Sunoco 8K Entry into a Material Definitive Agreement | SUN 3 Feb 17

Exhibit 10.1

Execution Version

LIMITED WAIVER TO CREDIT AGREEMENT

This Limited Waiver to Credit Agreement (this “Limited Waiver”) is entered into effective as of the 31st day of January, 2017 (the “Effective Date”), by and among Sunoco LP, a Delaware limited partnership (“Borrower”), Bank of America, N.A., as Administrative Agent (in such capacity, the “Administrative Agent”), Swingline Lender and an LC Issuer, and the financial institutions parties hereto as Lenders (“Lenders”).

W I T N E S S E T H

WHEREAS, Borrower, Administrative Agent and the Lenders are parties to that certain Credit Agreement, dated as of September 25, 2014 (as amended by that certain First Amendment to Credit Agreement and Increase Agreement dated as of as April 10, 2015, that certain Second Amendment to Credit Agreement, dated as of December 2, 2015, that certain Third Amendment to Credit Agreement, dated as of August 1, 2016, and that certain Fourth Amendment to Credit Agreement, dated as of December 21, 2016 and as otherwise amended, restated, supplemented or modified prior to the date hereof, the “Existing Credit Agreement” and the Existing Credit Agreement, as modified by this Limited Waiver, the “Credit Agreement”) (unless otherwise defined herein, all terms used herein with their initial letter capitalized shall have the meaning given such terms in the Credit Agreement);

WHEREAS, Borrower has advised Administrative Agent and the Lenders that (a) beginning with the Compliance Certificate for the Fiscal Quarter ending September 30, 2014, it miscalculated the amount of its Consolidated EBITDA (and as a result its Leverage Ratio) as set forth in each of the Compliance Certificates delivered under the Credit Agreement to date (collectively, the “Miscalculations”) and (b) as a result of the Miscalculation in the Compliance Certificate for the Fiscal Quarter ending September 30, 2016, incremental interest should have been paid on the Loans because a higher Leverage Ratio should have applied from December 21, 2016 for each Interest Payment Date arising on or before the date of the next Compliance Certificate delivered pursuant to the terms of the Credit Agreement (such period, the “Applicable Period” and the failure to have paid any such incremental interest (the “Incremental Accrued Interest”) during such period, the “Incremental Accrued Interest Breach”);

WHEREAS, Borrower has requested that Administrative Agent and the Lenders constituting at least the Majority Lenders waive the Miscalculations, the Incremental Accrued Interest Breach and any and all Defaults or Events of Defaults due to the Miscalculations or the Incremental Accrued Interest Breach, in either case, on or before the Effective Date (including as a result of the existence or non-existence of any Default or Event of Default during the Applicable Period attributable to the Miscalculations or Incremental Accrued Interest Breach or the inaccuracy of any representation or warranty (including any reaffirmation thereof) regarding the Miscalculations or the Incremental Accrued Interest Breach);

WHEREAS, subject to and upon the terms and conditions set forth herein, the Lenders party hereto have agreed to enter into this Limited Waiver;

NOW THEREFORE, for and in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and confessed, Borrower, Administrative Agent, and the Lenders hereto hereby agree as follows:

Section 1.Limited Waiver. In reliance on the representations, warranties, covenants and agreements contained in this Limited Waiver, subject to the terms and conditions precedent set forth inSection 2 hereof, the Administrative Agent and the Lenders hereby agree that, as of the Effective Date, the Miscalculations, the Incremental Accrued Interest Breach and any and all Defaults or Events of Default due to the Miscalculations or the Incremental Accrued Interest Breach, in either case, on or before the Effective Date (including as a result of the existence or non-existence of any Default or Event of Default during the Applicable Period attributable to the Miscalculations or Incremental Accrued Interest Breach or the inaccuracy of any representation or warranty (including any reaffirmation thereof) regarding the Miscalculations or the Incremental Accrued Interest Breach) are hereby waived and deemed remedied for all purposes under the Loan Documents (provided that, for the avoidance of doubt, the payment by Borrower of the Incremental Accrued Interest is not waived by thisSection 1).

Section 2.Conditions Precedent. The limited waiver contained inSection 1 hereof shall be subject to the satisfaction of each of the following conditions precedent:

2.1Counterparts. Administrative Agent shall have received counterparts of this Limited Waiver duly executed by Borrower, the Guarantors and Lenders constituting at least the Majority Lenders.

2.2Updated Calculations and Compliance Certificate. Administrative Agent shall have received (a) updated calculations of Borrower’s Consolidated EBITDA for each quarter from (and including) the Fiscal Quarter ending September 30, 2014 and (b) an updated Compliance Certificate with respect to the Fiscal Quarter ending September 30, 2016, in each case, reflecting its correct Consolidated EBITDA and Leverage Ratio calculations for such periods.

2.3Interest. Borrower shall have paid to the Administrative Agent, for the account of each Lender, the Incremental Accrued Interest and any accrued Default Rate interest with respect thereto.

2.4Term Loan Limited Waiver. Administrative Agent shall have received a duly executed copy of a limited waiver to the Term Loan Facility in form and substance reasonably satisfactory to Administrative Agent; provided that a limited waiver in form and substance substantially the same as this Limited Waiver shall be deemed reasonably satisfactory to Administrative Agent.

2.5No Default. After giving effect to the limited waiver set forth inSection 1 hereof, no Default or Event of Default shall have occurred which is continuing.

Section 3.Representations and Warranties of Borrower. To induce the Lenders and Administrative Agent to enter into this Limited Waiver, Borrower hereby represents and warrants to the Lenders and Administrative Agent as follows:

3.1Reaffirmation of Existing Representations and Warranties. After giving effect to the limited waiver set forth inSection 1 hereof, each representation and warranty of Borrower contained in the Credit Agreement and the other Loan Documents is true and correct in all material respects (except to the extent that such representations and warranties are qualified by materiality, in which case such representations and warranties are true and correct in all respects) on the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they were true and correct in all material respects (except to the extent that such representations and warranties are qualified by materiality, in which case such representations and warranties were true and correct in all respects) as of such earlier date.

3.2No Default or Event of Default. After giving effect to the limited waiver set forth inSection 1 hereof, no Default or Event of Default has occurred which is continuing.

3.3Acknowledgment of No Defenses. As of the Effective Date, to the knowledge of Borrower, Borrower has no defense to (a) Borrower’s obligation to pay the Obligations when due, or (b) the validity, enforceability or binding effect against Borrower or any Loan Party of the Credit Agreement or any of the other Loan Documents (to the extent a party thereto) or any Liens intended to be created thereby.

Section 4.Miscellaneous.

4.1Reaffirmation of Loan Documents. Any and all of the terms and provisions of the Credit Agreement and the Loan Documents shall, except as modified hereby, remain in full force and effect. The limited waiver contemplated hereby shall not limit or impair any Lien securing the Obligations, each of which is hereby ratified and affirmed. The execution, delivery and effectiveness of this Limited Waiver shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or Administrative Agent under any of the Loan Documents, nor, except as expressly provided inSection 1 hereof, constitute a waiver or amendment of any provision of any of the Loan Documents.

4.2Limited Waiver. The limited waiver granted inSection 1 hereof is a one time waiver limited solely to the Miscalculations, the Incremental Accrued Interest Breach and any and all Defaults or Events of Default arising therefrom on or prior to the Effective Date, and nothing contained herein shall be deemed a consent to, or waiver of, any other Default or Event of Default or action or inaction of Borrower, any Guarantor or any of Borrower’s Subsidiaries which constitutes (or would constitute) a violation of any provision of the Credit Agreement or any other Loan Document. Neither the Lenders nor Administrative Agent shall be obligated to grant any future waivers, consents or amendments with respect to any other provision of the Credit Agreement or any other Loan Document. Nothing contained herein shall constitute any course of dealing or other basis for altering any obligation of Borrower or any right, privilege or remedy of Administrative Agent or the Lenders under the Credit Agreement or the other Loan Documents.

4.3Parties in Interest. All of the terms and provisions of this Limited Waiver shall bind and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

4.4Counterparts. This Limited Waiver may be executed in counterparts, including, without limitation, by electronic signature, and all parties need not execute the same counterpart. Facsimiles or other electronic transmissions (e.g. .pdfs) of such executed counterparts shall be effective as originals.

4.5Complete Agreement. THIS LIMITED WAIVER, THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN OR AMONG THE PARTIES.

4.6Headings. The headings, captions and arrangements used in this Limited Waiver are, unless specified otherwise, for convenience only and shall not be deemed to limit, amplify or modify the terms of this Limited Waiver, nor affect the meaning thereof.

4.7Effectiveness. This Limited Waiver shall be effective automatically and without necessity of any further action by Borrower, Administrative Agent or the Lenders when counterparts hereof have been executed by Borrower, Guarantors and the Majority Lenders, and all conditions to the effectiveness hereof set forth herein have been satisfied.

4.8Governing Law. THIS LIMITED WAIVER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

4.9Modification. On and after the Effective Date, each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import referring to the Credit Agreement shall mean and be a reference to the Credit Agreement, as modified by this Limited Waiver. This Limited Waiver constitutes a Loan Document.

4.10Release of Claims and Waiver of Defenses. In further consideration of Administrative Agent’s and the Majority Lenders’ execution of this Limited Waiver, Borrower, on behalf of itself and its successors, assigns, affiliates, officers, directors, employees and agents hereby forever, fully, unconditionally and irrevocably waives and releases Administrative Agent, the Lenders and their respective successors, assigns, parents, subsidiaries, affiliates, officers, directors, employees and agents (collectively, the “Releasees”) from any and all claims, liabilities, obligations, debts, causes of action (whether at law or in equity or otherwise), defenses, counterclaims, setoffs, of any kind, whether known or unknown, whether liquidated or unliquidated, matured or unmatured, fixed or contingent, directly or indirectly arising out of, connected with, resulting from or related to any act or omission by Administrative Agent, any Lender or any other Releasee with respect to the Loan Documents and any Collateral occurring on or before the date of this Limited Waiver.

[Signature Pages to Follow]

IN WITNESS WHEREOF, the parties hereto have caused this Limited Waiver to be duly executed by their respective authorized officers on the date and year first above written.


SUNOCO LP

By:		SUNOCO GP LLC, its General Partner

By:		/s/ Thomas R. Miller
Name:		Thomas R. Miller
Title:		Chief Financial Officer