AGREEMENT TO EXTEND TEMPORARY WAIVER PERIOD AND TEMPORARY WAIVER OF EVENT OF DEFAULT FOR MISSED PAYMENT ON MATURITY DATE November 1, 2023
Exhibit 10.1
Execution Version
November 1, 2023
Re: Agreement to Extend Short-Term Waiver Period and Temporary Waiver of Event of Default for Missed Payment on Maturity Date (this “Agreement”)
Ladies and Gentlemen:
Reference is made to that certain (i) Credit Agreement dated as of November 2, 2018, among USD Partners LP, a Delaware limited partnership, as a borrower (the “US Borrower”), USD Terminals Canada ULC, an unlimited liability company subsisting under the laws of the Province of British Columbia, Canada, as a borrower (the “Canadian Borrower”, and together with the US Borrower, the “Borrowers” and each a “Borrower”), the lenders party thereto, and Bank of Montreal as administrative agent (in such capacity, the “Administrative Agent”) (as amended by that certain Master Assignment, Assignment of Liens, and Amendment No. 1 to Amended and Restated Credit Agreement dated as of October 29, 2021, Amendment No. 2 to Amended and Restated Credit Agreement dated as of April 6, 2022, Amendment No. 3 to Amended and Restated Credit Agreement dated as of January 31, 2023, and Amendment No. 4 to Amended and Restated Credit Agreement dated as of August 8, 2023 (“Amendment No. 4”), and as further amended, restated, modified or otherwise supplemented from time to time prior to the date hereof, the “Credit Agreement”), and (ii) Agreement to Extend Temporary Waiver Period and Waiver of Event of Default for Missed Interest Payment dated as of October 6, 2023, among the Borrowers, the Guarantors, the lenders parties thereto, and the Administrative Agent (the “Short-Term Waiver”). Capitalized terms used herein and not otherwise defined herein shall have the respective meanings ascribed to them in the Credit Agreement.
A.The parties hereto have agreed that the Expiration Date (as defined in Amendment No. 4) of November 3, 2023 (as extended pursuant to the Short-Term Waiver) be further extended to November 17, 2023. Pursuant to the definition of the Expiration Date in Amendment No. 4, the Borrowers and the Guarantors, on the one hand, and the Administrative Agent and the Required Lenders, on the other hand, may extend the Expiration Date.
B.The Borrowers will not pay the outstanding Obligations on the Maturity Date (the “Maturity Date Payment”), and pursuant to the terms of the Credit Agreement, failure to make the Maturity Date Payment will result in an Event of Default under Section 8.01(a)(i) and 8.01(a)(ii) of the Credit Agreement (the “Maturity Date Payment Default”). The Borrowers have requested that the Administrative Agent and the Lenders also temporarily waive the Maturity Date Payment Default through the Expiration Date. Each Borrower and each Guarantor hereby agrees that the Administrative Agent and the Lenders, absent the temporary waiver of the Maturity Date Payment Default granted hereunder, have certain rights, remedies, powers and privileges provided to them under the Credit Agreement and the Loan Documents resulting from the occurrence of the Maturity Date Payment Default, and that upon the Expiration Date (as extended pursuant to this Agreement), the Administrative Agent and the Lenders shall have the ability to exercise any one or more of such rights, remedies, powers and privileges resulting from the occurrence of the Maturity Date Payment Default.
C.The Agent and the Lenders are willing to extend the existing Expiration Date to November 17, 2023, and temporarily waive the Maturity Date Payment Default until the modified Expiration Date, subject to the terms and conditions of this Agreement.
D.Each Borrower and each Guarantor hereby agrees that the Administrative Agent and the Lenders are entering into this Agreement in reliance on the truth and accuracy of the foregoing recitals and the representations and warranties made herein respectively by the Borrowers and the Guarantors.
1. Extension Request and Limited Waiver. The Borrowers and the Guarantors hereby agree, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and in consideration of the agreements herein contained, including the conditions precedent set forth in Section 2 below, the Administrative Agent and the Lenders hereby agree to (i) extend the Expiration Date to 12:00 pm, New York time, November 17, 2023, time being of the essence, and (ii) to waive the Maturity Date Payment Default on a temporary basis until the Expiration Date (as extended pursuant to this Agreement), the period from the Effective Date (defined below) until the Expiration Date shall herein be called, “Extended Short-Term Waiver Period”), INSOFAR AS AND ONLY FOR SO LONG AS no Default or Event of Default (other than the Subject Defaults (as defined in the Short-Term Waiver together with, and as modified herein to include, the Maturity Date Payment Default (collectively hereinafter, the “Subject Defaults”)) has occurred and is continuing on the date hereof or at any time during the Extended Short-Term Waiver Period. The Lenders hereby direct the Administrative Agent not to take any action or enforce any remedies under the Loan Documents or applicable law against the Borrowers or Guarantors solely with respect to the Subject Defaults, through the Expiration Date and the expiration of the Extended Short-Term Waiver Period. The Lenders shall not direct the Administrative Agent to take any action or enforce any remedies under the Loan Documents or applicable law against the Borrowers or Guarantors solely with respect to the Subject Defaults through the Expiration Date and the expiration of the Extended Short-Term Waiver Period.
2. Conditions Precedent to Effectiveness. The effectiveness of this Agreement is subject to the satisfaction of the following conditions precedent (the first date of satisfaction of all such conditions herein, the “Effective Date”):
(i) The Administrative Agent shall have received duly executed counterparts of this Agreement from the Borrowers, the Guarantors, the Administrative Agent, and the Required Lenders.
(ii) Each of the Borrowers and the Guarantors shall have confirmed and acknowledged to the Administrative Agent and the Lenders, that by its execution and delivery of this Agreement that they do hereby confirm and acknowledge to the Administrative Agent and the Lenders, that (a) the execution, delivery and performance of this Agreement has been duly authorized by all requisite corporate action on its part; (b) the Credit Agreement and each other Loan Document to which it is a party constitute valid and legally binding agreements enforceable against it, in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar laws relating to or affecting the enforcement of creditors’ rights generally and by general principles of equity; (c) after giving effect to this Agreement, the representations and warranties by the Borrowers or the Guarantors as applicable, contained in the Credit Agreement, Amendment No. 4 and in the other Loan Documents, to which it is a party, are true and correct on and as of the date hereof in all material respects as though made as of the date hereof, except to the extent such representations and warranties are qualified by materiality, in which case they shall be true and correct in all respects; (d) all of its obligations under Section 5 of Amendment No. 4 are hereby ratified and confirmed by such Borrower or Guarantor; and (e) no Default or Event of Default (other than the Subject Defaults) shall exist under the Credit Agreement or any of the other Loan Documents after giving effect to this Agreement.
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(iii) The Borrowers shall have paid (a) all reasonable and documented fees and out-of-pocket expenses incurred by the Administrative Agent incurred in connection with the Credit Agreement and the other Loan Documents (b) all reasonable and documented fees, and out-of-pocket charges and disbursements of ▇▇▇▇▇ ▇▇▇▇▇ LLP, US counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent), incurred in connection with the Credit Agreement and the other Loan Documents (c) all reasonable and documented fees, and out-of-pocket charges and disbursements of ▇▇▇▇▇’▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Canadian counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent), incurred in connection with the Credit Agreement and the other Loan Documents and (d) all reasonable and documented fees, out-of-pocket charges and disbursements incurred by PA Consulting Group, Inc. incurred in connection with Credit Agreement and the other Loan Documents.
3. Release. The Borrowers and the Guarantors hereby reaffirm and ratify the terms of the Release provision set forth in Section 11 of Amendment No. 4, as to any and all acts or inactions of the Lenders and the Administrative Agent though the Effective Date, and upon the Borrowers’ and the Guarantors’ execution of this Agreement, each such Release is being granted anew by each signatory hereunder upon the execution date of this Agreement (for the avoidance of doubt these Releases are in addition to the Release having already been granted with the execution of Amendment No. 4), and each of the Borrowers and the Guarantors, on behalf of themselves and each of their respective successors, legal representatives and assigns, as well as any other party claiming by, through or under each such entity (each a “Releasing Party” and collectively, the “Releasing Parties”) hereby release, waive, forever relinquish and agree to hold harmless from and against any and all claims, demands, obligations, liabilities and causes of action of whatever kind or nature, whether known or unknown, liquidated or unliquidated, contingent or certain, and asserted or unasserted, which any of the Releasing Parties have, had, or may have or might assert from the beginning of time up through and including the date of execution of this Agreement against the Administrative Agent, the Lenders and/or their respective parents, affiliates, participants, officers, directors, employees, agents, attorneys, accountants, representatives, consultants, successors and assigns, directly or indirectly, which occurred, existed, was taken, permitted or begun at any time prior to and up to the execution of this Agreement, arising out of, based upon, or in any manner connected with (i) any transaction, event, circumstance, action, failure to act or occurrence of any sort of type, whether known or unknown, including without limitation any and all such claims arising out of or related, in any respect, to the Credit Agreement, any other Loan Document and/or the administration thereof or the Obligations created thereby, or (ii) any matter related to, in any respect, the foregoing, in each case, prior to the execution of this Agreement.
4. Reservation of Rights. Notwithstanding anything contained in this Agreement to the contrary, the Borrowers and the Guarantors acknowledge that the Administrative Agent and the Lenders do not waive, and expressly reserve, the right to exercise any and all of their rights and remedies under the Credit Agreement, any other Loan Document and applicable law, in each case, in respect of any Default or Event of Default (other than with regard to the Subject Defaults), regardless of when such Defaults or Events of Default may have arisen or come into existence.
Without limiting the generality of the foregoing, the Borrowers and the Guarantors hereby agree that (i) none of the Administrative Agent, the Lenders or the L/C Issuers, has waived or does waive any defaults, and its wavier herein is solely a limited, temporary waiver of only the Subject Defaults and it expires upon the earlier of the expiration of the Extended Short-Term Waiver Period or a noticed default, (ii) any forbearance of any rights, powers, privileges and other remedies by the Administrative Agent, the Lenders or the L/C Issuers, under the Loan Documents, or at law or in equity, with respect to any of the Subject Defaults or any other event of default, whether or not identified above, or any other current or future Default or Event of Default shall not be, and shall not be construed as, a waiver, ratification, release or limitation thereof, and the Administrative Agent, the Lenders and the L/C Issuers,
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expressly reserve their respective rights to invoke fully any and all such rights, powers, privileges and other remedies under the Loan Documents, or at law or in equity, at any time the Administrative Agent, the Lenders or the L/C Issuers, deem appropriate in respect thereof, in accordance with the Loan Documents, and without further notice, (iii) the Administrative Agent, the Lenders and the L/C Issuers, as applicable, reserve the right at any time to identify and assert additional Defaults or Events of Default that may exist, arise now or hereafter, or come to exist under the Loan Documents and demand any sums that may be, or become, due under the Loan Documents as a result thereof, including, without limitation, accrued and unpaid late charges and costs of collection (including, without limitation, attorneys’ fees and expenses) and other costs, and (iv) nothing contained herein, or in any other correspondence, shall constitute, or be deemed to constitute, a modification of, or waiver under, the Loan Documents, or acceptance of any event, occurrence or circumstance that may constitute a Default or an Event of Default under the Loan Documents.
5. Severability. Any provision of this Agreement held by a court of competent jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder of this Agreement and the effect thereof shall be confined to the provisions so held to be invalid. This Agreement shall constitute a Loan Document for purposes of the Credit Agreement.
6. Counterparts and Governing Law. The counterpart execution provisions set forth in Section 11.10 or the Credit Agreement and the governing law provisions set forth in Section 11.15 of the Credit Agreement are incorporated herein by reference mutatis mutandis.
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This Agreement is executed as of the day and year first above written.
ADMINISTRATIVE AGENT, L/C ISSUER, SWING LINE LENDER AND LENDER:
BANK OF MONTREAL,
as Administrative Agent, L/C Issuer, Swing Line Lender, and a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
LENDERS:
U.S. BANK NATIONAL ASSOCIATION,
as L/C Issuer and a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
CITIBANK, N.A.,
as L/C Issuer and a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
FIRST HORIZON BANK,
as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA,
as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signatory
SUMITOMO MITSUI BANKING CORPORATION, as a Lender
By: /s/ ▇▇▇▇▇▇ Amourous
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
MUFG BANK, LTD.,
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
Acknowledged and agreed to by:
BORROWERS AND GUARANTORS:
By: USD PARTNERS GP LLC, its general partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President and Chief Financial Officer
USD TERMINALS CANADA ULC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President and Chief Financial Officer
USD LOGISTICS OPERATIONS GP LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President and Chief Financial Officer
USD LOGISTICS OPERATIONS LP
By: USD LOGISTICS OPERATIONS GP LLC, its general partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President and Chief Financial Office
WEST COLTON RAIL TERMINAL LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President and Chief Financial Officer
USD TERMINALS LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title Executive Vice President and Chief Financial Officer
USD RAIL LP
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President and Chief Financial Officer
USD RAIL CANADA ULC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President and Chief Financial Officer
USD TERMINALS CANADA II ULC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President and Chief Financial Officer
USD TERMINALS CANADA III ULC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President and Chief Financial Officer
USDP FINANCE CORP.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
▇▇▇▇▇▇ CRUDE TERMINAL LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President and Chief Financial Officer
SCT PIPELINE LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President and Chief Financial Officer
USDP CCR LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President and Chief Financial Officer
USD TERMINALS LLC (as successor to USD Terminals International S.a.r.l.)
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President and Chief Financial Officer