, or defenses to or with respect to its obligations under the Loan Documents, or if such Loan Party has any such claims, counterclaims, offsets, or defenses to the Loan Documents or any transaction related to the Loan Documents, the same are hereby waived, relinquished, and released in consideration of the execution of this Amendment. This acknowledgement and confirmation by each Loan Party is made and delivered to induce the Administrative Agent and the Lenders to enter into this Amendment, and each Loan Party acknowledges that the Administrative Agent and the Lenders would not enter into this Amendment in the absence of the acknowledgement and confirmation contained herein. This Amendment shall constitute a Loan Document under the terms of the Credit Agreement.
6.Amendment. This Amendment does not constitute an amendment of any other provision of the Credit Agreement or the other Loan Documents, a waiver of any other provision of the Credit Agreement or the other Loan Documents, or any other right, power or remedy of the Lenders thereunder. This Amendment is limited as specified herein and shall not constitute a modification, acceptance or waiver of any other provision of the Loan Documents.
7.Severability. In case any provision of or obligation under this Amendment shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
8.Headings. Headings and captions used in this Amendment are included for convenience of reference only and shall not be given any substantive effect.
9.Governing Law; Submission To Jurisdiction. This Amendment shall be construed in accordance with and governed by the laws of the State of New York.
10.WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT.
11.Expenses. The Borrower agrees to pay all reasonable out-of-pocket expenses incurred by the Administrative Agent in connection with the preparation of this Amendment (whether or not the transactions hereby contemplated shall be consummated) including the reasonable fees and disbursements of counsel to the Administrative Agent.
12.Counterparts; Integration. This Amendment may be executed and delivered via facsimile or electronic mail with the same force and effect as if an original were executed and may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures hereto were upon the same instrument. This Amendment constitutes the entire agreement and understanding among the parties hereto with respect to the subject
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matter hereof and supersedes any and all prior agreements and understandings, oral or written, relating to the subject matter hereof.
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their duly authorized officers, all as of the day and year first above written.
petroleum heat and power co., inc.
By: /s/ Richard F. Ambury
Name: Richard F. Ambury
Title: Chief Financial Officer
STAR GROUP, L.P.
By: KESTREL HEAT, LLC, its General Partner
By: /s/ Richard F. Ambury
Name: Richard F. Ambury
Title: Chief Financial Officer
MEENAN OIL CO., L.P.
By: MEENAN OIL LLC, its General Partner
By: /s/ Richard F. Ambury
Name: Richard F. Ambury
Title: Chief Financial Officer
SIGNATURE PAGE TO
SECOND AMENDMENT TO
CREDIT AGREEMENT
A.P. WOODSON COMPANY
CFS LLC
Champion Energy LLC
COLUMBIA PETROLEUM TRANSPORTATION, LLC
GRIFFITH ENERGY SERVICES, Inc.
GRIFFITH-ALLIED TRUCKING, LLC
Hoffman Fuel Company of Bridgeport
Hoffman Fuel Company of Danbury
MEENAN HOLDINGS LLC
MEENAN OIL LLC
MILRO GROUP LLC
MINNWHALE LLC
ORTEP OF PENNSYLVANIA, INC.
PETRO HOLDINGS, INC.
PETRO PLUMBING CORPORATION
PETRO, INC.
REGIONOIL PLUMBING, HEATING AND COOLING CO., INC.
RICHLAND PARTNERS, LLC
Rye Fuel Company
STAR ACQUISITIONS, INC.
By: /s/ Richard F. Ambury
Name: Richard F. Ambury
Title: Chief Financial Officer
SIGNATURE PAGE TO
SECOND AMENDMENT TO
CREDIT AGREEMENT
JPMORGAN CHASE BANK, N.A., as Administrative Agent and as a Lender
By: /s/ Donna DiForio
Name: Donna DiForio
Title: Authorized Officer
SIGNATURE PAGE TO
SECOND AMENDMENT TO
CREDIT AGREEMENT
BANK OF AMERICA, N.A.,
as a Lender
By: /s/ Matthew T. O’Keefe
Name: Matthew T. O’Keefe
Title: Senior Vice President
SIGNATURE PAGE TO
SECOND AMENDMENT TO
CREDIT AGREEMENT
BMO HARRIS BANK, N.A.,
as a Lender
By: /s/ Dan Duffy
Name: Dan Duffy
Title: Authorized Officer
SIGNATURE PAGE TO
SECOND AMENDMENT TO
CREDIT AGREEMENT
CITIBANK, N.A.,
as a Lender
By: /s/ Peter F. Crispino
Name: Peter F. Crispino
Title: Authorized Signatory
SIGNATURE PAGE TO
SECOND AMENDMENT TO
CREDIT AGREEMENT
ISRAEL DISCOUNT BANK OF NEW YORK,
as a Lender
By: /s/ Dionne S. Rice
Name: Dionne S. Rice
Title: First Vice President
By: /s/ Richard Miller
Name: Richard Miller
Title: Senior Vice President
SIGNATURE PAGE TO
SECOND AMENDMENT TO
CREDIT AGREEMENT
KEYBANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Jonathan Roe
Name: Jonathan Roe
Title: Vice President
SIGNATURE PAGE TO
SECOND AMENDMENT TO
CREDIT AGREEMENT
PNC BANK, N.A.,
as a Lender
By: /s/ Matthew Leighton
Name: Matthew Leighton
Title: Vice President
SIGNATURE PAGE TO
SECOND AMENDMENT TO
CREDIT AGREEMENT
TD BANK, N.A.,
as a Lender
By: /s/ Vijay Prasad
Name: Vijay Prasad
Title: Senior Vice President
SIGNATURE PAGE TO
SECOND AMENDMENT TO
CREDIT AGREEMENT
WELLS FARGO BANK, N.A.,
as a Lender
By: /s/ Jonathan Boynton
Name: Jonathan Boynton
Title: Authorized Signatory
SIGNATURE PAGE TO
SECOND AMENDMENT TO
CREDIT AGREEMENT
CITIZENS BANK, N.A.,
as a Lender
By: /s/ Donald A. Wright
Name: Donald A. Wright
Title: Senior Vice President
SIGNATURE PAGE TO
SECOND AMENDMENT TO
CREDIT AGREEMENT
REGIONS BANK,
as a Lender
By: /s/ Bruce Kasper
Name: Bruce Kasper
Title: Managing Director
SIGNATURE PAGE TO
SECOND AMENDMENT TO
CREDIT AGREEMENT
WEBSTER BUSINESS CREDIT CORPORATION,
as a Lender
By: /s/ Christopher Magnante
Name: Christopher Magnante
Title: Vice President
SIGNATURE PAGE TO
SECOND AMENDMENT TO
CREDIT AGREEMENT
