Exhibit 10.1


 


THIRD INCREASE AGREEMENT AND WAIVER


 


THIRD  INCREASE AGREEMENT AND
WAIVER, dated as of August 12, 2009 (this “Agreement”),
prepared pursuant to Section 4.1(b) of the Credit Agreement, dated as
of May 20, 2008 (as amended, supplemented, extended or restated, or
otherwise modified prior to the date hereof including by the First Amendment to
the Credit Agreement dated as of July 18, 2008 (the “First Amendment”)
and the Second Amendment and Increase Agreement dated as of September 15,
2008  (the “Second Amendment”),
and as modified hereby, and as further amended, supplemented or otherwise
modified from time to time, the “Credit Agreement”), among BUCKEYE
ENERGY SERVICES LLC, on behalf of itself and as the surviving entity of the
merger of Farm & Home Oil Company LLC (“F&H”) with and into
Buckeye Energy Services LLC (the “Borrower”), the several Lenders from
time to time parties thereto, and BNP Paribas, as Administrative Agent (the “Administrative
Agent”) and as collateral agent.


 


RECITALS


 


WHEREAS, pursuant to Section 4.1(b)(i) of
the Credit Agreement, the Borrower is requesting that the Lenders concurrently
increase the Commitments so that the Total Commitments equal $250,000,000
following the effectiveness of such increase;


 


WHEREAS, pursuant to Section 4.1(b) of
the Credit Agreement, Barclays Bank PLC (the “New Lender”) has agreed to
join the Credit Agreement and to make Commitments under the Credit Agreement on
the terms and subject to the conditions set forth in this Agreement; and


 


WHEREAS, the Borrower is
requesting that the Lenders hereby waive compliance with the terms and
conditions of Section 4.1(b)(i), (ii) and (iii) of the Credit
Agreement solely with respect to the requirements under each such Section for
the Borrower to deliver notice of a requested increase in Commitments;


 


NOW, THEREFORE, in
consideration of the premises and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the Borrower, the
Administrative Agent, the Existing Lenders and the New Lender hereby agree as
follows:


 


1.                                       Defined Terms. 
Unless otherwise defined herein, terms defined in the Credit Agreement
are used herein as therein defined.


 


1.1                                 Increase Agreement and New Lender
Agreement.  The New Lender hereby agrees to make Loans to
the Borrower or participate in Letters of Credit from time to time until the
Termination Date in an aggregate principal amount at any one time outstanding
not to exceed its Commitment (as set forth in Schedule 1.0), such agreement to
be effective as of the Increase Effective Date (as defined below) upon the
receipt by the Administrative Agent from the New Lender of the amounts required
to be paid by the New Lender pursuant to Section 4.1(b) of the Credit
Agreement, which amounts the New Lender agrees to pay on or before August 12,
2009.  From and after the Increase
Effective Date, the New Lender shall be a party to the Credit Agreement and, to
the extent provided in this Agreement, have the rights and obligations of a
Lender under the Credit Agreement and under the other Loan Documents and shall
be bound by the provisions thereof.


 


3.                                       Commitments; New Lender. 
Effective upon the Increase Effective Date, the Commitments for the New
Lender shall be as set forth in Schedule 1.0 attached hereto.  Schedule 1.0 shall also set forth the
Commitments for the Existing Lenders as of the Increase Effective Date.


 

















 


4.                                    Conditions Precedent. 
This Agreement shall become effective (the “Increase Effective Date”)
upon the satisfaction of the following conditions precedent:


 


(a)          Agreement.          The Administrative Agent shall have
received this Agreement, executed and delivered by a duly authorized officer of
the Borrower, the New Lender and the Required Lender.


 


(b)         Secretary’s Certificates. 
The Administrative Agent shall have received, with a counterpart for
each Lender, a certificate of each Loan Party, dated as of the Increase
Effective Date, substantially in the form of Exhibit E to the Credit
Agreement, with appropriate insertions and attachments, satisfactory in form
and substance to the Administrative Agent, executed by the President or any
Vice President and the Secretary or any Assistant Secretary of such Loan Party.


 


(c)          Proceedings of the Loan Parties. 
The Administrative Agent shall have received a copy of the resolutions,
in form and substance satisfactory to the Administrative Agent, of the Board of
Directors (or analogous body) of each Loan Party authorizing (i) the
execution, delivery and performance of this Agreement and the Notes delivered
on the Increase Effective Date, and the reaffirmations of the applicable Loan
Documents to which it is a party, and (ii) the reaffirmation by it of the
Liens created pursuant to the Security Documents, certified by the Secretary or
an Assistant Secretary of such Loan Party, or, if applicable, of the general
partner or managing member or members of such Loan Party as of the Increase
Effective Date, which certification shall be in form and substance reasonably
satisfactory to the Administrative Agent and shall state that the resolutions
thereby certified have not been amended, modified, revoked or rescinded.


 


(d)         Incumbency Certificates. 
To the extent the following have been amended, restated, supplemented or
otherwise modified since the Closing Date, the Administrative Agent shall have
received, with a counterpart for each Lender, a certificate of each Loan Party,
dated as of the date hereof, as to the incumbency and signature of the officers
of such Loan Party executing this Agreement and the Notes delivered on the Increase
Effective Date, which certificate shall be included in the certificate
delivered in respect of such Loan Party pursuant to Section 4(b) above,
shall be satisfactory in form and substance to the Administrative Agent, and
shall be executed by the President or any Vice President and the Secretary or
any Assistant Secretary of such Loan Party.


 


(e)          Organizational Documents. 
To the extent the following have been amended, restated, supplemented or
otherwise modified since the Closing Date, the Administrative Agent shall have
received, with a counterpart for each Lender, true and complete copies of the
Governing Documents of each Loan Party, certified as of the date hereof as
complete and correct copies thereof by the Secretary or an Assistant Secretary
of such Loan Party, which certification shall be included in the certificate
delivered in respect of such Loan Party pursuant to Section 4(b) above
and shall be in form and substance satisfactory to the Administrative Agent.


 


(f)            Good Standing Certificates. 
The Administrative Agent shall have received, with a copy for each
Lender, certificates dated as of a recent date from the Secretary of State or
other appropriate authority, evidencing the good standing of each Loan Party (i) to
the extent relevant under applicable laws, in the jurisdiction of its
organization and (ii) in each other jurisdiction where its ownership,
lease or operation of property or the conduct of its business requires it to
qualify as a foreign Person except, as to this subclause (ii), where the
failure to so qualify could not have a Material Adverse Effect.


 


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(g)         Consents, Licenses and Approvals. 
The Administrative Agent shall have received, with a counterpart for
each Lender, a certificate of a Responsible Officer of the Borrower either (i) attaching
copies of all consents, authorizations and filings referred to in Section 6.1(i) of
the Credit Agreement, and stating that such consents, licenses and filings are
in full force and effect, and each such consent, authorization and filing shall
be in form and substance satisfactory to the Administrative Agent or (ii) stating
that no such consents, licenses or approvals are so required.


 


(h)         Other Conditions. 
Each of the other conditions to the Increase Effective Date provided in Section 4.1(b) of
the Credit Agreement shall have been satisfied.


 


5.                                       Representations and Warranties. 
To induce the New Lender and the Existing Lenders to enter into this
Agreement, the Borrower hereby represents and warrants to the undersigned
Lenders that, after giving effect to the increase of the Commitments and the
other modifications to the Credit Agreement provided for herein, the
representations and warranties contained in the Credit Agreement and the other
Loan Documents will be true and correct in all material respects as of the date
hereof, except for those representations and warranties that by their terms
were made as of a specified date which shall be true and correct on and as of
such date, and that no Default or Event of Default has occurred and is
continuing.


 


6.                                       Disclaimer.  The New
Lender and each Existing Lender acknowledges and agrees that no Lender party to
the Credit Agreement (i) has made any representation or warranty and
shall  have no responsibility with
respect to any statements, warranties or representations made in or in
connection with the Credit Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement, any
other Loan Documents or any other instrument or document furnished pursuant
thereto; (ii) has made any representation or warranty and shall have no
responsibility with respect to the financial condition of the Borrower or any
other obligor or the performance or observance by the Borrower or any obligor
of any of their respective obligations under the Credit Agreement or any other
Loan Documents or any other instrument or document furnished pursuant hereto or
thereto. The New Lender (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements delivered pursuant
to Section 6.1 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Agreement; (ii) agrees that it will, independently and without
reliance upon the Lenders or the Administrative Agent and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement, the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto; (iii) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement, the other Loan Documents
or any other instrument or document furnished pursuant hereto or thereto as are
delegated to the Administrative Agent by the terms thereof, together with such
powers as are incidental thereto; and (iv) agrees that it will be bound by
the provisions of the Agreement and will perform in accordance with its terms
all the obligations which by the terms of the Credit Agreement are required to
be performed by it as a Lender.


 


7.                                       No Other Amendments or Waivers. 
Except as expressly amended or waived hereby, the Credit Agreement, the
Notes and the other Loan Documents shall remain in full force and effect in
accordance with their respective terms, without any waiver, amendment or
modification of any provision thereof.


 


8.                                       Reaffirmations.


 


(a)                                   The Borrower hereby reaffirms its
obligations (including the obligations formerly owed by F&H, to which the
Borrower has succeeded by operation of law) under the Security Agreement 


 


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and acknowledges and agrees, after giving effect to the Credit
Agreement (including the amendments and increases thereto, effectuated by the
First Amendment, the Second Amendment and by this Agreement), that the security
interest in the Collateral granted in the Security Agreement is continuing and
in full force and effect in favor of the Collateral Agent on behalf of and for
the ratable benefit of the Secured Parties (as defined in the Security
Agreement).


 


(b)                                 The Borrower hereby reaffirms its
obligations (including the obligations formerly owed by F&H, to which the
Borrower has succeeded by operation of law) under the Guarantee and
acknowledges and agrees, after giving effect to the Credit Agreement (including
the amendments and increases thereto, effectuated by the First Amendment, the
Second Amendment and by this Agreement), that the guarantee contained therein
is continuing and shall remain in full force and effect in favor of the
Collateral Agent on behalf of and for the ratable benefit of the Secured
Parties (as defined in the Security Agreement).


 


(c)                                  The Borrower hereby reaffirms its
obligations (including the obligations formerly owed by F&H, to which the
Borrower has succeeded by operation of law) under the Pledge Agreement and
acknowledges and agrees, after giving effect to the Credit Agreement (including
the amendments and increases thereto, effectuated by the First Amendment, the
Second Amendment and by this Agreement), that the grant of security interest in
the Pledged Collateral (as defined in the Pledge Agreement) granted in the
Pledge Agreement is continuing and in full force and effect in favor of the
Collateral Agent on behalf of and for the ratable benefit of the Secured
Parties (as defined in the Security Agreement).


 


(d)                                 The Borrower hereby reaffirms its
obligations its obligations (including the obligations formerly owed by
F&H, to which the Borrower has succeeded by operation of law) under all of
the other Loan Documents to which it is a party and acknowledges and agrees,
after giving effect to the Credit Agreement (including the amendments and
increases thereto, effectuated by the First Amendment, the Second Amendment and
by this Agreement), that such obligations are continuing and shall remain in
full force and effect.


 


9.                                       Legal Opinions. Within ten days after the Increase
Effective Date, the Borrower shall deliver to the Administrative Agent an
executed legal opinion of Vinson & Elkins LLP, counsel to the
Borrower, in form and substance satisfactory to the Administrative Agent and
covering such matters incident to the transactions contemplated by this
Agreement as the Administrative Agent, the Existing Lenders and the New Lender
may reasonably require; provided that, the Administrative Agent may
extend the deadline for satisfaction of this covenant in its sole discretion.


 


10.                                 Counterparts. 
This Agreement may be executed by one or more of the parties hereto on
any number of separate counterparts and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.


 


11.                                 Waiver.


 


(a)                                  The Borrower hereby makes a written
request to increase the Total Commitments to $250,000,000 and hereby requests
that such increase be effective as of the Increase Effective Date.  The Lenders hereby waive compliance with the
terms and conditions of Section 4.1(b)(i), (ii) and (iii) of the
Credit Agreement solely with respect to the requirements under each such Section for
the Borrower to deliver notice of a requested increase in Commitments.  The Lenders hereby agree and acknowledge that
this Agreement satisfies the notice and approval requirements set forth in such
Sections.


 


(b)                                 The Borrower hereby makes a written
request to increase the Maximum Sub-Limit to $250,000,000 and hereby requests
that such increase be effective as of the Increase Effective 


 


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Date.  The
Lenders hereby waive compliance with the terms and conditions of clause (a)(ii) of
the definition of “Sub-Limit” in the Credit Agreement solely with respect to
the requirements under such clause for the Borrower to deliver a Sub-Limit
Election Notice.  The Lenders hereby
agree and acknowledge that this Amendment satisfies the requirements under the
Credit Agreement to deliver a Sub-Limit Election Notice.


 


12.                                 Applicable Law. 
This Agreement shall be governed by, and construed and interpreted in
accordance with, the Law of the state of New York.


 


[SIGNATURE PAGES
FOLLOW]


 


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IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed and delivered as
of the day and year first above written.


 


 


	
   

  	
  BUCKEYE ENERGY SERVICES LLC,

  
	
   

  	
  as
  Borrower

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


[SIGNATURE PAGE TO THIRD
INCREASE AGREEMENT AND WAIVER]


 

















 


	
  BARCLAYS BANK PLC

  
	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


[SIGNATURE PAGE TO THIRD INCREASE AGREEMENT AND
WAIVER]


 
















 


	
  BNP PARIBAS, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  BNP PARIBAS, as
  Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


[SIGNATURE PAGE TO THIRD
INCREASE AGREEMENT AND WAIVER]


 

















 


	
  UNIVEST NATIONAL BANK AND TRUST
  CO.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


[SIGNATURE PAGE TO THIRD INCREASE AGREEMENT AND
WAIVER]


 

















 


	
  NATIXIS, NEW YORK BRANCH

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


[SIGNATURE PAGE TO T AMENDMENT
AND INCREASE AGREEMENT]


 

















 


DZ BANK AG DEUTSCHE
ZENTRAL-GENOSSENSCHAFTSBANK FRANKFURT AM MAIN


 


 


	
  By:
  

  	
  /s/

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


[SIGNATURE PAGE TO THIRD INCREASE AGREEMENT AND
WAIVER]


 

















 


	
  RZB FINANCE LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


[SIGNATURE PAGE TO THIRD INCREASE AGREEMENT AND
WAIVER]


 

















 


	
  THE BANK OF TOKYO-MITSUBISHI
  UFJ, LTD., NEW YORK BRANCH

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


[SIGNATURE PAGE TO THIRD INCREASE AGREEMENT AND
WAIVER]


 

















 


	
  MANUFACTURERS AND TRADERS

  
	
  TRUST COMPANY

  
	
   

  	
   

  
	
  By:

  	
  /s/

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


[SIGNATURE PAGE TO T AMENDMENT AND INCREASE AGREEMENT]


 

















 


Schedule 1.0 to

Second Amendment and


Increase
Agreement


 


LENDERS
AND COMMITMENTS


 


	
  New Lender

  	
   

  	
  Applicable Lending Office

  	
   

  	
  Commitment

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Barclays Bank PLC

  	
   

  	
  200 Park Avenue

  New York, NY 10166

  	
   

  	
  $

  	
  75,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Manufacturers and Traders Trust Company

  	
   

  	
  One M&T Plaza

  Buffalo, New York 14203-2399

  	
   

  	
  $

  	
  15,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Univest National Bank and Trust Co.

  	
   

  	
  14 North Main Street

  Souderton, PA 18964

  	
   

  	
  $

  	
  15,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Natixis, New York Branch

  	
   

  	
  1251 Avenue of the
  Americas

  New York, NY 10020

  	
   

  	
  $

  	
  25,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  DZ Bank AG Deutsche Zentral-Genossenschaftsbank Frankfurt Am Main

  	
   

  	
  609 Fifth Avenue, 7th Floor

  New York, NY 10017

  	
   

  	
  $

  	
  15,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  RZB Finance LLC

  	
   

  	
  1133 Avenue of the
  Americas

  New York, NY 10036

  	
   

  	
  $

  	
  15,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BNP Paribas

  	
   

  	
  787 Seventh Avenue, 30th Floor

  New York, NY 10019

  	
   

  	
  $

  	
  75,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch

  	
   

  	
  1251 Avenue of the
  Americas

  New York, NY 10020-1104

  	
   

  	
  $

  	
  15,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTAL COMMITMENTS

  	
   

  	
   

  	
   

  	
  $

  	
  250,000,000