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 


 


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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, or to further evidence, effect, enforce or protect any of
the terms hereof or the rights or remedies granted or intended to be granted to
Agent and/or Lenders herein or therein.


 


All such documents, agreements, assignments,
amendments, certificates, consents and other items shall be in form and content
reasonably acceptable to Agent.  F&H
hereby authorizes Agent to file any and all financing statements, amendments
and continuations thereto in any jurisdictions and with any filing offices as
Agent may determine, in its sole discretion, as necessary or advisable to
evidence, perfect or continue all security interests granted to Agent, for its
benefit and the benefit of Lenders including, without limitation its security
interest in all assets of F&H.  Such
financing statements may describe the collateral in the same manner as
described in the Loan Agreement, as amended, or any security agreement or
pledge agreement entered into in connection therewith or may contain an
indication or description of collateral that describes such property in any
other manner as Agent may determine, in its sole discretion, is necessary,
advisable or prudent to ensure the continuing perfection of the security
interest in the Collateral including, without limitation, Agent’s security
interest in all assets of F&H and such description may describe such
property as “All present and future assets of Debtor and all products and
proceeds thereof, wherever located.” 
F&H hereby authorizes Agent to file such other items as Agent may
reasonably require to evidence or perfect Agent’s continuing security interests
and liens in and against the Collateral, including, without limitation, all
assets of F&H.  F&H agrees to join
with Agent in notifying any third party with possession of any Collateral of
Agent’s security interest therein and in obtaining an acknowledgment from the
third party that it is holding the Collateral for the benefit of Agent, as
agent for the Lenders.  F&H will
cooperate with Agent in obtaining control with respect to Collateral consisting
of deposit accounts, investment property, letter-of-credit rights and
electronic chattel paper.


 


4.                                       References.  From
and after the date hereof:


 


(a)                                  All references in the Loan Agreement
(including this Amendment) and each of the other Loan Documents to “Borrower” shall continue to mean F&H as the surviving
company of the Division;


 


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(b)                                 All references in the Loan Agreement
(including this Amendment) and the other Loan Documents to the “Collateral” shall mean the Collateral, as amended hereby
(i.e., removing the Transferred Property from the definition of Collateral);


 


(c)                                  All references in the Loan Agreement
(including this Amendment) and the other Loan Documents to the “assets of F&H” (or similar terms or phrases) shall mean
the assets of F&H, as amended hereby (i.e., not including the Transferred
Property); and


 


(d)                                 All references in the Loan Agreement
(including this Amendment) and the other Loan Documents to the “Loan Agreement” shall mean the Loan Agreement, as amended
hereby.


 


5.                                       Further Agreements and
Representations.  F&H does hereby:


 


(a)                                  ratify, confirm and acknowledge that the Loan
Agreement, as amended, and the other Loan Documents continue to be and are
valid, binding and in full force and effect;


 


(b)                                 covenant and agree to perform all obligations
of F&H contained herein, under the Loan Agreement, as amended, and the
other Loan Documents;


 


(c)                                  acknowledge and agree that as of the date
hereof F&H has no defense, set-off, counterclaim or challenge against the
payment of any sums owing under Loan Documents and, other than any defense,
set-off, counterclaim or challenge arising under (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting or
relating to creditors’ rights generally, and (ii) the availability of
injunctive relief and other equitable remedies, the enforcement of any of the
terms of the Loan Agreement, as amended, or the other Loan Documents;


 


(d)                                 acknowledge and agree that all
representations and warranties of F&H contained in the Loan Agreement
and/or the other Loan Documents, as amended, are true, accurate and correct on
and as of the date hereof as if made on and as of the date hereof;


 


(e)                                  represent and warrant that, after giving
effect to the Plan, the Division, the Sale, the transfer of the Transferred
Property and this Amendment, no Default or Event of Default exists;


 


(f)                                    all information described in the foregoing
Background above is true, accurate and complete;


 


(g)                                 acknowledge and agree that nothing contained
herein and no actions taken pursuant to the terms hereof is intended to
constitute a novation of the Loan Agreement or any of the other Loan Documents,
and, except solely with respect to the Transferred Property, do not constitute
a release, termination or waiver of any of the rights or remedies granted to
Agent or any Lender therein, which rights and remedies are hereby ratified,
confirmed, extended and continued as security for the Obligations; and


 


(h)                                 acknowledge
and agree that F&H’s failure to comply with or perform any of its
covenants, agreements or obligations contained in this Amendment shall
constitute an Event of Default under the Loan Agreement and each of the Loan
Documents, subject to any applicable cure periods contained therein.


 


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6.                                       Additional Documents; Further
Assurances.


 


(a)                                  F&H covenants and agrees to execute and
deliver to Agent, or to cause to be executed and delivered to Agent
contemporaneously herewith, at the sole cost and expense of F&H, this
Amendment and any and all other documents, agreements, statements, resolutions,
certificates, consents and information contemplated by this Agreement.  Agent and each Lender covenant and agree to
execute and deliver to F&H, or to cause to be executed and delivered to
F&H contemporaneously herewith, this Amendment and any and all other
documents, agreements, statements, resolutions, certificates, consents and
information contemplated by this Agreement.


 


(b)                                 F&H further covenants and agrees to
execute and deliver to Agent or to cause to be executed and delivered at the
sole cost and expense of F&H, from time to time, any and all other
documents, agreements, statements, certificates and information as Agent or any
Lender shall reasonably request to evidence or effect the terms hereof, the
Loan Agreement, as amended, or any of the other Loan Documents, or to enforce
or to protect Agent’s and each Lender’s interest in the  Collateral.  All such documents, agreements, statements,
etc., shall be in form and content acceptable to Agent in its reasonable
discretion.


 


(c)                                  Agent and each Lender further covenant and
agree to execute and deliver to F&H or to cause to be executed and
delivered at the sole cost and expense of F&H from time to time, any and
all other documents, agreements, statements, certificates and information as
F&H shall reasonably request to evidence or effect the terms hereof, the
Loan Agreement, as amended, or any of the other Loan Documents.  All such documents, agreements, statements,
etc., shall be in form and content acceptable to F&H in its reasonable
discretion.


 


7.                                       Inconsistencies.  To the extent of any inconsistency
between the terms, conditions and provisions of this Amendment and the terms,
conditions and provisions of the Loan Agreement or the other Loan Documents,
the terms, conditions and provisions of this Amendment shall prevail.  All terms, conditions and provisions of the
Loan Agreement and the other Loan Documents not inconsistent herewith shall
remain in full force and effect and are hereby ratified and confirmed by
F&H.


 


8.                                       Intentionally Omitted.


 


9.                                       No Waiver.  Except as expressly set forth in
this Amendment, nothing contained in this Amendment and no actions taken
pursuant to the terms hereof are intended to nor shall they constitute a waiver
by Agent or any Lender of any rights or remedies available to Agent or any
Lender at law or in equity or as provided in the Loan Agreement or the other
Loan Documents.


 


10.                                 Binding Effect.  This Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.


 


11.                                 Severability.  The
provisions of this Amendment and all other Loan Documents are deemed to be
severable, and the invalidity or unenforceability of any provision shall not
affect or impair the remaining provisions which shall continue in full force
and effect.


 


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12.                                 Modifications.  No
modification of this Amendment or any of the Loan Documents shall be binding or
enforceable unless in writing and signed by or on behalf of the party against
whom enforcement is sought.


 


13.                                 Governing Law.  This Amendment shall be governed
by and construed in accordance with the laws of the Commonwealth of
Pennsylvania without regard to conflict of law principles.


 


14.                                 Headings.  The
headings of the sections of this Amendment are inserted for convenience only
and shall not be deemed to constitute a part of this Amendment.


 


15.                                 Termination/Prepayment Notice. 
Agent, each Lender and F&H acknowledge and agree that the
termination notice to Agent from F&H dated March 7, 2008 shall be
deemed null and void and of no effect as if it were never delivered.  Further, Agent and each Lender waive the
thirty (30) day prior written notice requirement for a termination and
prepayment set forth in Section 3.6
of the Loan Agreement (provided, that any such termination and prepayment shall
remain subject to the provisions of Section 3.12
of the Loan Agreement).


 


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IN WITNESS WHEREOF, the parties hereto have executed this
Amendment effective as of the date first above written.


 


	
   

  	
  FARM & HOME OIL COMPANY LLC, a 

  
	
   

  	
  Pennsylvania limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
     /s/ James M. Boyd

  
	
   

  	
  Name/Title:

  	
  James M. Boyd/CFO

  
				



 


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  UNIVEST NATIONAL BANK AND 

  
	
   

  	
  TRUST CO., as Agent and a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
     /s/ Phillip C. Jackson

  
	
   

  	
  Name/Title:

  	
  Phillip C. Jackson, EVP & 

  
	
   

  	
  Market President

  
				



 


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  WACHOVIA BANK, NATIONAL 

  
	
   

  	
  ASSOCIATION, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
     /s/ Paul Pritchett

  
	
   

  	
  Name/Title:

  	
  Paul Pritchett/Vice President

  
				



 


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  FULTON BANK, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
     /s/Christopher M. Markley

  
	
   

  	
  Name/Title:

  	
  Christopher M. Markley, SVP

  
				



 


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  CITIZENS BANK OF PENNSYLVANIA,

  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
     /s/ Daniel J. Astolfi

  
	
   

  	
  Name/Title:

  	
  Daniel J. Astolfi, SVP