================================================================================
CREDIT AGREEMENT
================================================================================
Dated as of June 1, 2004
among
GENESIS CRUDE OIL, L.P.,
as the Borrower,
GENESIS ENERGY, INC.,
as Guarantor,
GENESIS ENERGY, L.P.,
as Guarantor,
FLEET NATIONAL BANK,
as Administrative Agent and
L/C Issuer,
================================================================================
US BANK,
================================================================================
as Syndication Agent,
GUARANTY BANK,
as Documentation Agent,
================================================================================
and
================================================================================
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC,
as
Sole Lead Arranger and Sole Book Manager
TABLE OF CONTENTS
Section Page
------- ----
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS....................................1
1.01 Defined Terms................................................1
1.02 Other Interpretive Provisions...............................28
1.03 Accounting Terms............................................29
1.04 Rounding....................................................29
1.05 Times of Day................................................30
1.06 Letter of Credit Amounts....................................30
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS.............................30
2.01 Loans.......................................................30
2.02 Borrowings, Conversions and Continuations of Loans..........31
2.03 Letters of Credit...........................................32
2.04 Prepayments.................................................41
2.05 Termination or Reduction of Commitments.....................42
2.06 Repayment of Loans..........................................43
2.07 Interest....................................................43
2.08 Fees........................................................44
2.09 Computation of Interest and Fees............................44
2.10 Evidence of Debt............................................45
2.11 Payments Generally; Administrative Agent's Clawback.........45
2.12 Sharing of Payments by Lenders..............................47
2.13 Borrowing Base Reporting....................................48
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY...........................48
3.01 Taxes.......................................................48
3.02 Illegality..................................................50
3.03 Inability to Determine Rates................................50
3.04 Increased Costs; Capital Adequacy; Reserves
on Eurodollar Rate Loans....................................51
3.05 Compensation for Losses.....................................52
3.06 Mitigation Obligations; Replacement of Lenders..............53
3.07 Survival....................................................53
ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS.........................53
4.01 Conditions of Initial Credit Extension......................53
4.02 Conditions to all Credit Extensions.........................56
ARTICLE V. REPRESENTATIONS AND WARRANTIES.....................................57
5.01 No Default..................................................57
5.02 Organization and Good Standing..............................57
5.03 Authorization...............................................57
5.04 No Conflicts or Consents....................................58
5.05 Enforceable Obligations.....................................58
5.06 Initial Financial Statements................................58
5.07 Other Obligations and Restrictions..........................58
5.08 Full Disclosure.............................................58
5.09 Litigation..................................................59
5.10 Labor Disputes and Acts of God..............................59
5.11 Pension Plans and Liabilities...............................59
5.12 Compliance with Laws........................................59
5.13 Environmental Laws..........................................60
5.14 Names and Places of Business................................62
5.15 Borrower's Subsidiaries.....................................62
5.16 Title to Properties; Licenses...............................62
5.17 Government Regulation.......................................62
5.18 Insider.....................................................63
5.19 Solvency....................................................63
5.20 Credit Arrangements.........................................63
5.21 Real Property...............................................63
5.22 Insurance...................................................63
ARTICLE VI. AFFIRMATIVE COVENANTS.............................................64
6.01 Payment and Performance.....................................64
6.02 Books, Financial Statements and Reports.....................64
6.03 Other Information and Inspections...........................67
6.04 Notice of Material Events and Change of Address.............67
6.05 Maintenance of Properties...................................68
6.06 Preservation of Existence, Etc..............................68
6.07 Payment of Trade Liabilities, Taxes, Etc....................68
6.08 Insurance...................................................68
6.09 Performance on Borrower's Behalf............................69
6.10 Interest....................................................69
6.11 Compliance with Agreements and Law..........................69
6.12 Environmental Matters; Environmental Reviews................69
6.13 Evidence of Compliance......................................70
6.14 Agreement to Deliver Security Documents.....................70
6.15 Perfection and Protection of Security Interests and Liens...70
6.16 Bank Accounts; Offset.......................................70
6.17 Guarantees of Subsidiaries..................................71
6.18 Compliance with Agreements..................................71
6.19 Rents.......................................................71
6.20 Operating Practices.........................................72
6.21 Collateral Account..........................................72
6.22 Use of Proceeds.............................................72
ARTICLE VII. NEGATIVE COVENANTS...............................................73
7.01 Indebtedness................................................73
7.02 Limitation on Liens.........................................73
7.03 Swap Contracts..............................................75
7.04 Limitation on Mergers, Issuances of Securities..............75
7.05 Limitation on Sales of Property.............................76
7.06 Limitation on Dividends and Redemptions.....................77
7.07 Limitation on Investments and New Businesses................78
7.08 Limitation on Credit Extensions.............................78
7.09 Transactions with Affiliates................................78
7.10 Prohibited Contracts........................................78
7.11 Current Ratio...............................................79
7.12 Leverage Ratio..............................................79
7.13 Cash Flow Coverage Ratio....................................79
7.14 Funded Indebtedness to Capitalization Ratio.................79
7.15 Minimum EBITDA..............................................79
7.16 Open Position; Certain Permitted Financial Instruments;
NYMEX Transactions..........................................79
7.17 Redelivery of Borrowing Base Report.........................81
7.18 Deposit Accounts............................................81
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES..................................81
8.01 Events of Default...........................................81
8.02 Remedies Upon Event of Default..............................84
8.03 Application of Funds........................................84
ARTICLE IX. ADMINISTRATIVE AGENT..............................................85
9.01 Appointment and Authority...................................85
9.02 Rights as a Lender..........................................86
9.03 Exculpatory Provisions......................................86
9.04 Reliance by Administrative Agent............................87
9.05 Delegation of Duties........................................87
9.06 Resignation of Administrative Agent.........................87
9.07 Non-Reliance on Administrative Agent and Other Lenders......88
9.08 No Other Duties, Etc........................................88
9.09 Administrative Agent May File Proofs of Claim...............88
9.10 Collateral and Guaranty Matters.............................89
ARTICLE X. MISCELLANEOUS......................................................89
10.01 Amendments, Etc.............................................89
10.02 Notices; Effectiveness; Electronic Communication............91
10.03 No Waiver; Cumulative Remedies..............................92
10.04 Expenses; Indemnity; Damage Waiver..........................93
10.05 Payments Set Aside..........................................94
10.06 Successors and Assigns......................................95
10.07 Treatment of Certain Information; Confidentiality...........98
10.08 Right of Setoff.............................................99
10.09 Interest Rate Limitation....................................99
10.10 Counterparts; Integration; Effectiveness....................99
10.11 Survival of Representations and Warranties.................100
10.12 Severability...............................................100
10.13 Replacement of Lenders.....................................100
10.14 Governing Law; Jurisdiction; Etc...........................101
10.15 Waiver of Jury Trial.......................................102
10.16 USA PATRIOT Act Notice.....................................103
10.17 Time of the Essence........................................103
10.18 ENTIRE AGREEMENT...........................................103
10.19 Special Provisions.........................................103
SIGNATURES...................................................................S-1
SCHEDULES
2.01 Commitments and Pro Rata Shares
2.13 Borrowing Base Procedures
3 Security Schedule
5.04 Conflicts or Consents
5.05 Enforceable Obligations
5.06 Material Adverse Changes since the Quarterly Initial
Financial Statements
5.07 Other Obligations and Restrictions
5.08 Known Undisclosed Facts
5.10 Labor Disputes and Acts of God
5.11 ERISA Plans
5.12 Compliance with Laws
5.13 Environmental Laws
5.14 Names and Places of Business
5.15 Subsidiaries
5.20 Credit Arrangements
5.21 Real Property
6.08 Insurance Summary - Property and Casualty
7.02 Liens
7.07 Investments
7.10 Prohibited Contracts
7.16 Certain Permitted Financial Instruments
10.02 Administrative Agent's Office; Certain Addresses for Notices
EXHIBITS
Form of
A Loan Notice
B-1 Acquisition Facility Note
B-2 Working Capital Note
C Irrevocable Standby Letter of Credit
D Compliance Certificate
E Assignment and Assumption
F Guaranty
G Borrowing Base Report
H Opinion Matters
I Environmental Compliance Certificate
J Solvency Certificate
K Lender Addendum
CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of June 1, 2004,
among GENESIS CRUDE OIL, L.P. ("Borrower"), a Delaware limited partnership,
GENESIS ENERGY, INC. ("General Partner"), a Delaware corporation, GENESIS
ENERGY, L.P. ("Genesis Energy, L.P."), a Delaware limited partnership, FLEET
NATIONAL BANK, as administrative agent and letter of credit issuer (in such
capacities, "Administrative Agent" and "L/C Issuer", respectively), US BANK, as
syndication agent, GUARANTY BANK, as documentation agent, each lender from time
to time party hereto (collectively, the "Lenders" and individually, a "Lender"),
and BANC OF AMERICA SECURITIES LLC, as exclusive arranger (in such capacity,
"Arranger").
The Borrower has requested that the Lenders provide revolving credit
facilities, and the Lenders are willing to do so on the terms and conditions set
forth herein.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Acceptable Issuer" means any national or state bank or trust company
which is organized under the laws of the United States of America or any state
thereof or any branch licensed to operate under the laws of the United States of
America or any state thereof, which is a branch of a bank organized under any
country which is a member of the Organization for Economic Cooperation and
Development, in each case which has capital, surplus and undivided profits of at
least $500,000,000 and whose commercial paper is rated at least P-1 by Moody's
or A-1 by S&P.
"Account" shall have the meaning given that term in the New York
Uniform Commercial Code, as in effect.
"Account Debtor" means any Person who is or who may become obligated
under, with respect to, or on account of, an Account. For purposes of the
determination of Eligible Accounts, Account Debtors that are Affiliates of each
other shall be treated as a single Account Debtor unless otherwise consented to
by Administrative Agent.
"Acquisition Facility Borrowing" means a borrowing or continuation or
conversion of loans consisting of simultaneous Acquisition Facility Loans of the
same Type and, in the case of Eurodollar Rate Loans, having the same Interest
Period made by the Lenders pursuant to Section 2.01(b).
"Acquisition Facility Commitment" means, as to each Lender, its
obligation to make Acquisition Facility Loans to the Borrower pursuant to
Section 2.01(b) in an aggregate principal amount at any one time outstanding not
to exceed the amount set forth as its "Acquisition
Facility Commitment" opposite such Lender's name on Section 2.01(b) or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable, as such amount may be adjusted from time to time in accordance
with this Agreement.
"Acquisition Facility Lenders" means any Lender who maintains an
Acquisition Facility Commitment or has outstanding Acquisition Facility Loans.
"Acquisition Facility Loans" shall have the meaning set forth in
Section 2.01(b).
"Acquisition Facility Note" means a promissory note made by Borrower in
favor of a Lender evidencing Acquisition Facility Loans made by such Lender,
substantially in the form of Exhibit B-1.
"Acquisition Facility Percentage" means, with respect to any Lender at
any time, the percentage (carried out to the ninth decimal place) of the
Aggregate Acquisition Facility Commitments represented by such Lender's
Acquisition Facility Commitment at such time. If the commitment of each Lender
to make Loans has been terminated pursuant to Section 8.02 or if the Aggregate
Acquisition Facility Commitments have expired, then the Acquisition Facility
Percentage of each Lender shall be determined based on the Acquisition Facility
Percentage of such Lender most recently in effect, giving effect to any
subsequent assignments. The initial Acquisition Facility Percentage of each
Lender is set forth as its "Acquisition Facility Percentage" opposite the name
of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to
which such Lender becomes a party hereto, as applicable.
"Addendum" means an instrument, substantially in the form of Exhibit K,
by which a Lender becomes a party to this Agreement as of the Closing Date.
"Administrative Agent" means Fleet National Bank in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means the Administrative Agent's
address and, as appropriate, account as set forth on Schedule 10.02, or such
other address or account as the Administrative Agent may from time to time
notify to the Borrower and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in
a form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Aggregate Acquisition Facility Commitments" means the Acquisition
Facility Commitments of all the Lenders, in an amount not to exceed $50,000,000.
"Aggregate Commitments" means, subject to Section 2.05, the Commitments
of all the Lenders in an amount not to exceed $100,000,000.
"Aggregate Working Capital Commitments" means the Working Capital
Commitments of all the Lenders, in an amount not to exceed $50,000,000.
"Agreement" means this Credit Agreement.
"Applicable Percentage" means with respect to any Lender at any time,
the percentage (carried out to the ninth decimal place) of the Aggregate
Commitments represented by such Lender's Commitments at such time. If the
commitment of each Lender to make Loans and the obligation of the L/C Issuer to
make L/C Credit Extensions have been terminated pursuant to Section 8.02 or if
the Aggregate Commitments have expired, then the Applicable Percentage of each
Lender shall be determined based on Outstanding Amount of Loans and L/C
Obligations (with the aggregate amount of each Lender's risk participation and
funded participation in L/C Obligations being deemed "held" by such Lender for
purposes of this definition).
"Applicable Rate" means, (i) with respect to Working Capital
Commitments, Working Capital Loans and Letters of Credit, from time to time on
any day, the following percentages per annum, based upon ratio of the
Outstanding Working Capital Amount at the close of business on such day to the
Borrowing Base in effect on such day:
Ratio of Outstanding Working Working Capital
Working Capital Amount Capital Eurodollar Rate Working Capital
to Borrowing Base Commitment Fee ----------------- Base Rate
Letters of Credit
- --------------------- -------------- ----------------- ---------------
Less than .50 to 1.0 0.375% 1.75% 0.25%
Greater than or equal
.5 to 1.0 but less 0.50% 2.25% 0.75%
than .75 to 1.0
Greater than or equal 0.50% 2.75% 1.25%
to .75 to 1.0
and (ii) with respect to Acquisition Facility Commitments and Acquisition
Facility Loans, means a per annum rate equal to:
(a) with respect to Base Rate Loans, 1.50%;
(b) with respect to Eurodollar Rate Loans 3.00%; and
(c) with respect to the commitment fee, 0.50%.
"Approved Eligible Receivables" means each Eligible Receivable (other
than Eligible Exchange Balances) (a) from a Person whose Debt Rating is either
at least Baa3 by Moody's or at least BBB- by S&P; (b) fully and unconditionally
Guaranteed as to payment by a Person whose Debt Rating is either at least Baa3
by Moody's or at least BBB- by S&P; (c) from any other Person Currently Approved
by Required Lenders; or (d) fully covered by a letter of credit from an
Acceptable Issuer.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Arranger" means Banc of America Securities LLC, in its capacity as
sole lead arranger and sole book manager.
"Assignment and Assumption" means an assignment and assumption entered
into by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by Section 10.06(b), and accepted by the Administrative
Agent, in substantially the form of Exhibit E or any other form approved by the
Administrative Agent.
"Availability Period" means the period from and including the Closing
Date to the earliest of (a) the Maturity Date, (b) the date of termination of
all Commitments pursuant to Section 2.05, and (c) the date of termination of the
commitment of each Lender to make Loans and of the obligation of the L/C Issuer
to make L/C Credit Extensions pursuant to Section 8.02.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Fleet National
Bank as its "prime rate." The "prime rate" is a rate set by Fleet National Bank
based upon various factors including Fleet National Bank's costs and desired
return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate. Any change in such rate announced by Fleet National Bank
shall take effect at the opening of business on the day specified in the public
announcement of such change.
"Base Rate Loan" means a Loan that bears interest based on the Base Rate.
"Borrower" shall have the meaning set forth in the introductory paragraph
hereto.
"Borrowing" means a Working Capital Borrowing or an Acquisition
Facility Borrowing.
"Borrowing Base" means the lesser of (i) the Working Capital Commitment
or (ii) the remainder of (a) minus (b) below as of the date of
determination (without duplication):
(a) the sum of the following as of the date of determination:
(i) 100% of Eligible Cash Equivalents; plus
(ii) 90% of Approved Eligible Receivables; plus
(iii) the lesser of (A) 85% of Other Eligible Receivables or (B)one-third
of the sum of the amounts of clauses (a)(i) plus (a)(ii) ; plus
(iv) 85% of Eligible Margin Deposits; plus
(v) 95% of Hedged Eligible Inventory plus 100% of Other Eligible
Inventory Value; plus
(vi) 80% of Eligible Exchange Balances; plus
(vii) 100% of all Paid but Unexpired Letters of Credit
MINUS (b) the following as of the date of determination:
(i) 100% of First Purchase Crude Payables; plus
(ii) 100% of Other Priority Claims; plus
(iii) The Estimate Adjustment Amount as provided in Schedule 2.13.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks are authorized to close under the Laws of, or are in
fact closed in, the state where the Administrative Agent's Office is located
and, if such day relates to any Eurodollar Rate Loan, means any such day on
which dealings in Dollar deposits are conducted by and between banks in the
London interbank eurodollar market.
"Capital Expenditures" means, for any Person for any period, the sum
of, without duplication, (a) all expenditures made, directly or indirectly, by
such Person or any of its Subsidiaries during such period for equipment, fixed
assets, real property or improvements, or for replacements or substitutions
therefor or additions thereto, that have been or should be, in accordance with
GAAP, reflected as additions to property, plant or equipment on a Consolidated
balance sheet of such Person or have a useful life of more than one year plus
(b) the aggregate principal amount of all Indebtedness (including obligations
under Capitalized Leases) assumed or incurred in connection with any such
expenditures. For purposes of this definition, the purchase price of equipment
that is purchased simultaneously with the trade-in of existing equipment or with
insurance proceeds shall be included in Capital Expenditures only to the extent
of the gross amount of such purchase price less the credit granted by the seller
of such equipment for the equipment being traded in at such time or the amount
of such proceeds, as the case may be.
"Capital Lease" means a lease with respect to which the lessee is
required concurrently to recognize the acquisition of an asset and the
incurrence of a liability in accordance with GAAP.
"Capital Lease Obligation" means, with respect to any Person and a
Capital Lease, the amount of the obligation of such Person as the lessee under
such Capital Lease which would, in accordance with GAAP, appear as a liability
on a balance sheet of such Person.
"Cash Collateralize" shall have the meaning set forth in Section
2.03(g).
"Cash Equivalents" means Investments in:
(a) marketable obligations, maturing within 12 months after acquisition
thereof, issued or unconditionally Guaranteed by the United States of
America or an instrumentality or agency thereof and entitled to the
full faith and credit of the United States of America;
(b) demand deposits and time deposits (including certificates of deposit)
maturing within 12 months from the date of deposit thereof, (i) with
any office of any Lender or (ii) with a domestic office of any national
or state bank or trust company which is organized under the Laws of the
United States of America or any state therein, which has capital,
surplus and undivided profits of at least $500,000,000, and whose
long-term certificates of deposit are rated at least Aa3 by Moody's or
AA- by S&P;
(c) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in subsection (a) above
entered into with (i) any Lender or (ii) any other commercial bank
meeting the specifications of subsection (b) above;
(d) open market commercial paper, maturing within 270 days after
acquisition thereof, which are rated at least P-1 by Moody's or A-1 by
S&P; and
(e) money market or other mutual funds substantially all of whose assets
comprise securities of the types described in subsections (a) through
(d) above.
"Change in Law" means the occurrence, after the date of this Agreement,
of any of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or
in the administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority.
"Change of Control" means the occurrence of any of the following
events: (i) any Person or group of Persons acting in concert as a partnership or
other group (a "Group of Persons"), other than General Partner shall be the
legal or beneficial owner (within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934, as amended) of 25% or more of the combined voting power of
the then total partnership interests (including all securities which are
convertible into partnership interests) of Genesis Energy, L.P., or (ii) Genesis
Energy, L.P. shall cease to be the sole legal and beneficial owner (as defined
above) of at least ninety percent (90%) of the limited partnership interests of
Borrower (including all securities which are convertible into limited partner
interests), (iii) or the General Partner shall cease to be the sole general
partner of Genesis Energy, L.P. or (iv) Denbury Resources Inc. shall own, in the
aggregate based on its direct ownership and its indirect ownership through
wholly-owned Subsidiaries, less than 100% of the voting power and Equity
Interests in the General Partner.
"Closing Date" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 10.01.
"Code" means the Internal Revenue Code of 1986.
"Collateral" means all property of any kind which is subject to a Lien
in favor of Lenders (or in favor of Administrative Agent for the benefit of
Lenders) or which, under the terms of any Security Document, is purported to be
subject to such a Lien, in each case granted or created to secure all or part of
the Obligations.
"Collateral Account" shall have the meaning set forth in Section 6.21.
"Commitment" means, as to each Lender and as applicable, its
Acquisition Facility Commitment and/or its Working Capital Commitment.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit D.
"Consolidated" refers to the consolidation of any Person, in accordance
with GAAP, with its properly consolidated subsidiaries. References herein to a
Person's Consolidated financial statements, financial position, financial
condition, liabilities, etc. refer to the consolidated financial statements,
financial position, financial condition, liabilities, etc. of such Person and
its properly consolidated subsidiaries.
"Consolidated EBITDA" means, for any period, the sum of (1) the
Consolidated Net Income of Genesis Energy, L.P. and its Consolidated
Subsidiaries during such period, plus (2) all Interest Expense which was
deducted in determining such Consolidated Net Income for such period, plus (3)
all income taxes (including any franchise taxes to the extent based upon net
income) which were deducted in determining such Consolidated Net Income, plus
(4) all depreciation, amortization (including amortization of good will and debt
issue costs) and other non-cash charges (including any provision for the
reduction in the carrying value of assets recorded in accordance with GAAP)
which were deducted in determining such Consolidated Net Income, minus (5) all
non-cash items of income which were included in determining such Consolidated
Net Income.
"Consolidated Funded Indebtedness" means as of any date, the sum of the
following (without duplication): (i) all Indebtedness which is classified as
"long-term indebtedness" on a Consolidated balance sheet of Genesis Energy, L.P.
and its Consolidated Subsidiaries prepared as of such date in accordance with
GAAP and any current maturities and other principal amount in respect of such
Indebtedness due within one year but which was classified as "long-term
indebtedness" at the creation thereof, (ii) indebtedness for borrowed money of
Genesis Energy, L.P. and its Consolidated Subsidiaries outstanding under a
revolving credit or similar agreement providing for borrowings (and renewals and
extensions thereof) over a period of more than one year, notwithstanding the
fact that any such borrowing is made within one year of the expiration of such
agreement, and (iii) Indebtedness in respect of Capital Leases of Genesis
Energy, L.P. and its Consolidated Subsidiaries.
"Consolidated Net Income" means, for any period, Genesis Energy, L.P.'s
and its Consolidated Subsidiaries' gross revenues for such period, including any
cash dividends or distributions actually received from any other Person during
such period, minus Genesis Energy, L.P.'s and its Subsidiaries' expenses and
other proper charges against income (including taxes on income to the extent
imposed), determined on a Consolidated basis after eliminating earnings or
losses attributable to outstanding minority interests (other than the minority
interest in Borrower held by the General Partner) and excluding (i) the net
earnings of any Person other than a Subsidiary in which Genesis Energy, L.P. or
any of its Subsidiaries has an ownership interest and (ii) any income or
deduction arising from stock appreciation rights that are granted but not
vested. Consolidated Net Income shall not include (i) any gain or loss from the
sale of assets, (ii) any extraordinary gains or losses or (it being understood
that the following shall be considered "extraordinary losses" for purposes of
this clause (ii): (A) up to $3,000,000 of any penalty or other payments assessed
by any Governmental Authority in connection with the
Pipeline Release during the first or second Fiscal Quarter of 2003 and (B) up to
$1,300,000 of any Texas System/Houma Expenses (as defined in that certain
Consent relating to the Existing Credit Agreement dated February 12, 2004
between Borrower, Genesis Energy, Inc., Genesis Energy, L.P., and the
administrative agent and lenders signatory thereto) or (iii) any non-cash gains
or losses resulting from mark to market activity as a result of the
implementation of SFAS 133.
"Consolidated Net Worth" means the remainder of all Consolidated
assets, as determined in accordance with GAAP, of Genesis Energy, L.P. and its
Subsidiaries minus the sum of (a) Genesis Energy, L.P.'s Consolidated
liabilities, as determined in accordance with GAAP, and (b) all outstanding
Minority Interests (other than the minority interest in Borrower held by the
General Partner). The effect of any increase or decrease in net worth in any
period as a result of items of income or loss not reflected in the determination
of net income but reflected in the determination of comprehensive income (to the
extent provided under GAAP as in effect on the date hereof) shall be excluded in
determining Consolidated Net Worth. "Minority Interests" means the book value of
any Equity Interests in any of Genesis Energy, L.P.'s Subsidiaries which Equity
Interests are owned by a Person other than Genesis Energy, L.P. or a Wholly
Owned Subsidiary of Genesis Energy, L.P.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Extension" means each of the following: (a) a Borrowing and (b)
an L/C Credit Extension.
"Current Trading Month" shall have the meaning set forth in Section
7.16.
"Currently Approved by Required Lenders" means such Person (including a
limit on the maximum credit exposure to any such Person), storage location,
pipeline, form of Letter of Credit or other matter as the case may be, as
reflected in the most recent written notice given by Administrative Agent to
Borrower as being approved by Required Lenders. Each such written notice will
supersede and revoke each prior notice.
"Debt Rating" means, as of any date of determination, the rating as
determined by either S&P or Moody's (collectively, the "Debt Ratings") of a
Person's non-credit-enhanced, senior unsecured long-term debt; provided that if
a Debt Rating is issued by each of the foregoing rating agencies, then the less
favorable of such Debt Ratings shall apply, unless there is a split in Debt
Ratings of more than one level, in which case the level that is one level better
than the less favorable of such Debt Ratings shall apply.
"Debtor Relief Laws" means the Bankruptcy Code of the United States,
and all other liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor
relief Laws of the United States or other applicable jurisdictions from time to
time in effect and affecting the rights of creditors generally.
"Default" means any event or condition that constitutes an Event of
Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
"Default Rate" means (a) when used with respect to Obligations other
than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus
(ii) the Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2%
per annum; provided, however, that with respect to a Eurodollar Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including any
Applicable Rate) otherwise applicable to such Loan plus 2% per annum, and (b)
when used with respect to Letter of Credit Fees, a rate equal to the Applicable
Rate plus 2% per annum.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Loans or participations in L/C Obligations required to be funded
by it hereunder within three Business Day of the date required to be funded by
it hereunder, (b) has otherwise failed to pay over to the Administrative Agent
or any other Lender any other amount required to be paid by it hereunder within
one Business Day of the date when due, unless the subject of a good faith
dispute, or (c) has been deemed insolvent or become the subject of a bankruptcy
or insolvency proceeding.
"Disposition" or "Dispose" means the sale, transfer, license, lease or
other disposition (including any sale and leaseback transaction) of any property
by any Person, including any sale, assignment, transfer or other disposal, with
or without recourse, of any notes or accounts receivable or any rights and
claims associated therewith.
"Dollar" and "$" mean lawful money of the United States.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender;
(c) an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent and the L/C Issuer, and (ii) unless an
Event of Default has occurred and is continuing, the Borrower (each such
approval not to be unreasonably withheld or delayed); provided that
notwithstanding the foregoing, "Eligible Assignee" shall not include the
Borrower or any of the Borrower's Affiliates or Subsidiaries.
"Eligible Cash Equivalents" means Cash Equivalents in which Borrower
has lawful and absolute title, which are free from any express or implied at law
Lien, trust or other beneficial interest, in which Administrative Agent holds a
fully perfected first-priority security interest prior to the rights of, and
enforceable as such against, any other Persons pursuant to an account agreement
satisfactory to Administrative Agent and which remain under the sole dominion
and control of Administrative Agent.
"Eligible Exchange Balances" means each Approved Eligible Receivable
(including for this purpose only either the right to receive Petroleum Inventory
in kind or to receive money) arising from the trading, lending, borrowing or
exchange of Petroleum Inventory, net of any netted obligations or other offsets
or counterclaims determined in accordance with prices set
forth in the applicable exchange contracts, based on current value at the Market
Price, in which Borrower has lawful and absolute title, which is not subject to
any Lien in favor of any Person (other than Permitted Inventory Liens), and
which is subject to a fully perfected first-priority security interest (subject
only to Permitted Inventory Liens) in favor of Administrative Agent pursuant to
the Loan Documents prior to the rights of, and enforceable as such against, any
other Persons minus without duplication the amount of any Permitted Inventory
Lien on any Petroleum Inventory receivable in kind.
"Eligible Inventory" means inventories of Petroleum Inventory in which
Borrower has lawful and absolute title (specifically excluding, however, tank
bottoms), which are not subject to any Lien in favor of any Person (other than
Permitted Inventory Liens), which are subject to a fully perfected first
priority security interest (subject only to Permitted Inventory Liens) in favor
of Administrative Agent pursuant to the Loan Documents prior to the rights of,
and enforceable as such against, any other Person, which are otherwise
satisfactory to Required Lenders in their reasonable business judgment and which
are located in storage locations (including pipelines) which are either (a)
owned by a Loan Party or (b) Currently Approved by Required Lenders minus
without duplication the amount of any Permitted Inventory Lien on any such
inventory. Eligible Inventory shall specifically exclude inventory to be
delivered in the current or next succeeding trading month.
"Eligible Margin Deposit" means net equity value of investments by
Borrower in margin deposit accounts with commodities brokers on nationally
recognized exchanges subject to a perfected security interest in favor of
Administrative Agent and a three-party agreement among Borrower, Administrative
Agent and the depository institution, in form and substance satisfactory to
Administrative Agent.
"Eligible Receivables" means, at the time of any determination thereof
(and without duplication), each Account and, with respect to each determination
made on or after the 20th day of each calendar month and prior to the first day
of the next calendar month, each amount which will be, in the good faith
estimate reasonably determined by Borrower, an Account of the Borrower with
respect to sales and deliveries of Petroleum Inventory during such calendar
month or sales and deliveries of Petroleum Inventory during the next calendar
month under firm written purchase and sale agreements, in either event as to
which the following requirements have been fulfilled (or as to future Accounts,
will be fulfilled as of the date of such sales and deliveries of Petroleum
Inventory), to the reasonable satisfaction of Administrative Agent:
(i) Borrower has lawful and absolute title to such Account;
(ii) such Account is a valid, legally enforceable obligation of an Account
Debtor payable in Dollars, arising from the sale and delivery of
Petroleum Inventory to such Person in the United States of America in
the ordinary course of business of Borrower, to the extent of the
volumes of Petroleum Inventory delivered to such Person prior to the
date of determination;
(iii) there has been excluded from such Account (A) any portion that is
subject to any dispute, rejection, loss, non-conformance, counterclaim
or other claim or defense on the part of any Account Debtor or to any
claim on the part of any Account Debtor
denying liability under such Account, and (B) the amount of any
account payable or other liability owed by Borrower to the Account
Debtor on such Account, whether or not a specific netting agreement may
exist, excluding, however, any portion of any such account payable or
other liability which is at the time in question covered by a Letter of
Credit;
(iv) Borrower has the full and unqualified right to assign and grant a
security interest in such Account to Administrative Agent as security
for the Obligation;
(v) such Account (A) is evidenced by an invoice rendered to the Account
Debtor, or (B) represents the uninvoiced amount in respect of volumes
of Petroleum Inventory scheduled to be delivered by Borrower in the
current or next-following calendar month, is governed by a purchase and
sale agreement, exchange agreement or other written agreement, and in
either event such Account is not evidenced by any promissory note or
other instrument;
(vi) such Account is not subject to any Lien in favor of any Person and is
subject to a fully perfected first priority security interest in favor
of Administrative Agent pursuant to the Loan Documents, prior to the
rights of, and enforceable as such against, any other Person except for
a Lien in respect of First Purchase Crude Payables;
(vii) such Account is due not more than 30 days following the last day of the
calendar month in which the Petroleum Inventory delivery occurred and
is not more than 30 days past due (except that Accounts of a single
Account Debtor in excess of $250,000 which are not Approved Eligible
Receivables shall be excluded from Eligible Receivables if not paid on
or before the third Business Day after the due date);
(viii) such Account is not payable by an Account Debtor with more than ten
percent (10%) of its Accounts to Borrower that are outstanding more
than 30 days from the invoice date;
(ix) the Account Debtor in respect of such Account (A) is located, is
conducting significant business or has significant assets in the United
States of America or is a Person Currently Approved by Required
Lenders, (B) is not an Affiliate of Borrower, and (C) is not the
subject of any event of the type described in Section 8.1(i);
(x) the Account Debtor in respect of such Account is not a governmental
authority, domestic or foreign;
(xi) such Account is not the obligation of an Account Debtor that
Administrative Agent or Required Lenders determine in good faith that
there is a legitimate concern over the timing or collection of such
receivable; and
(xii) there is excluded, in the determination of Eligible Receivables, the
portion of aggregate Accounts with respect to any Account Debtor that
exceed the percentage designated by Administrative Agent from time to
time of the total Eligible Receivables Accounts.
"Environmental Laws" means any and all Federal, state, local, and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower, any other Loan Party or any of their
respective Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"Equity Interests" means, with respect to any Person, all of the shares
of capital stock of (or other ownership or profit interests in) such Person, all
of the warrants, options or other rights for the purchase or acquisition from
such Person of shares of capital stock of (or other ownership or profit
interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit
interests in) such Person or warrants, rights or options for the purchase or
acquisition from such Person of such shares (or such other interests), and all
of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting,
and whether or not such shares, warrants, options, rights or other interests are
outstanding on any date of determination.
"Equity/Senior Debt Proceeds" means cash proceeds received by any Loan
Party in respect of (a) Indebtedness for borrowed money other than (i) the
Obligations, (ii) Subordinated Indebtedness, (iii) Indebtedness to another Loan
Party, (iv) Lender Hedging Obligations or (v) Indebtedness described in Section
7.01(e) or (f) or (b) any contribution to its equity capital whether or not
occurring in connection with the issuance or sale of Equity Interests by such
Loan Party other than equity capital received from another Loan Party, in each
case net of underwriters' or purchasers' discounts and commissions, legal,
accountancy, registration, or printing fees and expenses and other fees and
expenses incurred in connection therewith to be paid or reimbursed by the issuer
and net of any taxes, if any, paid or payable as a result thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Borrower within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal
under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the
Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a
Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to
terminate, the treatment of a Plan amendment as a termination under Sections
4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to
terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which
constitutes grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan or Multiemployer Plan;
or (f) the imposition of any liability under Title IV of ERISA, other than for
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the
Borrower or any ERISA Affiliate.
"Eurodollar Rate" means for any Interest Period with respect to a
Eurodollar Rate Loan:
(a) the rate per annum equal to the rate determined by the Administrative
Agent to be the offered rate that appears on the page of the Telerate
screen (or any successor thereto) that displays an average British
Bankers Association Interest Settlement Rate for deposits in Dollars
(for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period, or
(b) if the rate referenced in the preceding clause (a) does not appear on
such page or service or such page or service shall not be available,
the rate per annum equal to the rate determined by the Administrative
Agent to be the offered rate on such other page or other service that
displays an average British Bankers Association Interest Settlement
Rate for deposits in Dollars (for delivery on the first day of such
Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period, or
(c) if the rates referenced in the preceding clauses (a) and (b) are not
available, the rate per annum determined by the Administrative Agent as
the rate of interest at which deposits in Dollars for delivery on the
first day of such Interest Period in same day funds in the approximate
amount of the Eurodollar Rate Loan being made, continued or converted
by Fleet National Bank and with a term equivalent to such Interest
Period would be offered by Fleet National Bank's London Branch to major
banks in the London interbank eurodollar market at their request at
approximately 4:00 p.m. (London time) two Business Days prior to the
first day of such Interest Period.
"Eurodollar Rate Loan" means a Loan that bears interest at a rate based
on the Eurodollar Rate.
"Event of Default" shall have the meaning set forth in Section 8.01.
"Excess Sale Proceeds" shall have the meaning set forth in Section
7.05(d).
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the L/C Issuer or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) taxes imposed on or
measured by its overall net income (however denominated), and franchise taxes
imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable Lending Office is located, (b) any branch
profits taxes imposed by the United States or any similar tax imposed by any
other jurisdiction in which the Borrower is located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 10.13), any withholding tax that is imposed on amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or is attributable to such Foreign Lender's
failure or inability (other than as a result of a Change in Law) to comply with
Section 3.01(e), except to the extent that such Foreign Lender (or its assignor,
if any) was entitled, at the time of designation of a new Lending Office (or
assignment), to receive additional amounts from the Borrower with respect to
such withholding tax pursuant to Section 3.01(a).
"Existing Credit Agreement" means that certain Credit Agreement dated
as of March 14, 2003 by and between Genesis Crude Oil, L.P., as Borrower and
Fleet National Bank, as Administrative Agent, and certain financial
institutions, as Lenders.
"Exiting Lenders" shall have the meaning set forth in Section
4.01(a)(xvii).
"Federal Funds Rate" means, for any day, the rate per annum equal to
the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Fleet
National Bank on such day on such transactions as determined by the
Administrative Agent.
"Fee Letter" means the letter agreement, dated April 21, 2004, among
the Borrower, the Administrative Agent and the Arranger.
"First Purchase Crude Payables" means the unpaid amount of any payable
obligation related to the purchase of Petroleum Inventory by Borrower which
Administrative Agent determines will be secured by a statutory Lien, including
but not limited to the statutory Liens, if any, created under the Laws of Texas,
New Mexico, Wyoming, Kansas, Oklahoma or any other state to the extent such
payable obligation is not at the time in question covered by a Letter of Credit.
"Fiscal Quarter" means a three-month period ending on March 31, June
30, September 30 or December 31 of any year.
"Fiscal Year" means a twelve-month period ending on December 31 of any
year.
"Floating Price Contract" shall have the meaning set forth in Section
7.16.
"Foreign Lender" means any Lender that is organized under the Laws of a
jurisdiction other than that in which the Borrower is resident for tax purposes.
For purposes of this definition, the United States, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"Fund" means any Person (other than a natural person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"GAAP" means generally accepted accounting principles in the United
States set forth in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"General Obligation L/C Sublimit" means an amount equal to $3,000,000.
The General Obligation L/C Sublimit is part of, and not in addition to, the
Aggregate Working Capital Commitments.
"General Partner" means Genesis Energy, Inc., a Delaware corporation.
"Genesis Energy, L.P." means Genesis Energy, L.P., a Delaware limited
partnership.
"Governmental Authority" means the government of the United States or
any other nation, or of any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or
the European Central Bank).
"Guarantee" means, as to any Person, (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether
or not such Indebtedness or other obligation is assumed by such Person (or any
right, contingent or otherwise, of any holder of such Indebtedness to obtain any
such Lien). The amount of any Guarantee shall be deemed to be an amount equal to
the stated or determinable amount of the related primary obligation, or portion
thereof, in respect of which such Guarantee is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith. The term "Guarantee" as a
verb has a corresponding meaning.
"Guarantors" means Genesis Energy, Inc., Genesis Energy, L.P., Genesis
Pipeline USA, L.P., and Genesis Pipeline Texas, L.P., any Subsidiary of Genesis
Energy, L.P. which now or hereafter executes and delivers a guaranty to
Administrative Agent pursuant to Section 6.17, and any other Person who has
guaranteed some or all of the Obligations and who has been accepted by
Administrative Agent as a Guarantor.
"Guaranty" means collectively, the Guarantees made by the Guarantors in
favor of the Administrative Agent and the Lenders, substantially in the form of
Exhibit F.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedged Eligible Inventory" means Eligible Inventory with respect to
which the price risk has been:
(a) hedged for delivery within the next 190 days by either
(i) a contract on the NYMEX arranged through brokers approved by
Administrative Agent and with whom a three-party agreement
among Borrower, Administrative Agent and such broker has been
entered in form and substance satisfactory to Administrative
Agent or
(ii) a contract for a specified price for physical delivery of such
inventory to a counterparty whose Account would qualify as an
Approved Eligible Receivable or
(iii) otherwise hedged in a manner satisfactory to Required Lenders.
The value of Hedged Eligible Inventory shall be the volume of
the inventory times the prices fixed in such hedge, minus all
storage, transportation and other applicable costs.
"Indebtedness" of any Person means its Liabilities (without
duplication) in any of the following categories:
(a) Liabilities for borrowed money,
(b) Liabilities constituting an obligation to pay the deferred purchase
price of property or services,
(c) Liabilities evidenced by a bond, debenture, note or similar instrument,
(d) Liabilities (other than reserves for taxes and reserves for contingent
obligations) which (i) would under GAAP be shown on such Person's
balance sheet as a liability and (ii) are payable more than one year
from the date of creation or incurrence thereof,
(e) Liabilities arising under Swap Contracts (on a net basis to the extent
netting is provided for in the applicable Swap Contract),
(f) Liabilities constituting principal under Capital Leases,
(g) Liabilities arising under conditional sales or other title retention
agreements,
(h) Liabilities owing under Guarantees,
(i) Liabilities consisting of an obligation to purchase or redeem
securities or other property, if such Liabilities arises out of or in
connection with the sale or issuance of the same or similar securities
or property (for example, repurchase agreements, mandatorily redeemable
preferred stock and sale/leaseback agreements),
(j) Liabilities with respect to letters of credit or applications or
reimbursement agreements therefor,
(k) Liabilities with respect to banker's acceptances, or
(l) Liabilities with respect to obligations to deliver goods or services in
consideration of advance payments therefor;
provided, however, that the "Indebtedness" of any Person shall not include
Liabilities that were incurred in the ordinary course of business by such Person
on ordinary trade terms to vendors, suppliers or other Persons providing goods
and services for use by such Person in the ordinary course of its business,
unless and until such Liabilities are outstanding more than 120 days after the
date the respective goods are delivered or the respective services are rendered,
other than Liabilities contested in good faith by appropriate proceedings, if
required, and for which adequate reserves are maintained on the books of such
Person in accordance with GAAP.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitees" shall have the meaning set forth in Section 10.04(b).
"Initial Financial Statements" means (i) the audited Consolidated
financial statements of Genesis Energy, L.P. as of December 31, 2003, (ii) the
audited Consolidated financial statements of Borrower as of December 31, 2003,
(iii) the unaudited Consolidated financial statements of Genesis Energy, L.P. as
of December 31, 2003, (iv) the unaudited Consolidated
financial statements of Borrower as of December 31, 2003 and (v) the unaudited
pro forma Consolidated balance sheet of Borrower as of March 31, 2004 reflecting
on a pro forma basis the transactions contemplated by this Agreement, in each
case, including the notes thereto.
"Interest Expense" means, with respect to any period, the sum (without
duplication) of the following (in each case, eliminating all offsetting debits
and credits between Genesis Energy, L.P. and its Subsidiaries and all other
items required to be eliminated in the course of the preparation of Consolidated
financial statements of Genesis Energy, L.P. and its Subsidiaries in accordance
with GAAP): (a) all interest and commitment fees in respect of Indebtedness of
Genesis Energy, L.P. or any of its Subsidiaries (including imputed interest on
Capital Lease Obligations) which are accrued during such period and whether
expensed in such period or capitalized; plus (b) all fees, expenses and charges
in respect of letters of credit issued for the account of Genesis Energy, L.P.
or any of its Subsidiaries, which are accrued during such period and whether
expensed in such period or capitalized.
"Interest Payment Date" means, (a) as to any Loan other than a Base
Rate Loan, the last day of each Interest Period applicable to such Loan and the
Maturity Date; provided, however, that if any Interest Period for a Eurodollar
Rate Loan exceeds three months, the respective dates that fall every three
months after the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan, the last Business Day of each
March, June, September and December and the Maturity Date.
"Interest Period" means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date one, two, three or
six months thereafter, as selected by the Borrower in its Loan Notice or such
other period that is twelve months or less requested by the Borrower and
consented to by all the Lenders; provided that:
(i) any Interest Period that would otherwise end on a day that is not a
Business Day shall be extended to the next succeeding Business Day
unless such Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period) shall end on
the last Business Day of the calendar month at the end of such Interest
Period; and
(iii) no Interest Period shall extend beyond the Maturity Date.
"Investment" means, as to any Person, any direct or indirect
acquisition or investment by such Person, whether by means of (a) the purchase
or other acquisition of capital stock or other securities of another Person, (b)
a loan, advance or capital contribution to, Guarantee or assumption of debt of,
or purchase or other acquisition of any other debt or equity participation or
interest in, another Person, including any partnership or joint venture interest
in such other Person and any arrangement pursuant to which the investor
Guarantees Indebtedness of such other Person. For purposes of covenant
compliance, the amount of any Investment shall be the
amount actually invested, without adjustment for subsequent increases or
decreases in the value of such Investment.
"IRS" means the United States Internal Revenue Service.
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
"Issuer Documents" means with respect to any Letter of Credit, the
Letter Credit Application, and any other document, agreement and instrument
entered into by the L/C Issuer and the Borrower (or any Subsidiary) or in favor
the L/C Issuer and relating to any such Letter of Credit.
"Laws" means, collectively, all international, foreign, Federal, state
and local statutes, treaties, rules, guidelines, regulations, ordinances, codes
and administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's funding
of its participation in any L/C Borrowing in accordance with its Working Capital
Percentage.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Borrowing.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the increase of the
amount thereof.
"L/C Issuer" means Fleet National Bank in its capacity as issuer of
Letters of Credit hereunder, or any successor issuer of Letters of Credit
hereunder.
"L/C Obligations" means, as at any date of determination, the aggregate
undrawn amount of all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For all purposes of this
Agreement, if on any date of determination a Letter of Credit has expired by its
terms but any amount may still be drawn thereunder by reason of the operation of
Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be "outstanding"
in the amount so remaining available to be drawn.
"Lender" has the meaning specified in the introductory paragraph
hereto.
"Lender Hedging Obligations" means all obligations arising from time to
time under Swap Contracts entered into from time to time between Borrower or any
Guarantor and a counterparty that is a Lender or an Affiliate of a Lender;
provided that (a) if such counterparty ceases to be a Lender hereunder or an
Affiliate of a Lender hereunder, Lender Hedging Obligations shall only include
such obligations to the extent arising from transactions entered
into at the time such counterparty was a Lender hereunder or an Affiliate of a
Lender hereunder, and (b) for any of the forgoing to be included within "Lender
Hedging Obligations" hereunder, the applicable counterparty must have provided
Administrative Agent written notice of the existence thereof and such
transaction must not otherwise be prohibited under this Agreement.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Borrower
and the Administrative Agent.
"Letter of Credit" means any letter of credit issued hereunder.
"Letter of Credit Application" means an application and agreement for
the issuance or amendment of a Letter of Credit in the form from time to time in
use by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is nine days
prior to the Maturity Date then in effect (or, if such day is not a Business
Day, the next preceding Business Day).
"Letter of Credit Fee" shall have the meaning set forth in Section
2.03(i).
"Liabilities" means, as to any Person, all indebtedness, liabilities
and obligations of such Person, whether matured or unmatured, liquidated or
unliquidated, primary or secondary, direct or indirect, absolute, fixed or
contingent, and whether or not required to be considered pursuant to GAAP.
"Lien" means, with respect to any property or assets, any right or
interest therein of a creditor to secure Liabilities owed to it or any other
arrangement with such creditor which provides for the payment of such
Liabilities out of such property or assets or which allows such creditor to have
such Liabilities satisfied out of such property or assets prior to the general
creditors of any owner thereof, including any lien, mortgage, security interest,
pledge, deposit, production payment, rights of a vendor under any title
retention or conditional sale agreement or lease substantially equivalent
thereto, tax lien, mechanic's or materialman's lien, or any other charge or
encumbrance for security purposes, whether arising by Law or agreement or
otherwise, but excluding any right of offset which arises without agreement in
the ordinary course of business. "Lien" also means any filed financing
statement, any registration of a pledge (such as with an issuer of
uncertificated securities), or any other arrangement or action which would serve
to perfect a Lien described in the preceding sentence, regardless of whether
such financing statement is filed, such registration is made, or such
arrangement or action is undertaken before or after such Lien exists.
"Loan" means a Working Capital Loan or an Acquisition Facility Loan.
"Loan Documents" means this Agreement, each Note, each Issuer Document,
the Fee Letter, the Guaranty, the Security Documents, and all other agreements,
certificates, documents, instruments and writings at any time delivered in
connection herewith or therewith (exclusive of term sheets and commitment
letters).
"Loan Notice" means a notice of (a) a Borrowing, (b) a conversion of
Loans from one Type to the other, or (c) a continuation of Eurodollar Rate
Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially
in the form of Exhibit A.
"Loan Parties" means, collectively, Genesis Energy, L.P., Genesis
Energy, Inc., and each Subsidiary of Genesis Energy, L.P., including but not
limited to Borrower and each Subsidiary of Borrower.
"Maintenance Capital Expenditures" means, for any period, all amounts
properly classified as capital expenditures under GAAP for maintenance of or
repair or replacement of existing assets during such period or that are required
to maintain existing operations.
"Market Price" means on each day a spot price for the inventory of
Petroleum Inventory being valued, determined by published prices and methodology
approved by Administrative Agent from time to time, based on an index gravity
and grade of Petroleum Inventory at a delivery point reflecting as nearly as
practical the actual gravity, grade, and location of the Petroleum Inventory
being valued, adjusted to reflect any differences in gravity and grade between
the index Petroleum Inventory and the actual inventory and to reflect
transportation costs or other appropriate location price differential from the
actual location to the index location.
"Material Adverse Change" means a material and adverse change, from the
state of affairs presented in the Initial Financial Statements or as represented
or warranted in any Loan Document, to (a) Genesis Energy, L.P.'s Consolidated
financial condition, (b) Genesis Energy, L.P.'s Consolidated operations,
business, properties or prospects, considered as a whole, (c) Borrower's ability
to timely pay the Obligations, or (d) the enforceability of the material terms
of any Loan Document.
"Material Market Open Position Loss" means a cumulative amount of net
losses resulting from Open Positions (other than Open Positions permitted under
Section 7.16) of all Loan Parties on a mark to market basis during any period of
12 consecutive months in excess of $250,000.
"Maturity Date" means June 1, 2008.
"Maximum Rate" shall have the meaning set forth in Section 10.09.
"Moody's" means Moody's Investors Service, Inc. and any successor
thereto.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate makes or is obligated to make contributions, or during the preceding
five plan years, has made or been obligated to make contributions.
"Net Sale Proceeds" shall have the meaning set forth in Section
7.05(d).
"Note" means an Acquisition Facility Note or a Working Capital Note.
"NYMEX" means the New York Mercantile Exchange.
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of, any Loan Party arising under any Loan
Document or otherwise with respect to any Loan or Letter of Credit, whether
direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against any
Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief
Laws naming such Person as the debtor in such proceeding, regardless of whether
such interest and fees are allowed claims in such proceeding.
"Offsetting Position" means any offsetting sale or purchase agreement,
an offsetting NYMEX contract, an offsetting physical inventory position
(excluding tank bottoms and pipeline linefill inventory classified as a long
term asset and working inventory not held for resale), or an offsetting swap,
collar or option contract, in each case eliminating price risk and substantially
all basis risk.
"Open Position" means (i) any physical Petroleum Inventory or (ii) any
purchase or sale contract for Petroleum Inventory that does not have an
Offsetting Position.
"Organization Documents" means, (a) with respect to any corporation,
the certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Other Eligible Inventory Value" means the following amount of Eligible
Inventory, other than Hedged Eligible Inventory: (a) if the WTI Price is less
than or equal to $30 per barrel, 80% of the product of the volume of such crude
oil times the Market Price, or (b) if the WTI Price is greater than $30 per
barrel the greater of (i) 70% of the product of the volume of such crude oil
times the Market Price or (ii) 80% of the product of the volume of such crude
oil times $30 per barrel; minus, in each case, all storage, transportation and
other applicable costs. As used herein "WTI Price" means on each day the Platt's
Average Spot Price for West Texas intermediate crude oil (Cushing, Oklahoma).
"Other Eligible Receivable" means any Eligible Receivable which is not
an Approved Eligible Receivable nor an Eligible Exchange Balance. The portions
of the aggregate of the Other Eligible Receivables owed by any obligor and its
Affiliates exceeding ten percent (10%) of the sum of (i) Approved Eligible
Receivables plus (ii) Other Eligible Receivables, shall not be included without
the prior written approval of the Required Lenders.
"Other Priority Claims" means any account payable, obligation or
liability which Administrative Agent has determined has or will have a Lien upon
or claim against any Cash Equivalent, account or inventory of Borrower senior or
equal in priority to the security interests in favor of Administrative Agent for
the benefit of Lenders, in each case to the extent such Cash Equivalent, account
or inventory of Borrower is otherwise included in the determination of the
Borrowing Base and the included portion thereof has not already been reduced by
such Lien or claim.
"Other Taxes" means all present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any
payment made hereunder or under any other Loan Document or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document.
"Outstanding Amount" means (i) with respect to Acquisition Facility
Loans or Working Capital Loans on any date, the aggregate outstanding principal
amount thereof after giving effect to any borrowings and prepayments or
repayments of such Loans, as the case may be, occurring on such date; and (ii)
with respect to any L/C Obligations on any date, the amount of such L/C
Obligations on such date after giving effect to any L/C Credit Extension
occurring on such date and any other changes in the aggregate amount of the L/C
Obligations as of such date, including as a result of any reimbursements of
outstanding unpaid drawings under any Letters of Credit or any reductions in the
maximum amount available for drawing under Letters of Credit taking effect on
such date.
"Outstanding Working Capital Amount" means (i) with respect to Working
Capital Loans on any date, the aggregate outstanding principal amount thereof
after giving effect to any borrowings and prepayments or repayments thereof
occurring on such date; and (ii) with respect to any L/C Obligations on any
date, the amount of such L/C Obligations on such date after giving effect to any
L/C Credit Extension occurring on such date and any other changes in the
aggregate amount of the L/C Obligations as of such date, including as a result
of any reimbursements of outstanding unpaid drawings under any Letters of Credit
or any reductions in the maximum amount available for drawing under Letters of
Credit taking effect on such date.
"Paid but Unexpired Letters of Credit" means, on any day, the maximum
drawing amount of Letters of Credit on such day where no underlying obligation
exists on such day, or if the amount of the Letter of Credit exceeds the
underlying obligation on such day, the amount of such excess. As used herein,
"underlying obligation" includes without limitation, all existing and future
obligations to the beneficiary of such Letter of Credit in respect of Petroleum
Inventory purchased or received on or prior to such day or in respect of
Petroleum Inventory Borrower is then obligated to purchase or receive or has
then nominated to purchase or receive.
"Participant" shall have the meaning set forth in Section 10.06(d).
"Partnership Agreement" means the Third Amended and Restated Agreement
of Limited Partnership of Genesis Energy, L.P. dated July 31, 2002.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term
is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any
time during the immediately preceding five plan years.
"Permitted Acquisitions" means (A) the acquisition of all of the
capital stock or other equity interest in a Person (exclusive of general partner
interests held by General Partner not in excess of a 1% economic interest and
exclusive of director qualifying shares and other Equity Interests required to
be held by an Affiliate to comply with a requirement of Law), including an
acquisition through a merger or consolidation of such Person with or into a Loan
Party or (B) any other acquisition of all or a portion of the business, assets
or operations of a Person (whether in a single transaction or a series of
related transactions); provided that (i) prior to and after giving effect to
such acquisition no Default or Event of Default shall have occurred and be
continuing; (ii) all representations and warranties shall be true and correct as
if restated immediately following the consummation of such acquisition; (iii)
substantially all of such business, assets and operations so acquired, or of the
Person so acquired, consists of marketing, gathering, transportation, storage,
terminaling and pipeline operation of Petroleum Inventory or carbon dioxide; and
(iv) such acquisition is either (x) for a purchase price not to exceed
$25,000,000 for any Denbury Carbon Dioxide Acquisition described in Schedule 1.1
or (y) for a purchase price not to exceed $15,000,000 for each other
acquisition, or for a series of related acquisitions, from and after the date of
this Agreement.
"Permitted Inventory Liens" means any Lien, and the amount of any
Liability secured thereby, on Petroleum Inventory which would be a Permitted
Lien under Section 7.02(ii)(b) (so long as such Lien is inchoate) or Section
7.02(ii)(d).
"Permitted Investments" means:
(i) Cash Equivalents,
(ii) Investments described in Schedule 7.07,
(iii) Investments by Genesis Energy, L.P. or any of its Subsidiaries in
Borrower or any Wholly Owned Subsidiary of Genesis Energy, L.P. which
is a Guarantor, and
(iv) Permitted Acquisitions.
"Permitted Lien" shall have the meaning set forth in Section 7.02.
"Permitted Reinvestment" shall have the meaning set forth in Section
7.05(d).
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Petroleum Inventory" means crude oil, condensate, natural gas, refined
products, natural gas liquids (N.L.'s), liquefied petroleum gases (LPG's) or any
blend thereof.
"Pipeline Release" means the spill of crude oil from the Genesis
Pipeline USA, L.P. Mississippi System on December 20, 1999.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or, with respect to any such
plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"Register" shall have the meaning set forth in Section 10.06(c).
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
"Rents" shall have the meaning set forth in Section 6.19.
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA, other than events for which the 30 day notice period has been waived.
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Loans, a Loan Notice, and (b) with respect to an
L/C Credit Extension, a Letter of Credit Application.
"Required Lenders" means, as of any date of determination, Lenders
having at least 66-2/3% of the Aggregate Commitments or, if the commitment of
each Lender to make Loans and the obligation of the L/C Issuer to make L/C
Credit Extensions have been terminated pursuant to Section 8.02, Lenders holding
in the aggregate at least 66-2/3 of the Outstanding Amount of Loans and L/C
Obligations (with the aggregate amount of each Lender's risk participation and
funded participation in L/C Obligations being deemed "held" by such Lender for
purposes of this definition); provided that the Commitment of, and the portion
of the Outstanding Amount of Loans and L/C Obligations held or deemed held by,
any Defaulting Lender shall be excluded for purposes of making a determination
of Required Lenders.
"Responsible Officer" means the chief executive officer, president,
chief financial officer, controller, treasurer or assistant treasurer of a Loan
Party. Any document delivered hereunder that is signed by a Responsible Officer
of a Loan Party shall be conclusively presumed to have been authorized by all
necessary corporate, partnership and/or other action on the part of such Loan
Party and such Responsible Officer shall be conclusively presumed to have acted
on behalf of such Loan Party.
"Restricted Payment" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any capital stock or
other Equity Interest of the Borrower or any Subsidiary, or any payment (whether
in cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such capital stock or other Equity
Interest, or on account of any return of capital to the Borrower's stockholders,
partners or members (or the equivalent Person thereof).
"Risk Management Policy" shall have the meaning set forth in Section
4.01(a)(xiii).
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc. and any successor thereto.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Security Documents" means the instruments listed in the Security
Schedule and all other security agreements, deeds of trust, mortgages, chattel
mortgages, pledges, Guarantees, financing statements, continuation statements,
extension agreements and other agreements or instruments now, heretofore, or
hereafter delivered by any Loan Party to Administrative Agent in connection with
this Agreement or any transaction contemplated hereby to secure or guarantee the
payment of any part of the Obligations or the performance of any Loan Party's
other duties and obligations under the Loan Documents.
"Security Schedule" means Schedule 3 hereto.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of such
Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (b) the present fair salable
value of the assets of such Person is not less than the amount that will be
required to pay the probable liability of such Person on its debts as they
become absolute and matured, (c) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's ability to
pay such debts and liabilities as they mature and (d) such Person is not engaged
in business or a transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute an unreasonably
small capital. The amount of contingent liabilities at any time shall be
computed as the amount that, in the light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
"Subordinated Indebtedness" means unsecured Indebtedness for borrowed
money of Borrower that (i) does not mature or have scheduled payments prior to
the latest maturity date of the Obligations, (ii) is subordinated to the
Obligations and Lender Hedging Obligations on terms satisfactory to Required
Lenders in their sole and absolute discretion, and (iii) has covenants and
events of default that, taken as a whole, are not more burdensome to the Loan
Parties than those contained in this Agreement.
"Subsidiary" of a Person means a corporation, partnership, joint
venture, limited liability company or other business entity of which a majority
of the shares of securities or other interests having ordinary voting power for
the election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
Controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person, it being understood that for all purposes of this Agreement and
the other Loan Documents, (i) Borrower is a Subsidiary
of Genesis Energy, L.P. and General Partner and (ii) Genesis Energy, L.P. is a
Subsidiary of General Partner. Unless otherwise specified, all references herein
to a "Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or
Subsidiaries of the Borrower.
"Swap Contract" means (a) any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
mark-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
"Type" means, with respect to a Loan, its character as a Base Rate Loan
or a Eurodollar Rate Loan.
"Unfunded Pension Liability" means the excess of a Pension Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Pension Plan's assets, determined in accordance with the assumptions
used for funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" shall have the meaning set forth in Section
2.03(c)(i).
"Unused Proceeds Amount" shall have the meaning set forth in Section
7.05(d).
"Wholly Owned Subsidiary" means any Subsidiary of a Person, all of the
issued and outstanding stock, limited liability company membership interests, or
partnership interests of which (including all rights or options to acquire such
stock or interests) are directly or indirectly (through one or more
Subsidiaries) owned by such Person, excluding any general partner interests
owned, directly or indirectly, by General Partner in any such Subsidiary that is
a partnership, in each case such general partner interests not to exceed three
percent (3%) of the aggregate ownership interests of any such partnership and
directors' qualifying shares if applicable.
"Working Capital Borrowing" means a borrowing or continuation or
conversion of loans consisting of simultaneous Working Capital Loans of the same
Type and, in the case of Eurodollar Rate Loans, having the same Interest Period
made by the Lenders pursuant to Section 2.01(a).
"Working Capital Commitment" means, as to each Lender, its obligation
to (a) make Working Capital Loans to the Borrower pursuant to Section 2.01(a)
and (b) purchase participations in L/C Obligations, in an aggregate principal
amount at any one time outstanding not to exceed the amount set forth as its
"Working Capital Commitment" opposite such Lender's name on Schedule 2.01 or in
the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable, as such amount may be adjusted from time to time in
accordance with this Agreement.
"Working Capital Lenders" means any Lender who maintains a Working
Capital Commitment or has outstanding Working Capital Loans.
"Working Capital Loans" shall have the meaning set forth in Section
2.01(a).
"Working Capital Note" means a promissory note made by the Borrower in
favor of a Working Capital Lender evidencing Working Capital Loans made by such
Working Capital Lender, substantially in the form of Exhibit B-2.
"Working Capital Obligations" means all Liabilities from time to time
owing by any Loan Party to any Working Capital Lender under or pursuant to any
of the Working Capital Notes or the Loan Documents or under or pursuant to any
Guaranty of such Liabilities, or under or pursuant to any Security Document
which secures the payment and performance of such Liabilities. "Working Capital
Obligation" means any part of the Working Capital Obligations.
"Working Capital Percentage" means, with respect to any Lender at any
time, the percentage (carried out to the ninth decimal place) of the Aggregate
Working Capital Commitments represented by such Lender's Working Capital
Commitment at such time. If the commitment of each Lender to make Loans has been
terminated pursuant to Section 8.02 or if the Aggregate Working Capital
Commitments have expired, then the Working Capital Percentage of each Lender
shall be determined based on the Working Capital Percentage of such Lender most
recently in effect, giving effect to any subsequent assignments. The initial
Working Capital Percentage of each Lender is set forth as its "Working Capital
Percentage" opposite the name of such Lender on Schedule 2.01 or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable.
1.02 Other Interpretive Provisions. With reference to this Agreement and each
other Loan Document, unless otherwise specified herein or in such other Loan
Document:
(a) The definitions of terms herein shall apply equally to the singular and
plural forms of the terms defined. Whenever the context may require,
any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include,""includes" and "including" shall be
deemed to be followed by the phrase "without limitation." The word
"will" shall be construed to have the same meaning and effect as the
word "shall." Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other
document (including any Organization Document) shall be construed as
referring to such agreement, instrument or other document as from time
to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth
herein or in any other Loan Document), (ii) any reference herein to any
Person shall be construed to include such Person's successors and
assigns, (iii) the words "herein," "hereof" and "hereunder," and words
of similar import when used in any Loan Document, shall be construed to
refer to such Loan Document in its entirety and not to any particular
provision thereof, (iv) all references in a Loan Document to Articles,
Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, the Loan
Document in which such references appear, (v) any reference to any law
shall include all statutory and regulatory provisions consolidating,
amending replacing or interpreting such law and any reference to any
law or regulation shall, unless otherwise specified, refer to such law
or regulation as amended, modified or supplemented from time to time,
and (vi) the words "asset" and "property" shall be construed to have
the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts
and contract rights.
(b) In the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including;" the words
"to" and "until" each mean "to but excluding;" and the word "through"
means "to and including."
(c) Section headings herein and in the other Loan Documents are included
for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.03 Accounting Terms.
(a) Generally. All accounting terms not specifically or completely defined
herein shall be construed in conformity with, and all financial data
(including financial ratios and other financial calculations) required
to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from
time to time, applied in a manner consistent with that used in
preparing the Initial Financial Statements, except as otherwise
specifically prescribed herein.
(b) Changes in GAAP. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan
Document, and either the Borrower or the Required Lenders shall so
request, the Administrative Agent, the Lenders and the Borrower shall
negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such
change in GAAP (subject to the approval of the Required Lenders);
provided that, until so amended, (i) such ratio or requirement shall
continue to be computed in accordance with GAAP prior to such change
therein and (ii) the Borrower shall provide to the Administrative Agent
and the Lenders financial statements and other documents required under
this Agreement or as reasonably requested hereunder setting forth a
reconciliation between calculations of such ratio or requirement made
before and after giving effect to such change in GAAP.
1.04 Rounding. Any financial ratios required to be maintained by the Borrower
pursuant to this Agreement shall be calculated by dividing the appropriate
component by the other component, carrying the result to one place more than the
number of places by which such ratio is expressed herein and rounding the result
up or down to the nearest number (with a rounding-up if there is no nearest
number).
1.05 Times of Day. Unless otherwise specified, all references herein to times of
day shall be references to Eastern time (daylight or standard, as applicable).
1.06 Letter of Credit Amounts. Unless otherwise specified, all references herein
to the amount of a Letter of Credit at any time shall be deemed to mean the
maximum face amount of such Letter of Credit after giving effect to all
increases thereof contemplated by such Letter of Credit or the Issuer Documents
related thereto, whether or not such maximum face amount is in effect at such
time.
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Loans.
(a) Working Capital Loans. Subject to the terms and conditions set forth
herein, each Working Capital Lender severally agrees to make loans
(each such loan, a "Working Capital Loan") to the Borrower from time to
time, on any Business Day during the Availability Period, in an
aggregate amount not to exceed at any time outstanding the amount of
such Lender's Working Capital Commitment; provided, however, that after
giving effect to any Working Capital Borrowing, (i) the Outstanding
Working Capital Amount shall not exceed the lesser of (A) the Aggregate
Working Capital Commitments or (B) the Borrowing Base determined as of
the date on which the requested Working Capital Loans are to be made,
(ii) the aggregate Outstanding Amount of Working Capital Loans of any
Lender, plus such Lender's Working Capital Percentage of the
Outstanding Amount of all L/C Obligations shall not exceed such
Lender's Working Capital Commitment and (iii) the Outstanding Amount of
all Working Capital Loans shall not exceed $15,000,000. Within the
limits of each Lender's Working Capital Commitment, and subject to the
other terms and conditions hereof, the Borrower may borrow under this
Section 2.01(a), prepay under Section 2.04, and reborrow under this
Section 2.01(a). Working Capital Loans may be Base Rate Loans or
Eurodollar Rate `Loans, as further provided herein.
(b) Acquisition Facility Loans. Subject to the terms and conditions set
forth herein, each Acquisition Facility Lender severally agrees to make
loans (each such loan, an "Acquisition Facility Loan") to the Borrower
from time to time, on any Business Day during the Availability Period,
in an aggregate amount not to exceed at any time outstanding the amount
of such Lender's Acquisition Facility Commitment; provided, however,
that after giving effect to any Acquisition Facility Borrowing, the
Outstanding Amount of all Acquisition Facility Loans shall not exceed
the Aggregate Acquisition Facility Commitments. Within the limits of
each Lender's Acquisition Facility Commitment, and subject to the other
terms and conditions hereof, the Borrower may borrow under this Section
2.01(b), prepay under Section 2.04, and reborrow under this Section
2.01(b). Acquisition Facility Loans may be Base Rate Loans or
Eurodollar Rate Loans, as further provided herein.
2.02 Borrowings, Conversions and Continuations of Loans.
(a) Each Borrowing, each conversion of Loans from one Type to the other,
and each continuation of Eurodollar Rate Loans shall be made upon the Borrower's
irrevocable notice to the Administrative Agent, which may be given by telephone.
Each such notice must be received by the Administrative Agent not later than
11:00 a.m. (i) three Business Days prior to the requested date of any Borrowing
of, conversion to or continuation of Eurodollar Rate Loans or of any conversion
of Eurodollar Rate Loans to Base Rate Loans, and (ii) on the requested date of
any Borrowing of Base Rate Loans; provided, however, that if the Borrower wishes
to request Eurodollar Rate Loans having an Interest Period other than one, two,
three or six months in duration as provided in the definition of "Interest
Period", the applicable notice must be received by the Administrative Agent not
later than 11:00 a.m. four Business Days prior to the requested date of such
Borrowing, conversion or continuation, whereupon the Administrative Agent shall
give prompt notice to the Lenders of such request and determine whether the
requested Interest Period is acceptable to all of them. Not later than 11:00
a.m., three Business Days before the requested date of such Borrowing,
conversion or continuation, the Administrative Agent shall notify the Borrower
(which notice may be by telephone) whether or not the requested Interest Period
has been consented to by all the Lenders. Each telephonic notice by the Borrower
pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the
Administrative Agent of a written Loan Notice, appropriately completed and
signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion
to or continuation of Eurodollar Rate Loans shall be in a principal amount of
$100,000 or a whole multiple of $100,000 in excess thereof. Except as provided
in Sections 2.03(c), each Borrowing of or conversion to Base Rate Loans shall be
in a principal amount of $100,000 or a whole multiple of $100,000 in excess
thereof. Each Loan Notice (whether telephonic or written) shall specify (i)
whether the Borrower is requesting a Borrowing, a conversion of Loans from one
Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the
requested date of the Borrowing, conversion or continuation, as the case may be
(which shall be a Business Day), (iii) the principal amount of Loans to be
borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to
which existing Loans are to be converted, (v) if applicable, the duration of the
Interest Period with respect thereto and (vi) specify whether such Loans are
Working Capital Loans or Acquisition Facility Loans. If the Borrower fails to
specify a Type of Loan in a Loan Notice or if the Borrower fails to give a
timely notice requesting a conversion or continuation, then the applicable Loans
shall be made as, or converted to, Base Rate Loans. Any such automatic
conversion to Base Rate Loans shall be effective as of the last day of the
Interest Period then in effect with respect to the applicable Eurodollar Rate
Loans. If the Borrower requests a Borrowing of, conversion to, or continuation
of Eurodollar Rate Loans in any such Loan Notice, but fails to specify an
Interest Period, it will be deemed to have specified an Interest Period of one
month.
(b) Following receipt of a Loan Notice, the Administrative Agent shall
promptly notify each Working Capital Lender of the amount of its Working Capital
Percentage and each Acquisition Facility Lender of the amount of its Acquisition
Facility Percentage, as the case may be, of the applicable Loans, and if no
timely notice of a conversion or continuation is provided by the Borrower, the
Administrative Agent shall notify each Lender of the details of any automatic
conversion to Base Rate Loans described in the preceding subsection. In the case
of a Borrowing, each Lender shall make the amount of its Loan available to the
Administrative Agent in immediately available funds at the Administrative
Agent's Office not later than 1:00 p.m. on the Business Day specified in the
applicable Loan Notice. Upon satisfaction of the applicable conditions set forth
in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section
4.01), the Administrative Agent shall make all funds so received available to
the Borrower in like funds as received by the Administrative Agent either by (i)
crediting the account of the Borrower on the books of Fleet National Bank with
the amount of such funds or (ii) wire transfer of such funds, in each case in
accordance with instructions provided to (and reasonably acceptable to) the
Administrative Agent by the Borrower; provided, however, that if, on the date
the Loan Notice with respect to such Borrowing is given by the Borrower, there
are L/C Borrowings outstanding, then the proceeds of such Borrowing, first,
shall be applied to the payment in full of any such L/C Borrowings, and second,
shall be made available to the Borrower as provided above.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of an Interest Period for
such Eurodollar Rate Loan. During the existence of a Default, no Loans
may be requested as, converted to or continued as Eurodollar Rate Loans
without the consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Borrower and the
Lenders of the interest rate applicable to any Interest Period for
Eurodollar Rate Loans upon determination of such interest rate. At any
time that Base Rate Loans are outstanding, the Administrative Agent
shall notify the Borrower and the Lenders of any change in Fleet
National Bank's prime rate used in determining the Base Rate promptly
following the public announcement of such change.
(e) After giving effect to all Borrowings, all conversions of Loans from
one Type to the other, and all continuations of Loans as the same Type,
there shall not be more than seven Interest Periods in effect with
respect to Loans.
(f) No Borrowing, continuation or conversion of Loans may combine Working
Capital Loans and Acquisition Facility Loans.
2.03 Letters of Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the L/C
Issuer agrees, in reliance upon the agreements of the Working Capital Lenders
set forth in this Section 2.03, (1) from time to time on any Business Day during
the period from the Closing Date until the Letter of Credit Expiration Date, to
issue Letters of Credit for the account of the Borrower, and to amend or extend
Letters of Credit previously issued by it, in accordance with subsection (b)
below, and (2) to honor drawings under the Letters of Credit; and (B) the
Working Capital Lenders severally agree to participate in Letters of Credit
issued for the account of the Borrower and any drawings thereunder; provided
that after taking such Letter of Credit into account, (x) the Outstanding
Working Capital Amount shall not exceed the lesser of (1) the Aggregate Working
Capital Commitments or (2) the Borrowing Base determined as of the date on which
the requested Working Capital Loans are to be made and (y) the aggregate
Outstanding Amount of the Working Capital Loans of any Lender, plus such
Lender's Working Capital Percentage of the Outstanding Amount of all L/C
Obligations shall not exceed such Lender's Working Capital Commitment. Each
request by the Borrower for the issuance or amendment of a Letter of Credit
shall be deemed to be a representation by the Borrower that the L/C Credit
Extension so requested complies with the conditions set forth in the proviso to
the preceding sentence. Within the foregoing limits, and subject to the terms
and conditions hereof, the Borrower's ability to obtain Letters of Credit shall
be fully revolving, and accordingly the Borrower may, during the foregoing
period, obtain Letters of Credit to replace Letters of Credit that have expired
or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit if the expiry date
of such requested Letter of Credit would occur after the Letter of Credit
Expiration Date, unless all the Lenders have approved such expiry date. The L/C
Issuer shall not be under any obligation to issue any Letter of Credit, unless
(A) the expiration date of such Letter of Credit is prior to seventy (70) days
after date of issuance and (B) such Letter of Credit is related to the purchase
or exchange by Borrower of Petroleum Inventory, and (C) such Letter of Credit is
in the Form of Exhibit C hereto or such other form, terms and purposes as shall
be acceptable to Administrative Agent and L/C Issuer in their sole and absolute
discretion, provided, however that Letters of Credit, not to exceed in the
aggregate at any one time the General Obligation L/C Sublimit in such form and
terms as shall be acceptable to Administrative Agent and L/C Issuer in their
sole and absolute discretion, may expire up to 365 days after the date of
issuance and may be used for general corporate purposes of Borrower or any of
its Subsidiaries.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter
of Credit if:
(A) any order, judgment or decree of any Governmental Authority or
arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from
issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any
request or directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or
request that the L/C Issuer refrain from, the issuance of letters of credit
generally or such Letter of Credit in particular or shall impose upon the L/C
Issuer with respect to such Letter of Credit any restriction, reserve or capital
requirement (for which the L/C Issuer is not otherwise compensated hereunder)
not in effect on the Closing Date, or shall impose upon the L/C Issuer any
unreimbursed loss, cost or expense which was not applicable on the Closing Date
and which the L/C Issuer in good faith deems material to it;
(B) the issuance of such Letter of Credit would violate one or more
policies of the L/C Issuer;
(C) such Letter of Credit is to be denominated in a currency other than
Dollars;
(D) such Letter of Credit contains any provisions for automatic
reinstatement of the stated amount after any drawing thereunder; or
(E) a default of any Working Capital Lender's obligations to fund under
Section 2.03(c) exists or any Working Capital Lender is at such time a
Defaulting Lender hereunder, unless the L/C Issuer has entered into satisfactory
arrangements with the Borrower or such Working Capital Lender to eliminate the
L/C Issuer's risk with respect to such Working Capital Lender.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer
would not be permitted at such time to issue such Letter of Credit in its
amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of
Credit if (A) the L/C Issuer would have no obligation at such time to issue such
Letter of Credit in its amended form under the terms hereof, or (B) the
beneficiary of such Letter of Credit does not accept the proposed amendment to
such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Working Capital Lenders with
respect to any Letters of Credit issued by it and the documents associated
therewith, and the L/C Issuer shall have all of the benefits and immunities (A)
provided to the Administrative Agent in Article IX with respect to any acts
taken or omissions suffered by the L/C Issuer in connection with Letters of
Credit issued by it or proposed to be issued by it and Issuer Documents
pertaining to such Letters of Credit as fully as if the term "Administrative
Agent" as used in
Article IX included the L/C Issuer with respect to such acts or omissions,
and (B) as additionally provided herein with respect to the L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may be,
upon the request of the Borrower delivered to the L/C Issuer (with a copy to the
Administrative Agent) in the form of a Letter of Credit Application,
appropriately completed and signed by a Responsible Officer of the Borrower.
Such Letter of Credit Application must be received by the L/C Issuer and the
Administrative Agent not later than 11:00 a.m. at least two Business Days (or
such later date and time as the Administrative Agent and the L/C Issuer may
agree in a particular instance in their sole discretion) prior to the proposed
issuance date or date of amendment, as the case may be. In the case of a request
for an initial issuance of a Letter of Credit, such Letter of Credit Application
shall specify in form and detail satisfactory to the L/C Issuer: (A) the
proposed issuance date of the requested Letter of Credit (which shall be a
Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name
and address of the beneficiary thereof; (E) the documents to be presented by
such beneficiary in case of any drawing thereunder; (F) the full text of any
certificate to be presented by such beneficiary in case of any drawing
thereunder; and (G) such other matters as the L/C Issuer may require. In the
case of a request for an amendment of any outstanding Letter of Credit, such
Letter of Credit Application shall specify in form and detail satisfactory to
the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of
amendment thereof (which shall be a Business Day); (C) the nature of the
proposed amendment; and (D) such other matters as the L/C Issuer may require.
Additionally, the Borrower shall furnish to the L/C Issuer and the
Administrative Agent such other documents and information pertaining to such
requested Letter of Credit issuance or amendment, including any Issuer
Documents, as the L/C Issuer or the Administrative Agent may require.
(ii) Promptly after receipt of any Letter of Credit Application, the L/C
Issuer will confirm with the Administrative Agent (by telephone or in writing)
that the Administrative Agent has received a copy of such Letter of Credit
Application from the Borrower and, if not, the L/C Issuer will provide the
Administrative Agent with a copy thereof. Unless the L/C Issuer has received
written notice from any Lender, the Administrative Agent or any Loan Party, at
least one Business Day prior to the requested date of issuance or amendment of
the applicable Letter of Credit, that one or more applicable conditions
contained in Article IV shall not then be satisfied, then, subject to the terms
and conditions hereof, the L/C Issuer shall, on the requested date, issue a
Letter of Credit for the account of the Borrower or enter into the applicable
amendment, as the case may be, in each case in accordance with the L/C Issuer's
usual and customary business practices. Immediately upon the issuance of each
Letter of Credit, each Working Capital Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk
participation in such Letter of
Credit in an amount equal to the product of such Working Capital Lender's
Working Capital Percentage times the amount of such Letter of Credit.
(iii) Promptly after its delivery of any Letter of Credit or any amendment
to a Letter of Credit to an advising bank with respect thereto or to the
beneficiary thereof, the L/C Issuer will also deliver to the Borrower and the
Administrative Agent a true and complete copy of such Letter of Credit or
amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any notice
of a drawing under such Letter of Credit, the L/C Issuer shall notify the
Borrower and the Administrative Agent thereof. Not later than 11:00 a.m. on the
date of any payment by the L/C Issuer under a Letter of Credit (each such date,
an "Honor Date"), the Borrower shall reimburse the L/C Issuer through the
Administrative Agent in an amount equal to the amount of such drawing. If the
Borrower fails to so reimburse the L/C Issuer by such time, the Administrative
Agent shall promptly notify each Working Capital Lender of the Honor Date, the
amount of the unreimbursed drawing (the "Unreimbursed Amount"), and the amount
of such Working Capital Lender's Working Capital Percentage thereof. In such
event, the Borrower shall be deemed to have requested a Borrowing of Working
Capital Loans which are Base Rate Loans to be disbursed on the Honor Date in an
amount equal to the Unreimbursed Amount, without regard to the minimum and
multiples specified in Section 2.02 for the principal amount of Base Rate Loans,
but subject to the amount of the unutilized portion of the Aggregate Working
Capital Commitments and the conditions set forth in Section 4.02 (other than the
delivery of a Loan Notice). Any notice given by the L/C Issuer or the
Administrative Agent pursuant to this Section 2.03(c)(i) may be given by
telephone if immediately confirmed in writing; provided that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding effect of
such notice.
(ii) Each Working Capital Lender shall upon any notice pursuant to Section
2.03(c)(i) make funds available to the Administrative Agent for the account of
the L/C Issuer at the Administrative Agent's Office in an amount equal to its
Working Capital Percentage of the Unreimbursed Amount within three Business Days
of the Business Day specified in such notice by the Administrative Agent,
whereupon, subject to the provisions of Section 2.03(c)(iii) , each Working
Capital Lender that so makes funds available shall be deemed to have made a
Working Capital Loan which is a Base Rate Loan to the Borrower in such amount.
The Administrative Agent shall remit the funds so received to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully refinanced
by a Borrowing of Working Capital Loans which are Base Rate Loans because the
conditions set forth in Section 4.02 cannot be satisfied or for any other
reason, the Borrower shall be deemed to have incurred from the L/C Issuer an L/C
Borrowing in the amount of the Unreimbursed Amount that is not so refinanced,
which L/C Borrowing shall be due and payable on demand (together with interest)
and shall bear interest at the Default Rate. In such event, each Working Capital
Lender's payment to the Administrative Agent for the account of the L/C Issuer
pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C Advance from
such Working Capital Lender in satisfaction of its participation obligation
under this Section 2.03.
(iv) Until each Working Capital Lender funds its Working Capital Loan or
L/C Advance pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any
amount drawn under any Letter of Credit, interest in respect of such Working
Capital Lender's Working Capital Percentage of such amount shall be solely for
the account of the L/C Issuer.
(v) Each Working Capital Lender's obligation to make Working Capital Loans
or L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters of
Credit, as contemplated by this Section 2.03(c), shall be absolute and
unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right which such Working
Capital Lender may have against the L/C Issuer, the Borrower or any other Person
for any reason whatsoever; (B) the occurrence or continuance of a Default, or
(C) any other occurrence, event or condition, whether or not similar to any of
the foregoing; provided, however, that each Working Capital Lender's obligation
to make Working Capital Loans pursuant to this Section 2.03(c) is subject to the
conditions set forth in Section 4.02 (other than delivery by the Borrower of a
Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair
the obligation of the Borrower to reimburse the L/C Issuer for the amount of any
payment made by the L/C Issuer under any Letter of Credit, together with
interest as provided herein.
(vi) If any Working Capital Lender fails to make available to the
Administrative Agent for the account of the L/C Issuer any amount required to be
paid by such Working Capital Lender pursuant to the foregoing provisions of this
Section 2.03(c) by the time specified in Section 2.03(c)(ii) , the L/C Issuer
shall be entitled to recover from such Working Capital Lender (acting through
the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment
is immediately available to the L/C Issuer at a rate per annum equal to the
greater of the Federal Funds Rate and a rate determined by the L/C Issuer in
accordance with banking industry rules on interbank compensation. A certificate
of the L/C Issuer submitted to any Working Capital Lender (through the
Administrative Agent) with respect to any amounts owing under this clause (vi)
shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under any Letter of
Credit and has received from any Working Capital Lender such Working Capital
Lender's L/C Advance in respect of such payment in accordance with Section
2.03(c), if the Administrative Agent receives for the account of the L/C Issuer
any payment in respect of the related Unreimbursed Amount or interest thereon
(whether directly from the Borrower or otherwise, including proceeds of Cash
Collateral applied thereto by the Administrative Agent), the Administrative
Agent will distribute to such Working Capital Lender its Working Capital
Percentage thereof (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Working Capital Lender's L/C
Advance was outstanding) in the same funds as those received by the
Administrative Agent.
(ii) If any payment received by the Administrative Agent for the account of
the L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under
any of the circumstances described in Section 10.05 (including pursuant to any
settlement entered into by the L/C Issuer in its discretion), each Working
Capital Lender shall pay to the Administrative Agent for the account of the L/C
Issuer its Working Capital Percentage thereof on demand of the Administrative
Agent, plus interest thereon from the date such payment is required to the date
such amount is returned by such Working Capital Lender, at a rate per annum
equal to the Federal Funds Rate from time to time in effect. The obligations of
the Working Capital Lenders under this clause shall survive the payment in full
of the Obligations and the termination of this Agreement.
(e) Obligations Absolute. The obligation of the Borrower to reimburse the
L/C Issuer for each drawing under each Letter of Credit and to repay each L/C
Borrowing shall be absolute, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances,
including the following:
(i) any lack of validity or enforceability of such Letter of Credit, this
Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense or other
right that the Borrower or any Subsidiary may have at any time against any
beneficiary or any transferee of such Letter of Credit (or any Person for whom
any such beneficiary or any such transferee may be acting), the L/C Issuer or
any other Person, whether in connection with this Agreement, the transactions
contemplated hereby or by such Letter of Credit or any agreement or instrument
relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented under such
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any respect;
or any loss or delay in the transmission or otherwise of any document required
in order to make a drawing under such Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply with the
terms of such Letter of Credit; or any payment made by the L/C Issuer under such
Letter of Credit to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor to any beneficiary or any
transferee of such Letter of Credit, including any arising in connection with
any proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or not similar
to any of the foregoing, including any other circumstance that might otherwise
constitute a defense available to, or a discharge of, the Borrower or any
Subsidiary.
The Borrower shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower's instructions or other irregularity, the
Borrower will immediately notify the L/C Issuer. The Borrower shall be
conclusively deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Working Capital Lender and the Borrower agree
that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not
have any responsibility to obtain any document (other than any sight draft,
certificates and documents expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. None of the
L/C Issuer, the Administrative Agent, any of their respective Related Parties
nor any correspondent, participant or assignee of the L/C Issuer shall be liable
to any Working Capital Lender for (i) any action taken or omitted in connection
herewith at the request or with the approval of the Working Capital Lenders or
the Required Lenders, as applicable; (ii) any action taken or omitted in the
absence of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related
to any Letter of Credit or Issuer Document. The Borrower hereby assumes all
risks of the acts or omissions of any beneficiary or transferee with respect to
its use of any Letter of Credit; provided, however, that this assumption is not
intended to, and shall not, preclude the Borrower's pursuing such rights and
remedies as it may have against the beneficiary or transferee at law or under
any other agreement. None of the L/C Issuer, the Administrative Agent, any of
their respective Related Parties nor any correspondent, participant or assignee
of the L/C Issuer shall be liable or responsible for any of the matters
described in clauses (i) through (v) of Section 2.03(e); provided, however, that
anything in such clauses to the contrary notwithstanding, the Borrower may have
a claim against the L/C Issuer, and the L/C Issuer may be liable to the
Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrower which the Borrower
proves were caused by the L/C Issuer's willful misconduct or gross negligence or
the L/C Issuer's willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of
the foregoing, the L/C Issuer may accept documents that appear on their face to
be in order, without responsibility for further investigation, regardless of any
notice or information to the contrary, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
(g) Cash Collateral. If, after the making of all mandatory prepayments
required under Section 2.04, the outstanding L/C Obligations will exceed the
Borrowing Base, then in addition to prepayment of the entire principal balance
of the Loans Borrower shall immediately Cash Collateralize the then Outstanding
Amount of all L/C Obligations. Upon the request of the Administrative Agent, (i)
if the L/C Issuer has honored any full or partial drawing request under any
Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if,
as of the Letter of Credit Expiration Date, any L/C Obligation for any reason
remains outstanding, the Borrower shall, in each case, immediately Cash
Collateralize the then Outstanding Amount of all L/C Obligations. Sections 2.04
and 8.02(c) set forth certain additional requirements to deliver Cash Collateral
hereunder. For purposes of this Section 2.03, Section 2.04 and Section 8.02(c),
"Cash Collateralize" means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the L/C Issuer and the Working Capital
Lenders, as collateral for the L/C Obligations, cash or deposit account balances
pursuant to documentation in form and substance satisfactory to the
Administrative Agent and the L/C Issuer (which documents are hereby consented to
by the Working Capital Lenders). Derivatives of such term have corresponding
meanings. The Borrower hereby grants to the Administrative Agent, for the
benefit of the L/C Issuer and the Working Capital Lenders, a security interest
in all such cash, deposit accounts and all balances therein and all proceeds of
the foregoing. Cash Collateral shall be maintained in blocked, non-interest
bearing deposit accounts at Fleet National Bank.
(h) Applicability of ISP and UCP. Unless otherwise expressly agreed by the
L/C Issuer and the Borrower when a Letter of Credit is issued, (i) the rules of
the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the
Uniform Customs and Practice for Documentary Credits, as most recently published
by the International Chamber of Commerce at the time of issuance shall apply to
each commercial Letter of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the Administrative
Agent for the account of each Working Capital Lender in accordance with its
Working Capital Percentage a Letter of Credit fee (the "Letter of Credit Fee")
for each Letter of Credit equal to the Applicable Rate times the daily maximum
amount available to be drawn under such Letter of Credit (whether or not such
maximum amount is then in effect under such Letter of Credit). Letter of Credit
Fees shall be (i) computed on a quarterly basis in arrears and (ii) due and
payable within fifteen (15) days after the end of each March, June, September
and December, commencing with the first such date to occur after the issuance of
such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on
demand. If there is any change in the Applicable Rate during any quarter, the
daily maximum amount of each Letter of Credit shall be computed and multiplied
by the Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect. Notwithstanding anything to the contrary
contained herein, upon the request of the Required Lenders, while any Event of
Default exists, all Letter of Credit Fees shall accrue at the Default Rate.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C
Issuer. The Borrower shall pay directly to the L/C Issuer for its own account a
fronting fee with respect to each Letter of Credit of the greater of (i) $150 or
(ii) one-eighth percent (0.125%) per annum computed on the daily maximum amount
available to be drawn under such Letter of Credit (whether or not such maximum
amount is then in effect under such Letter of Credit) and on a quarterly basis
in arrears, and due and payable on the first Business Day after the end of each
March, June, September and December, commencing with the first such date to
occur after the issuance of such Letter of Credit, on the Letter of Credit
Expiration Date and thereafter on demand. In addition, the Borrower shall pay
directly to the L/C Issuer for its own account the customary issuance,
presentation, amendment and other processing fees, and other standard costs and
charges, of the L/C Issuer relating to letters of credit as from time to time in
effect. Such customary fees and standard costs and charges are due and payable
on demand and are nonrefundable.
(k) Administrative Agent's Fees. In addition to all other amounts due to
Administrative Agent under the Loan Documents, Borrower will pay fees to
Administrative Agent as described in a letter agreement of even date herewith
between Administrative Agent and Borrower.
(l) Conflict with Issuer Documents. In the event of any conflict between
the terms hereof and the terms of any Issuer Document, the terms hereof shall
control.
(m) Letters of Credit Issued for Subsidiaries. Notwithstanding that a
Letter of Credit issued or outstanding hereunder is in support of any
obligations of, or is for the account of, a Subsidiary, the Borrower shall be
obligated to reimburse the L/C Issuer hereunder for any and all drawings under
such Letter of Credit. The Borrower hereby acknowledges that the issuance of
Letters of Credit for the account of Subsidiaries inures to the benefit of the
Borrower, and that the Borrower's business derives substantial benefits from the
businesses of such Subsidiaries.
2.04 Prepayments.
(a) The Borrower may, upon notice to the Administrative Agent, at any time
or from time to time voluntarily prepay Loans in whole or in part without
premium or penalty; provided that (i) such notice must be received by the
Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to
any date of prepayment of Eurodollar Rate Loans and (B) on the date of
prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurodollar Rate
Loans shall be in a principal amount of $100,000 or a whole multiple of $100,000
in excess thereof and any prepayment of Base Rate Loans shall be in a principal
amount of $100,000 or a whole multiple of $100,000 in excess thereof; or, in
each case, if less, the entire principal amount thereof then
outstanding. Each such notice shall specify whether such notice relates to
Working Capital Loans or Acquisition Facility Loans, specify the date and amount
of such prepayment and the Type(s) of Loan to be prepaid. The Administrative
Agent will promptly notify each Lender of its receipt and the terms of each such
notice and the amount of such Lender's Acquisition Facility Percentage or
Working Capital Percentage, as applicable, of such prepayment. If such notice is
given by the Borrower, the Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified
therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied by all
accrued interest on the amount prepaid, together with any additional amounts
required pursuant to Section 3.05. Each such prepayment shall be applied to the
Acquisition Facility Loans or Working Capital Loans, as applicable, in
accordance with their respective Acquisition Facility Percentage or Working
Capital Percentage, as applicable.
(b) If for any reason the Outstanding Amount of all Acquisition Facility
Loans at any time exceeds the Aggregate Acquisition Facility Commitments then in
effect, Borrower shall within 1 Business Day following demand by the
Administrative Agent prepay the Acquisition Facility Loans in an aggregate
amount equal to such excess.
(c) If for any reason the Outstanding Working Capital Amount at any time
exceeds the lesser of (i) the Aggregate Working Capital Commitments then in
effect or (ii) the Borrowing Base then in effect (whether due to a reduction in
the Borrowing Base in accordance with this Agreement, or otherwise), Borrower
shall within 1 Business Day following demand by the Administrative Agent prepay
the Working Capital Loans and/or Cash Collateralize the L/C Obligations in an
aggregate amount equal to such excess; provided, however, that the Borrower
shall not be required to Cash Collateralize the L/C Obligations pursuant to this
Section 2.04(c) unless after the prepayment in full of the Working Capital Loans
the Outstanding Amount of all L/C Obligations exceeds the lesser of the
Aggregate Working Capital Commitments then in effect or the Borrowing Base then
in effect.
(d) Upon receipt of Net Sale Proceeds that are Excess Sale Proceeds,
Borrower will immediately apply such Excess Sale Proceeds (i) first, to prepay a
principal amount of the Outstanding Amount of Acquisition Facility Loans equal
to the Excess Sale Proceeds and (ii) next, to the extent such Excess Sale
Proceeds exceed the principal amount of the Acquisition Facility Loans, to repay
the Working Capital Loans.
(e) If at any time any Loan Party shall receive any Equity/Senior Debt
Proceeds, Borrower will (i) first, prepay a principal amount of the Acquisition
Facility Loans equal to the such Equity/Senior Debt Proceeds and (ii) next, to
the extent such Equity/Senior Debt Proceeds exceed the principal amount of the
Acquisition Facility Loans, prepay the Working Capital Loans and/or Cash
Collateralize the L/C Obligations in an aggregate amount equal to such excess.
The foregoing shall not be construed to permit the incurrence of Indebtedness
not otherwise permitted by Section 7.01.
2.05 Termination or Reduction of Commitments.
(a) The Borrower may, upon notice to the Administrative Agent, terminate
the Aggregate Acquisition Facility Commitments, or from time to time permanently
reduce the Aggregate Acquisition Facility Commitments; provided that (i) any
such notice shall be received by the Administrative Agent not later than 11:00
a.m. five Business Days prior to the date of termination or reduction, (ii) any
such partial reduction shall be in an aggregate amount of $1,000,000 or any
whole multiple of $100,000 in excess thereof, and (iii) the Borrower shall not
terminate or reduce the Aggregate Acquisition Facility Commitments if, after
giving effect thereto and to any concurrent prepayments hereunder, the
Outstanding Amount of all Acquisition Facility Loans would exceed the Aggregate
Acquisition Facility Commitments. The Administrative Agent will promptly notify
the Lenders of any such notice of termination or reduction of the Aggregate
Acquisition Facility Commitments. Any reduction of the Aggregate Acquisition
Facility Commitments shall be applied to the Acquisition Facility Commitment of
each Lender according to its Acquisition Facility Percentage. All fees accrued
until the effective date of any termination of the Aggregate Acquisition
Facility Commitments shall be paid on the effective date of such termination.
(b) The Borrower may, upon notice to the Administrative Agent, terminate
the Aggregate Working Capital Commitments, or from time to time permanently
reduce the Aggregate Working Capital Commitments; provided that (i) any such
notice shall be received by the Administrative Agent not later than 11:00 a.m.
five Business Days prior to the date of termination or reduction, (ii) any such
partial reduction shall be in an aggregate amount of $1,000,000 or any whole
multiple of $100,000 in excess thereof, and (iii) the Borrower shall not
terminate or reduce the Aggregate Working Capital Commitments if, after giving
effect thereto and to any concurrent prepayments hereunder, the Outstanding
Working Capital Amount would exceed the Aggregate Working Capital Commitments.
The Administrative Agent will promptly notify the Lenders of any such notice of
termination or reduction of the Aggregate Working Capital Commitments. Any
reduction of the Aggregate Working Capital Commitments shall be applied to the
Working Capital Commitment of each Lender according to its Working Capital
Percentage. All fees accrued until the effective date of any termination of the
Aggregate Working Capital Commitments shall be paid on the effective date of
such termination.
2.06 Repayment of Loans. The Borrower shall repay to the Lenders on the Maturity
Date the aggregate principal amount of Loans outstanding on such date.
2.07 Interest.
(a) Subject to the provisions of subsection (b) below, (i) each Eurodollar
Rate Loan shall bear interest on the outstanding principal amount thereof for
each Interest Period at a rate per annum equal to the Eurodollar Rate for such
Interest Period plus the Applicable Rate; and (ii) each Base Rate Loan shall
bear interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Base Rate plus the Applicable
Rate.
(b) (i) If any amount of principal of any Loan is not paid when due
(without regard to any applicable grace periods), whether at stated maturity, by
acceleration or otherwise, such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws.
(ii) If any amount (other than principal of any Loan) payable by the
Borrower under any Loan Document is not paid when due after any applicable grace
periods, whether at stated maturity, by acceleration or otherwise, then upon the
request of the Required Lenders, such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws.
(iii) Upon the request of the Required Lenders, while any Event of Default
exists, the Borrower shall pay interest on the principal amount of all
outstanding Obligations hereunder at a fluctuating interest rate per annum at
all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.
(iv) Accrued and unpaid interest on past due amounts (including interest on
past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.08 Fees. In addition to certain fees described in subsections (i) through
(k) of Section 2.03:
(a) Commitment Fees. The Borrower shall pay to the Administrative Agent for
the account of each Working Capital Lender in accordance with its Working
Capital Percentage, a commitment fee equal to the Applicable Rate times the
actual daily amount by which the Aggregate Working Capital Commitments exceed
the Outstanding Working Capital Amount. The Borrower shall pay to the
Administrative Agent for the account of each Acquisition Facility Lender in
accordance with its Acquisition Facility Percentage, a commitment fee equal to
the Applicable Rate times the actual daily amount by which the Aggregate
Acquisition Facility Commitments exceed the Outstanding Amount of Acquisition
Facility Loans. The commitment fees shall accrue at all times during the
Availability Period, including at any time during which one or more of the
conditions in Article IV is not met, and shall be due and payable quarterly in
arrears within fifteen (15) days of the last Business Day of each March, June,
September and December, commencing with the first such date to occur after the
Closing Date, and on the end of the Availability Period. The commitment fees
shall be calculated quarterly in arrears, and if there is any change in the
Applicable Rate during any quarter, the actual daily amount shall be computed
and multiplied by the Applicable Rate separately for each period during such
quarter that such Applicable Rate was in effect.
(b) Other Fees. (i) The Borrower shall pay to the Arranger and the
Administrative Agent for their own respective accounts fees in the amounts and
at the times specified in the Fee Letter. Such fees shall be fully earned when
paid and shall not be refundable for any reason whatsoever.
(ii) The Borrower shall pay to the Lenders such fees as shall have been
separately agreed upon in writing in the amounts and at the times so specified.
Such fees shall be fully earned when paid and shall not be refundable for any
reason whatsoever.
2.09 Computation of Interest and Fees. All computations of interest for Base
Rate Loans when the Base Rate is determined by Fleet National Bank's "prime
rate" shall be made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed. All other computations of fees and interest shall
be made on the basis of a 360-day year and actual days elapsed (which results in
more fees or interest, as applicable, being paid than if computed on the basis
of a 365-day year). Interest shall accrue on each Loan for the day on which the
Loan is made, and shall not accrue on a Loan, or any portion thereof, for the
day on which the Loan or such portion is paid, provided that any Loan that is
repaid on the same day on which it is made shall, subject to Section 2.11(a),
bear interest for one day. Each determination by the Administrative Agent of an
interest rate or fee hereunder shall be conclusive and binding for all purposes,
absent manifest error.
2.10 Evidence of Debt.
(a) The Credit Extensions made by each Lender shall be evidenced by one or
more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by
the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Credit Extensions made by the Lenders to the Borrower
and the interest and payments thereon. Any failure to so record or any error in
doing so shall not, however, limit or otherwise affect the obligation of the
Borrower hereunder to pay any amount owing with respect to the Obligations. In
the event of any conflict between the accounts and records maintained by any
Lender and the accounts and records of the Administrative Agent in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error. Upon the request of any Lender made through
the Administrative Agent, the Borrower shall execute and deliver to such Lender
(through the Administrative Agent) a Note, which shall evidence such Lender's
Loans in addition to such accounts or records. Each Lender may attach schedules
to its Note and endorse thereon the date, Type (if applicable), amount and
maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection (a),
each Lender and the Administrative Agent shall maintain in accordance with its
usual practice accounts or records evidencing the purchases and sales by such
Lender of participations in Letters of Credit. In the event of any conflict
between the accounts and records maintained by the Administrative Agent and the
accounts and records of any Lender in respect of such matters, the accounts and
records of the Administrative Agent shall control in the absence of manifest
error.
2.11 Payments Generally; Administrative Agent's Clawback.
(a) General. All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent's
Office in Dollars and in immediately available funds not later than 2:00 p.m. on
the date specified herein. The Administrative Agent will promptly distribute to
each Lender its applicable share as provided herein of such payment in like
funds as received by wire transfer to such Lender's Lending Office. All payments
received by the Administrative Agent after 2:00 p.m. shall be deemed received on
the next succeeding Business Day and any applicable interest or fee shall
continue to accrue. If any payment to be made by the Borrower shall come due on
a day other than a Business Day, payment shall be made on the next following
Business Day, and such extension of time shall be reflected in computing
interest or fees, as the case may be.
(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender's share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date in
accordance with Section 2.02 and may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally
agree to pay to the Administrative Agent forthwith on demand such corresponding
amount in immediately available funds with interest thereon, for each day from
and including the date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at (A) in the case of
a payment to be made by such Lender, the greater of the Federal Funds Rate and a
rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation and (B) in the case of a payment to be made by
the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower
and such Lender shall pay such interest to the Administrative Agent for the same
or an overlapping period, the Administrative Agent shall promptly remit to the
Borrower the amount of such interest paid by the Borrower for such period. If
such Lender pays its share of the applicable Borrowing to the Administrative
Agent, then the amount so paid shall constitute such Lender's Loan included in
such Borrowing. Any payment by the Borrower shall be without prejudice to any
claim the Borrower may have against a Lender that shall have failed to make such
payment to the Administrative Agent.
(ii) Payments by Borrower; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of
the Lenders or the L/C Issuer hereunder that the Borrower will not make such
payment, the Administrative Agent may assume that the Borrower has made such
payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders or the L/C Issuer, as the case may be, the
amount due. In such event, if the Borrower has not in fact made such payment,
then each of the Lenders or the L/C Issuer, as the case may be, severally agrees
to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender or the L/C Issuer, in immediately available funds
with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.
A notice of the Administrative Agent to any Lender or the Borrower with
respect to any amount owing under this subsection (b) shall be conclusive,
absent manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes available
to the Administrative Agent funds for any Loan to be made by such Lender as
provided in the foregoing provisions of this Article II, and such funds are not
made available to the Borrower by the Administrative Agent because the
conditions to the applicable Credit Extension set forth in Article IV are not
satisfied or waived in accordance with the terms hereof, the Administrative
Agent shall return such funds (in like funds as received from such Lender) to
such Lender, without interest.
(d) Obligations of Lenders Several. The obligations of the Lenders
hereunder to make Loans, to fund participations in Letters of Credit and to make
payments pursuant to Section 10.04(c) are several and not joint. The failure of
any Lender to make any Loan, to fund any such participation or to make any
payment under Section 10.04(c) on any date required hereunder shall not relieve
any other Lender of its corresponding obligation to do so on such date, and no
Lender shall be responsible for the failure of any other Lender to so make its
Loan, to purchase its participation or to make its payment under Section
10.04(c).
(e) Funding Source. Nothing herein shall be deemed to obligate any Lender
to obtain the funds for any Loan in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will obtain
the funds for any Loan in any particular place or manner.
2.12 Sharing of Payments by Lenders. If any Lender shall, by exercising any
right of setoff or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of the Loans made by it, or the participations
in L/C Obligations held by it resulting in such Lender's receiving payment of a
proportion of the aggregate amount of such Loans or participations and accrued
interest thereon greater than its pro rata share thereof as provided herein,
then the Lender receiving such greater proportion shall (a) notify the
Administrative Agent of such fact, and (b) purchase (for cash at face value)
participations in the Loans and subparticipations in L/C Obligations of the
other Lenders, or make such other adjustments as shall be equitable, so that the
benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Loans and other amounts owing them, provided that:
(i) if any such participations or subparticipations are purchased and all
or any portion of the payment giving rise thereto is recovered, such
participations or subparticipations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section shall not be construed to apply to (x)
any payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or (y) any payment obtained by a Lender as consideration
for the assignment of or sale of a participation in any of its Loans or
subparticipations in L/C Obligations to any assignee or participant, other than
to the Borrower or any Subsidiary thereof (as to which the provisions of this
Section shall apply).
Each Loan Party consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such
Loan Party rights of setoff and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.
2.13 Borrowing Base Reporting. The Borrowing Base Reports are subject to the
procedures set forth on Schedule 2.13. Notwithstanding anything to the contrary
contained in this Agreement, Administrative Agent shall have the right to
conduct a field examination of the Borrower's operations from time to time and,
if it deems such action necessary, shall have the right to adjust the Borrowing
Base to reflect the result of such field examination.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Payments Free of Taxes. Any and all payments by or on account of any
obligation of the Borrower hereunder or under any other Loan Document shall be
made free and clear of and without reduction or withholding for any Indemnified
Taxes or Other Taxes, provided that if the Borrower shall be required by
applicable law to deduct any Indemnified Taxes (including any Other Taxes) from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
L/C Issuer, as the case may be, receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall make
such deductions and (iii) the Borrower shall timely pay the full amount deducted
to the relevant Governmental Authority in accordance with applicable law.
(b) Payment of Other Taxes by the Borrower. Without limiting the provisions
of subsection (a) above, the Borrower shall timely pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent, each Lender and the L/C Issuer, within 10 days after
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent, such Lender or the L/C Issuer, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the Borrower by a Lender or
the L/C Issuer (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender or the L/C
Issuer, shall be conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) Status of Lenders. Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the law of the jurisdiction in which
the Borrower is resident for tax purposes, or any treaty to which such
jurisdiction is a party, with respect to payments hereunder or under any other
Loan Document shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law or reasonably
requested by the Borrower or the Administrative Agent, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate of withholding. In
addition, any Lender, if requested by the Borrower or the Administrative Agent,
shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent as will enable
the Borrower or the Administrative Agent to determine whether or not such Lender
is subject to backup withholding or information reporting requirements.
Without limiting the generality of the foregoing, in the event that the
Borrower is resident for tax purposes in the United States, any Foreign Lender
shall deliver to the Borrower and the Administrative Agent (in such number of
copies as shall be requested by the recipient) on or prior to the date on which
such Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the request of the Borrower or the Administrative Agent, but
only if such Foreign Lender is legally entitled to do so), whichever of the
following is applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN claiming
eligibility for benefits of an income tax treaty to which the United States is a
party,
(ii) duly completed copies of Internal Revenue Service Form W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a "bank" within
the meaning of section 881(c)(3)(A) of the Code, (B) a "10 percent shareholder"
of the Borrower within the meaning of section881(c)(3)(B) of the Code, or (C) a
"controlled foreign corporation" described in section 881(c)(3)(C) of the Code
and (y) duly completed copies of Internal Revenue Service Form W-8BEN, or
(iv) any other form prescribed by applicable law as a basis for claiming
exemption from or a reduction in United States Federal withholding tax
duly completed together with such supplementary documentation as may be
prescribed by applicable law to permit the Borrower to determine the
withholding or deduction required to be made.
(f) Treatment of Certain Refunds. If the Administrative Agent, any Lender
or the L/C Issuer determines, in its sole discretion, that it has received a
refund of any Taxes or Other Taxes as to which it has been indemnified by the
Borrower or with respect to which the Borrower has paid additional amounts
pursuant to this Section, it shall pay to the Borrower an amount equal to such
refund (but only to the extent of indemnity payments made, or additional amounts
paid, by the Borrower under this Section with respect to the Taxes or Other
Taxes giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent, such Lender or the L/C Issuer, as the case may be, and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that the Borrower, upon the
request of the Administrative Agent, such Lender or the L/C Issuer, agrees to
repay the amount paid over to the Borrower (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to the
Administrative Agent, such Lender or the L/C Issuer in the event the
Administrative Agent, such Lender or the L/C Issuer is required to repay such
refund to such Governmental Authority. This subsection shall not be construed to
require the Administrative Agent, any Lender or the L/C Issuer to make available
its tax returns (or any other information relating to its taxes that it deems
confidential) to the Borrower or any other Person.
3.02 Illegality. If any Lender determines that any Law has made it unlawful, or
that any Governmental Authority has asserted that it is unlawful, for any Lender
or its applicable Lending Office to make, maintain or fund Eurodollar Rate
Loans, or to determine or charge interest rates based upon the Eurodollar Rate,
or any Governmental Authority has imposed material restrictions on the authority
of such Lender to purchase or sell, or to take deposits of, Dollars in the
London interbank market, then, on notice thereof by such Lender to the Borrower
through the Administrative Agent, any obligation of such Lender to make or
continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate
Loans shall be suspended until such Lender notifies the Administrative Agent and
the Borrower that the circumstances giving rise to such determination no longer
exist. Upon receipt of such notice, the Borrower shall, upon demand from such
Lender (with a copy to the Administrative Agent), prepay or, if applicable,
convert all Eurodollar Rate Loans of such Lender to Base Rate Loans, either on
the last day of the Interest Period therefor, if such Lender may lawfully
continue to maintain
such Eurodollar Rate Loans to such day, or immediately, if such Lender may not
lawfully continue to maintain such Eurodollar Rate Loans. Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on the
amount so prepaid or converted.
3.03 Inability to Determine Rates. If the Required Lenders determine that for
any reason in connection with any request for a Eurodollar Rate Loan or a
conversion to or continuation thereof that (a) Dollar deposits are not being
offered to banks in the London interbank eurodollar market for the applicable
amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and
reasonable means do not exist for determining the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan, or
(c) the Eurodollar Rate for any requested Interest Period with respect to a
proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to
such Lenders of funding such Loan, the Administrative Agent will promptly so
notify the Borrower and each Lender. Thereafter, the obligation of the Lenders
to make or maintain Eurodollar Rate Loans shall be suspended until the
Administrative Agent (upon the instruction of the Required Lenders) revokes such
notice. Upon receipt of such notice, the Borrower may revoke any pending request
for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans or,
failing that, will be deemed to have converted such request into a request for a
Borrowing of Base Rate Loans in the amount specified therein.
3.04 Increased Costs; Capital Adequacy; Reserves on Eurodollar Rate Loans.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit,
compulsory loan, insurance charge or similar requirement against assets of,
deposits with or for the account of, or credit extended or participated in by,
any Lender (except any reserve requirement contemplated by Section 3.04(e)) or
the L/C Issuer;
(ii) subject any Lender or the L/C Issuer to any tax of any kind whatsoever
with respect to this Agreement, any Letter of Credit, any participation in a
Letter of Credit or any Eurodollar Loan made by it, or change the basis of
taxation of payments to such Lender or the L/C Issuer in respect thereof (except
for Indemnified Taxes or Other Taxes covered by Section 3.01 and the imposition
of, or any change in the rate of, any Excluded Tax payable by such Lender or the
L/C Issuer); or
(iii) impose on any Lender or the L/C Issuer or the London interbank market
any other condition, cost or expense affecting this Agreement or Eurodollar
Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan), or to increase the cost to such Lender or the
L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or
of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such
Lender or the L/C Issuer hereunder (whether of principal, interest or any other
amount) then, upon request of such Lender
or the L/C Issuer, the Borrower will pay to such Lender or the L/C Issuer, as
the case may be, such additional amount or amounts as will compensate such
Lender or the L/C Issuer, as the case may be, for such additional costs incurred
or reduction suffered.
(b) Capital Requirements. If any Lender or the L/C Issuer determines that
any Change in Law affecting such Lender or the L/C Issuer or any Lending Office
of such Lender or such Lender's or the L/C Issuer's holding company, if any,
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or the L/C Issuer's capital or on the capital of such
Lender's or the L/C Issuer's holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by the L/C Issuer, to a level below that which such Lender or the
L/C Issuer or such Lender's or the L/C Issuer's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's or
the L/C Issuer's policies and the policies of such Lender's or the L/C Issuer's
holding company with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender or the L/C Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or the L/C Issuer or
such Lender's or the L/C Issuer's holding company for any such reduction
suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or the L/C
Issuer setting forth the amount or amounts necessary to compensate such Lender
or the L/C Issuer or its holding company, as the case may be, as specified in
subsection (a) or (b) of this Section and delivered to the Borrower shall be
conclusive absent manifest error. The Borrower shall pay such Lender or the L/C
Issuer, as the case may be, the amount shown as due on any such certificate
within five (5) days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or the
L/C Issuer to demand compensation pursuant to the foregoing provisions of this
Section shall not constitute a waiver of such Lender's or the L/C Issuer's right
to demand such compensation, provided that the Borrower shall not be required to
compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of
this Section for any increased costs incurred or reductions suffered more than
nine months prior to the date that such Lender or the L/C Issuer, as the case
may be, notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender's or the L/C Issuer's intention to claim
compensation therefor (except that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the nine-month period
referred to above shall be extended to include the period of retroactive effect
thereof).
(e) Reserves on Eurodollar Rate Loans. The Borrower shall pay to each
Lender, as long as such Lender shall be required to maintain reserves with
respect to liabilities or assets consisting of or including Eurocurrency funds
or deposits (currently known as "Eurocurrency liabilities"), additional interest
on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual
costs of such reserves allocated to such Loan by such Lender (as determined by
such Lender in good faith, which determination shall be conclusive), which shall
be due and payable on each date on which interest is payable on such Loan,
provided the Borrower shall have received at least ten (10) days'
prior notice (with a copy to the Administrative Agent) of such additional
interest from such Lender. If a Lender fails to give notice ten (10) days prior
to the relevant Interest Payment Date, such additional interest shall be due and
payable ten (10) days from receipt of such notice.
3.05 Compensation for Losses. Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Borrower shall promptly compensate
such Lender for and hold such Lender harmless from any loss, cost or expense
incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan other
than a Base Rate Loan on a day other than the last day of the Interest Period
for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the failure of
such Lender to make a Loan) to prepay, borrow, continue or convert any Loan
other than a Base Rate Loan on the date or in the amount notified by the
Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the last
day of the Interest Period therefor as a result of a request by the Borrower
pursuant to Section 10.13;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained.
The Borrower shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under
this Section 3.05, each Lender shall be deemed to have funded each Eurodollar
Rate Loan made by it at the Eurodollar Rate for such Loan by a matching deposit
or other borrowing in the London interbank eurodollar market for a comparable
amount and for a comparable period, whether or not such Eurodollar Rate Loan was
in fact so funded.
3.06 Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 3.04, or the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account of
any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant to
Section 3.02, then such Lender shall use reasonable efforts to designate a
different Lending Office for funding or booking its Loans hereunder or to assign
its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04,
as the case may be, in the future, or eliminate the need for the notice pursuant
to Section 3.02, as applicable, and (ii) in each case, would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under
Section 3.04, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.01, the Borrower may replace such Lender in accordance with Section
10.13.
3.07 Survival. All of the Borrower's obligations under this Article III shall
survive termination of the Aggregate Commitments and repayment of all other
Obligations hereunder.
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit Extension. The obligation of the L/C Issuer
and each Lender to make its initial Credit Extension hereunder is subject to
satisfaction of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of which
shall be originals or telecopies (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the
signing Loan Party, each dated the Closing Date (or, in the case of certificates
of governmental officials, a recent date before the Closing Date) and each in
form and substance satisfactory to the Administrative Agent and each of the
Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in
number for distribution to the Administrative Agent, each Lender and the
Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a
Note;
(iii) each Security Document listed in the Security Schedule;
(iv) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of each Loan
Party as the Administrative Agent may require evidencing the identity, authority
and capacity of each Responsible Officer thereof authorized to act as a
Responsible Officer in connection with this Agreement and the other Loan
Documents to which such Loan Party is a party;
(v) such documents and certifications as the Administrative Agent may
reasonably require to evidence that each Loan Party is duly organized or formed,
and that the Borrower, each Guarantor is validly existing, in good standing and
qualified to engage in business in each jurisdiction where its ownership, lease
or operation of properties or the conduct of its business requires such
qualification, except to the extent that failure to do so could not reasonably
be expected to have a Material Adverse Change and each jurisdiction in which
such Loan Party owns property subject to the Security Documents;
(vi) a favorable opinion of (i) Jenkens & Gilchrist, a Professional
Corporation, special Texas counsel to the Loan Parties, addressed to the
Administrative Agent and each Lender, as to the matters set forth in Exhibit H
and such other matters concerning the Loan Parties and the Loan Documents as the
Required Lenders may reasonably request and (ii) local counsel for the states of
Alabama, Florida, Louisiana and Mississippi satisfactory to Administrative
Agent;
(vii) A certificate of a Responsible Officer of each Loan Party either (A)
attaching copies of all consents, licenses and approvals required in connection
with the execution, delivery and performance by such Loan Party and the validity
against such Loan Party of the Loan Documents to which it is a party, and such
consents, licenses and approvals shall be in full force and effect, or (B)
stating that no such consents, licenses or approvals are so required;
(viii) The Initial Financial Statements;
(ix) Financial projections for Borrower and its Subsidiaries through May
2008, in form and substance reasonably satisfactory to Administrative Agent;
(x) Certificates or binders evidencing Loan Parties' insurance in effect on
the date hereof naming Administrative Agent as loss payee and additional
insured;
(xi) A certificate signed by the chief executive officer of General Partner
in form and detail acceptable to Administrative Agent confirming the insurance
that is in effect as of the date hereof and certifying that such insurance is
customary for the businesses conducted by Loan Parties and is in compliance with
the requirements of this Agreement;
(xii) Certificates from the chief financial officer of General Partner, in
substantially the form of Exhibit J hereto, attesting to the Solvency of each
Loan Party before and after giving effect to the transactions contemplated by
this Agreement;
(xiii) A Risk Management Policy, satisfactory to Required Lenders shall
have been adopted by Loan Parties (the "Risk Management Policy");
(xiv) The Borrowing Base (based on the Borrowing Base Report as of May 25,
2004) shall be at least $15,000,000 more than the initial Outstanding Working
Capital Amount on the Closing Date after giving effect to the Working Capital
Loans and Letters of Credit requested for such date, and General Partner shall
have delivered to the Administrative Agent a Borrowing Base Report in reasonable
detail demonstrating compliance with this requirement;
(xv) A certificate signed by a Responsible Officer of the Borrower
certifying (A) that the conditions specified in Sections 4.02(a), (b), (c), and
(d) have been satisfied, and (B) that there has been no event or circumstance
since the date of the Initial Financial Statements that has had or could be
reasonably expected to have, either individually or in the aggregate, a Material
Adverse Change;
(xvi) A duly completed Compliance Certificate as of the last day of the
Fiscal Quarter of the Borrower most recently ended prior to the Closing Date,
signed by a Responsible Officer of the Borrower;
(xvii) The Administrative Agent shall have received evidence satisfactory
to it that (i) all Loans (as defined in the Existing Credit Agreement) of the
Lenders (as defined in the Existing Credit Agreement) which will not execute and
deliver an Addendum (and will not have a Commitment hereunder) with respect to
this Agreement ("Exiting Lenders") shall have been or shall concurrently be
repaid in full, together with any accrued interest thereon and any accrued fees
payable to such Exiting Lenders under the Existing Credit Agreement to but
excluding the Closing Date, and (ii) the commitments under the Existing Credit
Agreement of such Exiting Lenders shall have been or shall concurrently be
terminated; and
(xviii) Such other assurances, certificates, documents, consents or
opinions as the Administrative Agent, the L/C Issuer or the Required Lenders
reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have
been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid
all fees, charges and disbursements of counsel to the Administrative Agent to
the extent invoiced prior to or on the Closing Date, plus such additional
amounts of such fees, charges and disbursements as shall constitute its
reasonable estimate of such fees, charges and disbursements incurred or to be
incurred by it through the closing proceedings (provided that such estimate
shall not thereafter preclude a final settling of accounts between the Borrower
and the Administrative Agent).
(d) All interest and all fees in respect of letters of credit or
commitments under the Existing Credit Agreement accrued through the Closing Date
shall have been paid.
Without limiting the generality of the provisions of Section 9.04, for
purposes of determining compliance with the conditions specified in this Section
4.01, each Lender that has signed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
4.02 Conditions to all Credit Extensions. The obligation of each Lender to honor
any Request for Credit Extension (other than a Loan Notice requesting only a
conversion of
Loans to the other Type, or a continuation of Eurodollar Rate Loans) is subject
to the following conditions precedent:
(a) The representations and warranties of the Borrower and each other Loan
Party contained in Article V or any other Loan Document, or which are contained
in any document furnished at any time under or in connection herewith or
therewith, shall be true and correct on and as of the date of such Credit
Extension, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct as of such earlier date, and except that for purposes of this Section
4.02, the representations and warranties contained in Section 5.06 shall be
deemed to refer to the most recent statements furnished pursuant to clauses (a)
and (b), respectively, of Section 6.02.
(b) No Default shall exist, or would result from such proposed Credit
Extension or from the application of the proceeds thereof.
(c) No Material Adverse Change shall have occurred to, and no event or
circumstances shall have occurred that could reasonably be expected to cause a
Material Adverse Change to, Genesis Energy, L.P.'s or Borrower's Consolidated
financial condition or businesses since the date of the Initial Financial
Statements.
(d) Each Loan Party shall be Solvent.
(e) The making of such Loan or the issuance of such Letter of Credit shall
not be prohibited by any law and shall not subject any Lender or any L/C Issuer
to any penalty or other onerous condition under or pursuant to any such law.
(f) The Administrative Agent and, if applicable, the L/C Issuer shall have
received a Request for Credit Extension in accordance with the requirements
hereof.
(g) Administrative Agent shall have received all documents and instruments
which Administrative Agent has then reasonably requested, in addition to those
described in Section 4.01 (including opinions of legal counsel for Loan Parties
and Administrative Agent; corporate documents and records; documents evidencing
governmental authorizations, consents, approvals, licenses and exemptions; and
certificates of public officials and of officers and representatives of Borrower
and other Persons), as to (i) the accuracy and validity of or compliance with
all representations, warranties and covenants made by any Loan Party in this
Agreement and the other Loan Documents, (ii) the satisfaction of all conditions
contained herein or therein, and (iii) all other matters pertaining hereto and
thereto. All such additional documents and instruments shall be satisfactory to
Administrative Agent in form, substance and date.
Each Request for Credit Extension (other than a Loan Notice requesting
only a conversion of Loans to the other Type or a continuation of Eurodollar
Rate Loans) submitted by the Borrower shall be deemed to be a representation and
warranty that the conditions specified in Sections 4.02(a), (b), (c) and (d)
have been satisfied on and as of the date of the applicable Credit Extension.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Borrower, General Partner and Genesis Energy, L.P. represent and
warrant to the Administrative Agent and the Lenders that:
5.01 No Default. No Loan Party is in default in the performance of any of the
covenants and agreements contained in any Loan Document. No event has occurred
and is continuing which constitutes a Default. No Loan Party is in default under
or with respect to any Contractual Obligation that could, either individually or
in the aggregate, reasonably be expected to cause a Material Adverse Change.
5.02 Organization and Good Standing. Each Loan Party is duly organized, validly
existing and in good standing under the Laws of its jurisdiction of
organization, having all powers required to carry on its business and enter into
and carry out the transactions contemplated hereby. Each Loan Party is duly
qualified, in good standing, and authorized to do business in all other
jurisdictions wherein the character of the properties owned or held by it or the
nature of the business transacted by it makes such qualification necessary
except where the failure to so qualify would not cause a Material Adverse
Change.
5.03 Authorization. Each Loan Party has duly taken all action necessary to
authorize the execution and delivery by it of the Loan Documents to which it is
a party and to authorize the consummation of the transactions contemplated
thereby and the performance of its obligations thereunder. Borrower is duly
authorized to borrow funds hereunder.
5.04 No Conflicts or Consents. The execution and delivery by the various Loan
Parties of the Loan Documents to which each is a party, the performance by each
of its obligations under such Loan Documents, and the consummation of the
transactions contemplated by the various Loan Documents, do not and will not (i)
conflict with any provision of (1) any Law, (2) the Organization Documents of
any Loan Party or any of its Affiliates, or (3) any agreement, judgment,
license, order or permit applicable to or binding upon any Loan Party or any of
its Affiliates, (ii) result in the acceleration of any Indebtedness owed by any
Loan Party or any of its Affiliates, or (iii) result in or require the creation
of any Lien upon any assets or properties of any Loan Party or any of its
Affiliates except as expressly contemplated in the Loan Documents. Except as
expressly contemplated in the Loan Documents or disclosed in Schedule 5.04, no
permit, consent, approval, authorization or order of, and no notice to or
filing, registration or qualification with, any Governmental Authority or third
party is required in connection with the execution, delivery or performance by
any Loan Party of any Loan Document or to consummate any transactions
contemplated by the Loan Documents.
5.05 Enforceable Obligations. This Agreement is, and the other Loan Documents
when duly executed and delivered will be, legal, valid and binding obligations
of each Loan Party which is a party hereto or thereto, enforceable in accordance
with their terms except as such enforcement may be limited by bankruptcy,
insolvency or similar Laws of general application relating to the enforcement of
creditors' rights.
5.06 Initial Financial Statements. Genesis Energy, L.P. and Borrower have
heretofore delivered to each Lender true, correct and complete copies of the
Initial Financial Statements. The Initial Financial Statements fairly present
Genesis Energy, L.P.'s and Borrower's Consolidated financial position at the
date thereof and the Consolidated results of
Genesis Energy, L.P.'s and Borrower operations for the periods thereof, and in
the case of the annual Initial Financial Statements, Consolidated cash flows for
the period thereof. Since the date of the annual Initial Financial Statements,
no Material Adverse Change has occurred, except as reflected in the quarterly
Initial Financial Statements or in the Schedule 5.06. All Initial Financial
Statements were prepared in accordance with GAAP.
5.07 Other Obligations and Restrictions. No Loan Party has any outstanding
Liabilities of any kind (including contingent obligations, tax assessments, and
unusual forward or long-term commitments) which are, in the aggregate, material
to Genesis Energy, L.P. or Borrower or material with respect to Genesis Energy,
L.P.'s or Borrower's Consolidated financial condition and not shown in the
Initial Financial Statements, disclosed in Schedule 5.07 or otherwise permitted
under Section 7.01. Except as shown in the Initial Financial Statements or
disclosed in Schedule 5.07, no Loan Party is subject to or restricted by any
franchise, deed, charter restriction, or other instrument or restriction or
Contractual Obligation which could cause a Material Adverse Change. Each Loan
Party has paid all taxes, assessments, and other governmental charges or levies
imposed upon it or upon its income, profits or property, except to the extent
that any of the foregoing is not yet due or is being in good faith contested as
permitted by Section 6.07.
5.08 Full Disclosure. No certificate, statement or other information delivered
herewith or heretofore by any Loan Party to any Lender in connection with the
negotiation of this Agreement or in connection with any transaction contemplated
hereby contains any untrue statement of a material fact or omits to state any
material fact necessary to make the statements contained herein or therein, in
light of the circumstances under which they were made, not misleading as of the
date made or deemed made. All written information furnished after the date
hereof by or on behalf of any Loan Party to Administrative Agent or any Lender
in connection with this Agreement and the other Loan Documents and the
transactions contemplated hereby and thereby will be true, complete and accurate
in every material respect in light of the circumstances in which made, or based
on reasonable estimates on the date as of which such information is stated or
certified. There is no fact known to any Loan Party that is not shown in the
Initial Financial Statements or disclosed in Schedule 5.08 which could
reasonably be expected to cause a Material Adverse Change.
5.09 Litigation. Except as disclosed in the Initial Financial Statements or in
Schedule 5.09: (i) there are no actions, suits or legal, equitable, arbitrative
or administrative proceedings pending, or to the knowledge of any Loan Party
threatened, against any Loan Party or affecting any Collateral (including,
without limitation, any which challenge or otherwise pertain to any Loan Party's
title to any Collateral) before any Governmental Authority which could
reasonably be expected to cause a Material Adverse Change, and (ii) there are no
outstanding judgments, injunctions, writs, rulings or orders by any such
Governmental Authority against any Loan Party or any Loan Party's stockholders,
partners, directors or officers or affecting any Collateral which could
reasonably be expected to cause a Material Adverse Change.
5.10 Labor Disputes and Acts of God. Except as disclosed in Schedule 5.10,
neither the business nor the properties of any Loan Party has been affected by
any fire, explosion, accident, strike, lockout or other labor dispute, drought,
storm, hail, earthquake, embargo, act of God or of the public enemy or other
casualty (whether or not covered by insurance), which could reasonably be
expected to cause a Material Adverse Change.
5.11 Pension Plans and Liabilities. All currently existing Pension Plans are
listed in Schedule 5.11. Except as disclosed in the Initial Financial Statements
or in Schedule 5.11, no ERISA Event has occurred with respect to any Pension
Plan and all ERISA Affiliates are in compliance with ERISA in all material
respects. No ERISA Affiliate is required to contribute to, or has any other
absolute or contingent liability in respect of, any "multiemployer plan" as
defined in Section 4001 of ERISA. Except as set forth in Schedule 5.11: (i) no
"accumulated funding deficiency" (as defined in Section 412(a) of the Code
exists with respect to any Pension Plan, whether or not waived by the Secretary
of the Treasury or his delegate, and (ii) the amount of unfunded benefit
liabilities as defined in Section 4001(a)(18) of ERISA of each Pension Plan does
not exceed $250,000.
5.12 Compliance with Laws. Except as set forth in Schedule 5.12, each Loan Party
has all permits, licenses and authorizations required in connection with the
conduct of its businesses, except where the failure to have such permits,
licenses and authorizations would not result in a Material Adverse Change. Each
Loan Party is in compliance with the terms and conditions of all such permits,
licenses and authorizations, and is also in compliance with all other
limitations, restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in any Law or in any regulation,
code, plan, order, decree, judgment, injunction, notice or demand letter issued,
entered, promulgated or approved thereunder, and no Loan Party is aware of any
facts or circumstances that could reasonably be expected to result in
non-compliance as described in this Section 5.12, except where the failure to be
in compliance would not result in a Material Adverse Change. Without limiting
the foregoing, each Loan Party (i) has filed and maintained all tariffs
applicable to its business with each applicable commission and (ii) all such
tariffs are in compliance with all Laws administered or promulgated by each
applicable commission and (iii) has imposed charges on its customers in
compliance with such tariffs or otherwise in compliance with law. As used
herein, "commission" includes the Federal Energy Regulatory Commission, the
Texas Railroad Commission and each other US federal, state, or local
governmental department, commission, board, bureau, agency or instrumentality
having jurisdiction over any Loan Party or its properties.
5.13 Environmental Laws. As used in this section: "CERCLA" means the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, "CERCLIS" means the Comprehensive Environmental Response, Compensation
and Liability Information System List of the Environmental Protection Agency,
and "Release" has the meaning given such term in 42 U.S.C. ss. 9601(22). Without
limiting the provisions of Section 5.12 and except as set forth in Schedule
5.13:
(a) No notice, notification, demand, request for information, citation,
summons or order has been issued, no complaint has been filed and, to the
knowledge of any Loan Party, none are threatened, no penalty has been assessed
and, to the knowledge of any Loan Party, none are threatened, and no
investigation or review is pending or threatened by any Governmental Authority
or any other Person with respect to any of the following (i) any alleged
generation, treatment, storage, recycling, transportation, disposal, or Release
of any Hazardous Materials, either by any Loan Party or on any property owned or
operated by any Loan Party, (ii) any remedial action which might be needed to
respond to any such alleged generation, treatment, storage, recycling,
transportation, disposal, or Release, (iii) any alleged failure by any Loan
Party to have, or
to be in compliance with, any permit, license or authorization required in
connection with the conduct of its business or with respect to any such
generation, treatment, storage, recycling, transportation, disposal, or Release,
or (iv) any allegation of any non-compliance with any Environmental Law.
(b) No Loan Party otherwise has any known material contingent liability in
connection with any alleged generation, treatment, storage, recycling,
transportation, disposal, or Release of any Hazardous Materials.
(c) No Loan Party has handled any Hazardous Materials, other than as a
generator, on any properties now or previously owned or leased by any Loan Party
to an extent that such handling has caused, or could cause, a Material Adverse
Change.
(d) Except as would not be reasonably expected to cause a Material Adverse
Change:
(i) no PCBs are or have been present at any properties now or previously
owned, operated or leased by any Loan Party;
(ii) no asbestos is or has been present at any properties now or previously
owned, operated or leased by any Loan Party;
(iii) there are no underground storage tanks, active or abandoned, at any
properties now or previously owned, operated or leased by any Loan Party; and
(iv) no Hazardous Materials have been Released at, on or under any
properties now or previously owned, operated or leased by any Loan Party.
(e) No Loan Party has transported or arranged for the transportation or
disposition of any Hazardous Material to any location which is listed on the
National Priorities List under CERCLA, any location listed for possible
inclusion on the National Priorities List by the Environmental Protection Agency
in CERCLIS, or any location listed on any similar state list or which is the
subject of federal, state or local enforcement actions or other investigations
which may lead to claims against any Loan Party for clean-up costs, remedial
work, damages to natural resources or for personal injury claims, including, but
not limited to, claims under CERCLA.
(f) No property now or previously owned, operated or leased by any Loan
Party is listed or proposed for listing on the National Priority list
promulgated pursuant to CERCLA, in CERCLIS, or on any similar state list of
sites requiring investigation or clean-up.
(g) There are no Liens arising under or pursuant to any Environmental Laws
on any of the real properties or properties owned, operated or leased by any
Loan Party, and no government actions of which Borrower is aware have been taken
or are threatened which could subject any of such properties to such Liens; nor
would any Loan Party be
required to place any notice or restriction relating to the presence of
Hazardous Materials at any properties owned by it in any deed to such
properties.
(h) There have been no environmental investigations, studies, audits,
tests, reviews or other analyses for surface water, ground water, soil
contamination or natural resource damages relating to the Release of Hazardous
Materials conducted by or which are in the possession of any Loan Party in
relation to any properties or facility now or previously owned, operated or
leased by any Loan Party which have not been made available to Administrative
Agent.
(i) All Loan Parties are conducting their businesses in material compliance
with all applicable Environmental Laws, and all past non-compliance with such
Environmental Laws have been resolved without ongoing obligations or costs; and
no Loan Party has filed any notice under any Law indicating that any such Person
is responsible for the improper release into the environment, or the improper
storage or disposal, of any material amount of any Hazardous Materials or that
any Hazardous Materials have been improperly released, or are improperly stored
or disposed of, upon any property of any such Person.
(j) Schedule 5.13 sets out (i) the amounts expended by Loan Parties through
April 30, 2004 to pay (x) vendors, (y) spill claimants, and (z) clean up costs
incurred in connection with the Pipeline Release (collectively, the "Spill
Costs"), (ii) the estimated amount of additional Spill Costs which will be
incurred by the Loan Parties in the future, (iii) the amount of insurance
payments received by Loan Parties through April 30, 2004 to pay for Spill Costs,
and (iv) the estimated amount of future insurance payments that the Loan Parties
anticipate receiving to pay for Spill Costs.
5.14 Names and Places of Business. No Loan Party has, during the preceding five
years, had, been known by, or used any other trade or fictitious name, except as
disclosed in Schedule 5.14. Except as otherwise indicated in Schedule 5.14, the
chief executive office and principal place of business of each Loan Party are
(and since the dates of initial formation of such Loan Parties have been)
located at the address of Borrower set out in Section 10.02. Except as indicated
in Schedule 5.14 or otherwise disclosed in writing to the Administrative Agent,
no Loan Party has any other office or place of business.
5.15 Borrower's Subsidiaries. Borrower does not presently have any Subsidiary or
own any stock in any other corporation or association except those listed in
Schedule 5.15 or disclosed to Administrative Agent in writing. Neither Borrower
nor any Loan Party is a member of any general or limited partnership, limited
liability company, corporation, joint venture or association of any type
whatsoever except those listed in Schedule 5.15 or disclosed to Administrative
Agent in writing. Borrower owns, directly or indirectly, the equity interest in
each of its Subsidiaries which is indicated in Schedule 5.15 or as disclosed to
Administrative Agent in writing.
5.16 Title to Properties; Licenses. Each Loan Party has good and defensible
title to all of its material properties and assets, free and clear of all Liens
other than Permitted Liens and of all material impediments to the use of such
properties and assets in such Loan Party's business. Each Loan Party possesses
all licenses, permits, franchises, patents, copyrights,
trademarks and trade names, and other intellectual property (or otherwise
possesses the right to use such intellectual property without violation of the
rights of any other Person) which are necessary to carry out its business as
presently conducted and as presently proposed to be conducted hereafter, except
to the extent that such failure to possess could not reasonably be expected to
cause a Material Adverse Change, and no Loan Party is in violation in any
material respect of the terms under which it possesses such intellectual
property or the right to use such intellectual property.
5.17 Government Regulation.
(a) Borrower is not engaged and will not engage, principally or as one of
its important activities, in the business of purchasing or carrying margin stock
(within the meaning of Regulation U issued by the FRB), or extending credit for
the purpose of purchasing or carrying margin stock.
(b) Neither Borrower nor any other Loan Party owing Obligations is subject
to regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Investment Company Act of 1940 (as any of the preceding acts have
been amended) or any other Law which regulates the incurring by such Person of
Indebtedness, including Laws relating to common contract carriers or the sale of
electricity, gas, steam, water or other public utility services.
5.18 Insider. No Loan Party, nor any Person having "control" (as that term is
defined in 12 U.S.C. ss. 375b(9) or in regulations promulgated pursuant thereto)
of any Loan Party, is a "director" or an "executive officer" or "principal
shareholder" (as those terms are defined in 12 U.S.C. ss. 375b(8) or (9) or in
regulations promulgated pursuant thereto) of any Lender, of a bank holding
company of which any Lender is a Subsidiary or of any Subsidiary of a bank
holding company of which any Lender is a Subsidiary.
5.19 Solvency. Upon giving effect to the issuance of the Notes, the execution of
this Agreement and the other Loan Documents by Borrower and each Guarantor and
the consummation of the transactions contemplated hereby and thereby, (i)
Borrower and each Guarantor will be Solvent and the sum of Borrower's and each
Guarantor's absolute and contingent liabilities, including the Obligations or
Guarantees, shall not exceed the fair market value of such Loan Party's assets,
and (ii) Borrower's and each Guarantor's capital should be adequate for the
businesses in which such Loan Party is engaged and intends to be engaged.
Neither Borrower nor any Loan Party has incurred (whether under the Loan
Documents or otherwise), nor does any Loan Party intend to incur or believe that
it will incur, debts which will be beyond its ability to pay as such debts
mature.
5.20 Credit Arrangements. Except as set forth on Schedule 5.20, no Affiliate of
any Loan Party is party to or subject to any credit agreement, loan agreement,
indenture, purchase agreement, guaranty or other arrangement providing for or
otherwise relating to any Indebtedness or any extension of credit (or commitment
for any extension of credit) that creates by a covenant of such Affiliate or
otherwise, any limitation or restriction of any action of any Loan Party or any
obligation that any Loan Party be caused to take any action.
5.21 Real Property. Set forth on Part I of Schedule 5.21 hereto is a complete
and accurate list of all real property owned by any Loan Party or any of its
Subsidiaries (other than
Injection Stations), showing as of the date hereof the street address, county or
other relevant jurisdiction, state, record owner and book and estimated fair
value thereof. Each Loan Party or such Subsidiary has good, marketable and
insurable fee simple title to such real property, free and clear of all Liens,
other than Permitted Liens and other Liens created or permitted by the Loan
Documents. Set forth on Part II of Schedule 5.21 hereto is a complete and
accurate list of all leases of real property under which any Loan Party or any
of its Subsidiaries is the lessee (other than Injection Stations), showing as of
the date hereof the street address, county or other relevant jurisdiction,
state, lessor, lessee, expiration date and annual rental cost thereof. Each such
lease is the legal, valid and binding obligation of the lessor thereof,
enforceable in accordance with its terms.
5.22 Insurance. The properties of the Loan Parties are insured with financially
sound and reputable insurance companies not Affiliates of the Loan Parties, in
such amounts, with such deductibles and covering such risks as are customarily
carried by companies engaged in similar businesses and owning similar properties
in localities where the applicable Loan Parties operate.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Borrower, General Partner and Genesis
Energy, L.P., covenant and agree:
6.01 Payment and Performance. Each Loan Party will pay all amounts due under the
Loan Documents, to which it is a party, in accordance with the terms thereof and
will observe, perform and comply with every covenant, term and condition
expressed in the Loan Documents to which it is a party.
6.02 Books, Financial Statements and Reports. Each Loan Party will at all times
maintain full and accurate books of account and records. Genesis Energy, L.P.
and Borrower will maintain and will cause their Subsidiaries to maintain a
standard system of accounting, will maintain its Fiscal Year, and will furnish
the following statements and reports to each Lender at Loan Parties' expense:
(a) As soon as available, and in any event within ninety days (90) days
after the end of each Fiscal Year (i) complete Consolidated financial statements
of Genesis Energy, L.P. and of Borrower together with all notes thereto,
prepared in reasonable detail in accordance with GAAP, together with an
unqualified opinion, based on an audit using generally accepted auditing
standards, by Deloitte & Touche LLP, or other independent certified public
accountants selected by General Partner and acceptable to Required Lenders,
stating that such Consolidated financial statements have been so prepared and
(ii) supporting unaudited balance sheets and statements of income of each other
Loan Party. These financial statements shall contain a Consolidated balance
sheet as of the end of such Fiscal Year and Consolidated statements of earnings
for such Fiscal Year. Such Consolidated financial statements shall set forth in
comparative form the corresponding figures for the preceding Fiscal Year. In
addition, within ninety (90) days after the end of each Fiscal Year, Genesis
Energy, L.P. and Borrower will furnish a certificate signed by such accountants
stating that in connection with their audit, nothing came to their attention to
cause them to believe that Genesis Energy, L.P. or Borrower
failed to comply with the terms, covenants, provisions or conditions of Article
VII insofar as they relate to accounting matters, with the proviso that such
audit was not directed primarily toward obtaining knowledge of such
non-compliance.
(b) As soon as available, and in any event within sixty (60) days after the
end of the first three Fiscal Quarters of each Fiscal Year (i) Genesis Energy,
L.P.'s and Borrower's Consolidated balance sheet as of the end of such Fiscal
Quarter and Consolidated statements of Genesis Energy, L.P.'s and Borrower's
earnings and cash flows for such Fiscal Quarter and for the period from the
beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and
(ii) supporting balance sheets and statements of income of each other Loan
Party, all in reasonable detail and prepared in accordance with GAAP, subject to
changes resulting from normal year-end adjustments. In addition Genesis Energy,
L.P. and Borrower will, together with each such set of financial statements and
each set of financial statements furnished under subsection (a) of this section,
furnish a Compliance Certificate signed by the Responsible Officer of General
Partner stating that such financial statements are accurate and complete in all
material respects (subject to normal year-end adjustments), stating that he has
reviewed the Loan Documents, containing calculations showing compliance (or
non-compliance) at the end of such Fiscal Quarter with the requirements of
Sections 7.11 through 7.15, inclusive and stating that no Default exists at the
end of such Fiscal Quarter or at the time of such certificate or specifying the
nature and period of existence of any such Default.
(c) Promptly upon their becoming available, copies of all financial
statements, reports, notices and proxy statements sent by Genesis Energy, L.P.
to its unit holders and all registration statements, periodic reports and other
statements and schedules filed by Genesis Energy, L.P. with any securities
exchange, the Securities and Exchange Commission or any similar governmental
authority.
Documents required to be delivered pursuant to Section 6.02(a), (b) or
(c) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on
which the Borrower posts such documents, or provides a link thereto on
the Borrower's website on the Internet at the website address listed on
Schedule 10.02; or (ii) on which such documents are posted on the
Borrower's behalf on an Internet or intranet website, if any, to which
each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the
Administrative Agent); provided that: (i) the Borrower shall deliver
paper copies of such documents to the Administrative Agent or any
Lender that requests the Borrower to deliver such paper copies until a
written request to cease delivering paper copies is given by the
Administrative Agent or such Lender and (ii) the Borrower shall notify
(which may be by facsimile or electronic mail) the Administrative Agent
and each Lender of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft
copies) of such documents. Notwithstanding anything contained herein,
in every instance the General Partner shall be required to provide
paper copies of the
Compliance Certificates required by Sections 6.02(a) and (b) to the
Administrative Agent. Except for such Compliance Certificates, the
Administrative Agent shall have no obligation to request the delivery
or to maintain copies of the documents referred to above, and in any
event shall have no responsibility to monitor compliance by the
Borrower with any such request for delivery, and each Lender shall be
solely responsible for requesting delivery to it or maintaining its
copies of such documents.
(d) As soon as available, and in any event within one hundred twenty (120)
days after the end of each Fiscal Year, a business and financial plan for
Genesis Energy, L.P. (in form reasonably satisfactory to Administrative Agent),
prepared or caused to be prepared by a Responsible Officer of General Partner,
setting forth for the first year thereof, quarterly financial projections and
budgets for Genesis Energy, L.P., and thereafter yearly financial projections
during the Availability Period.
(e) On or about the twenty-sixth (26th) (but no later than the
twenty-eighth (28th)) day of each calendar month a Borrowing Base Report in the
form of Exhibit G duly completed by an Responsible Officer of General Partner
and conforming with the requirements of Section 2.13 and an accounts payable
aging report, and (ii) on or before the last day of each calendar month, a
statement in form satisfactory to Administrative Agent reconciling the Borrowing
Base Report delivered on or about the 26th day of the preceding calendar month
with actual results for the preceding calendar month, conforming with the
requirements of Section 2.13.
(f) As soon as available, and in any event within thirty (30) days after
the end of each calendar month, a report setting forth for such month aggregate
volumes, prices and margins for all marketing activities of Loan Parties in form
satisfactory to Administrative Agent.
(g) As soon as available, and in any event within thirty (30) days after
the end of each Fiscal Year, an environmental compliance certificate signed by
the Responsible Officer of General Partner in the form attached hereto as
Exhibit I. Further, if requested by Administrative Agent, Loan Parties shall
permit and cooperate with an environmental and safety review made in connection
with the operations of Loan Parties' properties one time during each Fiscal
Year, by consultants selected by Administrative Agent which review shall, if
requested by Administrative Agent, be arranged and supervised by environmental
legal counsel for Administrative Agent, all at Loan Parties' cost and expense.
The consultant shall render a verbal or written report, as specified by
Administrative Agent, based upon such review at Loan Parties' cost and expense
and a copy thereof will be provided to Loan Parties.
(h) Concurrently with the annual renewal of Loan Parties' insurance
policies, Loan Parties shall at their own cost and expense, if requested by
Administrative Agent in writing, cause a certificate or report to be issued by
Administrative Agent's professional insurance consultants or other insurance
consultants satisfactory to Administrative Agent certifying that Loan Parties'
insurance for the next succeeding year after such renewal (or for such longer
period for which such insurance is in effect) complies with the provisions of
this Agreement and the Security Documents.
(i) As soon as available, and in any event within thirty (30) days after
the end of each calendar month, a Consolidated statement of Genesis Energy,
L.P.'s earnings for such calendar month in form satisfactory to Administrative
Agent.
(j) As soon as available, and in any event no later than the time of
delivery of the financial statements under Section 6.02(b), reports of commodity
price-risk mitigation activities (which shall include all Lender Hedging
Obligation positions), plant operating statements, capital expenditures, and
other acquisitions and divestitures of Loan Parties, in form satisfactory to
Administrative Agent.
(k) As soon as available, and in any event within thirty (30) days after
the end of each calendar month, a report on a mark to market basis of all
Floating Price Contracts as of the close of business on the last day of such
calendar month, and together with such report a complete list of all net
realized losses on any Floating Price Contracts for the prior twelve months in
form reasonably satisfactory to Administrative Agent.
6.03 Other Information and Inspections. Each Loan Party will furnish to each
Lender any information which Administrative Agent or any Lender may from time to
time request concerning any covenant, provision or condition of the Loan
Documents or any matter in connection with Loan Parties' businesses and
operations. Each Loan Party will permit representatives appointed by
Administrative Agent (including independent accountants, auditors, agents,
attorneys, appraisers and any other Persons) to visit and inspect during normal
business hours any of such Loan Party's property, including its books of
account, other books and records, and any facilities or other business assets,
and to make extra copies therefrom and photocopies and photographs thereof, and
to write down and record any information such representatives obtain, and each
Loan Party shall permit Administrative Agent or its representatives to
investigate and verify the accuracy of the information furnished to
Administrative Agent or any Lender in connection with the Loan Documents and to
discuss all such matters with its officers, employees and, upon prior notice to
Borrower, its representatives. Without limitation of the foregoing, within one
hundred twenty (120) days after the end of each Fiscal Year, and in addition
once during each Fiscal Year, if requested by Administrative Agent at the
instruction of Required Lenders, Borrower shall permit commercial financial
examiners appointed by Administrative Agent to conduct a commercial finance
examination of the business and assets of Loan Parties and in connection with
such examination to have full access to and the right to examine, audit, make
abstracts and copies from, and inspect Loan Parties' records, files, books of
account and all other documents, instruments and agreements to which a Loan
Party is a party. Borrower shall pay all reasonable costs and expenses of
Administrative Agent associated with any such examination.
6.04 Notice of Material Events and Change of Address. Each Loan Party will
notify each Lender, not later than five (5) Business Days after any executive
officer of Loan Parties has knowledge thereof, stating that such notice is being
given pursuant to this Agreement, of:
(a) the occurrence of any Material Adverse Change,
(b) the occurrence of any Default,
(c) the acceleration of the maturity of any Indebtedness owed by any Loan
Party or of any default by any Loan Party under any indenture, mortgage,
agreement, contract or other instrument to which any of them is a party or by
which any of them or any of their properties is bound, if such acceleration or
default could cause a Material Adverse Change,
(d) the occurrence of any ERISA Event,
(e) Under any Environmental Law, any claim of $250,000 or more, any notice
of potential liability which might exceed such amount, or any other material
adverse claim asserted against any Loan Party or with respect to any Loan
Party's properties taken as a whole,
(f) of any material change in accounting policies or financial reporting
practices by any Loan Party, and
(g) the filing of any suit or proceeding, or the assertion in writing of a
claim against any Loan Party or with respect to any Loan Party's properties in
which an adverse decision could reasonably be expected to cause a Material
Adverse Change.
Upon the occurrence of any of the foregoing, Loan Parties will take all
necessary or appropriate steps to remedy promptly any such Material Adverse
Change, Default, acceleration, default, or ERISA Event to protect against any
such adverse claim, to defend any such suit or proceeding, and to resolve all
controversies on account of any of the foregoing. Loan Parties will also notify
Administrative Agent and Administrative Agent's counsel in writing at least
twenty Business Days prior to the date that any Loan Party changes its name or
the location of its chief executive office or principal place of business or the
place where it keeps its books and records concerning the Collateral, furnishing
with such notice any necessary financing statement amendments or requesting
Administrative Agent and its counsel to prepare the same.
6.05 Maintenance of Properties. Each Loan Party will maintain, preserve,
protect, and keep all Collateral and all other material property used or useful
in the conduct of its business in good condition (ordinary wear and tear
excepted) and in compliance with all applicable Laws, and will from time to time
make all repairs, renewals and replacements needed to enable the business and
operations carried on in connection therewith to be promptly and advantageously
conducted at all times.
6.06 Preservation of Existence, Etc. Each Loan Party will (a) preserve, renew
and maintain in full force and effect its legal existence and good standing
under the Laws of the jurisdiction of its organization except in a transaction
permitted by Section 7.04 or 7.05; (b) take all reasonable action to maintain
all rights, privileges, permits, licenses and franchises necessary or desirable
in the normal conduct of its business, except to the extent that failure to do
so could not reasonably be expected to cause a Material Adverse Change; and (c)
preserve or renew all of its registered patents, trademarks, trade names and
service marks, the non-preservation of which could reasonably be expected to
cause a Material Adverse Change.
6.07 Payment of Trade Liabilities, Taxes, Etc. Each Loan Party will (a) timely
file all required tax returns including any extensions; (b) timely pay all
taxes, assessments, and other
governmental charges or levies imposed upon it or upon its income, profits or
property; (c) within one hundred twenty (120) days after the date such goods are
delivered or such services are rendered, pay all Liabilities owed by it on
ordinary trade terms to vendors, suppliers and other Persons providing goods and
services used by it in the ordinary course of its business; (d) pay and
discharge when due all other Liabilities now or hereafter owed by it, other than
royalty payments suspended in the ordinary course of business; and (e) maintain
appropriate accruals and reserves for all of the foregoing in accordance with
GAAP. Each Loan Party may, however, delay paying or discharging any of the
foregoing so long as it is in good faith contesting the validity thereof by
appropriate proceedings, if necessary, and has set aside on its books adequate
cash reserves therefor which are required by GAAP. 6.08 Insurance. Each Loan
Party shall at all times maintain insurance for its property in accordance with
Schedule 6.08 which insurance shall be by financially sound and reputable
insurers not Affiliates of the Loan Parties, in such amounts, with such
deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar properties in localities where
the applicable Loan Party operates. Each Loan Party will maintain any additional
insurance coverage as described in the respective Security Documents. Borrower
shall maintain, or cause to be maintained, with an insurer reasonably acceptable
to Agent, flood insurance sufficient for Lenders to comply with Regulation H of
the FRB. Upon demand by Administrative Agent any insurance policies covering
Collateral shall be endorsed (a) to provide for payment of losses to
Administrative Agent as its interests may appear, (b) to provide that such
policies may not be canceled or reduced or affected in any material manner for
any reason without fifteen days prior notice to Administrative Agent, and (c) to
provide for any other matters specified in any applicable Security Document or
which Administrative Agent may reasonably require. Each Loan Party shall at all
times maintain insurance against its liability for injury to persons or property
in accordance with Schedule 6.08, which insurance shall be by financially sound
and reputable insurers. Without limiting the foregoing, each Loan Party shall at
all times maintain liability insurance in accordance with Schedule 6.08.
6.09 Performance on Borrower's Behalf. If any Loan Party fails to pay any taxes,
insurance premiums, expenses, attorneys' fees or other amounts it is required to
pay under any Loan Document, Administrative Agent may pay the same after notice
of such payment by Administrative Agent is given to Borrower. Borrower shall
immediately reimburse Administrative Agent for any such payments and each amount
paid by Administrative Agent shall constitute an Obligation owed hereunder which
is due and payable on the date such amount is paid by Administrative Agent.
6.10 Interest. Borrower hereby promises to each Lender to pay interest at the
Default Rate on all Obligations (including Obligations to pay fees or to
reimburse or indemnify any Lender) which Borrower has in this Agreement promised
to pay to such Lender and which are not paid when due. Such interest shall
accrue from the date such Obligations become due until they are paid.
6.11 Compliance with Agreements and Law. Each Loan Party will perform all
material obligations it is required to perform under the terms of each
indenture, mortgage, deed of trust, security agreement, lease, and franchise,
and each agreement, contract or other instrument or obligation to which it is a
party or by which it or any of its properties is bound. Each Loan Party will
conduct its business and affairs in compliance with all Laws applicable thereto
and will maintain in good standing all licenses that may be necessary or
appropriate to carry on its business.
6.12 Environmental Matters; Environmental Reviews.
(a) Each Loan Party will comply in all material respects with all
Environmental Laws now or hereafter applicable to such Loan Party as well as all
Contractual Obligations and agreements with respect to environmental remediation
or other environmental matters and shall obtain, at or prior to the time
required by applicable Environmental Laws, all environmental, health and safety
permits, licenses and other authorizations necessary for its operations and will
maintain such authorizations in full force and effect, conduct any
investigation, study, sampling and testing, and undertake any cleanup, removal,
remedial or other action necessary to remove and clean up all Hazardous
Materials from any of its properties, in accordance with the requirements of all
Environmental Laws.
(b) Each Loan Party will promptly furnish to Administrative Agent all
written notices of violation, orders, claims, citations, complaints, penalty
assessments, suits or other proceedings received by any Loan Party, or of which
it has notice, pending or threatened against any Loan Party, the potential
liability of which exceeds $250,000 or would cause a Material Adverse Change if
resolved adversely against any Loan Party, by any governmental authority with
respect to any alleged violation of or non-compliance with any Environmental
Laws or any permits, licenses or authorizations in connection with its ownership
or use of its properties or the operation of its business.
(c) Each Loan Party will promptly furnish to Administrative Agent all
requests for information, notices of claim, demand letters, and other
notifications, received by any Loan Party in connection with its ownership or
use of its properties or the conduct of its business, relating to potential
responsibility with respect to any investigation or clean-up of Hazardous
Material at any location, the potential liability of which exceeds $250,000 or
would cause a Material Adverse Change if resolved adversely against any Loan
Party.
6.13 Evidence of Compliance. Subject to the last sentence of Section 6.03, each
Loan Party will furnish to each Lender at such Loan Party's expense all evidence
which Administrative Agent from time to time reasonably requests in writing as
to the accuracy and validity of or compliance with all representations,
warranties and covenants made by any Loan Party in the Loan Documents, the
satisfaction of all conditions contained therein, and all other matters
pertaining thereto.
6.14 Agreement to Deliver Security Documents. Loan Parties will deliver to
further secure the Obligations whenever requested by Administrative Agent in its
sole and absolute discretion, deeds of trust, mortgages, chattel mortgages,
flood hazard certification, title searches, title insurance, surveys, security
agreements, financing statements and other Security Documents in form and
substance reasonably satisfactory to Administrative Agent for the purpose of
granting, confirming, and perfecting first and prior liens or security interests
in any real or personal property now owned or hereafter acquired by any Loan
Party.
6.15 Perfection and Protection of Security Interests and Liens. Each Loan Party
will from time to time deliver to Administrative Agent any financing statements,
continuation statements, extension agreements and other documents, properly
completed and executed (and acknowledged when required) by Loan Parties in form
and substance reasonably satisfactory to Administrative Agent, which
Administrative Agent requests for the purpose of perfecting, confirming, or
protecting any Liens or other rights in Collateral securing any Obligations.
6.16 Bank Accounts; Offset. To secure the repayment of the Obligations, each
Loan Party hereby grants to each Lender a security interest, a lien, and a right
of offset, each of which shall be in addition to all other interests, liens, and
rights of any Lender at common Law, under the Loan Documents, or otherwise, and
each of which shall be upon and against (a) any and all moneys, securities or
other property (and the proceeds therefrom) of such Loan Party now or hereafter
held or received by or in transit to any Lender from or for the account of such
Loan Party, whether for safekeeping, custody, pledge, transmission, collection
or otherwise, (b) any and all deposits (general or special, time or demand,
provisional or final) of such Loan Party with any Lender, and (c) any other
credits and claims of such Loan Party at any time existing against any Lender,
including claims under certificates of deposit. At any time and from time to
time during the continuance of any Event of Default, each Lender is hereby
authorized to foreclose upon, or to offset against the Obligations then due and
payable (in either case without notice to any Loan Party), any and all items
hereinabove referred to. The remedies of foreclosure and offset are separate and
cumulative, and either may be exercised independently of the other without
regard to procedures or restrictions applicable to the other.
6.17 Guarantees of Subsidiaries. Each Subsidiary of General Partner or Genesis
Energy, L.P. (other than Borrower) now existing or created, acquired or coming
into existence after the date hereof shall, promptly upon request by
Administrative Agent, execute and deliver to Administrative Agent a Guaranty.
Each Subsidiary of General Partner or Genesis Energy L.P. (other than Borrower)
existing on the date hereof shall duly execute and deliver such a Guaranty prior
to the making of any Loan hereunder. General Partner and Genesis Energy L.P.
will cause each of its Subsidiaries to deliver to Administrative Agent,
simultaneously with its delivery of such a Guaranty, written evidence
satisfactory to Administrative Agent and its counsel that such Subsidiary has
taken all corporate, limited liability company or partnership action necessary
to duly approve and authorize its execution, delivery and performance of such
Guaranty and any other documents which it is required to execute.
6.18 Compliance with Agreements. Each Loan Party shall observe, perform or
comply with any agreement with or Contractual Obligation to any Person or any
term or condition of any instrument, if such agreement, Contractual Obligation
or instrument is materially significant to such Loan Party or to Loan Parties on
a Consolidated basis or materially significant to any Guarantor, unless any such
failure to so observe, perform or comply is remedied within the applicable
period of grace (if any) provided in such agreement or instrument or unless such
failure to so observe, perform or comply would not reasonably be expected to
cause a Material Adverse Change.
6.19 Rents. By the terms of the various Security Documents, certain Loan Parties
are and will be assigning to Administrative Agent, for the benefit of Lenders,
all of the "Rents" (as defined therein) accruing to the property covered
thereby. Notwithstanding any such assignments, so long as no Default has
occurred and is continuing, (i) such Loan Parties may continue to receive and
collect from the payors of such Rents all such Rents, subject, however, to the
Liens created under the Security Documents, which Liens are hereby affirmed and
ratified, and free and clear of such Liens, use the proceeds of the Rents, and
(ii) Administrative Agent will not notify the obligors of such Rents or take any
other action to cause proceeds thereof to be remitted to Administrative Agent.
Upon the occurrence of a Default, Administrative Agent may exercise all rights
and remedies granted under the Security Documents, including the right to obtain
possession of all Rents then held by such Loan Parties or to receive directly
from the payors of such Rents all other Rents until such time as such Default is
no longer continuing. If Administrative Agent shall receive any Rent proceeds
from any payor at any time other than during the continuance of a Default, then
it shall notify Borrower thereof and (i) upon request and pursuant to the
instructions of Borrower, it shall, if no Default is then continuing, remit such
proceeds to the Borrower and (ii) at the request and expense of Borrower,
execute and deliver a letter to such payors confirming Loan Parties' right to
receive and collect Rents until otherwise notified by Administrative Agent. In
no case shall any failure, whether purposed or inadvertent, by Administrative
Agent to collect directly any such Rents constitute in any way a waiver,
remission or release of any of its rights under the Security Documents, nor
shall any release of any Rents by Administrative Agent to such Loan Parties
constitute a waiver, remission, or release of any other Rents or of any rights
of Administrative Agent to collect other Rents thereafter.
6.20 Operating Practices. Each Loan Party shall operate its business in a manner
that is consistent with the policies and procedures approved by the board of
directors of General Partner and in effect on, and delivered to Administrative
Agent and Lenders prior to, the date hereof, and revisions thereto referred to
in the following sentence. Borrower shall review such policies and procedures at
least annually, and shall promptly recommend to the board of directors of
General Partner such revisions to such policies and procedures as may be
recommended by Loan Parties' or, upon consultation with Borrower and its
consultants and at the request of Administrative Agent, Administrative Agent's
third party consultants, with respect to adequate internal controls, and
Borrower shall promptly provide a report to Lenders regarding such policies and
procedures, including such policies and procedures which the board of directors
of General Partner could adopt and has adopted.
6.21 Collateral Account. Borrower will established with Administrative Agent an
account (as used in this Section 6.21, the "Collateral Account") in the name of
Borrower and under the sole control of Administrative Agent into which there
shall be deposited from time to time the cash proceeds of the Collateral
required to be delivered to Administrative Agent pursuant to this Section 6.21
or pursuant to any other provision of this Agreement or any other Loan Document.
In the event that, at any time, the Outstanding Working Capital Amount shall
exceed ninety percent (90%) of the Borrowing Base, Administrative Agent may, in
its sole discretion, require Borrower to instruct all Account Debtors and other
Persons obligated to make payments to Borrower on any receivables, general
intangibles, instruments, or other rights to payment included within the
Collateral to make such payments directly to Administrative Agent, in which case
Borrower shall instruct that such payments be remitted to a post office box
designated by and under the control of Administrative Agent and shall execute a
lock box agreement and other documents related to the same as Administrative
Agent shall request. All such payments shall be deposited into the Collateral
Account. In addition to the foregoing, Borrower agrees that if any such payment
is received by Borrower, Borrower shall as promptly as possible deposit such
payments into the Collateral Account. Until so deposited, all such payments
shall be held in trust by Borrower for Administrative Agent and shall not be
commingled with any other funds or property of Borrower. So long as no Default
or Event of Default shall have occurred and be continuing, collected funds on
deposit in the Collateral Account shall be disbursed by Administrative Agent to
an operating account in the name of Borrower maintained with Agent from time to
time upon receipt of a disbursement request in forms reasonably acceptable to
Administrative Agent. If an Event of Default shall have occurred and be
continuing, disbursement of funds in the Collateral Account shall be made in the
discretion of Administrative Agent or Required Lenders.
6.22 Use of Proceeds. The Borrower will use the proceeds of the initial Working
Capital Loans to refinance indebtedness under the Existing Credit Agreement, and
to pay the fees and expenses related to the closing of the transactions
contemplated by the Loan Documents. Thereafter, Borrower shall use the proceeds
of all future Working Capital Loans for working capital and general business
purposes not in contravention of any Law or of any Loan Document. Borrower shall
use the proceeds of all Acquisition Facility Loans for Capital Expenditures and
Permitted Acquisitions. Borrower shall use all Letters of Credit solely for the
purposes specified in Section 2.03(a)(i)(2). In no event shall the funds from
any Loan or any Letter of Credit be used (i) directly or indirectly by any
Person for personal, family, household or agricultural purposes, (ii) for the
purpose, whether immediate, incidental or ultimate, of purchasing, acquiring or
carrying any "margin stock" (as such term is defined in Regulation U promulgated
by the FRB) or (iii) to extend credit to others directly or indirectly for the
purpose of purchasing or carrying any such margin stock.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Borrower, General Partner and Genesis
Energy, L.P. covenant and agree:
7.01 Indebtedness. No Loan Party will in any manner owe or be liable for
Indebtedness except:
(a) the Obligations;
(b) Indebtedness of Borrower arising under Swap Contracts (i) permitted
under Section 7.03 or (ii) consisting of options, swaps, collars and similar
instruments that relate to Petroleum Inventory and are either referred to in
Section 7.16(a) or permitted by Section 7.16(b) or (c);
(c) Indebtedness of any Loan Party owing to another Loan Party;
(d) Guarantees by Genesis Energy, L.P., Borrower or any Guarantor of trade
payables of any Loan Party incurred and paid in the ordinary course of business
on ordinary trade terms;
(e) Indebtedness of any Loan Party owing in connection with deferred
payments of insurance premiums, provided that all such Indebtedness of all Loan
Parties shall not exceed $3,000,000 in any Fiscal Year; and
(f) other Indebtedness of Borrower not to exceed in the aggregate principal
amount of $1,000,000 at any one time outstanding.
7.02 Limitation on Liens. No Loan Party will create, assume or permit to exist
(i) any Lien upon any Accounts, inventory, cash or investment securities which
constitute Collateral except (A) Permitted Inventory Liens, (B) Liens created
pursuant to the Security Documents, (C) statutory Liens in respect of First
Purchase Crude Payables, (D) Liens of the type described in clause (e) below in
connection with any Eligible Margin Deposit to secure Swap Contracts permitted
under Section 7.01 with the broker that is the holder of such Eligible Margin
Deposit, (E) Liens of the type described in clauses (a), (c) and (f) below, and
(F) any other Liens expressly permitted to encumber such Collateral under any
Security Document covering such Collateral or (ii) any Lien upon any of the
properties or assets other than such Collateral which it now owns or hereafter
acquires except the following (Liens, to the extent permitted by this Section,
herein called "Permitted Liens"):
(a) Liens created pursuant to this Agreement or the Security Documents and
Liens existing on the date of this Agreement and listed in Schedule 7.02.
(b) Liens imposed by any Governmental Authority for taxes, assessments or
charges not yet due or the validity of which is being contested in good faith
and by appropriate proceedings, if necessary, and for which adequate reserves
are maintained on the books of any Loan Party in accordance with GAAP;
(c) pledges or deposits of cash or securities under worker's compensation
and automobile insurance policies, unemployment insurance and employee medical
insurance or other social security legislation not to exceed for all such items
in the aggregate $1,000,000;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's,
landlord's, or other like Liens (including, without limitation, Liens on
property of any Loan Party in the possession of storage facilities, pipelines or
barges) arising in the ordinary course of business for amounts which are not
more than sixty (60) days past due or the validity of which is being contested
in good faith and by appropriate proceedings, if necessary, and for which
adequate reserves are maintained on the books of any Loan Party in accordance
with GAAP;
(e) Liens under or with respect to accounts with brokers or counterparties
with respect to Swap Contracts consisting of cash, commodities or futures
contracts, options, securities, instruments, and other like assets securing only
Swap Contracts permitted under Section 7.01;
(f) deposits of cash or securities to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar encumbrances
incurred in the ordinary course of business and encumbrances consisting of
zoning restrictions, easements, licenses, restrictions on the use of real
property or minor imperfections in title thereto which, in the aggregate, are
not material in amount, and which do not in any case materially detract from the
value of the property subject thereto or interfere with the ordinary conduct of
the business of any Loan Party;
(h) Liens in respect of purchase money obligations and Capital Leases
relating to Indebtedness permitted under Section 7.01(f), and Liens in respect
of operating leases;
(i) rights reserved to or vested in any governmental authority by the terms
of any right, power, franchise, grant, license or permit, or by any provision of
law, to revoke or terminate any such right, power, franchise, grant, license or
permit or to condemn or acquire by eminent domain or similar process;
(j) rights reserved to or vested by Law in any governmental authority to in
any manner, control or regulate in any manner any of the properties of any Loan
Party or the use thereof or the rights and interests of any Loan Party therein,
in any manner under any and all Laws;
(k) rights reserved to the grantors of any properties of any Loan Party,
and the restrictions, conditions, restrictive covenants and limitations, in
respect thereto, pursuant to the terms, conditions and provisions of any
rights-of-way agreements, contracts or other agreements therewith; and
(l) inchoate Liens in respect of pending litigation or with respect to a
judgment which has not resulted in an Event of Default under Section 8.01.
7.03 Swap Contracts. No Loan Party will be a party to or in any manner be
liable on any Swap Contract, except:
(a) Swap Contracts entered into by a Loan Party with the purpose and effect
of fixing interest rates on a principal amount of indebtedness of such Loan
Party that is accruing interest at a variable rate, provided that (i) the
aggregate notional amount of such contracts never exceeds one hundred percent
(100%) of the anticipated outstanding principal balance of the indebtedness to
be hedged by such contracts or an average of such principal balances calculated
using a generally accepted method of matching interest swap contracts to
declining principal balances, (ii) the floating rate index of each such contract
generally matches the index used to determine the floating rates of interest on
the corresponding indebtedness to be hedged by such contract and (iii) each such
contract is with a counterparty or has a guarantor of the obligation of the
counterparty who (unless such counterparty is a Lender or an Affiliate of any
Lender at the time such contract is entered into) at the time the contract is
made has long-term unsecured and unenhanced debt obligations rated A or A2 or
better, respectively, by either S&P or Moody's or is otherwise acceptable to
Required Lenders.
(b) Swap Contracts relating to Petroleum Inventory which are referred to in
Section 7.16(a) or permitted by Section 7.16(b) or (c).
7.04 Limitation on Mergers, Issuances of Securities. Except as expressly
provided in this section, no Loan Party will (a) enter into any transaction of
merger or consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution), (b) acquire any business or
property from, or capital stock of, or be a party to any acquisition of, any
Person except for purchases of inventory and other property to be sold or used
in the ordinary course of business and Investments permitted under Section 7.07
hereof or (c) Dispose of, in one transaction or a series of transactions, any
part of its business or property, whether now owned or hereafter acquired,
except for sales or transfers not prohibited under Section 7.05 hereof. Any
Person, other than Borrower, that is a Subsidiary of a Loan Party may, however,
be merged into or consolidated with (i) another Subsidiary of such Loan Party,
so long as a Loan Party is the surviving business entity, or (ii) such Loan
Party, so long as such Loan Party is the surviving business entity. Genesis
Energy, L.P. will not issue any securities other than (i) limited partnership
interests and any options or warrants giving the holders thereof only the right
to acquire such interests, and (ii) general partnership interests issued to the
General Partner. No Subsidiary of Genesis Energy, L.P. will issue any additional
shares of its capital stock or other securities or any options, warrants or
other rights to acquire such additional shares or other securities, except a
direct Subsidiary of a Loan Party may issue additional shares or other
securities to such Loan Party, to Genesis Energy, L.P. or to General Partner so
long as (i) such Subsidiary is a Wholly Owned Subsidiary of Genesis Energy, L.P.
after giving effect thereto, and (ii) such share and securities shall be pledged
to the Administrative Agent for the benefit of the Lenders pursuant to Security
Documents acceptable to the Administrative Agent. No Subsidiary of Borrower
which is a partnership will allow any diminution of Borrower's interest (direct
or indirect) therein.
7.05 Limitation on Sales of Property. No Loan Party will Dispose of any
Collateral or any of its material assets or properties or any material interest
therein except:
(a) equipment which is worthless or obsolete or no longer necessary or
useful to the proper conduct of its business or which is replaced by equipment
of equal suitability and value;
(b) inventory (including pipeline linefill) which is sold in the ordinary
course of business on ordinary trade terms;
(c) sales or transfers, subject to the Security Documents, by a Person
(other than Borrower) that is a Subsidiary of a Loan Party to such Loan Party or
to a Wholly Owned Subsidiary of such Loan Party that is a Guarantor;
(d) sales, transfers or other dispositions of other property by Borrower or
any Subsidiary for fair consideration that are in the best interests of Borrower
and do not and will not materially impair or diminish the value of any Loan
Party's financial condition, business or operations; provided that:
(i) prior to and immediately after giving effect to such proposed sale no
Default or Event of Default shall exist and be continuing, and the consummation
of any such transaction would not result in a violation of Section 7.11 through
7.15, calculated for such purpose as of the date on which such sale is to be
consummated on a pro forma basis after giving effect to any
such sale, with Consolidated EBITDA calculated as at the last day of the most
recently ended Fiscal Quarter as if such sale had occurred on the first day of
the relevant four quarter period;
(ii) such sale is for consideration consisting solely of cash or of a
combination of cash and notes or other deferred payments (including earn outs or
other contingent payments); provided that such notes and deferred payments shall
be due and payable not more than 12 months after the closing of such sale and
that the aggregate amount of such notes and deferred payments outstanding at any
one time shall not exceed $1,000,000;
(iii) the proceeds of such sale, net of reasonable legal fees and other
reasonable fees and expenses customarily incurred in connection with such sale
(the "Net Sale Proceeds"), shall have been applied as follows: (x) within one
hundred twenty (120) days after the date of such receipt of Net Sale Proceeds to
a Permitted Reinvestment, or (y) to the extent Net Sale Proceeds have not been
applied pursuant to the immediately preceding clause (x), such amount (the
"Excess Sale Proceeds") shall have been applied to prepay the Acquisition
Facility Loans and Working Capital Loans as provided in Section 2.04 (as used
herein, "Permitted Reinvestment" means capital assets that will become a part of
the Loan Parties' Petroleum Inventory marketing, gathering, transmission,
processing, treating and pipeline operations, excluding Maintenance Capital
Expenditures, and well hook up costs);
(iv) upon receipt of Net Sale Proceeds by a Loan Party and until the
application thereof as provided in clause (iii) (x) or (y) (such amount herein
called the "Unused Proceeds Amount"), such Loan Party shall either, or in
combination equal to the total of such Net Sale Proceeds, both (A) maintain such
Net Sale Proceeds in a segregated account with Administrative Agent or (B) apply
such Net Sale Proceeds to prepay the Working Capital Loans but without reduction
of the Aggregate Working Capital Commitment; and
(v) Administrative Agent shall have received an officer's certificate,
satisfactory to Administrative Agent, at least 30 days prior to the consummation
of such sale setting forth in reasonable detail satisfaction of the requirements
of clauses (i) and (ii) of this Section 7.05(d) and the calculation of the
projected Net Sale Proceeds.
Any proceeds of insurance in respect of casualty to property that Borrower has
determined (which determination must be made with reasonable promptness
following such casualty) will not be applied to the repair or replacement
thereof in accordance with the Security Documents shall be treated as Net Sale
Proceeds upon such determination. No Loan Party will sell, transfer or otherwise
dispose of capital stock of or interest in any of its Subsidiaries except to
Borrower or a Wholly Owned Subsidiary of Borrower. No Loan Party will discount,
sell, pledge or assign any notes payable to it, accounts receivable or future
income. So long as no Default then exists, Administrative Agent will, at
Borrower's request and expense, execute a release, satisfactory to
Borrower and Administrative Agent, of any Collateral so sold, transferred,
leased, exchanged, alienated or disposed of pursuant to clauses (a), (b) or (d)
of this Section.
7.06 Limitation on Dividends and Redemptions. No Loan Party will declare or pay
any Restricted Payment in respect of, any class of its capital stock or any
partnership, limited liability company or other interest in it, nor will any
Loan Party directly or indirectly make any capital contribution of any nature to
or purchase, redeem, acquire or retire any shares of the capital stock of or
partnership or limited liability company interests in any Loan Party (whether
such interests are now or hereafter issued, outstanding or created), or cause or
permit any reduction or retirement of the capital stock of any Loan Party, while
any Loan or Commitment hereunder is outstanding; provided that (a) any
Subsidiary of Borrower may make Restricted Payments to Borrower if at time such
distribution is made no Default exists or would exist after giving effect to
such distribution and (b) Genesis Energy L.P. shall be permitted to make
distributions to its general and limited partners (and Borrower may make
distributions to Genesis Energy, L.P. for such purpose) to the extent required,
as of the date hereof, by the Partnership Agreement if, at the time such
distribution is made: (i) no Default exists, or would exist after giving effect
to such distribution, and (ii) the Borrower is not aware of any event or
circumstance that exists, or is likely to occur in the future, that would result
in a Default. No such distribution shall be made until 5 Business Days after the
Borrower has available to it the financial statements contemplated by Section
6.02(a) or (b) for the Fiscal Quarter most recently ended prior to the date of
such distribution and a Responsible Officer of the Borrower delivers to the
Administrative Agent a certificate that the above conditions have been
satisfied.
7.07 Limitation on Investments and New Businesses. No Loan Party will (a) make
any expenditure or commitment or incur any obligation or enter into or engage in
any transaction except in the ordinary course of business, (b) engage directly
or indirectly in any business or conduct any operations except in connection
with or incidental to its present businesses and operations or the business or
operations of any Permitted Investment, or (c) make any acquisitions of or
capital contributions to or other Investments in any Person, or make any
acquisitions of material properties or assets of another Person other than
Permitted Investments. All transactions permitted under the foregoing
subsections (a) through (c), inclusive, are subject to Section 7.05. General
Partner will not engage in any business other than the ownership of Genesis
Energy, L.P. and Borrower.
7.08 Limitation on Credit Extensions. Except for Permitted Investments and Swap
Contracts permitted under Section 7.03(b) hereof, no Loan Party will extend
credit, make advances or make loans other than normal and prudent extensions of
credit to customers buying goods and services in the ordinary course of business
or to another Loan Party in the ordinary course of business, which extensions
shall not be for longer periods than those extended by similar businesses
operated in a normal and prudent manner.
7.09 Transactions with Affiliates. No Loan Party will engage in any material
transaction with any of its Affiliates except: (a) transactions among Borrower
and Wholly Owned Subsidiaries of Borrower, subject to the other provisions of
this Agreement, and (b) transactions entered into in the ordinary course of
business of such Loan Party on terms which are no less favorable to such Loan
Party than those which would have been obtainable at the time in arm's-length
transactions with Persons other than such Affiliates.
7.10 Prohibited Contracts. Except as expressly provided for in the Loan
Documents and as described in Schedule 7.10, no Loan Party will, directly or
indirectly, enter into, create, or otherwise allow to exist any Contractual
Obligation or other consensual restriction on the ability of any Subsidiary of
Genesis Energy, L.P., including but not limited to Borrower and any Subsidiary
of Borrower to: (a) pay dividends or make other distributions to Borrower or
Genesis Energy, L.P., (b) redeem Equity Interests held in it by Borrower or
Genesis Energy, L.P., (c) repay loans and other indebtedness owing by it to
Borrower or Genesis Energy, L.P., or (d) transfer any of its assets to Borrower
or Genesis Energy, L.P. No Loan Party will, directly or indirectly, enter into,
create, or otherwise allow to exist any Contractual Obligation or other
consensual restriction on the ability of any Loan Party to create Liens on any
of its assets or property to secure the Obligations. No Loan Party will enter
into any "take-or-pay" contract or other contract or arrangement for the
purchase of goods or services which obligates it to pay for such goods or
service regardless of whether they are delivered or furnished to it other than
contracts for pipeline capacity or for services in either case reasonably
anticipated to be utilized in the ordinary course of business. No Loan Party
will amend or permit any amendment to any Contractual Obligation or lease which
releases, qualifies, limits, makes contingent or otherwise detrimentally affects
the rights and benefits of Administrative Agent or any Lender under or acquired
pursuant to any Security Documents. No ERISA Affiliate will incur any obligation
to contribute to any "multiemployer plan" as defined in Section 4001 of ERISA
that is subject to Title IV of ERISA.
7.11 Current Ratio. The ratio of (i) the sum of Genesis Energy, L.P.'s
Consolidated current assets plus the unutilized amount available for Loans
hereunder pursuant to Section 2.01 to (ii) Genesis Energy, L.P.'s Consolidated
current liabilities will never be less than 1.1 to 1.0. For purposes of this
section, Genesis Energy, L.P.'s Consolidated current liabilities will be
calculated without including any payments of principal on the Notes which are
required to be repaid within one year from the time of calculation.
7.12 Leverage Ratio. (a) At the end of each Fiscal Quarter, (b) on each date on
which General Partner declares a distribution permitted under Section 7.06 and
(c) on the date of each Permitted Acquisition, both immediately prior to and
after giving effect to the consummation thereof, the ratio of (i) Consolidated
Funded Indebtedness on the date of determination to (ii) Consolidated EBITDA for
the four Fiscal Quarter period most recently ended prior to the date of
determination for which financial statements contemplated by Section 6.02(a) or
(b) are available to Borrower shall not exceed 3.5 to 1.0. For purposes of this
Section 7.12, if, since the beginning of the four Fiscal Quarter period ending
on the date for which Consolidated EBITDA is determined, any Loan Party shall
have made any asset disposition or acquisition, shall have consolidated or
merged with or into any Person (other than another Loan Party), or shall have
made any disposition or acquisition of a Loan Party, Consolidated EBITDA shall
be calculated giving pro forma effect thereto as if the disposition,
acquisition, consolidation or merger had occurred on the first day of such
period. Such pro forma effect shall be determined (i) in good faith by a
Responsible Officer of Borrower, and (ii) without giving effect to any
anticipated or proposed change in operations, revenues, expenses or other items
included in the computation of Consolidated EBITDA, except with the consent of
Required Lenders.
7.13 Cash Flow Coverage Ratio. The ratio of (a) the remainder of Consolidated
EBITDA minus Maintenance Capital Expenditures for the period of four consecutive
Fiscal Quarters then most recently ended to (b) the sum of Interest Expense for
such period plus
Distributions with respect to such period plus current maturities of long term
indebtedness shall never be less than 1.1 to 1.0. For the purposes of this
Section 7.13, "Distributions" means distributions by Genesis Energy, L.P. to its
general and limited partners made with respect to such period of four Fiscal
Quarters where, for such purpose, distributions made during any Fiscal Quarter
shall be deemed to have been made with respect to the immediately preceding
Fiscal Quarter.
7.14 Funded Indebtedness to Capitalization Ratio. The ratio of (a) all
Consolidated Funded Indebtedness to (b) the sum of Consolidated Funded
Indebtedness plus Consolidated Net Worth will never be greater than 0.65 to 1.0
at any time.
7.15 Minimum EBITDA. Consolidated EBITDA for each period of four consecutive
Fiscal Quarters ending after the date hereof shall never be less than
$8,500,000.
7.16 Open Position; Certain Permitted Financial Instruments; NYMEX
Transactions.
(a) Open Position. No Loan Party shall at any time have any Open Positions;
provided, however, that Borrower may have:
(i) Physical inventories of Petroleum Inventory (A) consisting of tank
bottoms and pipeline linefill requirements of up to 200,000 barrels in the
aggregate at any time, and (B) excess inventory of up to 200,000 barrels in the
aggregate at any time resulting from crude gathering receipts in excess of
scheduled quantities, provided that Borrower shall establish an Offsetting
Position with respect to such quantities within five business days following
identification of such inventory, but in any event not later than the 20th day
following the month in which such excess volumes were received.
(ii) Floating Price Contracts to purchase or sell Petroleum Inventory in
the Current Trading Month; provided that, such Floating Price Contracts either
(A) have an Offsetting Position by the 26th day of the month preceding the month
of receipt or delivery, or (B) are scheduled to be stored in pipelines Currently
Approved by Required Lenders and are hedged in the delivery month with NYMEX
contracts; and further provided that such Floating Price Contracts relating to
the sale of Petroleum Inventory for the Current Trading Month do not exceed
purchases by more than 10,000 barrels per day.
(iii) Floating Price Contracts to purchase or sell Petroleum Inventory to
be received or delivered after the Current Trading Month, but within the twelve
months following the Current Trading Month provided that (A) such contracts are
at the then market price and (B) at any point in time the sum of (x) net
realized losses relating to such contracts and (y) mark to market exposure
relating to such contracts does not, at any time, exceed $1,000,000.
As used herein, "Current Trading Month" means (i) with respect to the
first twenty-five days of any calendar month, the next following calendar month
and (ii) with respect to the period from the 26th day of a calendar month
through the last day of such month, the second calendar month next following
such month (for example, for the period from January 26th through February 25th,
the Current Trading Month is March), "Floating Price Contract" means (i) a
purchase or sale contract based upon a daily index such as a posted price or
NYMEX price from time to time in effect during the delivery month and (ii) a
NYMEX spread transaction in which the length of time between the offsetting
purchase and sale obligations do not exceed twelve months.
(b) Certain Permitted Financial Instruments. No Loan Party will write (i.e.
sell) or otherwise participate in any swap, collar or similar agreement relating
to Petroleum Inventory, or write (i.e. sell) any option, unless, with respect
thereto, (i) such Loan Party has an Offsetting Position in crude volumes and
(ii) the counter-party (or guarantor to the obligations of such counter-party)
at the time such financial instrument is made (A) has one or more long term
unsecured and unenhanced debt obligations rated A or A2 or better, respectively,
by either S&P or Moody's, or (B) is a Lender or an Affiliate of a Lender, or (C)
is listed in Schedule 7.16.
(c) NYMEX Transactions. No Loan Party will convert a NYMEX position to a
physical position by way of an "exchange for physicals" or an "alternative
delivery procedure" unless the credit extended in connection with such physical
position would comply with the credit requirements of the definition of
"Approved Eligible Receivables."
7.17 Redelivery of Borrowing Base Report. If, at any time, the amount of any
component of the Borrowing Base, listed in item "(a)" of the definition thereof,
shall decrease, or if any contract related to such item is modified, sold or
exchanged in any way that would negatively affect the Borrowing Base, the
Borrower shall immediately (i) deliver to Administrative Agent a revised
Borrowing Base Report satisfactory to Administrative Agent, which Administrative
Agent shall thereafter furnish to Lenders, and (ii) make any prepayment as may
be required under Section 2.04 resulting from such reduced Borrowing Base.
7.18 Deposit Accounts. No Loan Party shall at any time maintain any Deposit
Account at any Bank (as such terms are defined in Article 9 of the New York
Uniform Commercial Code as in effect) other than Administrative Agent, except
for Deposit Accounts whose deposits do not at any time exceed the aggregate
amount of $1,000,000. No proceeds of Accounts or other Collateral shall be
deposited (whether by check, wire transfer or lock-box service arrangement) in
any Deposit Account other than a Deposit Account maintained at Administrative
Agent or an account subject to an account access control agreement satisfactory
to Administrative Agent except, during a period of up to two months from the
date of this Agreement, amounts not to exceed $150,000 during any month.
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default. Any of the following shall constitute an Event of
Default:
(a) Any Loan Party fails to pay the principal component of any Loan or any
reimbursement obligation with respect to any Letter of Credit when due and
payable, whether at a date for the payment of a fixed installment or as a
contingent or other payment becomes due and payable or as a result of
acceleration or otherwise;
(b) Any Loan Party fails to pay any Obligation (other than the Obligations
in subsection (a) above) when due and payable, whether at a date for the payment
of a fixed installment or as a contingent or other payment becomes due and
payable or as a result of acceleration or otherwise, within three Business Days
after the same becomes due;
(c) Any event defined as a "default" or "event of default" under or
otherwise constituting a breach of in any Loan Document occurs, and the same is
not remedied within the applicable period of grace (if any) provided in such
Loan Document;
(d) Any Loan Party fails to duly observe, perform or comply with any
covenant, agreement or provision of Section 6.04 or Article VII;
(e) Any Loan Party fails (other than as referred to in subsections (a),
(b), (c) or (d) above) to duly observe, perform or comply with any covenant,
agreement, condition or provision of any Loan Document to which it is a party,
and such failure remains unremedied for a period of thirty (30) days after
notice of such failure is given by Administrative Agent to Borrower;
(f) Any representation or warranty previously, presently or hereafter made
in writing by or on behalf of any Loan Party in connection with any Loan
Document shall prove to have been false or incorrect in any material respect on
any date on or as of which made, or any Loan Document at any time ceases to be
valid, binding and enforceable as warranted in Section 5.05 for any reason other
than its release or subordination by Administrative Agent;
(g) Any Loan Party shall default in the payment when due of any principal
of or interest on any of its other Indebtedness in excess of $250,000 in the
aggregate (other than Indebtedness the validity of which is being contested in
good faith by appropriate proceedings and for which adequate reserves with
respect thereto are maintained on the books of such Loan Party in accordance
with GAAP), or any event specified in any note, agreement, indenture or other
document evidencing or relating to any such Indebtedness shall occur if the
effect of such event is to cause, or (with the giving of any notice or the lapse
of time or both) to permit the holder or holders of such Indebtedness (or a
trustee or agent on behalf of such holder or holders) to cause, such
Indebtedness to become due, or to be prepaid in full (whether by redemption,
purchase, offer to purchase or otherwise), prior to its stated maturity;
(h) Either (i) any "accumulated funding deficiency" (as defined in Section
412(a) of the Code) in excess of $250,000 exists with respect to any Pension
Plan or Multiemployer Plan, whether or not waived by the Secretary of the
Treasury or his delegate, or (ii) any ERISA Event occurs with respect to any
Pension Plan or Multiemployer Plan and the amount of unfunded benefit
liabilities as defined in Section 4001(a)(18) of ERISA of such Pension Plan or
Multiemployer Plan exceeds $250,000 (or in the case of an ERISA Event involving
the withdrawal of a substantial employer, the withdrawing employer's
proportionate share of such excess exceeds such amount);
(i) General Partner or any other Loan Party:
(i) institutes or consents to the institution of any proceeding under any
Debtor Relief Law, or makes an assignment for the benefit of creditors; or
applies for or consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for all or
any material part of its property or for all or any part of the Collateral; or
any receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer is appointed without the application or consent of such Person
and the appointment continues undischarged or unstayed for sixty (60) calendar
days; or any proceeding under any Debtor Relief Law relating to any such Person
or to all or any material part of its property or all or any part of the
Collateral is instituted without the consent of such Person and continues
undismissed or unstayed for sixty (60) calendar days, or an order for relief is
entered in any such proceeding; or
(ii) becomes unable or admits in writing its inability or fails generally
to pay its debts as they become due, or there is issued or levied any writ or
warrant of attachment or execution or similar process against all or any
material part of the property of any such Person or for all or any part of the
Collateral and is not released, vacated or fully bonded within thirty (30) days
after its issue or levy; or
(iii) there is entered against any such Person (i) a final judgment or
order for the payment of money in an aggregate amount exceeding $250,000 (to the
extent not covered by independent third-party insurance as to which the insurer
does not dispute coverage), or (ii) any one or more non-monetary final judgments
that have, or could reasonably be expected to cause, individually or in the
aggregate, a Material Adverse Change and, in either case, (A) enforcement
proceedings are commenced by any creditor upon such judgment or order, or (B)
there is a period of ten (10) consecutive days during which a stay of
enforcement of such judgment, by reason of a pending appeal or otherwise, is not
in effect;
(j) General Partner shall default in the payment when due of any principal
of or interest on any of its Indebtedness in excess of $250,000 in the
aggregate, or any event specified in any note, agreement, indenture or other
document evidencing or relating to any such Indebtedness shall occur if the
effect of such event is to cause, or (with the giving of any notice or the lapse
of time or both) to permit the holder or holders of such Indebtedness (or a
trustee or agent on behalf of such holder or holders) to cause, such
Indebtedness to become due, or to be prepaid in full (whether by redemption,
purchase, offer to purchase or otherwise), prior to its stated maturity;
(k) Any Change of Control occurs;
(l) Any Material Market Open Position Loss occurs;
(m) Any Security Document shall for any reason (other than pursuant to the
terms hereof and thereof) cease to create a valid and perfected first priority
Lien in any asset having a value in excess of $100,000;
(n) During any twelve-month period, there shall have occurred a default in
payment (and such default remains unremedied for five Business Days) of one or
more Eligible Receivables in an amount exceeding $500,000 individually or
$750,000 in the aggregate;
(o) During any period of thirty (30) consecutive days, the beneficiaries of
Letters of Credit shall make drafts or other demands for payment thereunder in
an aggregate amount in excess of $500,000; or
(p) A Material Adverse Change shall occur.
Upon the occurrence of an Event of Default described in subsection
(i)(i), (i)(ii) or (i)(iii) of this section with respect to Borrower or Genesis
Energy, L.P., all of the Obligations shall thereupon be immediately due and
payable, without demand, presentment, notice of demand or of dishonor and
nonpayment, protest, notice of protest, notice of intention to accelerate,
declaration or notice of acceleration, or any other notice or declaration of any
kind, all of which are hereby expressly waived by Borrower and each Loan Party
who at any time ratifies or approves this Agreement. Upon any such acceleration,
any obligation of any Lender to make any further Loans and any obligation of L/C
Issuer to issue Letters of Credit hereunder shall be permanently terminated.
During the continuance of any other Event of Default, Administrative Agent at
any time and from time to time may (and upon written instructions from Required
Lenders, Administrative Agent shall), without notice to Borrower or any other
Loan Party, do either or both of the following: (1) terminate any obligation of
Lenders to make Loans hereunder and any obligation of L/C Issuer to issue
Letters of Credit hereunder, and (2) declare any or all of the Obligations
immediately due and payable, and all such Obligations shall thereupon be
immediately due and payable, without demand, presentment, notice of demand or of
dishonor and nonpayment, protest, notice of protest, notice of intention to
accelerate, declaration or notice of acceleration, or any other notice or
declaration of any kind, all of which are hereby expressly waived by Borrower
and each Loan Party who at any time ratifies or approves this Agreement.
8.02 Remedies Upon Event of Default. If any Event of Default occurs and is
continuing, the Administrative Agent shall, at the request of, or may, with the
consent of, the Required Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any obligation
of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such
commitments and obligations shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrower;
(c) require that the Borrower Cash Collateralize the L/C Obligations (in an
amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and remedies
available to it and the Lenders under the Loan Documents;
provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the
United States, the obligation of each Lender to make Loans and any obligation of
the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the
unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable, and the
obligation of the Borrower to Cash Collateralize the L/C Obligations as
aforesaid shall automatically become effective, in each case without further act
of the Administrative Agent or any Lender.
8.03 Application of Funds. After the exercise of remedies provided for in
Section 8.02 (or after the Loans have automatically become immediately due and
payable and the L/C Obligations have automatically been required to be Cash
Collateralized as set forth in the proviso to Section 8.02), any amounts
received on account of the Obligations shall be applied by the Administrative
Agent in the following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including fees, charges and
disbursements of counsel to the Administrative Agent and amounts payable under
Article III) payable to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting
fees, indemnities and other amounts (other than principal and interest) payable
to the Lenders and the L/C Issuer (including fees, charges and disbursements of
counsel to the respective Lenders and the L/C Issuer and amounts payable under
Article III), ratably among them in proportion to the amounts described in this
clause Second payable to them;
Third, to payment of that portion of the Obligations constituting
accrued and unpaid interest on the Loans, L/C Borrowings and other Obligations,
ratably among the Lenders and the L/C Issuer in proportion to the respective
amounts described in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting
unpaid principal of the Loans and L/C Borrowings, ratably among the Lenders and
the L/C Issuer in proportion to the respective amounts described in this clause
Fourth held by them;
Fifth, to the Administrative Agent for the account of the L/C Issuer,
to Cash Collateralize that portion of L/C Obligations comprised of the aggregate
undrawn amount of Letters of Credit; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above.
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 Appointment and Authority. Each of the Lenders and the L/C Issuer hereby
irrevocably appoints Fleet National Bank, and its successors, to act on its
behalf as the Administrative Agent hereunder and under the other Loan Documents
and authorizes the Administrative Agent to take such actions on its behalf and
to exercise such powers as are delegated to the Administrative Agent by the
terms hereof or thereof, together with such actions and powers as are reasonably
incidental thereto. The provisions of this Article are solely for the benefit of
the Administrative Agent, the Lenders and the L/C Issuer, and neither the
Borrower nor any other Loan Party shall have rights as a third party beneficiary
of any of such provisions.
9.02 Rights as a Lender. The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were not the
Administrative Agent and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, act as the
financial advisor or in any other advisory capacity for and generally engage in
any kind of business with the Loan Parties or any Subsidiary or other Affiliate
thereof as if such Person were not the Administrative Agent hereunder and
without any duty to account therefor to the Lenders.
9.03 Exculpatory Provisions. The Administrative Agent shall not have any duties
or obligations except those expressly set forth herein and in the other Loan
Documents. Without limiting the generality of the foregoing, the Administrative
Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise
any discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the Administrative Agent
is required to exercise as directed in writing by the Required Lenders (or such
other number or percentage of the Lenders as shall be expressly provided for
herein or in the other Loan Documents), provided that the Administrative Agent
shall not be required to take any action that, in its opinion or the opinion of
its counsel, may expose the Administrative Agent to liability or that is
contrary to any Loan Document or applicable law; and
(c) shall not, except as expressly set forth herein and in the other Loan
Documents, have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to the Borrower or any of its Affiliates that
is communicated to or obtained by the Person serving as the Administrative Agent
or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or
not taken by it (i) with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary, or as
the Administrative Agent shall believe in good faith shall be necessary, under
the circumstances as provided in Sections 10.01 and 8.02) or (ii) in the absence
of its own gross negligence or willful misconduct. The Administrative Agent
shall be deemed not to have knowledge of any Default unless and until notice
describing such Default is given to the Administrative Agent by the Borrower, a
Lender or the L/C Issuer.
The Administrative Agent shall not be responsible for or have any duty
to ascertain or inquire into (i) any statement, warranty or representation made
in or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
9.04 Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon, any
notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting
or other distribution) believed by it to be genuine and to have been signed,
sent or otherwise authenticated by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to have been made by the proper Person, and shall not incur any liability
for relying thereon. In determining compliance with any condition hereunder to
the making of a Loan, or the issuance of a Letter of Credit, that by its terms
must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the
Administrative Agent may presume that such condition is satisfactory to such
Lender or the L/C Issuer unless the Administrative Agent shall have received
notice to the contrary from such Lender or the L/C Issuer prior to the making of
such Loan or the issuance of such Letter of Credit. The Administrative Agent may
consult with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
9.05 Delegation of Duties. The Administrative Agent may perform any and all of
its duties and exercise its rights and powers hereunder or under any other Loan
Document by or through any one or more sub agents appointed by the
Administrative Agent. The Administrative Agent and any such sub agent may
perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this
Article shall apply to any such sub agent and to the Related Parties of the
Administrative Agent and any such sub agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities of Administrative Agent.
9.06 Resignation of Administrative Agent. The Administrative Agent may at any
time give notice of its resignation to the Lenders, the L/C Issuer and the
Borrower. Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, in consultation with
the Borrower, to appoint a successor, which shall be a bank with an office in
the United States, or an Affiliate of any such bank with an office in the United
States. If no such successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may on behalf of the Lenders and the L/C Issuer, appoint a
successor Administrative Agent meeting the qualifications set forth above;
provided that if the Administrative Agent shall notify the Borrower and the
Lenders that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice
and (1) the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder and under the other Loan Documents (except that in the
case of any collateral security held by the Administrative Agent on behalf of
the Lenders or the L/C Issuer under any of the Loan Documents, the retiring
Administrative Agent shall continue to hold such collateral security until such
time as a successor Administrative Agent is appointed) and (2) all payments,
communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and the L/C
Issuer directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section. Upon the acceptance
of a successor's appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring (or retired) Administrative Agent, and the retiring
Administrative Agent shall be discharged from all of its duties and obligations
hereunder or under the other Loan Documents (if not already discharged therefrom
as provided above in this Section). The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such successor.
After the retiring Administrative Agent's resignation hereunder and under the
other Loan Documents, the provisions of this Article and Section 10.04 shall
continue in effect for the benefit of such retiring Administrative Agent, its
sub agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while the retiring Administrative Agent
was acting as Administrative Agent.
Any resignation by Fleet National Bank as Administrative Agent pursuant
to this Section shall also constitute its resignation as L/C Issuer. Upon the
acceptance of a successor's appointment as Administrative Agent hereunder, (a)
such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring L/C Issuer, (b) the retiring L/C
Issuer shall be discharged from all of their respective duties and obligations
hereunder or under the other Loan Documents, and (c) the successor L/C Issuer
shall issue letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make other arrangement
satisfactory to the retiring L/C Issuer to effectively assume the obligations of
the retiring L/C Issuer with respect to such Letters of Credit.
9.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender and the
L/C Issuer acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender and
the L/C Issuer also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender or any of their
Related Parties and based on such documents and information as it shall from
time to time deem appropriate, continue to make its own decisions in taking or
not taking action under or
based upon this Agreement, any other Loan Document or any related agreement or
any document furnished hereunder or thereunder.
9.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none
of the Book Manager, Syndication Agent, Documentation Agent, or Arranger listed
on the cover page hereof shall have any powers, duties or responsibilities under
this Agreement or any of the other Loan Documents, except in its capacity, as
applicable, as the Administrative Agent, a Lender or the L/C Issuer hereunder.
9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
any Loan Party, the Administrative Agent (irrespective of whether the principal
of any Loan or L/C Obligation shall then be due and payable as herein expressed
or by declaration or otherwise and irrespective of whether the Administrative
Agent shall have made any demand on the Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans, L/C Obligations and all other
Obligations that are owing and unpaid and to file such other documents as may be
necessary or advisable in order to have the claims of the Lenders, the L/C
Issuer and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the L/C
Issuer and the Administrative Agent and their respective agents and counsel and
all other amounts due the Lenders, the L/C Issuer and the Administrative Agent
under Sections 2.03(i) and (j), 2.08 and 10.04) allowed in such judicial
proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender and the L/C Issuer to make such payments to the Administrative Agent
and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under Sections 2.08
and 10.04.
Nothing contained herein shall be deemed to authorize the Administrative Agent
to authorize or consent to or accept or adopt on behalf of any Lender or the L/C
Issuer any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding.
9.10 Collateral and Guaranty Matters. The Lenders and the L/C Issuer irrevocably
authorize the Administrative Agent, at its option and in its discretion,
(a) to release any Lien on any property granted to or held by the
Administrative Agent under any Loan Document (i) upon termination of the
Aggregate Commitments and payment in full of all Obligations (other than
contingent
indemnification obligations) and the expiration or termination of all Letters of
Credit, (ii) that is sold or to be sold as part of or in connection with any
sale permitted hereunder or under any other Loan Document, or (iii) subject to
Section 10.01, if approved, authorized or ratified in writing by the Required
Lenders; and
(b) to release any Guarantor from its obligations under the Guaranty if
such Person ceases to be a Subsidiary as a result of a transaction permitted
hereunder.
Upon request by the Administrative Agent at any time, the Required
Lenders will confirm in writing the Administrative Agent's authority to release
its interest in particular types or items of property, or to release any
Guarantor from its obligations under the Guaranty pursuant to this Section 9.10.
ARTICLE X.
MISCELLANEOUS
10.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement
or any other Loan Document, and no consent to any departure by the Borrower or
any other Loan Party therefrom, shall be effective unless in writing signed by
the Required Lenders and the Borrower or the applicable Loan Party, as the case
may be, and acknowledged by the Administrative Agent, and each such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such amendment, waiver or
consent shall:
(a) waive any condition set forth in Section 4.02(a) without the written
consent of each Lender;
(b) extend or increase the Commitment or the Working Capital Percentage or
the Acquisition Facility Percentage of any Lender (or reinstate any Commitment
terminated pursuant to Section 8.02) without the written consent of such Lender;
(c) extend or postpone any date fixed by this Agreement or any other Loan
Document for any payment or mandatory prepayment of principal, interest, fees or
other amounts due to the Lenders (or any of them) hereunder or under any other
Loan Document without the written consent of each Lender;
(d) reduce the principal of, or the rate of interest specified herein on,
any Loan or L/C Borrowing, or (subject to clause (iii) of the second proviso to
this Section 10.01) any fees or other amounts payable hereunder or under any
other Loan Document without the written consent of each Lender; provided,
however, that only the consent of the Required Lenders shall be necessary to
amend the definition of "Default Rate" or to waive any obligation of the
Borrower to pay interest or Letter of Credit Fees at the Default Rate;
(e) change Section 2.12 or Section 8.03 in a manner that would alter the
pro rata sharing of payments required thereby without the written consent of
each Lender;
(f) change any provision of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to amend, waive or otherwise modify any rights hereunder or
make any determination or grant any consent hereunder, without the written
consent of each Lender;
(g) release Borrower from its obligation to pay any Lender's Note without
the written consent of such Lender or release any Guarantor from the Guaranty,
except a release of a Guarantor that has ceased to be a subsidiary of Borrower
or Genesis Energy, L.P. in a transaction permitted under this Agreement without
the written consent of each Lender;
(h) release all or any substantial portion of the Collateral, except such
releases relating to sales of property permitted under Section 7.05 without the
written consent of each Lender;
(i) amend the definition of "Borrowing Base" or any of the terms used in
that definition without the written consent of each Lender; or
(j) permit a Loan Party to make an acquisition of any other Investments in
any Person other than Permitted Investments without the written consent of each
lender.
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above,
affect the rights or duties of the L/C Issuer under this Agreement or any Issuer
Document relating to any Letter of Credit issued or to be issued by it; (ii) no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above, affect the
rights or duties of the Administrative Agent under this Agreement or any other
Loan Document; and (iii) the Fee Letter may be amended, or rights or privileges
thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have
any right to approve or disapprove any amendment, waiver or consent hereunder,
except that the Commitment of such Lender may not be increased or extended
without the consent of such Lender.
10.02 Notices; Effectiveness; Electronic Communication.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder
to be given by telephone shall be made to the applicable telephone number, as
follows:
(i) if to the Borrower, the Administrative Agent, or the L/C Issuer, to the
address, telecopier number, electronic mail address or telephone number
specified for such Person on Schedule 10.02; and
(ii) if to any other Lender, to the address, telecopier number, electronic
mail address or telephone number specified in its Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent
by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).
(b) Electronic Communications. Notices and other communications to the
Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic
communication (including e mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent, provided that the foregoing
shall not apply to notices to any Lender or the L/C Issuer pursuant to Article
II if such Lender or the L/C Issuer, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Borrower
may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it,
provided that approval of such procedures may be limited to particular notices
or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) Effectiveness of Facsimile Documents and Signatures. Loan Documents may
be transmitted and/or signed by facsimile. The effectiveness of any such
documents and signatures shall, subject to applicable Law, have the same force
and effect as manually-signed originals and shall be binding on all Loan
Parties, the Administrative Agent and the Lenders. The Administrative Agent may
also require that any such documents and signatures be confirmed by a
manually-signed original thereof; provided, however, that the failure to request
or deliver the same shall not limit the effectiveness of any facsimile document
or signature.
(d) Change of Address, Etc. Each of the Borrower, the Administrative Agent
and the L/C Issuer may change its address, telecopier or telephone number for
notices and other communications hereunder by notice to the other parties
hereto. Each other Lender may change its address, telecopier or telephone number
for notices and other communications hereunder by notice to the Borrower, the
Administrative Agent, the L/C Issuer.
(e) Reliance by Administrative Agent, L/C Issuer and Lenders. The
Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely
and act upon any notices (including telephonic Loan Notices) purportedly given
by or on behalf of the Borrower even if (i) such notices were not made in a
manner specified herein, were incomplete or were not preceded or followed by any
other form of notice specified herein, or (ii) the terms thereof, as understood
by the recipient, varied from any confirmation thereof. The Borrower shall
indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related
Parties of each of them from all losses, costs, expenses and liabilities
resulting from the reliance by such Person on each notice purportedly given by
or on behalf of the Borrower. All telephonic notices to and other telephonic
communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.
10.03 No Waiver; Cumulative Remedies. No failure by any Lender, the L/C Issuer
or the Administrative Agent to exercise, and no delay by any such Person in
exercising, any right, remedy, power or privilege hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
10.04 Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable out of
pocket expenses incurred by the Administrative Agent and its Affiliates
(including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out of pocket expenses incurred by the L/C
Issuer in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all out of
pocket expenses incurred by the Administrative Agent, any Lender or the L/C
Issuer (including the fees, charges and disbursements of any counsel for the
Administrative Agent, any Lender or the L/C Issuer), in connection with the
enforcement or protection of its rights (A) in connection with this Agreement
and the other Loan Documents, including its rights under this Section, or (B) in
connection with the Loans made or Letters of Credit issued hereunder, including
all such out of pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.
(b) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and the L/C
Issuer, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses (including
the fees, charges and disbursements of any counsel for any Indemnitee), incurred
by any Indemnitee or
asserted against any Indemnitee by any third party or by the Borrower or any
other Loan Party arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement, any other Loan Document or any
agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or thereunder or the
consummation of the transactions contemplated hereby or thereby, (ii) any Loan
or Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by the L/C Issuer to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any actual
or alleged presence or release of Hazardous Materials on or from any property
owned or operated by any Loan Party, or any Environmental Liability related in
any way to any Loan Party, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, whether brought by a third party or by the
Borrower or any other Loan Party, and regardless of whether any Indemnitee is a
party thereto, in all cases, whether or not caused by or arising, in whole or in
part, out of the negligence of the Indemnitee; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses (x) are determined by a court
of competent jurisdiction by final and nonappealable judgment to have resulted
from the gross negligence or willful misconduct of such Indemnitee or (y) result
from a claim brought by the Borrower or any other Loan Party against an
Indemnitee for breach in bad faith of such Indemnitee's obligations hereunder or
under any other Loan Document, if the Borrower or such Loan Party has obtained a
final and nonappealable judgment in its favor on such claim as determined by a
court of competent jurisdiction.
(c) Reimbursement by Lenders. To the extent that the Borrower for any
reason fails to indefeasibly pay any amount required under subsection (a) or (b)
of this Section to be paid by it to the Administrative Agent (or any sub-agent
thereof), the L/C Issuer or any Related Party of any of the foregoing, each
Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer or such Related Party, as the case may be, such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or the L/C Issuer in
its capacity as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent (or any such sub-agent) or L/C Issuer in
connection with such capacity. The obligations of the Lenders under this
subsection (c) are subject to the provisions of Section 2.11(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted
by applicable law, the Borrower shall not assert, and hereby waives, any claim
against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement, any other
Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the
use of the proceeds thereof. No Indemnitee referred to in
subsection (b) above shall be liable for any damages arising from the use by
unintended recipients of any information or other materials distributed by it
through telecommunications, electronic or other information transmission systems
in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby.
(e) Payments. All amounts due under this Section shall be payable not later
than ten Business Days after demand therefor.
(f) Survival. The agreements in this Section shall survive the resignation
of the Administrative Agent and the L/C Issuer, the replacement of any Lender,
the termination of the Aggregate Commitments and the repayment, satisfaction or
discharge of all the other Obligations.
10.05 Payments Set Aside. To the extent that any payment by or on behalf of the
Borrower is made to the Administrative Agent, the L/C Issuer or any Lender, or
the Administrative Agent, the L/C Issuer or any Lender exercises its right of
setoff, and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by the
Administrative Agent, the L/C Issuer or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred, and (b) each Lender
and the L/C Issuer severally agrees to pay to the Administrative Agent upon
demand its applicable share (without duplication) of any amount so recovered
from or repaid by the Administrative Agent, plus interest thereon from the date
of such demand to the date such payment is made at a rate per annum equal to the
Federal Funds Rate from time to time in effect. The obligations of the Lenders
and the L/C Issuer under clause (b) of the preceding sentence shall survive the
payment in full of the Obligations and the termination of this Agreement.
10.06 Successors and Assigns.
(a) Successors and Assigns Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that neither the
Borrower nor any other Loan Party may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the
Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of subsection (b) of this Section,
(ii) by way of participation in accordance with the provisions of subsection (d)
of this Section, or (iii) by way of pledge or assignment of a security interest
subject to the restrictions of subsection (f) of this Section (and any other
attempted assignment or transfer by any party hereto shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in subsection (d)
of this Section and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the L/C Issuer and the
Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or
more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans
(including for purposes of this subsection (b), participations in L/C
Obligations) at the time owing to it); provided that
except in the case of an assignment of the entire remaining amount of the
assigning Lender's Commitment and the Loans at the time owing to it or in the
case of an assignment to a Lender or an Affiliate of a Lender or an Approved
Fund with respect to a Lender, the aggregate amount of the Commitment (which for
this purpose includes Loans outstanding thereunder) or, if the Commitment is not
then in effect, the principal outstanding balance of the Loans of the assigning
Lender subject to each such assignment, determined as of the date the Assignment
and Assumption with respect to such assignment is delivered to the
Administrative Agent or, if "Trade Date" is specified in the Assignment and
Assumption, as of the Trade Date, shall not be less than $1,000,000 unless each
of the Administrative Agent and, so long as no Event of Default has occurred and
is continuing, the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed);
(i) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations under
this Agreement with respect to the Loans or the Commitment assigned;
(ii) any assignment of a Commitment must be approved by the Administrative
Agent and the L/C Issuer unless the Person that is the proposed assignee is
itself a Lender (whether or not the proposed assignee would otherwise qualify as
an Eligible Assignee); and
(iii) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a processing
and recordation fee of $3,500, payable by such assignor Lender (and not at
Borrower's expense) to Administrative Agent and the Eligible Assignee, if it
shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to subsection (c) of this Section, from and after the effective date specified
in each Assignment and Assumption, the Eligible Assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 3.01, 3.04,
3.05, and 10.04 with respect to facts and circumstances occurring prior to the
effective date of such assignment. Upon request, the Borrower (at its expense)
shall execute and deliver a Note to the assignee Lender. Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not
comply with this subsection shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in
accordance with subsection (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as
an agent of the Borrower, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by each of the Borrower and the L/C Issuer at any
reasonable time and from time to time upon reasonable prior notice. In addition,
at any time that a request for a consent for a material or substantive change to
the Loan Documents is pending, any Lender wishing to consult with other Lenders
in connection therewith may request and receive from the Administrative Agent a
copy of the Register.
(d) Participations. Any Lender may at any time, without the consent of, or
notice to, the Borrower or the Administrative Agent, sell participations to any
Person (other than a natural person or the Borrower or any of the Borrower's
Affiliates or Subsidiaries) (each, a "Participant") in all or a portion of such
Lender's rights and/or obligations under this Agreement (including all or a
portion of its Commitment and/or the Loans (including such Lender's
participations in L/C Obligations) owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent, the Lenders
and the L/C Issuer shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, waiver or other modification described in the first proviso to
Section 10.01 that affects such Participant. Subject to subsection (e) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 10.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.12 as though it were a
Lender.
(e) Limitations upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Section 3.01 or 3.04 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 3.01 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 3.01(e) as though it were a
Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement (including
under its Note, if any) to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
(g) Electronic Execution of Assignments. The words "execution," "signed,"
"signature," and words of like import in any Assignment and Assumption shall be
deemed to include electronic signatures or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act,
or any other similar state laws based on the Uniform Electronic Transactions
Act.
(h) Resignation as L/C Issuer after Assignment. Notwithstanding anything to
the contrary contained herein, if at any time Fleet National Bank assigns all of
its Commitment and Loans pursuant to subsection (b) above, Fleet National Bank
may upon thirty (30) days' notice to the Borrower and the Lenders, resign as L/C
Issuer. In the event of any such resignation as L/C Issuer, the Borrower shall
be entitled to appoint from among the Lenders a successor L/C Issuer hereunder;
provided, however, that no failure by the Borrower to appoint any such successor
shall affect the resignation of Fleet National Bank as L/C Issuer, as the case
may be. If Fleet National Bank resigns as L/C Issuer, it shall retain all the
rights and obligations of the L/C Issuer hereunder with respect to all Letters
of Credit outstanding as of the effective date of its resignation as L/C Issuer
and all L/C Obligations with respect thereto (including the right to require the
Lenders to make Base Rate Loans or fund risk participations in Unreimbursed
Amounts pursuant to Section 2.03(c)).
10.07 Treatment of Certain Information; Confidentiality. Each of the
Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates' respective
partners, directors, officers, employees, agents, advisors and representatives
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by any regulatory
authority purporting to
have jurisdiction over it (including any self-regulatory authority, such as the
National Association of Insurance Commissioners), (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party hereto, (e) in connection with the exercise of any remedies
hereunder or under any other Loan Document or any action or proceeding relating
to this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to
the Borrower and its obligations, (g) with the consent of the Borrower or (h) to
the extent such Information (i) becomes publicly available other than as a
result of a breach of this Section or (ii) becomes available to the
Administrative Agent, any Lender, the L/C Issuer or any of their respective
Affiliates on a nonconfidential basis from a source other than the Borrower.
For purposes of this Section, "Information" means all information
received from any Loan Party relating to any Loan Party or any of their
respective businesses, other than any such information that is available to the
Administrative Agent, any Lender or the L/C Issuer on a nonconfidential basis
prior to disclosure by the Borrower or any Subsidiary, provided that, in the
case of information received from any Loan Party after the date hereof, such
information is clearly identified at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
10.08 Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender, the L/C Issuer and each of their respective Affiliates
is hereby authorized at any time and from time to time, to the fullest extent
permitted by applicable law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final, in whatever currency) at any
time held and other obligations (in whatever currency) at any time owing by such
Lender, the L/C Issuer or any such Affiliate to or for the credit or the account
of the Borrower or any other Loan Party against any and all of the obligations
of the Borrower or such Loan Party now or hereafter existing under this
Agreement or any other Loan Document to such Lender or the L/C Issuer,
irrespective of whether or not such Lender or the L/C Issuer shall have made any
demand under this Agreement or any other Loan Document and although such
obligations of the Borrower or such Loan Party may be contingent or unmatured or
are owed to a branch or office of such Lender or the L/C Issuer different from
the branch or office holding such deposit or obligated on such indebtedness. The
rights of each Lender, the L/C Issuer and their respective Affiliates under this
Section are in addition to other rights and remedies (including other rights of
setoff) that such Lender, the L/C Issuer or their respective Affiliates may
have. Each Lender and the L/C Issuer agrees to notify the Borrower and the
Administrative Agent promptly after any such setoff and application, provided
that the failure to give such notice shall not affect the validity of such
setoff and application.
10.09 Interest Rate Limitation. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under the
Loan Documents shall not exceed the maximum rate of non-usurious interest
permitted by applicable Law (the "Maximum Rate"). If the Administrative Agent or
any Lender shall receive interest in an amount that
exceeds the Maximum Rate, the excess interest shall be applied to the principal
of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower.
In determining whether the interest contracted for, charged, or received by the
Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to
the extent permitted by applicable Law, (a) characterize any payment that is not
principal as an expense, fee, or premium rather than interest, (b) exclude
voluntary prepayments and the effects thereof, and (c) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations hereunder.
10.10 Counterparts; Integration; Effectiveness. This Agreement may be executed
in counterparts (and by different parties hereto in different counterparts),
each of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement and the other Loan Documents
constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. Except as provided in Section
4.01, this Agreement shall become effective when it shall have been executed by
the Administrative Agent and when the Administrative Agent shall have received
counterparts hereof that, when taken together, bear the signatures of each of
the other parties hereto. Delivery of an executed counterpart of a signature
page of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
10.11 Survival of Representations and Warranties. All representations and
warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
10.12 Severability. If any provision of this Agreement or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality,
validity and enforceability of the remaining provisions of this Agreement and
the other Loan Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal,
invalid or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.13 Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if the Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section
3.01, or if any Lender is a Defaulting Lender, then the Borrower may, at its
sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in, and consents
required by, Section 10.06), all of its interests, rights and obligations under
this Agreement and the related
Loan Documents to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment), provided that:
(a) the Borrower shall have paid to the Administrative Agent the assignment
fee specified in Section 10.06(b);
(b) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and L/C Advances, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other
Loan Documents (including any amounts under Section 3.05) from the assignee (to
the extent of such outstanding principal and accrued interest and fees) or the
Borrower (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for
compensation under Section 3.04 or payments required to be made pursuant to
Section 3.01, such assignment will result in a reduction in such compensation or
payments thereafter; and
(d) such assignment does not conflict with applicable Laws.
A Lender shall not be required to make any such assignment or
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
10.14 Governing Law; Jurisdiction; Etc.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF THE
UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF SUCH STATE, AND ANY
APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE
PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN
ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT,
ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE
BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.
(c) WAIVER OF VENUE. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE
PARTIES HERETO HEREBY AGREES THAT SECTIONS 5-1401 AND 4-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK SHALL APPLY TO THE LOAN DOCUMENTS AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING
IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. IN FURTHERANCE OF THE FOREGOING, BORROWER HEREBY
IRREVOCABLY DESIGNATES AND APPOINTS CT Corporation System, 111 eighth avenue ,
New York, New York 10011, AS AGENT OF BORROWER TO RECEIVE SERVICE OF ALL PROCESS
BROUGHT AGAINST BORROWER WITH RESPECT TO ANY SUCH PROCEEDING IN ANY SUCH COURT
IN NEW YORK, SUCH SERVICE BEING HEREBY ACKNOWLEDGED BY BORROWER TO BE EFFECTIVE
AND BINDING SERVICE IN EVERY RESPECT. COPIES OF ANY SUCH PROCESS SO SERVED SHALL
ALSO BE SENT BY REGISTERED MAIL TO BORROWER AT ITS ADDRESS SET FORTH BELOW, BUT
THE FAILURE OF BORROWER TO RECEIVE SUCH COPIES SHALL NOT AFFECT IN ANY WAY THE
SERVICE OF SUCH PROCESS AS AFORESAID. BORROWER SHALL FURNISH TO LENDER PARTIES A
CONSENT OF CORPORATION SERVICE COMPANY AGREEING TO ACT HEREUNDER PRIOR TO THE
EFFECTIVE DATE OF THIS AGREEMENT. NOTHING HEREIN SHALL AFFECT THE RIGHT OF
LENDER PARTIES TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL
LIMIT THE RIGHT OF LENDER PARTIES TO BRING PROCEEDINGS AGAINST BORROWER IN THE
COURTS OF ANY OTHER JURISDICTION. IF FOR ANY REASON CORPORATION SERVICE COMPANY
SHALL RESIGN OR OTHERWISE CEASE TO ACT AS BORROWER'S AGENT, BORROWER HEREBY
IRREVOCABLY AGREES TO (A) IMMEDIATELY DESIGNATE AND APPOINT A NEW AGENT
ACCEPTABLE TO ADMINISTRATIVE AGENT TO SERVE IN SUCH CAPACITY AND, IN SUCH EVENT,
SUCH NEW AGENT SHALL BE DEEMED TO BE SUBSTITUTED FOR CORPORATION SERVICE COMPANY
FOR ALL PURPOSES HEREOF AND (B) PROMPTLY DELIVER TO ADMINISTRATIVE AGENT THE
WRITTEN CONSENT (IN FORM AND SUBSTANCE SATISFACTORY TO ADMINISTRATIVE AGENT) OF
SUCH NEW AGENT AGREEING TO SERVE IN SUCH CAPACITY.
10.15 Waiver of Jury Trial. EACH PARTY HERETO AND ANY OTHER LOAN PARTY HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR
ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT
OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. BORROWER
AND EACH LENDER HEREBY FURTHER (A) IRREVOCABLY WAIVE, TO THE MAXIMUM EXTENT NOT
PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH
LITIGATION ANY "SPECIAL DAMAGES," AS DEFINED BELOW, (B) CERTIFY THAT NO PARTY
HERETO NOR ANY REPRESENTATIVE OR AGENT OR COUNSEL FOR ANY PARTY HERETO HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS, AND (C)
ACKNOWLEDGE THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT, THE OTHER
LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION.
AS USED IN THIS SECTION, "SPECIAL DAMAGES" INCLUDES ALL SPECIAL, CONSEQUENTIAL,
EXEMPLARY, OR PUNITIVE DAMAGES (REGARDLESS OF HOW NAMED), BUT DOES NOT INCLUDE
ANY PAYMENTS OR FUNDS WHICH ANY PARTY HERETO HAS EXPRESSLY PROMISED TO PAY OR
DELIVER TO ANY OTHER PARTY HERETO.
10.16 USA PATRIOT Act Notice. Each Lender that is subject to the Act (as
hereinafter defined) and the Administrative Agent (for itself and not on behalf
of any Lender) hereby notifies the Borrower that pursuant to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the "Act"), it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender or the Administrative
Agent, as applicable, to identify the Borrower in accordance with the Act.
10.17 Time of the Essence. Time is of the essence of the Loan Documents.
10.18 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
10.19 Special Provisions.
(a) From and after the Closing Date, (i) each Exiting Lender shall cease to
be a party to this Agreement, (ii) no Exiting Lender shall have any obligations
or liabilities under this Agreement with respect to the period from and after
the Closing Date and, without limiting the foregoing, no Exiting Lender shall
have any Commitment under this Agreement or any participation in any Letter of
Credit outstanding hereunder, (iii) all Letters of Credit outstanding under the
Existing Credit Agreement will be deemed outstanding under this Agreement and
will be governed as if issued under this Agreement and (iv) no Exiting Lender
shall have any rights under the Existing Credit Agreement, this Agreement or any
other Loan Document (other than rights under the Existing Credit Agreement
expressly stated to survive the termination of the Existing Credit Agreement and
the repayment of amounts outstanding thereunder).
(b) The Lenders (which are Lenders under the Existing Credit Agreement)
hereby waive any requirements for notice of prepayment, minimum amounts of
prepayments of Loans (as defined in the Existing Credit Agreement), ratable
reductions of the commitments of the Lenders under the Existing Credit Agreement
and ratable payments on account of the principal or interest of any Loan (as
defined in the Existing Credit Agreement) under the Existing Credit Agreement to
the extent such prepayment, reductions or payments are required pursuant to
subsection 4.01(a)(xvii).
(c) The Lenders hereby authorize the Administrative Agent and the Borrower
to request borrowings from the Lenders, to make prepayments of Loans (as defined
in the Existing Credit Agreement) and to reduce commitments under the Existing
Credit Agreement among the Lenders (as defined in the Existing Credit Agreement)
in order to ensure that, upon the effectiveness of this Agreement, the Loans of
the Lenders shall be outstanding on a ratable basis in accordance with their
respective Applicable Percentages and that the Commitments shall be as set forth
on Schedule 2.01 hereto and no such borrowing, prepayment or reduction shall
violate any provisions of the Existing Credit Agreement or this Agreement. The
Lenders hereby confirm that, from and after the Closing Date, all participations
of the Lenders in respect of Letters of Credit outstanding hereunder pursuant to
Section 2.03(c) shall be based upon the Working Capital Percentages of the
Lenders (after giving effect to this Agreement).
(d) The Borrower hereby terminates, effective as of the Closing Date, in
full the commitments under the Existing Credit Agreement of the Exiting Lenders.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
BORROWER: GENESIS CRUDE OIL, L.P.
By: GENESIS ENERGY, INC.,
its general partner
By: /s/ Ross A. Benavides
----------------------
Ross A. Benavides
Chief Financial Officer
GUARANTOR: GENESIS ENERGY, INC.
By: /s/ Ross A. Benavides
----------------------
Ross A. Benavides
Chief Financial Officer
GENESIS ENERGY, L.P.
By: GENESIS ENERGY, INC.,
its general partner
By: /s/ Ross A. Benavides
---------------------
Ross A. Benavides
Chief Financial Officer
Address for Borrower and Guarantors:
500 Dallas Street, Suite 2500
Houston, Texas 77002
Attention: Ross A. Benavides
Telephone: 713-860-2528
Fax: 713-860-2636
FLEET NATIONAL BANK,
Administrative Agent, LC Issuer and a Lender
By: /s/ Allison Rossi
----------------------
Allison Rossi
Director
Address:
100 Federal Street
Boston, Massachusetts 02110
Attention: Allison Rossi
Mail Code: MADE 10009H
Telephone: (617) 434-9061
Fax: (617) 434-3652
BANC OF AMERICA SECURITIES LLC,
Arranger and Book Manager
By: /s/ Richard Makin
----------------------
Richard Makin
Managing Director