[Execution]
CREDIT AGREEMENT
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GENESIS CRUDE OIL, L.P.,
as Borrower,
GENESIS ENERGY, INC.,
as Guarantor,
GENESIS ENERGY, L.P.,
as Guarantor,
FLEET NATIONAL BANK,
as Administrative Agent,
FLEET SECURITIES, INC.,
as Arranger and Book Manager,
and CERTAIN FINANCIAL INSTITUTIONS,
as Lenders
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$65,000,000
March 14, 2003
2
TABLE OF CONTENTS
ARTICLE I - Definitions and References.........................................1
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Section 1.1. Defined Terms...........................................1
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Section 1.2. Exhibits and Schedules; Additional Definitions.........22
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Section 1.3. Amendment of Defined Instruments.......................22
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Section 1.4. References and Titles..................................23
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Section 1.5. Calculations and Determinations........................23
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Section 1.6. Joint Preparation; Construction of Indemnities
and Releases...........................................23
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ARTICLE II - The Loans and Letters of Credit..................................24
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Section 2.1. Commitments to Lend; Notes.............................24
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Section 2.2. Requests for New Loans.................................24
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Section 2.3. Continuations and Conversions of Existing Loans........25
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Section 2.4 Use of Proceeds.........................................26
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Section 2.5. Optional Prepayments of Loans..........................26
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Section 2.6. Mandatory Prepayments..................................27
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Section 2.7. Letters of Credit......................................27
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Section 2.8. Requesting Letters of Credit...........................27
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Section 2.9. Reimbursement and Participations.......................28
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Section 2.10. No Duty to Inquire....................................29
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Section 2.11. LC Collateral.........................................30
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Section 2.12. Interest Rates and Fees; Reduction in Commitment......31
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Section 2.13. Borrowing Base Reporting..............................32
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ARTICLE III - Payments to Lenders.............................................32
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Section 3.1. General Procedures.....................................32
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Section 3.2. Capital Reimbursement..................................33
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Section 3.3. Increased Cost of LIBOR Loans or Letters of Credit.....33
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Section 3.4. Notice; Change of Applicable Lending Office............34
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Section 3.5. Availability...........................................34
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Section 3.6. Funding Losses.........................................35
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Section 3.7. Reimbursable Taxes.....................................35
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Section 3.8. Replacement of Lenders.................................36
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ARTICLE IV - Conditions Precedent to Credit...................................37
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Section 4.1. Documents to be Delivered..............................37
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Section 4.2. Additional Conditions Precedent........................39
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ARTICLE V - Representations and Warranties....................................40
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Section 5.1. No Default.............................................40
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Section 5.2. Organization and Good Standing.........................40
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Section 5.3. Authorization..........................................40
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Section 5.4. No Conflicts or Consents...............................40
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Section 5.5. Enforceable Obligations................................41
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Section 5.6. Initial Financial Statements...........................41
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Section 5.7. Other Obligations and Restrictions.....................41
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Section 5.8. Full Disclosure........................................41
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Section 5.9. Litigation.............................................42
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Section 5.10. Labor Disputes and Acts of God........................42
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Section 5.11. ERISA Plans and Liabilities...........................42
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Section 5.12. Compliance with Laws..................................42
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Section 5.13. Environmental Laws....................................43
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Section 5.14. Names and Places of Business..........................44
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Section 5.15. Borrower's Subsidiaries...............................45
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Section 5.16. Title to Properties; Licenses.........................45
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Section 5.17. Government Regulation.................................45
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Section 5.18. Insider...............................................45
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Section 5.19. Solvency..............................................45
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Section 5.20. Credit Arrangements...................................46
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Section 5.21. Real Property.........................................46
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ARTICLE VI - Affirmative Covenants............................................46
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Section 6.1. Payment and Performance................................46
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Section 6.2. Books, Financial Statements and Reports................46
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Section 6.3. Other Information and Inspections......................49
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Section 6.4. Notice of Material Events and Change of Address........49
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Section 6.5. Maintenance of Properties..............................50
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Section 6.6. Maintenance of Existence and Qualifications............50
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Section 6.7. Payment of Trade Liabilities, Taxes, etc...............50
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Section 6.8. Insurance..............................................50
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Section 6.9. Performance on Borrower's Behalf.......................51
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Section 6.10. Interest..............................................51
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Section 6.11. Compliance with Agreements and Law....................51
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Section 6.12. Environmental Matters; Environmental Reviews..........51
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Section 6.13. Evidence of Compliance................................52
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Section 6.14. Agreement to Deliver Security Documents...............52
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Section 6.15. Perfection and Protection of Security Interests
and Liens.............................................52
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Section 6.16. Bank Accounts; Offset.................................52
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Section 6.17. Guaranties of Subsidiaries............................53
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Section 6.18. Compliance with Agreements............................53
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Section 6.19. Rents.................................................53
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Section 6.20. Operating Practices...................................54
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Section 6.21. Collateral Account....................................54
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ARTICLE VII - Negative Covenants..............................................54
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Section 7.1. Indebtedness...........................................55
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Section 7.2. Limitation on Liens....................................55
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Section 7.3. Hedging Contracts......................................57
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Section 7.4. Limitation on Mergers, Issuances of Securities.........57
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Section 7.5. Limitation on Sales of Property........................58
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Section 7.6. Limitation on Dividends and Redemptions................58
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Section 7.7. Limitation on Investments and New Businesses...........59
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Section 7.8. Limitation on Credit Extensions........................59
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Section 7.9. Transactions with Affiliates...........................59
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Section 7.10. Prohibited Contracts.................................59
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Section 7.11. Current Ratio.........................................60
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Section 7.12. Leverage Ratio........................................60
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Section 7.13. Cash Flow Coverage Ratio..............................60
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Section 7.14. Funded Indebtedness to Capitalization Ratio...........61
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Section 7.15. Minimum EBITDA........................................61
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Section 7.16. Open Position; Certain Permitted Financial
Instruments; NYMEX Transactions.......................61
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Section 7.17. Redelivery of Borrowing Base Report...................62
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Section 7.18. Deposit Accounts......................................62
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ARTICLE VIII - Events of Default and Remedies.................................62
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Section 8.1. Events of Default......................................62
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Section 8.2. Remedies...............................................65
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ARTICLE IX - Administrative Agent.............................................65
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Section 9.1. Appointment and Authority..............................65
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Section 9.2. Exculpation, Administrative Agent's Reliance, Etc......66
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Section 9.3. Credit Decisions.......................................67
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Section 9.4. Indemnification........................................67
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Section 9.5. Rights as Lender.......................................67
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Section 9.6. Sharing of Set-Offs and Other Payments.................68
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Section 9.7. Investments............................................68
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Section 9.8. Benefit of Article IX..................................68
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Section 9.9. Resignation............................................69
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ARTICLE X - Miscellaneous.....................................................69
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Section 10.1. Waivers and Amendments; Acknowledgments...............69
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Section 10.2. Survival of Agreements; Cumulative Nature.............71
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Section 10.3. Notices...............................................71
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Section 10.4. Payment of Expenses; Indemnity........................72
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Section 10.5. Joint and Several Liability; Parties in Interest;
Assignments; Replacement Notes........................73
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Section 10.6. Confidentiality.......................................75
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Section 10.7. Governing Law; Submission to Process..................75
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Section 10.8. Limitation on Interest................................76
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Section 10.9. Termination; Limited Survival.........................77
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Section 10.10. Severability.........................................77
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Section 10.11. Counterparts.........................................77
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Section 10.12. Waiver of Jury Trial, Punitive Damages, etc..........77
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Section 10.13. Restatement of Existing Credit Agreement.............78
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Schedule 1 - Lender Schedule Schedule 2 - Disclosure Schedule Schedule 3 -
Security Schedule Schedule 4 - Insurance Schedule Schedule 5 - Borrowing Base
Procedures Schedule 6 - Real Property Schedule 7 - Initial Letters of Credit
Exhibit A - Promissory Note
Exhibit B - Borrowing Notice
Exhibit C - Continuation/Conversion Notice
Exhibit D - Forms of Letter of Credit
Exhibit E - Letter of Credit Application and Agreement
Exhibit F - Certificate Accompanying Financial Statements Exhibit G - Opinion of
Counsel for Restricted Persons Exhibit H - Borrowing Base Report Exhibit I -
Environmental Compliance Certificate Exhibit J - Assignment and Acceptance
Agreement Exhibit K - Solvency Certificate Exhibit L - Assignment of Note and
Liens
CREDIT AGREEMENT
THIS CREDIT AGREEMENT is made as of March 14, 2003, by and 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, and FLEET NATIONAL
BANK, as administrative agent (in such capacity, "Administrative Agent"), FLEET
SECURITIES, INC., as exclusive arranger (in such capacity, "Arranger and Book
Manager") and the Lenders referred to below.
W I T N E S S E T H:
In consideration of the mutual covenants and agreements contained
herein and in consideration of the loans which may hereafter be made by Lenders
to, and the Letters of Credit that may hereafter be issued by the LC Issuer for
the account of, Borrower, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto do
hereby agree as follows:
ARTICLE I - Definitions and References
Section 1.1. Defined Terms. As used in this Agreement, each of the
following terms has the meaning given to such term in this Section 1.1 or in the
sections and subsections referred to 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 UCC.
"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.
"Administrative Agent" means Fleet National Bank, as Administrative
Agent hereunder, and its successors in such capacity.
"Affiliate" means, as to any Person, each other Person that directly or
indirectly (through one or more intermediaries or otherwise) controls, is
controlled by, or is under common control with, such Person. A Person shall be
deemed to be "controlled by" any other Person if such other Person possesses,
directly or indirectly, power
(a) to vote 1
20% or more of the securities (on a fully diluted basis) having
ordinary voting power for the election of directors or managing general
partners; or
(b) to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"Alternate Base Rate" means the higher of (a) that variable rate of
interest per annum established by Fleet National Bank from time to time as its
"base rate" (which rate of interest may not be the lowest rate charged on
similar loans) and (b) the Federal Funds Rate plus one-half percent (0.5%) per
annum. Each change in the Alternative Base Rate shall become effective without
prior notice to Borrower automatically as of the opening of business on the date
of a change in the Alternate Base Rate. The Alternative Base Rate shall in no
event, however, exceed the Highest Lawful Rate.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of Base Rate Loans and such
Lender's LIBOR Lending Office in the case of LIBOR Loans.
"Applicable Usage Level" means, for each day, the level set forth below
that corresponds to the ratio of the Facility Usage at the close of business on
such day to the Borrowing Base in effect on such day:
Applicable Usage Level Ratio of Facility Usage to
Borrowing Base
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Level I less than .50 to 1.0
Level II greater than or equal to .50 to 1.0
but less than .75 to 1.0
Level III greater than or equal to .75 to 1.0
"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 Majority Lenders; or (d) fully covered by a letter of credit from an
Acceptable Issuer.
"Available Cash" has the meaning given such term in the Partnership
Agreement.
"Base Rate Loan" means a Loan which does not bear interest at the LIBOR
Rate.
"Base Rate Margin" means (i) from the date hereof through but not
including the six-month anniversary of the date hereof, the greater of (A) 1.50%
per annum and (B) the percent per annum set forth below based on the Applicable
Usage Level in effect on such date, and (ii) on and after the six-month
anniversary of the date hereof, the percent per annum set forth below based on
the Applicable Usage Level in effect on such date.
Applicable Usage Level Base Rate Margin
Level I 1.00%
Level II 1.50%
Level III 2.00%
Changes in the applicable Base Rate Margin will occur automatically without
prior notice as changes in the Applicable Usage Level occur.
"Borrower" means Genesis Crude Oil, L.P., a Delaware limited partnership.
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"Borrowing" means a borrowing of new Loans of a single Type pursuant to
Section 2.2 or a Continuation or Conversion of all or a portion of an existing
Loan (whether alone or as a combination with a new Loan) into a single Type
(and, in the case of LIBOR Loans, with the same Interest Period) pursuant to
Section 2.3.
"Borrowing Base" means the lesser of (I) the Maximum Facility Amount 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) the lesser of (A) 100% of Eligible Cash Equivalents or
(B) $5,000,000; 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 5
"Borrowing Notice" means a written or telephonic request, or a written
confirmation, made by Borrower which meets the requirements of Section 2.2.
"Business Day" means any day, other than a Saturday, Sunday or day
which shall be in New York City or the Commonwealth of Massachusetts a legal
holiday or day on which banking institutions are required or authorized to
close. Any Business Day in any way relating to LIBOR Loans (such as the day on
which an Interest Period begins or ends) must also be a day on which commercial
banks settle payments in London.
"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 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 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), or (iii) the General Partner shall cease to be the sole general
partner of Genesis Energy, L.P., the Borrower, Genesis Pipeline Texas, L.P. and
Genesis Pipeline USA, 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.
"Citicorp" means Citicorp North America, Inc.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, together with all rules and regulations promulgated with respect thereto.
"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.
"Commitment Fee Rate" means, on any day (i) from the date hereof
through but not including the six-month anniversary of the date hereof, 0.50%
per annum and (ii) on and after the six-month anniversary of the date hereof,
the rate per annum set forth below based on the Applicable Usage Level on such
date.
Applicable Usage Level Commitment Fee Rate
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Level I 0.375%
Level II or Level III 0.500%
Changes in the applicable Commitment Fee Rate will occur automatically without
prior notice as changes in the Applicable Usage Level occur.
"Commitment Period" means the period from and including the date hereof
until March 14, 2006 (or, if earlier, the day on which (i) the obligation of
Lenders to make Loans hereunder and the obligations of LC Issuer to issue
Letters of Credit hereunder have terminated, (ii) the obligation of LC Issuer to
issue Letters of Credit hereunder has terminated, or (iii) the Notes first
become due and payable in full, whichever shall first occur).
"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 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. 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 up to $3,000,000 of any penalty or
other payments assessed by any Tribunal in connection with the Pipeline Release
during the first or second Fiscal Quarter of 2003 shall be considered to be an
"extraordinary loss" for purposes of this clause (ii)) 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.
"Continuation/Conversion Notice" means a written or telephonic request,
or a written confirmation, made by Borrower which meets the requirements of
Section 2.3.
"Continue", "Continuation", and "Continued" shall refer to the
continuation pursuant to Section 2.3 hereof of a LIBOR Loan as a LIBOR Loan from
one Interest Period to the next Interest Period.
"Convert", "Conversion", and "Converted" shall refer to a conversion
pursuant to Section 2.3 or Article III of one Type of Loan into another Type of
Loan.
"Current Trading Month" has the meaning given that term in Section
7.16.
"Currently Approved by Majority 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 Majority Lenders. Each such written notice will
supersede and revoke each prior notice.
"Debt Rating" means with respect to a Person, the rating then in effect
by a Rating Agency for the long term senior unsecured non-credit enhanced debt
of such Person.
"Default" means any Event of Default and any default, event or
condition which would, with the giving of any requisite notices and the passage
of any requisite periods of time, constitute an Event of Default.
"Default Rate" means, at the time in question, (i) two percent (2%) per
annum plus the applicable LIBOR Rate Margin plus the LIBOR Rate then in effect
for any LIBOR Loan (up to the end of the applicable Interest Period) or (ii) two
percent (2%) per annum plus the applicable Base Rate Margin plus the Alternative
Base Rate for each Base Rate Loan; provided, however, the Default Rate shall
never exceed the Highest Lawful Rate
"Default Rate Period" means (i) any period during which an Event of
Default, other than pursuant to Section 8.1 (a) or (b) or Section 8.1(i)(i),
(i)(ii) or (i)(iii), is continuing, provided that such period shall not begin
until notice of the commencement of the Default Rate has been given to Borrower
by Administrative Agent upon the instruction by Majority Lenders and (ii) any
period during which any Event of Default pursuant to Section 8.1 (a) or (b) or
8.1(i)(i), (i)(ii), or (i)(iii) is continuing unless Borrower has been notified
otherwise by Administrative Agent upon the instruction by Majority Lenders.
"Disclosure Schedule" means Schedule 2 hereto.
"Dollars" and "$" means the lawful currency of the United States of
America, except where otherwise specified.
"Domestic Lending Office" means, with respect to any Lender, the office
of such Lender specified as its "Domestic Lending Office" in the Lender Schedule
hereto, or such other office as such Lender may from time to time specify to
Borrower and Administrative Agent; with respect to LC Issuer, the office,
branch, or agency through which it issues Letters of Credit; and, with respect
to Administrative Agent, the office, branch, or agency through which it
administers this Agreement.
"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 Majority Lenders in their reasonable business judgment and which
are located in storage locations (including pipelines) which are either (a)
owned by a Restricted Person or (b) Currently Approved by Majority 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
Majority 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 Majority 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.
"Eligible Transferee" means a Person which either (a) is a Lender or an
Affiliate of a Lender, or (b) is consented to as an Eligible Transferee by
Administrative Agent and, so long as no Default or Event of Default is
continuing, by Borrower, which consents in each case will not be unreasonably
withheld (provided that no Person organized outside the United States may be an
Eligible Transferee if Borrower would be required to pay withholding taxes on
interest or principal owed to such Person).
"Environmental Laws" means any and all Laws relating to the environment
or to emissions, discharges, releases or threatened releases of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances or wastes
into the environment including ambient air, surface water, ground water, or
land, or otherwise relating to the manufacture, processing, distribution use,
treatment, storage, disposal, transport, or handling of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances or wastes.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, together with all rules and regulations promulgated
with respect thereto.
"ERISA Affiliate" means each Restricted Person and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control that, together with such Restricted Person,
are treated as a single employer under Section 414 of the Code.
"ERISA Plan" means any employee pension benefit plan subject to Title
IV of ERISA maintained by any ERISA Affiliate with respect to which any
Restricted Person has a fixed or contingent liability.
"Event of Default" has the meaning given to such term in Section 8.1.
"Existing Credit Agreement" means that certain Amended and Restated
Credit Agreement dated as of May 3, 2002 by and between Genesis Crude Oil, L.P.,
as Borrower and Citicorp North America, Inc., as Administrative Agent and
Collateral Agent, and certain financial institutions, as Lenders.
"Facility Usage" means, at the time in question, the aggregate amount
of outstanding Loans and LC Obligations at such time.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/1000th of one percent) 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 (i) if the day for which such rate is to
be determined 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 (ii) if such rate is not so
published for any day, the Federal Funds Rate for such day shall be the average
rate quoted to Administrative Agent on such day on such transactions as
determined by Administrative Agent.
"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" has the meaning given that term in Section
7.16.
"GAAP" means those generally accepted accounting principles and
practices which are recognized as such by the Financial Accounting Standards
Board (or any generally recognized successor) and which, in the case of Genesis
Energy, L.P. and its Consolidated Subsidiaries, are applied for all periods
after the date hereof in a manner consistent with the manner in which such
principles and practices were applied to the Initial Financial Statements. If
any change in any accounting principle or practice is required by the Financial
Accounting Standards Board (or any such successor) in order for such principle
or practice to continue as a generally accepted accounting principle or
practice, all reports and financial statements required hereunder with respect
to Genesis Energy, L.P. or with respect to Genesis Energy, L.P. and its
Consolidated Subsidiaries may be prepared in accordance with such change, but
all calculations and determinations to be made hereunder may be made in
accordance with such change only after notice of such change is given to each
Lender, and Majority Lenders agree to such change insofar as it affects the
accounting of Genesis Energy, L.P. or of Genesis Energy, L.P. and its
Consolidated Subsidiaries.
"General Partner" means Genesis Energy, Inc., a Delaware corporation.
---------------
partnership.
"Genesis Energy, L.P." means Genesis Energy, L.P., a Delaware limited
--------------------
"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.
"Hazardous Materials" means any substances regulated under any
Environmental Law, whether as pollutants, contaminants, or chemicals, or as
industrial, toxic or hazardous substances or wastes, or otherwise.
"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
(b)......otherwise hedged in a manner satisfactory to Majority 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.
"Hedging Contract" means (a) any agreement providing for options,
swaps, floors, caps, collars, forward sales or forward purchases involving
interest rates, commodities or commodity prices, equities, currencies, bonds, or
indexes based on any of the foregoing, (b) any option, futures or forward
contract traded on an exchange, and (c) any other derivative agreement or other
similar agreement or arrangement.
"Highest Lawful Rate" means, with respect to each Lender Party to whom
Obligations are owed, the maximum nonusurious rate of interest that such Lender
Party is permitted under applicable Law to contract for, take, charge, or
receive with respect to such Obligations. All determinations herein of the
Highest Lawful Rate, or of any interest rate determined by reference to the
Highest Lawful Rate, shall be made separately for each Lender Party as
appropriate to assure that the Loan Documents are not construed to obligate any
Person to pay interest to any Lender Party at a rate in excess of the Highest
Lawful Rate applicable to such Lender Party.
"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 Hedging Contracts (on a net basis to
the extent netting is provided for in the applicable Hedging Contract),
(f)......Liabilities constituting principal under Capital Leases,
(g)......Liabilities arising under conditional sales or other title
retention agreements,
(h)......Liabilities owing under direct or indirect guaranties of
Liabilities of any other Person or otherwise constituting obligations to
purchase or acquire or to otherwise protect or insure a creditor against loss in
respect of Liabilities of any other Person (such as obligations under working
capital maintenance agreements, agreements to keep-well, or agreements to
purchase Liabilities, assets, goods, securities or services), but excluding
endorsements in the ordinary course of business of negotiable instruments in the
course of collection,
(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.
"Initial Financial Statements" means (i) the audited Consolidated
financial statements of Genesis Energy, L.P. as of December 31, 2001, (ii) the
audited Consolidated financial statements of Borrower as of December 31, 2001,
(iii) the unaudited Consolidated financial statements of Genesis Energy, L.P. as
of September 30, 2002, and (iv) the unaudited Consolidated financial statements
of Borrower as of September 30, 2002.
"Initial Letters of Credit" means those letters of credit issued by
Citicorp under the Existing Credit Agreement prior to the date hereof that are
outstanding as of the date hereof and are listed on Schedule 7 attached hereto.
"Insurance Schedule" means Schedule 4 attached hereto.
"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 Period" means, with respect to each particular LIBOR Loan in
a Borrowing, the period specified in the Borrowing Notice or
Continuation/Conversion Notice applicable thereto, beginning on and including
the date specified in such Borrowing Notice or Continuation/Conversion Notice
(which must be a Business Day), and ending one, two, three, six or twelve months
thereafter, as Borrower may elect in such notice; provided that: (a) any
Interest Period which would otherwise end on a day which 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; (b) any Interest Period which begins on the
last Business Day in 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 in a calendar month; and (c)
notwithstanding the foregoing, no Interest Period may be selected that would end
after the last day of the Commitment Period.
"Investment" means any investment made, directly or indirectly in any
Person, whether by acquisition of shares of capital stock, indebtedness or other
obligations or securities or by loan, advance, capital contribution or otherwise
and whether made in cash, by the transfer of property or by any other means.
"Law" means any statute, law, regulation, ordinance, rule, treaty,
judgment, order, decree, permit, concession, franchise, license, agreement or
other governmental restriction of the United States or any state or political
subdivision thereof or of any foreign country or any department, state, province
or other political subdivision thereof.
"LC Application" means any application for a Letter of Credit hereafter
made by Borrower to LC Issuer.
"LC Collateral" has the meaning given to such term in Section 2.11(a).
"LC Issuer" means with respect to the Initial Letters of Credit,
Citicorp in its capacity as the issuer of the Initial Letters of Credit, and
(ii) with respect to any Letter of Credit other than the Initial Letters of
Credit, Fleet National Bank, in its capacity as the issuer of Letters of Credit
hereunder, other than the Initial Letters of Credit, and its successors in such
capacity. Administrative Agent may, with the consent of Borrower and Lender in
question, appoint any Lender hereunder as an LC Issuer in place of or in
addition to Fleet National Bank..
"LC Obligations" means, at the time in question, the sum of all Matured
LC Obligations plus the maximum amounts which LC Issuer might then or thereafter
be called upon to advance under all Letters of Credit then outstanding.
"Lender Parties" means Administrative Agent, LC Issuer, and all Lenders
--------------
"Lender Schedule" means Schedule 1 hereto.
"Lenders" means each signatory hereto (other than Borrower and any
Restricted Person that is a party hereto), including Fleet National Bank, in its
capacity as a Lender hereunder rather than as Administrative Agent and LC
Issuer, and the successors and each permitted assign of each such party as
holder of a Note.
"Letter of Credit" means any letter of credit issued by LC Issuer
hereunder and the Initial Letters of Credit.
"Letter of Credit Fee Rate" means, on any day (i) from the date hereof
through but not including the six-month anniversary of the date hereof, the
greater of (A) 2.50% per annum and (B) the rate per annum set forth below based
on the Applicable Usage Level on such date, and (ii) on and after the six-month
anniversary of the date hereof, the rate per annum set forth below based on the
Applicable Usage Level on such date.
Applicable Usage Level LC Fee Rate
---------------------- -----------
Level I 2.00%
Level II 2.50%
Level III 3.00%
Changes in the applicable Letter of Credit Fee Rate will occur automatically
without prior notice as changes in the Applicable Usage Level occur.
"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.
"LIBOR Lending Office" means, with respect to any Lender, the office of
such Lender specified as its "LIBOR Lending Office" on the Lender Schedule
hereto (or, if no such office is specified, its Domestic Lending Office), or
such other office of such Lender as such Lender may from time to time specify to
Borrower and Administrative Agent.
"LIBOR Loan" means a Loan that bears interest at a rate based upon the
LIBOR Rate.
"LIBOR Rate" means, as applicable to any LIBOR Loan within a Borrowing
and with respect to the related Interest Period therefor, the rate per annum
(rounded upwards, if necessary, to the nearest 1/16th of 1%)as determined on the
basis of offered rates for deposits in U.S. dollars, for a period of time
comparable to such Interest Period which appears on Telerate Page 3750 (or any
successor page) as of 11:00 a.m. London time on the day that is two Business
Days preceding the first day of such LIBOR Loan; provided, however, if the rate
described above does not appear on the Telerate system on any applicable
interest determination date, the LIBOR Rate shall be the rate (rounded upwards
as described above, if necessary) for deposits in dollars for a period
substantially equal to such Interest Period on the Reuters Page "LIBO" (or such
other page as may replace the LIBO Page on that service for the purpose of
displaying such rates), as of 11:00 a.m. (London time), on the date that is two
Business Days prior to the beginning of such Interest Period; provided, however,
if more than one rate is specified on Reuters Screen LIBO Page, the applicable
rate shall be the arithmetic mean of all such rates (rounded upwards, if
necessary, to the nearest 1/1000 of 1%). If both the Telerate and Reuters system
are unavailable, then the LIBOR Rate for that date will be determined on the
basis of the offered rates for deposits in U.S. dollars for a period of time
comparable to such Interest Period which are offered by four major banks in the
London interbank market at approximately 11:00 a.m. London time, on the day that
is two (2) Business Days preceding the first day of such LIBOR Loan as selected
by Administrative Agent. The principal London office of each of the four major
London banks will be requested to provide a quotation of its U.S. dollar deposit
offered rate. If at least two such quotations are provided, the rate for that
date will be the arithmetic mean of the quotations. If fewer than two quotations
are provided as requested, the rate for that date will be determined on the
basis of the rates quoted for loans in U.S. dollars to leading European banks
for a period of time comparable to such Interest Period offered by major banks
in New York City at approximately 11:00 a.m. New York City time, on the day that
is two Business Days preceding the first day of such LIBOR Loan. In the event
that Administrative Agent is unable to obtain any such quotation as provided
above, it will be deemed that the LIBOR Rate pursuant to such LIBOR Loan cannot
be determined. In the event that the Board of Governors of the Federal Reserve
System shall impose a Reserve Percentage with respect to LIBOR deposits of any
Lender, then for any period during which such Reserve Percentage shall apply,
the LIBOR Rate shall be equal to the amount determined above divided by an
amount equal to 1 minus the Reserve Percentage. "Reserve Percentage" means the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal, special, emergency and other reserves) which is imposed on member
banks of the Federal Reserve System against "Euro-currency Liabilities" as
defined in Regulation D. Without limiting the effect of the foregoing, the
Reserve Percentage shall reflect any other reserves required to be maintained by
such member banks with respect to (a) any category of liabilities which includes
deposits by reference to which the LIBOR Rate is to be determined, or (b) any
category of extensions of credit or other assets which include LIBOR Loans. The
LIBOR Rate for any LIBOR Loan shall change whenever the Reserve Percentage
changes.
"LIBOR Rate Margin" means (i) from the date hereof through but not
including the six-month anniversary of the date hereof, the greater of (A) 2.50%
per annum and (B) the percent per annum set forth below based on the Applicable
Usage Level in effect on such date, and (ii) on and after the six-month
anniversary of the date hereof, the percent per annum set forth below based on
the Applicable Usage Level in effect on such date.
Applicable Usage Level LIBOR Rate Margin
---------------------- -----------------
Level I 2.00%
Level II 2.50%
Level III 3.00%
Changes in the applicable LIBOR Rate Margin will occur automatically without
prior notice as changes in the Applicable Usage Level occur.
"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.
"Loans" has the meaning given to such term in Section 2.1.
"Loan Documents" means this Agreement, the Notes, the Security
Documents, the Letters of Credit, the LC Applications, 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).
"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.
"Majority Lenders" means Lenders whose aggregate Percentage Shares
equal or exceed sixty-six and two-thirds percent (66 2/3%).
"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,
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 Restricted Persons on a mark to market basis during any
period of 12 consecutive months in excess of $250,000.
"Matured LC Obligations" means all amounts paid by LC Issuer on drafts
or demands for payment drawn or made under any Letter of Credit and all other
amounts due and owing to LC Issuer under any LC Application for any Letter of
Credit, to the extent the same have not been repaid to LC Issuer (with the
proceeds of Loans or otherwise) or cash collaterialized pursuant to Section 2.11
hereof.
"Maximum Drawing Amount" means at the time in question the sum of the
maximum amounts which LC Issuer might then or thereafter be called upon to
advance under all Letters of Credit then outstanding.
"Maximum Facility Amount" means the amount of $65,000,000, as such
amount may be reduced by Borrower from time to time as provided in Section 2.12.
"Maximum Loan Amount" means $25,000,000.
"Moody's" means Moody's Investor Service, Inc., or its successor.
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"Note" has the meaning given to such term in Section 2.1.
"NYMEX" means the New York Mercantile Exchange.
"Obligations" means all Liabilities from time to time owing by any
Restricted Person to any Lender Party under or pursuant to any of the Loan
Documents, including all LC Obligations. "Obligation" means any part of the
Obligations.
"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.
"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 Majority 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.
"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.
"Partnership Agreement" means the Third Amended and Restated Agreement
of Limited Partnership of Genesis Energy, L.P. dated July 31, 2002.
"Percentage Share" means, with respect to any Lender (a) when used in
Sections 2.1 or 2.12, in any Borrowing Notice or when no Loans are outstanding
hereunder, the percentage set forth opposite such Lender's name on the Lender
Schedule hereto, and (b) when used otherwise, the percentage obtained by
dividing (i) the sum of the unpaid principal balance of such Lender's Loans at
the time in question plus the Matured LC Obligations which such Lender has
funded pursuant to Section 2.9(c) plus the portion of the Maximum Drawing Amount
which such Lender might be obligated to fund under Section 2.9(c), by (ii) the
sum of the aggregate unpaid principal balance of all Loans at such time plus the
aggregate amount of LC Obligations outstanding at such time.
"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
Restricted Person 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 Petroleum Inventory
marketing, gathering, transportation, storage, terminaling and pipeline
operation; and (iv) the aggregate purchase price for all Permitted Acquisitions
from and after the date of this Agreement does not exceed $15,000,000.
"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 7.2(ii)(b) (so long as such Lien is inchoate) or Section
7.2(ii)(d).
"Permitted Investments" means:
(a)......Cash Equivalents,
(b)......Investments described in the Disclosure Schedule,
(c)......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,
(d)......Permitted Acquisitions.
"Permitted Lien" has the meaning given to such term in Section 7.2.
"Person" means an individual, corporation, partnership, limited
liability company, association, joint stock company, trust or trustee thereof,
estate or executor thereof, unincorporated organization or joint venture,
Tribunal, or any other legally recognizable entity.
"Petroleum Inventory" means crude oil, condensate, 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.
"Rating Agency" means either S&P or Moody's.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect.
"Reimbursable Taxes" has the meaning set forth in Section 3.7(a).
"Restricted Person" means any of 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.
"S&P" means Standard & Poor's Ratings Services (a division of McGraw
---
Hill, Inc.) or its successor.
"Security Documents" means the instruments listed in the Security
Schedule and all other security agreements, deeds of trust, mortgages, chattel
mortgages, pledges, guaranties, financing statements, continuation statements,
extension agreements and other agreements or instruments now, heretofore, or
hereafter delivered by any Restricted Person 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 Restricted Person'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.
"Subsidiary" means, with respect to any Person, any corporation,
association, partnership, limited liability company, joint venture, or other
business or corporate entity, enterprise or organization which is directly or
indirectly (through one or more intermediaries) controlled or owned more than
fifty percent 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.
"Termination Event" means (a) the occurrence with respect to any ERISA
Plan of (i) a reportable event described in Sections 4043(c)(5) or (6) of ERISA
or (ii) any other reportable event described in Section 4043(c) of ERISA other
than a reportable event not subject to the provision for 30-day notice to the
Pension Benefit Guaranty Corporation pursuant to a waiver by such corporation
under Section 4043(a) of ERISA, or (b) the withdrawal of any ERISA Affiliate
from an ERISA Plan during a plan year in which it was a "substantial employer"
as defined in Section 4001(a)(2) of ERISA, or (c) the filing of a notice of
intent to terminate any ERISA Plan or the treatment of any ERISA Plan amendment
as a termination under Section 4041 of ERISA, or (d) the institution of
proceedings to terminate any ERISA Plan by the Pension Benefit Guaranty
Corporation under Section 4042 of ERISA, or (e) any other event or condition
which might constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any ERISA Plan.
"Tribunal" means any government, any arbitration panel, any court or
any governmental department, commission, board, bureau, agency or
instrumentality of the United States of America or any state, province,
commonwealth, nation, territory, possession, county, parish, town, township,
village or municipality, whether now or hereafter constituted or existing.
"Type" means, with respect to any Loans, the characterization of such
Loans as either Base Rate Loans or LIBOR Loans.
"UCC" means the Uniform Commercial Code as in effect in the State of
New York.
"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.
Section 1.2. Exhibits and Schedules; Additional Definitions. All
Exhibits and Schedules attached to this Agreement are a part hereof for all
purposes. Reference is hereby made to the Security Schedule for the meaning of
certain terms defined therein and used but not defined herein, which definitions
are incorporated herein by reference.
Section 1.3. Amendment of Defined Instruments. Unless the context
otherwise requires or unless otherwise provided herein the terms defined in this
Agreement which refer to a particular agreement, instrument or document also
refer to and include all renewals, extensions, modifications, amendments and
restatements of such agreement, instrument or document, provided that nothing
contained in this section shall be construed to authorize any such renewal,
extension, modification, amendment or restatement.
Section 1.4. References and Titles. All references in this Agreement to
Exhibits, Schedules, articles, sections, subsections and other subdivisions
refer to the Exhibits, Schedules, articles, sections, subsections and other
subdivisions of this Agreement unless expressly provided otherwise. Exhibits and
Schedules to any Loan Document shall be deemed incorporated by reference in such
Loan Document. References to any document, instrument, or agreement (a) shall
include all exhibits, schedules, and other attachments thereto, and (b) shall
include all documents, instruments, or agreements issued or executed in
replacement thereof. Titles appearing at the beginning of any subdivisions are
for convenience only and do not constitute any part of such subdivisions and
shall be disregarded in construing the language contained in such subdivisions.
The words "this Agreement," "this instrument," "herein," "hereof," "hereby,"
"hereunder" and words of similar import refer to this Agreement as a whole and
not to any particular subdivision unless expressly so limited. The phrases "this
section" and "this subsection" and similar phrases refer only to the sections or
subsections hereof in which such phrases occur. The word "or" is not exclusive,
and the word "including" (in its various forms) means "including without
limitation." Pronouns in masculine, feminine and neuter genders shall be
construed to include any other gender, and words in the singular form shall be
construed to include the plural and vice versa, unless the context otherwise
requires. Accounting terms have the meanings assigned to them by GAAP, as
applied the accounting entity to which they refer. References to "days" shall
mean calendar days, unless the term "Business Day" is used. Unless otherwise
specified, references herein to any particular Person also refer to its
successors and permitted assigns.
Section 1.5. Calculations and Determinations. All calculations under
the Loan Documents of interest and of fees shall be made on the basis of actual
days elapsed (including the first day but excluding the last) and a year of 360
days. Each determination by a Lender Party of amounts to be paid under Article
III or any other matters which are to be determined hereunder by a Lender Party
(such as any LIBOR Rate, Business Day, Interest Period, or Reserve Percentage)
shall, in the absence of manifest error, be conclusive and binding. Unless
otherwise expressly provided herein or unless Majority Lenders otherwise consent
all financial statements and reports furnished to any Lender Party hereunder
shall be prepared and all financial computations and determinations pursuant
hereto shall be made in accordance with GAAP.
Section 1.6. Joint Preparation; Construction of Indemnities and
Releases. This Agreement and the other Loan Documents have been reviewed and
negotiated by sophisticated parties with access to legal counsel and no rule of
construction shall apply hereto or thereto which would require or allow any Loan
Document to be construed against any party because of its role in drafting such
Loan Document. All indemnification and release provisions of this Agreement
shall be construed broadly (and not narrowly) in favor of the Persons receiving
indemnification or being released.
ARTICLE II - The Loans and Letters of Credit
Section 2.1. Commitments to Lend; Notes. Subject to the terms and
conditions hereof, each Lender agrees to make loans to Borrower (herein called
such Lender's "Loans") upon Borrower's request from time to time during the
Commitment Period, provided that (a) subject to Sections 3.3, 3.4 and 3.6, all
Lenders are requested to make Loans of the same Type in accordance with their
respective Percentage Shares and as part of the same Borrowing, (b) after giving
effect to such loans, the aggregate principal amount of outstanding Loans will
not exceed the Maximum Loan Amount, and (c) after giving effect to such Loans,
the Facility Usage does not exceed the Borrowing Base determined as of the date
on which the requested Loans are to be made. The aggregate principal amount of
each Loan in any Borrowing shall not be less than $100,000 and shall be in
integral multiples of $100,000. Borrower may have no more than five Borrowings
of LIBOR Loans outstanding at any time. The obligation of Borrower to repay to
each Lender the aggregate amount of all Loans made by such Lender, together with
interest accruing in connection therewith, shall be evidenced by a single
promissory note (herein called such Lender's "Note") made by Borrower payable to
the order of such Lender in the form of Exhibit A with appropriate insertions.
The amount of principal owing on any Lender's Note at any given time shall be
the aggregate amount of all Loans theretofore made by such Lender minus all
payments of principal theretofore received by such Lender on such Note. Interest
on each Note shall accrue and be due and payable as provided herein and therein.
Each Note shall be due and payable as provided herein and therein, and shall be
due and payable in full on the last day of the Commitment Period. Subject to the
terms and conditions of this Agreement, Borrower may borrow, repay, and reborrow
hereunder.
Section 2.2. Requests for New Loans. Borrower must give to
Administrative Agent written notice (or telephonic notice promptly confirmed in
writing) of any requested Borrowing of Loans to be funded by Lenders. Each such
notice constitutes a "Borrowing Notice" hereunder and must:
(a) specify (i) the aggregate amount of any such Borrowing of
Base Rate Loans and the date on which such Base Rate Loans are to be
advanced, or (ii) the aggregate amount of any such Borrowing of LIBOR
Loans, the date on which such LIBOR Loans are to be advanced (which
shall be the first day of the Interest Period which is to apply
thereto), and the length of the applicable Interest Period; and
(b) be received by Administrative Agent not later than 12:00
noon, Boston, Massachusetts time, on (i) the day on which any such Base
Rate Loans are to be made, or (ii) the third Business Day preceding the
day on which any such LIBOR Loans are to be made.
Each such written request or confirmation must be made in the form and substance
of the "Borrowing Notice" attached hereto as Exhibit B, duly completed. Each
such telephonic request shall be deemed a representation, warranty,
acknowledgment and agreement by Borrower as to the matters which are required to
be set out in such written confirmation. Upon receipt of any such Borrowing
Notice, Administrative Agent shall give each Lender prompt notice of the terms
thereof. If all conditions precedent to such new Loans have been met, each
Lender will on the date requested promptly remit to Administrative Agent at
Administrative Agent's office in Boston, Massachusetts the amount of such
Lender's Loan in immediately available funds, and upon receipt of such funds,
unless to its actual knowledge any conditions precedent to such Loans have been
neither met nor waived as provided herein, Administrative Agent shall promptly
make such Loans available to Borrower. Unless Administrative Agent shall have
received prompt notice from a Lender that such Lender will not make available to
Administrative Agent such Lender's new Loan, Administrative Agent may in its
discretion assume that such Lender has made such Loan available to
Administrative Agent in accordance with this section and Administrative Agent
may if it chooses, in reliance upon such assumption, make such Loan available to
Borrower. If and to the extent such Lender shall not so make its new Loan
available to Administrative Agent, such Lender and Borrower severally agree to
pay or repay to Administrative Agent within three days after demand the amount
of such Loan together with interest thereon, for each day from the date such
amount was made available to Borrower until the date such amount is paid or
repaid to Administrative Agent, with interest at (i) the Federal Funds Rate, if
such Lender is making such payment and (ii) the interest rate applicable at the
time to the other new Loans made on such date, if Borrower is making such
repayment. If neither such Lender nor Borrower pays or repays to Administrative
Agent such amount within such three-day period, Administrative Agent shall be
entitled to recover from Borrower, on demand, in lieu of the interest provided
for in the preceding sentence, interest thereon at the Default Rate, calculated
from the date such amount was made available to Borrower. The failure of any
Lender to make any new Loan to be made by it hereunder shall not relieve any
other Lender of its obligation hereunder, if any, to make its new Loan, but no
Lender shall be responsible for the failure of any other Lender to make any new
Loan to be made by such other Lender.
Section 2.3. Continuations and Conversions of Existing Loans. Borrower
may make the following elections with respect to Loans already outstanding: to
Convert, in whole or in part, Base Rate Loans to LIBOR Loans, to Convert, in
whole or in part, LIBOR Loans to Base Rate Loans on the last day of the Interest
Period applicable thereto, and to Continue, in whole or in part, LIBOR Loans
beyond the expiration of such Interest Period by designating a new Interest
Period to take effect at the time of such expiration. In making such elections,
Borrower may combine existing Loans made pursuant to separate Borrowings into
one new Borrowing or divide existing Loans made pursuant to one Borrowing into
separate new Borrowings, provided that Borrower may have no more than five
Borrowings of LIBOR Loans outstanding at any time. To make any such election,
Borrower must give to Administrative Agent written notice (or telephonic notice
promptly confirmed in writing) of any such Conversion or Continuation of
existing Loans, with a separate notice given for each new Borrowing. Each such
notice constitutes a "Continuation/Conversion Notice" hereunder and must:
(a) specify the existing Loans which are to be Continued or
Converted;
(b) specify (i) the aggregate amount of any Borrowing of Base
Rate Loans into which such existing Loans are to be Continued or
Converted and the date on which such Continuation or Conversion is to
occur, or (ii) the aggregate amount of any Borrowing of LIBOR Loans
into which such existing Loans are to be Continued or Converted, the
date on which such Continuation or Conversion is to occur (which shall
be the first day of the Interest Period which is to apply to such LIBOR
Loans), and the length of the applicable Interest Period; and
(c) be received by Administrative Agent not later than 11:00
a.m., Boston, Massachusetts time, on (i) the day on which any such
Continuation or Conversion to Base Rate Loans is to occur, or (ii) the
third Business Day preceding the day on which any such Continuation or
Conversion to LIBOR Loans is to occur.
Each such written request or confirmation must be made in the form and substance
of the "Continuation/Conversion Notice" attached hereto as Exhibit C, duly
completed. Each such telephonic request shall be deemed a representation,
warranty, acknowledgment and agreement by Borrower as to the matters which are
required to be set out in such written confirmation. Upon receipt of any such
Continuation/Conversion Notice, Administrative Agent shall give each Lender
prompt notice of the terms thereof. Each Continuation/Conversion Notice shall be
irrevocable and binding on Borrower. During the continuance of any Default,
Borrower may not make any election to Convert existing Loans into LIBOR Loans or
Continue existing Loans as LIBOR Loans beyond the expiration of their respective
and corresponding Interest Period then in effect. If (due to the existence of a
Default or for any other reason) Borrower fails to timely and properly give any
Continuation/Conversion Notice with respect to a Borrowing of existing LIBOR
Loans at least three days prior to the end of the Interest Period applicable
thereto, such LIBOR Loans, to the extent not prepaid at the end of such Interest
Period, shall automatically be Converted into Base Rate Loans at the end of such
Interest Period. No new funds shall be repaid by Borrower or advanced by any
Lender in connection with any Continuation or Conversion of existing Loans
pursuant to this section, and no such Continuation or Conversion shall be deemed
to be a new advance of funds for any purpose; such Continuations and Conversions
merely constitute a change in the interest rate applicable to already
outstanding Loans.
Section 2.4 Use of Proceeds. Borrower shall use the proceeds of all
Loans to pay, refinance or replace the loans and letters of credit under the
Existing Credit Agreement, pay the fees and expenses related to the closing of
the transactions contemplated by the Loan Documents and for working capital and
general business purposes; provided, however, the aggregate amount of Loan
proceeds used for Permitted Acquisitions shall not exceed $15,000,000. Borrower
shall use all Letters of Credit solely for the purposes specified in Section
2.7(d). In no event shall 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 Board of Governors of the Federal Reserve
System) or (iii) to extend credit to others directly or indirectly for the
purpose of purchasing or carrying any such margin stock. Borrower represents and
warrants that Borrower is not engaged principally, or as one of Borrower's
important activities, in the business of extending credit to others for the
purpose of purchasing or carrying such margin stock.
Section 2.5. Optional Prepayments of Loans. Borrower may, upon three
Business Days' notice to Administrative Agent (and Administrative Agent will
promptly give notice to the other Lenders), from time to time and without
premium or penalty prepay the Loans, in whole or in part, so long as the
aggregate amounts of all partial prepayments of principal on the Loans equals
$100,000 or any higher integral multiple of $100,000. Each prepayment of
principal under this section shall be accompanied by all interest then accrued
and unpaid on the principal so prepaid. Any principal or interest prepaid
pursuant to this section shall be in addition to, and not in lieu of, all
payments otherwise required to be paid under the Loan Documents at the time of
such prepayment.
Section 2.6. Mandatory Prepayments. If at any time the Facility Usage
exceeds the Borrowing Base (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 principal of the
Loans in an amount at least equal to such excess.
Section 2.7. Letters of Credit. Subject to the terms and conditions
hereof, Borrower may at any time before the ninth Business Day prior to the
Maturity Date request LC Issuer to issue, amend, or extend the expiration date
of, one or more Letters of Credit, provided that:
(a) after taking such Letter of Credit into account, the
Facility Usage does not exceed the Borrowing Base at such time;
(b) the expiration date of such Letter of Credit is prior to
the earlier of (i) (A) 365 days after date of issuance with respect to
Letters of Credits which, in the aggregate, do not result in
outstanding LC Obligations at any one time in excess of $3,000,000, or
(B) 70 days after date of issuance with respect to all other Letters of
Credit, and (ii) the end of the Commitment Period;
(c) the issuance of such Letter of Credit will be in
compliance with all applicable governmental restrictions, policies, and
guidelines and will not subject LC Issuer to any cost which is not
reimbursable under Article III;
(d) such Letter of Credit (i) is related to the purchase or
exchange by Borrower of Petroleum Inventory, provided that Letters of
Credit, not to exceed in the aggregate at any one time $3,000,000, may
be used for general corporate purposes of Borrower or any of its
Subsidiaries, and (ii) is in the Form of Exhibit D hereto or such other
form, terms and purposes as shall be acceptable to Administrative Agent
and LC Issuer in their sole and absolute discretion.
(e) all other conditions in this Agreement to the issuance of
such Letter of Credit have been satisfied.
LC Issuer will honor any such request if the foregoing conditions (a) through
(e) (in the following Section 2.8 called the "LC Conditions") have been met as
of the date of issuance, amendment, or extension of such Letter of Credit.
Section 2.8. Requesting Letters of Credit. Borrower must make written
application for any Letter of Credit at least two Business Days before the date
on which Borrower desires for LC Issuer to issue such Letter of Credit. By
making any such written application, unless otherwise expressly stated therein,
Borrower shall be deemed to have represented and warranted that the LC
Conditions described in Section 2.7 will be met as of the date of issuance of
such Letter of Credit. Each such written application for a Letter of Credit must
be made in writing in the form and substance of Exhibit E, the terms and
provisions of which are hereby incorporated herein by reference (or in such
other form as may mutually be agreed upon by LC Issuer and Borrower). If all LC
Conditions for a Letter of Credit have been met as described in Section 2.7 on
any Business Day before 11:00 a.m, Boston, Massachusetts time, LC Issuer will
issue such Letter of Credit on the same Business Day at LC Issuer's office in
Boston, Massachusetts. If the LC Conditions are met as described in Section 2.7
on any Business Day on or after 11:00 a.m, Boston, Massachusetts time, LC Issuer
will issue such Letter of Credit on the next succeeding Business Day at LC
Issuer's office in Boston, Massachusetts. If any provisions of any LC
Application conflict with any provisions of this Agreement, the provisions of
this Agreement shall govern and control.
Section 2.9. Reimbursement and Participations.
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(a)......Reimbursement. Each Matured LC Obligation shall constitute a
loan by LC Issuer to Borrower. Borrower promises to pay to LC Issuer, or to LC
Issuer's order, on demand, the full amount of each Matured LC Obligation
together with interest thereon (i) at the Alternative Base Rate plus the Base
Rate Margin in effect on such date to and including the second Business Day
after the Matured LC Obligation is incurred and (ii) at the Default Rate on each
day thereafter.
(b)......Letter of Credit Advances. If the beneficiary of any Letter of
Credit makes a draft or other demand for payment thereunder then Borrower may,
during the interval between the making thereof and the honoring thereof by LC
Issuer, request Lenders to make Loans to Borrower in the amount of such draft or
demand, which Loans shall be made, subject to the terms and conditions hereof,
concurrently with LC Issuer's payment of such draft or demand and shall be
immediately used by LC Issuer to repay the amount of the resulting Matured LC
Obligation. Such a request by Borrower shall be made in compliance with all of
the provisions hereof, provided that for the purposes of the first sentence of
Section 2.1, the amount of such Loans shall be considered, but the amount of the
Matured LC Obligation to be concurrently paid by such Loans shall not be
considered.
(c)......Participation by Lenders. LC Issuer irrevocably agrees to
grant and hereby grants to each Lender, and - to induce LC Issuer to issue
Letters of Credit hereunder - each Lender irrevocably agrees to accept and
purchase and hereby accepts and purchases from LC Issuer, on the terms and
conditions hereinafter stated and for such Lender's own account and risk an
undivided interest equal to such Lender's Percentage Share of LC Issuer's
obligations and rights under each Letter of Credit issued hereunder and the
amount of each Matured LC Obligation paid by LC Issuer thereunder. Each Lender
unconditionally and irrevocably agrees with LC Issuer that, if a Matured LC
Obligation is paid under any Letter of Credit for which LC Issuer is not
reimbursed in full by Borrower in accordance with the terms of this Agreement
and the related LC Application (including any reimbursement by means of
concurrent Loans or by the application of LC Collateral), such Lender shall (in
all circumstances and without set-off or counterclaim) pay to LC Issuer on
demand, in immediately available funds at LC Issuer's address for notices
hereunder, such Lender's Percentage Share of such Matured LC Obligation (or any
portion thereof which has not been reimbursed by Borrower). Each Lender's
obligation to pay LC Issuer pursuant to the terms of this subsection is
irrevocable and unconditional. If any amount required to be paid by any Lender
to LC Issuer pursuant to this subsection is paid by such Lender to LC Issuer
within three Business Days after the date such payment is due, LC Issuer shall
in addition to such amount be entitled to recover from such Lender, on demand,
interest thereon calculated from such due date at the Federal Funds Rate. If any
amount required to be paid by any Lender to LC Issuer pursuant to this
subsection is not paid by such Lender to LC Issuer within three Business Days
after the date such payment is due, LC Issuer shall in addition to such amount
be entitled to recover from such Lender, on demand, interest thereon calculated
from such due date at the Alternative Base Rate.
(d)......Distributions to Participants. Whenever LC Issuer has in
accordance with this section received from any Lender payment of such Lender's
Percentage Share of any Matured LC Obligation, if LC Issuer thereafter receives
any payment of such Matured LC Obligation or any payment of interest thereon
(whether directly from Borrower or by application of LC Collateral or otherwise,
and excluding only interest for any period prior to LC Issuer's demand that such
Lender make such payment of its Percentage Share), LC Issuer will distribute to
such Lender its Percentage Share of the amounts so received by LC Issuer;
provided, however, that if any such payment received by LC Issuer must
thereafter be returned by LC Issuer, such Lender shall return to LC Issuer the
portion thereof which LC Issuer has previously distributed to it.
(e)......Calculations. A written advice setting forth in reasonable
detail the amounts owing under this section, submitted by LC Issuer to Borrower
or any Lender from time to time, shall be conclusive, absent manifest error, as
to the amounts thereof.
Section 2.10. No Duty to Inquire.
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(a)......Drafts and Demands. LC Issuer is authorized and instructed to
accept and pay drafts and demands for payment under any Letter of Credit without
requiring, and without responsibility for, any determination as to the existence
of any event giving rise to said draft, either at the time of acceptance or
payment or thereafter. LC Issuer is under no duty to determine the proper
identity of anyone presenting such a draft or making such a demand (whether by
tested telex or otherwise) as the officer, representative or agent of any
beneficiary under any Letter of Credit, and payment by LC Issuer to any such
beneficiary when requested by any such purported officer, representative or
agent is hereby authorized and approved. Borrower releases each Lender Party
from, and agrees to hold each Lender Party harmless and indemnified against, any
liability or claim in connection with or arising out of the subject matter of
this section, WHICH INDEMNITY SHALL APPLY WHETHER OR NOT ANY SUCH LIABILITY OR
CLAIM IS IN ANY WAY OR TO ANY EXTENT CAUSED, IN WHOLE OR IN PART, BY ANY
NEGLIGENT ACT OR OMISSION OF ANY KIND BY ANY LENDER PARTY, provided only that no
Lender Party shall be entitled to indemnification for that portion, if any, of
any liability or claim which is proximately caused by its own individual gross
negligence or willful misconduct, as determined in a final judgment.
(b)......Extension of Maturity. If the maturity of any Letter of Credit
is extended by its terms or by Law or governmental action, if any extension of
the maturity or time for presentation of drafts or any other modification of the
terms of any Letter of Credit is made at the request of Borrower, or if the
amount of any Letter of Credit is increased at the request of Borrower, this
Agreement shall be binding upon all Restricted Persons with respect to such
Letter of Credit as so extended, increased or otherwise modified, with respect
to drafts and property covered thereby, and with respect to any action taken by
LC Issuer, LC Issuer's correspondents, or any Lender Party in accordance with
such extension, increase or other modification.
(c)......Transferees of Letters of Credit. If any Letter of Credit
provides that it is transferable, LC Issuer shall have no duty to determine the
proper identity of anyone appearing as transferee of such Letter of Credit, nor
shall LC Issuer be charged with responsibility of any nature or character for
the validity or correctness of any transfer or successive transfers, and payment
by LC Issuer to any purported transferee or transferees as determined by LC
Issuer is hereby authorized and approved, and Borrower releases each Lender
Party from, and agrees to hold each Lender Party harmless and indemnified
against, any liability or claim in connection with or arising out of the
foregoing, WHICH INDEMNITY SHALL APPLY WHETHER OR NOT ANY SUCH LIABILITY OR
CLAIM IS IN ANY WAY OR TO ANY EXTENT CAUSED, IN WHOLE OR IN PART, BY ANY
NEGLIGENT ACT OR OMISSION OF ANY KIND BY ANY LENDER PARTY, provided only that no
Lender Party shall be entitled to indemnification for that portion, if any, of
any liability or claim which is proximately caused by its own individual gross
negligence or willful misconduct, as determined in a final judgment.
Section 2.11. LC Collateral.
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(a)......LC Obligations in Excess of Borrowing Base. If, after the
making of all mandatory prepayments required under Section 2.6, the outstanding
LC Obligations will exceed the Borrowing Base, then in addition to prepayment of
the entire principal balance of the Loans Borrower will immediately pay to
Administrative Agent an amount equal to such excess. Administrative Agent will
hold such amounts as collateral security for the ratable benefit of each LC
Issuer for the remaining LC Obligations all such amounts held as collateral
security for LC Obligations being herein collectively called "LC Collateral")
and as collateral security for the other Obligations, and such collateral may be
applied from time to time to pay Matured LC Obligations or any other Obligations
which are then due and payable. Neither this subsection nor the following
subsection shall, however, limit or impair any rights which LC Issuer may have
under any other document or agreement relating to any Letter of Credit, LC
Collateral or LC Obligation, including any LC Application, or any rights which
any Lender Party may have to otherwise apply any payments by Borrower and any LC
Collateral under Section 3.1.
(b)......Acceleration of LC Obligations. If the Obligations or any part
thereof become immediately due and payable pursuant to Section 8.1 then, unless
all Lenders otherwise specifically elect to the contrary (which election may
thereafter be retracted by all Lenders at any time), all LC Obligations shall
become immediately due and payable without regard to whether or not actual
drawings or payments on the Letters of Credit have occurred, and Borrower shall
be obligated to pay to LC Issuer immediately an amount equal to the aggregate LC
Obligations which are then outstanding to be held as LC Collateral.
(c)......Investment of LC Collateral. Pending application thereof, all
LC Collateral shall be invested by LC Issuer in such Cash Equivalents as LC
Issuer may choose in its sole discretion. All interest on (and other proceeds
of) such Investments shall be reinvested or applied to Matured LC Obligations or
other Obligations which are due and payable. When all Obligations have been
satisfied in full, including all LC Obligations, all Letters of Credit have
expired or been terminated, and all of Borrower's reimbursement obligations in
connection therewith have been satisfied in full, LC Issuer shall release any
remaining LC Collateral. Borrower hereby assigns and grants to LC Issuer for the
benefit of Lenders a continuing security interest in all LC Collateral paid by
it to LC Issuer, all Investments purchased with such LC Collateral, and all
proceeds thereof to secure its Matured LC Obligations and its Obligations under
this Agreement, each Note, and the other Loan Documents, and Borrower agrees
that such LC Collateral, Investments and proceeds shall be subject to all of the
terms and conditions of the Security Documents. Borrower further agrees that LC
Issuer shall have all of the rights and remedies of a secured party under the
UCC with respect to such security interest and that an Event of Default under
this Agreement shall constitute a default for purposes of such security
interest.
(d)......Payment of LC Collateral. When Borrower is required to provide
LC Collateral for any reason and fails to do so on the day when required, LC
Issuer or Administrative Agent may without prior notice to Borrower or any other
Restricted Person provide such LC Collateral (whether by application of proceeds
of other Collateral, by transfers from other accounts maintained with LC Issuer,
or otherwise) using any available funds of Borrower or any other Person also
liable to make such payments, and LC Issuer or Administrative Agent will give
notice thereof to Borrower promptly after such application or transfer. Any such
amounts which are required to be provided as LC Collateral and which are not
provided on the date required shall, for purposes of each Security Document, be
considered past due Obligations owing hereunder, and LC Issuer is hereby
authorized to exercise its respective rights under each Security Document to
obtain such amounts.
Section 2.12. Interest Rates and Fees; Reduction in Commitment.
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(a)......Interest Rates. Unless the Default Rate shall apply, (i) each
Base Rate Loan shall bear interest on each day outstanding at the Alternative
Base Rate plus the Base Rate Margin in effect on such day and (ii) each LIBOR
Loan shall bear interest on each day during the related Interest Period at the
related LIBOR Rate plus the LIBOR Rate Margin in effect on such day. During a
Default Rate Period, all Loans shall bear interest on each day outstanding at
the applicable Default Rate. The interest rate shall change whenever the
applicable Alternative Base Rate, the Base Rate Margin, the LIBOR Rate or the
LIBOR Rate Margin changes. In no event shall the interest rate on any Loan
exceed the Highest Lawful Rate.
(b)......Commitment Fees. In consideration of each Lender's commitment
to make Loans, Borrower will pay to Administrative Agent for the account of each
Lender a commitment fee determined on a daily basis equal to the Commitment Fee
Rate in effect on such day multiplied by such Lender's Percentage Share of the
unused portion of the Maximum Facility Amount on each day during the Commitment
Period, determined for each such day by deducting the Facility Usage from the
Maximum Facility Amount at the end of such day. This commitment fee shall be due
and payable in arrears within 15 days after the last day of each Fiscal Quarter
and at the end of the Commitment Period. Borrower shall have the right from time
to time to permanently reduce the Maximum Facility Amount, provided that (i)
notice of such reduction is given not less than two Business Days prior to such
reduction, (ii) the resulting Maximum Facility Amount is not less than the
Facility Usage, and (iii) each partial reduction shall be in an amount at least
equal to $1,000,000 and in multiples of $500,000 in excess thereof.
(c)......Letter of Credit Fees. In consideration of LC Issuer's
issuance of any Letter of Credit, Borrower agrees to pay to Administrative
Agent, for the account of all Lenders in accordance with their respective
Percentage Shares, a letter of credit fee equal to the Letter of Credit Fee Rate
applicable each day times the face amount of such Letter of Credit. Such fee
will be calculated on the face amount of each Letter of Credit outstanding on
each day at the above applicable rates and will be payable in arrears within 15
days after the last day of each Fiscal Quarter. In addition, Borrower will pay
to LC Issuer an administrative issuance fee equal to the greater of $150 or
one-eighth percent (0.125%) per annum of the face amount of each Letter of
Credit and such other fees and charges customarily charged by the LC Issuer in
respect of any issuance, amendment or negotiation of any Letter of Credit in
accordance with the LC Issuer's published schedule of such charges effective as
of the date of such amendment or negotiation.
(d)......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.
Section 2.13. Borrowing Base Reporting. The Borrowing Base Reports are
subject to the procedures set forth on Schedule 5. 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.
Section 2.14. LC Issuer. The rights to reimbursement and participation
under Section 2.9, the benefit of LC Collateral under Section 2.11 and the other
provisions of this Agreement applicable to LC Issuer and Letters of Credit (a)
will benefit each LC Issuer individually, in its capacity as LC Issuer, in
respect of the Letters of Credit issued by it and the LC Obligations arising
therefrom and (ii) shall continue to inure to the benefit of a LC Issuer, in its
capacity as LC Issuer, in respect to such Letters of Credit issued by it and the
LC Obligations arising therefrom even if it shall cease to be a Lender
hereunder, whether as a result of an assignment pursuant to Section 10.5 or
otherwise.
ARTICLE III - Payments to Lenders
Section 3.1. General Procedures. Borrower will make each payment which
it owes under the Loan Documents to Administrative Agent for the account of the
Lender Party to whom such payment is owed in lawful money of the United States
of America, (unless otherwise expressly provided in this Agreement), without
set-off, deduction or counterclaim, and in immediately available funds. Each
such payment must be received by Administrative Agent not later than noon,
Boston, Massachusetts time, on the date such payment becomes due and payable.
Any payment received by Administrative Agent after such time will be deemed to
have been made on the next following Business Day. Should any such payment
become due and payable on a day other than a Business Day, the maturity of such
payment shall be extended to the next succeeding Business Day, and, in the case
of a payment of principal or past due interest, interest shall accrue and be
payable thereon for the period of such extension as provided in the Loan
Document under which such payment is due. Each payment under a Loan Document
shall be due and payable at the place provided therein and, if no specific place
of payment is provided, shall be due and payable at the place of payment of
Administrative Agent's Note. When Administrative Agent collects or receives
money on account of the Obligations, Administrative Agent shall distribute all
money so collected or received, and each Lender Party shall apply all such money
so distributed, as follows:
(a) first, for the payment of all Obligations which are then
due (and if such money is insufficient to pay all such Obligations,
first to any reimbursements due Administrative Agent under Section 6.9
or 10.4 and then to the partial payment of all other Obligations then
due in proportion to the amounts thereof, or as Lender Parties shall
otherwise agree);
(b) then for the prepayment of amounts owing under the Loan
Documents (other than principal on the Notes) if so specified by
Borrower;
(c) then for the prepayment of principal on the Notes,
together with accrued and unpaid interest on the principal so prepaid,
and then held as LC Collateral pursuant to Section 2.11(c); and
(d) last, for the payment or prepayment of any other
Obligations.
All payments applied to principal or interest on any Note shall be applied first
to any interest then due and payable, then to principal then due and payable,
and last to any prepayment of principal and accrued interest thereon in
compliance with Sections 2.5 and 2.6, as applicable. All distributions of
amounts described in any of subsections (b), (c) or (d) above shall be made by
Administrative Agent pro rata to each Lender Party then owed Obligations
described in such subsection in proportion to all amounts owed to all Lender
Parties which are described in such subsection; provided that if any Lender then
owes payments to LC Issuer for the purchase of a participation under Section
2.9(c) or to Administrative Agent under Section 9.4, any amounts otherwise
distributable under this section to such Lender shall be deemed to belong to LC
Issuer or Administrative Agent, respectively, to the extent of such unpaid
payments, and Administrative Agent shall apply such amounts to make such unpaid
payments rather than distribute such amounts to such Lender.
Section 3.2. Capital Reimbursement. If either (a) the introduction or
implementation of or the compliance with or any change in or in the
interpretation of any Law, or (b) the introduction or implementation of or the
compliance with any request, directive or guideline from any central bank or
other governmental authority (whether or not having the force of Law) affects or
would affect the amount of capital required or expected to be maintained by any
Lender Party or any corporation controlling any Lender Party, then, within five
Business Days after demand by such Lender Party, Borrower will pay to
Administrative Agent for the benefit of such Lender Party, from time to time as
specified by such Lender Party, such additional amount or amounts which such
Lender Party shall reasonably determine to be appropriate to compensate such
Lender Party or any corporation controlling such Lender Party in light of such
circumstances, to the extent that such Lender Party reasonably determines that
the amount of any such capital would be increased or the rate of return on any
such capital would be reduced by or in whole or in part based on the existence
of the face amount of such Lender Party's Loans, Letters of Credit,
participations in Letters of Credit or commitments under this Agreement.
Section 3.3. Increased Cost of LIBOR Loans or Letters of Credit. If any
applicable Law (whether now in effect or hereinafter enacted or promulgated,
including Regulation D) or any interpretation or administration thereof by any
governmental authority charged with the interpretation or administration thereof
(whether or not having the force of Law):
(a) shall change the basis of taxation of payments to any
Lender Party of any principal, interest, or other amounts attributable
to any LIBOR Loan or Letter of Credit or otherwise due under this
Agreement in respect of any LIBOR Loan or Letter of Credit (other than
taxes imposed on, or measured by, the overall net income of such Lender
Party or any Applicable Lending Office of such Lender Party by any
jurisdiction in which such Lender Party or any such Applicable Lending
Office is located); or
(b) shall change, impose, modify, apply or deem applicable any
reserve, special deposit or similar requirements in respect of any
LIBOR Loan or any Letter of Credit (excluding those for which such
Lender Party is fully compensated pursuant to adjustments made in the
definition of LIBOR Rate) or against assets of, deposits with or for
the account of, or credit extended by, such Lender Party; or
(c) shall impose on any Lender Party or the interbank
eurocurrency deposit market any other condition affecting any LIBOR
Loan or Letter of Credit, the result of which is to increase the cost
to any Lender Party of funding or maintaining any LIBOR Loan or of
issuing any Letter of Credit or to reduce the amount of any sum
receivable by any Lender Party in respect of any LIBOR Loan or Letter
of Credit by an amount deemed by such Lender Party to be material,
then such Lender Party shall promptly notify Administrative Agent and Borrower
in writing of the happening of such event and of the amount required to
compensate such Lender Party for such event (on an after-tax basis, taking into
account any taxes on such compensation), whereupon (i) Borrower shall, within
five Business Days after demand therefor by such Lender Party, pay such amount
to Administrative Agent for the account of such Lender Party and (ii) Borrower
may elect, by giving to Administrative Agent and such Lender Party not less than
three Business Days' notice, to Convert all (but not less than all) of any such
LIBOR Loans into Base Rate Loans.
Section 3.4. Notice; Change of Applicable Lending Office. A Lender
Party shall notify Borrower of any event occurring after the date of this
Agreement that will entitle such Lender Party to compensation under Section 3.2,
3.3 or 3.5 hereof as promptly as practicable after such Lender Party obtains
actual knowledge thereof; provided, that such Lender Party will designate a
different Applicable Lending Office for the Loans affected by such event if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the sole opinion of such Lender Party, be disadvantageous to
such Lender Party, except that such Lender Party shall have no obligation to
designate an Applicable Lending Office located in the United States of America.
Each Lender Party will furnish to Borrower a certificate setting forth the basis
and amount of each request by such Lender Party for compensation under Section
3.2, 3.3 or 3.5 hereof.
Section 3.5. Availability. If (a) any change in applicable Laws, or in
the interpretation or administration thereof of or in any jurisdiction
whatsoever, domestic or foreign, shall make it unlawful or impracticable for any
Lender Party to fund or maintain LIBOR Loans or to issue or participate in
Letters of Credit, or shall materially restrict the authority of any Lender
Party to purchase or take offshore deposits of dollars (i.e., "eurodollars"), or
(b) any Lender Party determines that matching deposits appropriate to fund or
maintain any LIBOR Loan are not available to it, or (c) any Lender Party
determines that the formula for calculating the LIBOR Rate does not fairly
reflect the cost to such Lender Party of making or maintaining loans based on
such rate, then, upon notice by such Lender Party to Borrower and Administrative
Agent, Borrower's right to elect LIBOR Loans from such Lender Party (or, if
applicable, to obtain Letters of Credit) shall be suspended to the extent and
for the duration of such illegality, impracticability or restriction and all
LIBOR Loans of such Lender Party which are then outstanding or are then the
subject of any Borrowing Notice and which cannot lawfully or practicably be
maintained or funded shall immediately become or remain, or shall be funded as,
Base Rate Loans of such Lender Party. Borrower agrees to indemnify each Lender
Party and hold it harmless against all costs, expenses, claims, penalties,
liabilities and damages which may result from any such change in Law,
interpretation or administration. Such indemnification shall be on an after-tax
basis, taking into account any taxes imposed on the amounts paid as indemnity.
Section 3.6. Funding Losses. In addition to its other obligations
hereunder, Borrower will indemnify each Lender Party against, and reimburse each
Lender Party on demand for, any loss or expense incurred or sustained by such
Lender Party (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by a Lender
Party to fund or maintain LIBOR Loans), as a result of (a) any payment or
prepayment (whether or not authorized or required hereunder) of all or a portion
of a LIBOR Loan on a day other than the day on which the applicable Interest
Period ends, (b) any payment or prepayment, whether or not required hereunder,
of a Loan made after the delivery, but before the effective date, of a
Continuation/Conversion Notice, if such payment or prepayment prevents such
Continuation/Conversion Notice from becoming fully effective, (c) the failure of
any Loan to be made or of any Continuation/Conversion Notice to become effective
due to any condition precedent not being satisfied or due to any other action or
inaction of any Restricted Person, or (d) any Conversion (whether or not
authorized or required hereunder) of all or any portion of any LIBOR Loan into a
Base Rate Loan or into a different LIBOR Loan on a day other than the day on
which the applicable Interest Period ends. Such indemnification shall be on an
after-tax basis, taking into account any taxes imposed on the amounts paid as
indemnity.
Section 3.7. Reimbursable Taxes. Borrower covenants and agrees that:
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(a) Borrower will indemnify each Lender Party against and
reimburse each Lender Party for all present and future stamp and other
taxes, duties, levies, imposts, deductions, charges, costs, and
withholdings whatsoever imposed, assessed, levied or collected on or in
respect of this Agreement or any LIBOR Loans or Letters of Credit
(whether or not legally or correctly imposed, assessed, levied or
collected), excluding, however, any taxes imposed on or measured by the
overall net income of Administrative Agent or such Lender Party or any
Applicable Lending Office of such Lender Party (or franchise or
equivalent taxes) by any jurisdiction in which such Lender Party or any
such Applicable Lending Office is located (all such non-excluded taxes,
levies, costs and charges being collectively called "Reimbursable
Taxes" in this section). Such indemnification shall be on an after-tax
basis, taking into account any taxes imposed on the amounts paid as
indemnity.
(b) All payments on account of the principal of, and interest
on, each Lender Party's Loans and Note, and all other amounts payable
by Borrower to any Lender Party hereunder, shall be made in full
without set-off or counterclaim and shall be made free and clear of and
without deductions or withholdings of any nature by reason of any
Reimbursable Taxes, all of which will be for the account of Borrower.
In the event of Borrower being compelled by Law to make any such
deduction or withholding from any payment to any Lender Party, Borrower
shall pay on the due date of such payment, by way of additional
interest, such additional amounts as are needed to cause the amount
receivable by such Lender Party after such deduction or withholding to
equal the amount which would have been receivable in the absence of
such deduction or withholding. If Borrower should make any deduction or
withholding as aforesaid, Borrower shall within 60 days thereafter
forward to such Lender Party an official receipt or other official
document evidencing payment of such deduction or withholding.
(c) If Borrower is ever required to pay any Reimbursable Tax
with respect to any LIBOR Loan, Borrower may elect, by giving to
Administrative Agent and such Lender Party not less than three Business
Days' notice, to Convert all (but not less than all) of any such LIBOR
Loan into a Base Rate Loan, but such election shall not diminish
Borrower's obligation to pay all Reimbursable Taxes.
(d) Notwithstanding the foregoing provisions of this section,
Borrower shall be entitled, to the extent it is required to do so by
Law, to deduct or withhold (and not to make any indemnification or
reimbursement for) income or other similar taxes imposed by the United
States of America (other than any portion thereof attributable to a
change in federal income tax Laws effected after the date hereof) from
interest, fees or other amounts payable hereunder for the account of
any Lender Party, other than a Lender Party (i) who is a U.S. person
for Federal income tax purposes or (ii) who has the Prescribed Forms on
file with Administrative Agent (with copies provided to Borrower) for
the applicable year to the extent deduction or withholding of such
taxes is not required as a result of the filing of such Prescribed
Forms, provided that if Borrower shall so deduct or withhold any such
taxes, it shall provide a statement to Administrative Agent and such
Lender Party, setting forth the amount of such taxes so deducted or
withheld, the applicable rate and any other information or
documentation which such Lender Party may reasonably request for
assisting such Lender Party to obtain any allowable credits or
deductions for the taxes so deducted or withheld in the jurisdiction or
jurisdictions in which such Lender Party is subject to tax. As used in
this section, "Prescribed Forms" means such duly executed forms or
statements, and in such number of copies, which may, from time to time,
be prescribed by Law and which, pursuant to applicable provisions of
(x) an income tax treaty between the United States and the country of
residence of the Lender Party providing the forms or statements, (y)
the Code, or (z) any applicable rules or regulations thereunder, permit
Borrower to make payments hereunder for the account of such Lender
Party free of such deduction or withholding of income or similar taxes.
Section 3.8. Replacement of Lenders. If any Lender Party seeks
reimbursement for increased costs under Sections 3.2 through 3.7, then within
ninety days thereafter - provided no Event of Default then exists - Borrower
shall have the right (unless such Lender Party withdraws its request for
additional compensation) to replace such Lender Party by requiring such Lender
Party to assign its Loans and Notes and its commitments hereunder to an Eligible
Transferee reasonably acceptable to Administrative Agent and to Borrower,
provided that: (i) all Obligations of Borrower owing to such Lender Party being
replaced (including such increased costs and any breakage costs with respect to
any outstanding LIBOR Loans), but excluding principal and accrued interest on
the Notes being assigned) shall be paid in full to such Lender Party
concurrently with such assignment, and (ii) the replacement Eligible Transferee
shall purchase the Note being assigned by paying to such Lender Party a price
equal to the principal amount thereof plus accrued and unpaid interest and
accrued and unpaid commitment fees thereon. In connection with any such
assignment Borrower, Administrative Agent, such Lender Party and the replacement
Eligible Transferee shall otherwise comply with Section 10.5. Notwithstanding
the foregoing rights of Borrower under this section, however, Borrower may not
replace any Lender Party which seeks reimbursement for increased costs under
Section 3.2 through 3.7 unless Borrower is at the same time replacing all Lender
Parties which are then seeking such compensation.
ARTICLE IV - Conditions Precedent to Credit
Section 4.1. Documents to be Delivered. No Lender has any obligation to
make its first Loan, and LC Issuer has no obligation to issue the first Letter
of Credit unless Administrative Agent shall have received all of the following,
at Administrative Agent's office in Boston, Massachusetts, duly executed and
delivered and in form, substance and date satisfactory to Administrative Agent:
(a) This Agreement and any other documents that Lenders are to
execute in connection herewith.
(b) Each Note.
(c) Each Security Document listed in the Security Schedule.
(d) Certain certificates including:
(i) An "Omnibus Certificate" of the secretary and of
the president of General Partner, which shall contain the
names and signatures of the officers and other approved
persons of General Partner authorized to execute Loan
Documents and which shall certify to the truth, correctness
and completeness of the following exhibits attached thereto:
(1) a copy of resolutions duly adopted by the Board of
Directors of General Partner and in full force and effect at
the time this Agreement is entered into, authorizing the
execution of this Agreement and the other Loan Documents
delivered or to be delivered in connection herewith and the
consummation of the transactions contemplated herein and
therein, (2) a copy of the charter documents of each
Restricted Person and all amendments thereto, certified by the
appropriate official of such Restricted Person's jurisdiction
of organization, and (3) a copy of any bylaws or agreement of
limited partnership of each Restricted Person; and
(ii) A certificate of the president and of the chief
financial officer of General Partner, regarding satisfaction
of Section 4.2(a) through (d) and (f).
(e) A certificate (or certificates) of the due formation,
valid existence and good standing of each Restricted Person in its
respective jurisdiction of organization, issued by the appropriate
authorities of such jurisdiction, and certificates of each Restricted
Person's good standing and due qualification to do business, issued by
appropriate officials in any jurisdictions in which such Restricted
Person owns property subject to Security Documents.
(f) Documents similar to those specified in subsections (d)(i)
and (e) of this section with respect to each Guarantor and the
execution by it of its guaranty of Borrower's Obligations.
(g) The favorable opinions of (i) Jenkens & Gilchrist, a
Professional Corporation, special Texas counsel to Restricted Persons,
substantially in the form set forth in Exhibit G, and (ii) local
counsel for the states of Alabama, Florida, Louisiana and Mississippi
satisfactory to Administrative Agent.
(h) The Initial Financial Statements.
(i) Certificates or binders evidencing Restricted Persons'
insurance in effect on the date hereof.
(j) Copies of such permits and approvals regarding the
property and business of Restricted Persons as Administrative Agent may
request.
(k) 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 Restricted Persons and is in compliance with the
requirements of this Agreement.
(l) Payment of all commitment, facility, agency and other fees
required to be paid to any Lender pursuant to any Loan Documents or any
commitment agreement heretofore entered into.
(m) General Partner shall have delivered to Administrative
Agent a certificate by the chief financial officer of General Partner,
certifying the Initial Financial Statements delivered pursuant to
clause (h) above and reflecting compliance with each event specified in
Sections 7.11 through 7.15, inclusive.
(n) Certificates from the chief financial officer of General
Partner, in substantially the form of Exhibit K hereto, attesting to
the Solvency of each Restricted Person before and after giving effect
to the transactions contemplated by this Agreement.
(o) Administrative Agent and the Lender Parties shall be
satisfied that (i) the Maximum Facility Amount under and as defined in
the Existing Credit Agreement has been terminated, and all loans and
notes with respect thereto have been repaid in full, together with
interest thereon, all letters of credit issued thereunder have been
terminated and all other amounts (including premiums) owing pursuant to
the Existing Credit Agreement have been repaid in full and all
documents with respect to the Existing Credit Agreement and all
guarantees with respect thereto have been terminated (except as to any
provisions which may survive to the extent provided therein) and are of
no further force and effect; and (ii) the creditors in respect of the
Existing Credit Agreement have terminated and released, or assigned to
Administrative Agent for the benefit of Lender Parties, any and all
security interests and Liens on the assets owned by Borrower and its
Subsidiaries.
(p) The Borrowing Base as of the date of such first Loan and
first Letter of Credit shall be at least $15,000,000 more than the
initial Facility Usage on such date after giving effects to the 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.
Section 4.2. Additional Conditions Precedent. No Lender has any
obligation to make any Loan (including its first), and LC Issuer has no
obligation to issue any Letter of Credit (including its first), unless the
following conditions precedent have been satisfied (and the delivery by the
Borrower of a Borrowing Notice or the Election by the Borrower to make a
Conversion shall constitute a representation by the Borrower that these
conditions have been met):
(a) All representations and warranties made by any Restricted
Person in any Loan Document shall be true on and as of the date of such
Loan or the date of issuance of such Letter of Credit as if such
representations and warranties had been made as of the date of such
Loan or the date of issuance of such Letter of Credit except to the
extent that such representation or warranty was made as of a specific
date or updated, modified or supplemented as of a subsequent date with
the consent of Majority Lenders.
(b) No Default shall exist at the date of such Loan or the
date of issuance of such Letter of Credit.
(c) No Material Adverse Change shall have occurred to, and no
event or circumstance 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 Restricted Person shall have performed and complied
with all agreements and conditions required in the Loan Documents to be
performed or complied with by it on or prior to the date of such Loan
or the date of issuance of such Letter of Credit.
(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 LC Issuer to any penalty or other onerous condition under
or pursuant to any such Law.
(f) Each Restricted Person shall be Solvent.
(g) Administrative Agent shall have received all documents and
instruments which Administrative Agent has then requested, in addition
to those described in Section 4.1 (including opinions of legal counsel
for Restricted Persons 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
Restricted Person 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.
ARTICLE V - Representations and Warranties
To confirm each Lender's understanding concerning Restricted Persons
and Restricted Persons' businesses, properties and obligations and to induce
each Lender to enter into this Agreement and to extend credit hereunder, General
Partner, Genesis Energy, L.P. and Borrower represent and warrant to each Lender
that:
Section 5.1. No Default. No Restricted Person 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.
Section 5.2. Organization and Good Standing. Each Restricted Person 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
Restricted Person 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.
Section 5.3. Authorization. Each Restricted Person 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.
Section 5.4. No Conflicts or Consents. The execution and delivery by
the various Restricted Persons 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
organizational documents of any Restricted Person or any of its Affiliates, or
(3) any agreement, judgment, license, order or permit applicable to or binding
upon any Restricted Person or any of its Affiliates, (ii) result in the
acceleration of any Indebtedness owed by any Restricted Person or any of its
Affiliates, or (iii) result in or require the creation of any Lien upon any
assets or properties of any Restricted Person or any of its Affiliates except as
expressly contemplated in the Loan Documents. Except as expressly contemplated
in the Loan Documents or disclosed in the Disclosure Schedule, no permit,
consent, approval, authorization or order of, and no notice to or filing,
registration or qualification with, any Tribunal or third party is required in
connection with the execution, delivery or performance by any Restricted Person
of any Loan Document or to consummate any transactions contemplated by the Loan
Documents.
Section 5.5. Enforceable Obligations. This Agreement is, and the other
Loan Documents when duly executed and delivered will be, legal, valid and
binding obligations of each Restricted Person 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.
Section 5.6. 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 Disclosure Schedule. All Initial Financial
Statements were prepared in accordance with GAAP.
Section 5.7. Other Obligations and Restrictions. No Restricted Person
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 the Disclosure Schedule
or otherwise permitted under Section 7.1. Except as shown in the Initial
Financial Statements or disclosed in the Disclosure Schedule, no Restricted
Person is subject to or restricted by any franchise, contract, deed, charter
restriction, or other instrument or restriction which could cause a Material
Adverse Change. Each Restricted Person 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 6.7
Section 5.8. Full Disclosure. No certificate, statement or other
information delivered herewith or heretofore by any Restricted Person 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
Restricted Person to Administrative Agent or any Lender Party 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 Restricted Person that is not shown in the Initial Financial
Statements or disclosed in the Disclosure Schedule which could reasonably be
expected to cause a Material Adverse Change.
Section 5.9. Litigation. Except as disclosed in the Initial Financial
Statements or in the Disclosure Schedule: (i) there are no actions, suits or
legal, equitable, arbitrative or administrative proceedings pending, or to the
knowledge of any Restricted Person threatened, against any Restricted Person or
affecting any Collateral (including, without limitation, any which challenge or
otherwise pertain to any Restricted Person's title to any Collateral) before any
Tribunal 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 Tribunal against any Restricted Person or any Restricted
Person's stockholders, partners, directors or officers or affecting any
Collateral which could reasonably be expected to cause a Material Adverse
Change.
Section 5.10. Labor Disputes and Acts of God. Except as disclosed in
the Disclosure Schedule, neither the business nor the properties of any
Restricted Person 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.
Section 5.11. ERISA Plans and Liabilities. All currently existing ERISA
Plans are listed in the Disclosure Schedule. Except as disclosed in the Initial
Financial Statements or in the Disclosure Schedule, no Termination Event has
occurred with respect to any ERISA 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 the Disclosure Schedule: (i) no "accumulated funding deficiency" (as
defined in Section 412(a) of the Code exists with respect to any ERISA 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 ERISA Plan does not exceed $250,000.
Section 5.12. Compliance with Laws. Except as set forth in the
Disclosure Schedule, each Restricted Person 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 Restricted Person 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 Restricted Person 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 Restricted Person
(i) has filed and maintained all tariffs applicable to its business with each
applicable commission, (ii) and 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 Restricted Person or its
properties.
Section 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 the Disclosure Schedule:
(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 Restricted Person, none are threatened, no penalty has been
assessed and, to the knowledge of any Restricted Person, none are threatened,
and no investigation or review is pending or threatened by any Tribunal 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 Restricted Person or on any property owned or
operated by any Restricted Person, (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
Restricted Person 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 Restricted Person 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 Restricted Person has handled any Hazardous Materials,
other than as a generator, on any properties now or previously owned or leased
by any Restricted Person 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 Restricted Person;
(ii) no asbestos is or has been present at any
properties now or previously owned, operated or
leased by any Restricted Person;
(iii) there are no underground storage tanks, active
or abandoned, at any properties now or previously
owned, operated or leased by any Restricted Person;
and
(iv) no Hazardous Materials have been Released at, on
or under any properties now or previously owned,
operated or leased by any Restricted Person.
(e)......No Restricted Person 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 Restricted Person 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
Restricted Person 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 Restricted Person, 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 Restricted Person 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 Restricted Person
in relation to any properties or facility now or previously owned, operated or
leased by any Restricted Person which have not been made available to
Administrative Agent.
(i)......All Restricted Persons 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 Restricted Person 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)......The Disclosure Schedule sets out (i) the amounts expended by
Restricted Persons through October 31, 2002 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 Restricted Persons in the
future, (iii) the amount of insurance payments received by Restricted Persons
through October 31, 2002 to pay for Spill Costs, and (iv) the estimated amount
of future insurance payments that the Restricted Persons anticipate receiving to
pay for Spill Costs.
Section 5.14. Names and Places of Business. No Restricted Person has,
during the preceding five years, had, been known by, or used any other trade or
fictitious name, except as disclosed in the Disclosure Schedule. Except as
otherwise indicated in the Disclosure Schedule, the chief executive office and
principal place of business of each Restricted Person are (and since the dates
of initial formation of such Restricted Persons have been) located at the
address of Borrower set out in Section 10.3. Except as indicated in the
Disclosure Schedule or otherwise disclosed in writing to the Administrative
Agent, no Restricted Person has any other office or place of business.
Section 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 the Disclosure Schedule or disclosed to Administrative Agent in
writing. Neither Borrower nor any Restricted Person 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 the Disclosure
Schedule or disclosed to Administrative Agent in writing. Borrower owns,
directly or indirectly, the equity interest in each of its Subsidiaries which is
indicated in the Disclosure Schedule or as disclosed to Administrative Agent in
writing.
Section 5.16. Title to Properties; Licenses. Each Restricted Person 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 Restricted Person's business. Each
Restricted Person 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 Restricted
Person 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.
Section 5.17. Government Regulation. Neither Borrower nor any other
Restricted Person 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.
Section 5.18. Insider. No Restricted Person, 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 Restricted Person, 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.
Section 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 (as such term is
used in applicable bankruptcy, liquidation, receivership, insolvency or similar
Laws), and the sum of Borrower's and each Guarantor's absolute and contingent
liabilities, including the Obligations or guarantees thereof, shall not exceed
the fair market value of such Restricted Person's assets, and (ii) Borrower's
and each Guarantor's capital should be adequate for the businesses in which such
Restricted Person is engaged and intends to be engaged. Neither Borrower nor any
Restricted Person has incurred (whether under the Loan Documents or otherwise),
nor does any Restricted Person intend to incur or believe that it will incur,
debts which will be beyond its ability to pay as such debts mature.
Section 5.20. Credit Arrangements. Except as set forth on the
Disclosure Schedule, no Affiliate of any Restricted Person 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 any action of any Restricted Person or any obligation
that any Restricted Person be caused to take any action.
Section 5.21. Real Property. Set forth on Part I of Schedule 6 hereto
is a complete and accurate list of all real property owned by any Restricted
Person 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 Restricted
Person 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 6 hereto is a complete and accurate list of all leases of real property
under which any Restricted Person 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.
ARTICLE VI - Affirmative Covenants
To conform with the terms and conditions under which each Lender is
willing to have credit outstanding to Borrower, and to induce each Lender to
enter into this Agreement and extend credit hereunder, General Partner, Genesis
Energy, L.P. and Borrower covenant and agree that until the full and final
payment of the Obligations and the termination of this Agreement, unless
Majority Lenders, or all Lenders as required under Section 10.1, have previously
agreed otherwise:
Section 6.1. Payment and Performance. Each Restricted Person 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.
Section 6.2. Books, Financial Statements and Reports. Each Restricted
Person 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 Restricted Person's 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 Majority Lenders, stating that such
Consolidated financial statements have been so prepared and (ii)
supporting unaudited balance sheets and statements of income of each
other Restricted Person. 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 (i) stating that they have read this Agreement, (ii)
containing calculations showing compliance (or non-compliance) at the
end of such Fiscal Year with the requirements of Sections 7.11 through
7.15 inclusive, and (iii) further stating that in making their
examination and reporting on the Consolidated financial statements
described above they obtained no knowledge of any Default existing at
the end of such Fiscal Year, or, if they did so conclude that a Default
existed, specifying its nature and period of existence.
(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
Restricted Person, 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 certificate in the form of Exhibit F signed by the chief
financial officer, principal accounting officer or treasurer 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.
(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 senior financial 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 Commitment 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 H duly completed by an authorized officer
of General Partner and conforming with the requirements of Section 2.13
and Schedule 5 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 and Schedule 5.
(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 Restricted Persons 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 president or chief executive officer of
General Partner in the form attached hereto as Exhibit I. Further, if
requested by Administrative Agent, Restricted Persons shall permit and
cooperate with an environmental and safety review made in connection
with the operations of Restricted Persons' 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 Restricted Persons' cost and expense. The consultant shall render a
verbal or written report, as specified by Administrative Agent, based
upon such review at Restricted Persons' cost and expense and a copy
thereof will be provided to Restricted Persons.
(h) Concurrently with the annual renewal of Restricted
Persons' insurance policies, Restricted Persons 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 Restricted
Persons' 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 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.
Section 6.3. Other Information and Inspections. Each Restricted Person
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 Restricted
Persons' businesses and operations. Each Restricted Person 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 Restricted Person'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 Restricted Person 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 Majority Lenders,
Borrower shall permit commercial financial examiners appointed by Administrative
Agent to conduct a commercial finance examination of the business and assets of
Restricted Persons and in connection with such examination to have full access
to and the right to examine, audit, make abstracts and copies from, and inspect
Restricted Persons' records, files, books of account and all other documents,
instruments and agreements to which a Restricted Person is a party. Borrower
shall pay all reasonable costs and expenses of Administrative Agent associated
with any such examination.
Section 6.4. Notice of Material Events and Change of Address. Each
Restricted Person will notify each Lender Party, not later than five (5)
Business Days after any executive officer of Restricted Persons 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 Restricted Person or of any default by any Restricted Person
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 Termination 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 Restricted
Person or with respect to any Restricted Person's properties taken as a
whole, and
(f) the filing of any suit or proceeding, or the assertion in
writing of a claim against any Restricted Person or with respect to any
Restricted Person'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, Restricted Persons will take all
necessary or appropriate steps to remedy promptly any such Material Adverse
Change, Default, acceleration, default, or Termination 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. Restricted Persons will
also notify Administrative Agent and Administrative Agent's counsel in writing
at least twenty Business Days prior to the date that any Restricted Person
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.
Section 6.5. Maintenance of Properties. Each Restricted Person 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.
Section 6.6. Maintenance of Existence and Qualifications. Each
Restricted Person will maintain and preserve its existence and its rights and
franchises in full force and effect and will qualify to do business in all
states or jurisdictions where required by applicable Law, except where the
failure so to qualify will not cause a Material Adverse Change.
Section 6.7. Payment of Trade Liabilities, Taxes, etc. Each Restricted
Person 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 Restricted
Person 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.
Section 6.8. Insurance. Each Restricted Person shall at all times
maintain insurance for its property in accordance with the Insurance Schedule
which insurance shall be by financially sound and reputable insurers. Each
Restricted Person 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 Board of Governors of
the Federal Reserve System. 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 Restricted
Person shall at all times maintain insurance against its liability for injury to
persons or property in accordance with the Insurance Schedule, which insurance
shall be by financially sound and reputable insurers. Without limiting the
foregoing, each Restricted Person shall at all time maintain liability insurance
in accordance with the Insurance Schedule.
Section 6.9. Performance on Borrower's Behalf. If any Restricted Person
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.
Section 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.
Section 6.11. Compliance with Agreements and Law. Each Restricted
Person 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
Restricted Person 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.
Section 6.12. Environmental Matters; Environmental Reviews.
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(a)......Each Restricted Person will comply in all material respects
with all Environmental Laws now or hereafter applicable to such Restricted
Person 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 ans clean up all
Hazardous materials from any of its properties, in accordance with the
requirements of all Environmental Laws.
(b)......Each Restricted Person will promptly furnish to Administrative
Agent all written notices of violation, orders, claims, citations, complaints,
penalty assessments, suits or other proceedings received by any Restricted
Person, or of which it has notice, pending or threatened against any Restricted
Person, the potential liability of which exceeds $250,000 or would cause a
Material Adverse Change if resolved adversely against any Restricted Person, 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 Restricted Person will promptly furnish to Administrative
Agent all requests for information, notices of claim, demand letters, and other
notifications, received by any Restricted Person 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 Restricted Person.
Section 6.13. Evidence of Compliance. Subject to the last sentence of
Section 6.3, each Restricted Person will furnish to each Lender at such
Restricted Person'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
Restricted Person in the Loan Documents, the satisfaction of all conditions
contained therein, and all other matters pertaining thereto.
Section 6.14. Agreement to Deliver Security Documents. Restricted
Persons 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 Restricted Person.
Section 6.15. Perfection and Protection of Security Interests and
Liens. Each Restricted Person 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 Restricted Persons 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.
Section 6.16. Bank Accounts; Offset. To secure the repayment of the
Obligations, each Restricted Person 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 Restricted Person now or hereafter held or received by or in transit to any
Lender from or for the account of such Restricted Person, 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
Restricted Person with any Lender, and (c) any other credits and claims of such
Restricted Person 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 Restricted Person), 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.
Section 6.17. Guaranties of Subsidiaries. Each Subsidiary of General
Partner (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 an absolute and unconditional
guaranty of the timely repayment of the Obligations and the due and punctual
performance of the obligations of Borrower hereunder, which guaranty shall be
reasonably satisfactory to Administrative Agent in form and substance. 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.
Section 6.18. Compliance with Agreements. Each Restricted Person shall
observe, perform or comply with any agreement with any Person or any term or
condition of any instrument, if such agreement or instrument is materially
significant to such Restricted Person or to Restricted Persons 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.
Section 6.19. Rents. By the terms of the various Security Documents,
certain Restricted Persons are and will be assigning to Administrative Agent,
for the benefit of Lender Parties, 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 Restricted
Persons 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 Restricted Persons 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 Restricted Persons' 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 Restricted Persons constitute a waiver,
remission, or release of any other Rents or of any rights of Administrative
Agent to collect other Rents thereafter.
Section 6.20. Operating Practices. Each Restricted Person 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 Restricted Persons' 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.
Section 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 Facility Usage shall exceed
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 Majority Lenders.
ARTICLE VII - Negative Covenants
To conform with the terms and conditions under which each Lender is
willing to have credit outstanding to Borrower, and to induce each Lender to
enter into this Agreement and make the Loans, General Partner, Genesis Energy,
L.P. and Borrower covenant and agree that until the full and final payment of
the Obligations and the termination of this Agreement, unless Majority Lenders,
or all Lenders as required under Section 10.1, have previously agreed otherwise:
Section 7.1. Indebtedness. No Restricted Person will in any manner
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owe or be liable for Indebtedness except:
(a)......the Obligations;
(b)......Indebtedness of Borrower arising under Hedging Contracts (i)
permitted under Section 7.3 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 Restricted Person owing to another
Restricted Person;
(d)......guaranties by Genesis Energy, L.P., Borrower or any Guarantor
of trade payables of any Restricted Person incurred and paid in the ordinary
course of business on ordinary trade terms;
(e)......Indebtedness of any Restricted Person owing in connection with
deferred payments of insurance premiums, provided that all such Indebtedness of
all Restricted Persons 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.
Section 7.2. Limitation on Liens. No Restricted Person 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
Hedging Contracts permitted under Section 7.1 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 the
Disclosure Schedule.
(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 Restricted Person 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 Restricted Person in the possession of storage
facilities, pipelines or barges) arising in the ordinary course of business for
amounts which are not more than 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 Restricted Person
in accordance with GAAP;
(e)......Liens under or with respect to accounts with brokers or
counterparties with respect to Hedging Contracts consisting of cash, commodities
or futures contracts, options, securities, instruments, and other like assets
securing only Hedging Contracts permitted under Section 7.1;
(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 Restricted Person;
(h)......Liens in respect of purchase money obligations and Capital
Leases relating to Indebtedness permitted under Section 7.1(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 Restricted Person or the use thereof or the rights and
interests of any Restricted Person therein, in any manner under any and all
Laws;
(k)......rights reserved to the grantors of any properties of any
Restricted Person, 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 8.1.
Section 7.3. Hedging Contracts. No Restricted Person will be a party to
or in any manner be liable on any Hedging Contract, except:
(a)......Hedging Contracts entered into by a Restricted Person with the
purpose and effect of fixing interest rates on a principal amount of
indebtedness of such Restricted Person 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 Rating Agency
or is otherwise acceptable to Majority Lenders.
(b)......Hedging Contracts relating to Petroleum Inventory which are
referred to in Section 7.16(a) or permitted by Section 7.16(b) or (c).
Section 7.4. Limitation on Mergers, Issuances of Securities. Except as
expressly provided in this section, no Restricted Person 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 7.7 hereof or (c) sell, transfer, lease, exchange, alienate or otherwise
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 7.5 hereof. Any Person, other than
Borrower, that is a Subsidiary of a Restricted Person may, however, be merged
into or consolidated with (i) another Subsidiary of such Restricted Person, so
long as a Restricted Person is the surviving business entity, or (ii) such
Restricted Person, so long as such Restricted Person 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 Restricted Person may issue
additional shares or other securities to such Restricted Person, 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.
Section 7.5. Limitation on Sales of Property. No Restricted Person will
sell, transfer, lease, exchange, alienate or 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 Restricted Person to such
Restricted Person or to a Wholly Owned Subsidiary of such Restricted Person that
is a Guarantor;
(d)......the sale of any other asset by Borrower or any Subsidiary so
long as (A) the purchase price paid to Borrower or such Subsidiary for such
asset shall be no less than the fair market value of such asset at the time of
such sale, (B) the purchase price for such asset shall be paid to Borrower or
such Subsidiary solely in cash, (C) the aggregate purchase price paid to
Borrower and all of its Subsidiaries for such asset and all other assets sold by
Borrower and its Subsidiaries during the same Fiscal Year pursuant to this
clause (d) shall not exceed $2,000,000, (D) if the portion of the aggregate
annual Consolidated EBITDA derived from all assets sold pursuant to this clause
(d) (for each asset based on the four Fiscal Quarters prior to the sale of such
asset) would exceed $1,000,000, the consent (not to be unreasonably withheld) of
the Majority Lenders is obtained in connection with any such sale, (E) no
Default or Event of Default shall exist prior to or after giving effect to such
sale and (F) Agent shall have received a certificate from the Borrower
demonstrating compliance with the conditions of this clause (d).
No Restricted Person 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, which shall pledge such capital stock or interest to the
Administrative Agent for the benefit of the Lenders pursuant to Security
Documents acceptable to the Administrative Agent. No Restricted Person 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.
Section 7.6. Limitation on Dividends and Redemptions. No Restricted
Person will declare or pay any dividends on, or make any other distribution in
respect of, any class of its capital stock or any partnership, limited liability
company or other interest in it, nor will any Restricted Person 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 Restricted Person (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 Restricted Person, while any
Loan or commitment hereunder is outstanding; provided that Genesis Energy L.P.
shall be permitted to make distributions to its general and limited partners 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, (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, and (iii) on the effective date of each Borrowing Base
Report delivered during the Fiscal Quarter immediately preceding such
distribution, the Borrowing Base shall have exceeded the Facility Usage by at
least the sum of $10,000,000 plus the amount of such distribution (including, if
more than one distribution is made during a Fiscal Quarter, all other such
distributions made during the same Fiscal Quarter). No such distribution shall
be made until 5 Business Days after the Borrower has available to it the
financial statements contemplated by Section 6.2(a) or (b) for the Fiscal
Quarter most recently ended prior to the date of such distribution and the Chief
Financial Officer of the Borrower delivers to the Administrative Agent a
certificate that the above conditions have been satisfied.
Section 7.7. Limitation on Investments and New Businesses. No
Restricted Person 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 (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 7.5. General Partner will not engage in any business other
than the ownership of Genesis Energy, L.P. and Borrower.
Section 7.8. Limitation on Credit Extensions. Except for Permitted
Investments and Hedging Contracts permitted under Section 7.3(b) hereof, no
Restricted Person 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 Restricted Person 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.
Section 7.9. Transactions with Affiliates. No Restricted Person 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 Restricted Person on terms which are no
less favorable to such Restricted Person than those which would have been
obtainable at the time in arm's-length transactions with Persons other than such
Affiliates.
Section 7.10. Prohibited Contracts. Except as expressly provided for in
the Loan Documents and as described in the Disclosure Schedule, no Restricted
Person will, directly or indirectly, enter into, create, or otherwise allow to
exist any contract 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 Restricted Person will, directly or
indirectly, enter into, create, or otherwise allow to exist any contract or
other consensual restriction on the ability of any Restricted Person to create
Liens on any of its assets or property to secure the Obligations. No Restricted
Person 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
Restricted Person will amend or permit any amendment to any contract 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.
Section 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 2.1 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.
Section 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 7.6 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 6.2(a) or (b) are available to Borrower shall not exceed 3.0 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 Restricted Person shall have made any asset disposition or acquisition,
shall have consolidated or merged with or into any Person (other than another
Restricted Person), or shall have made any disposition or acquisition of a
Restricted Person, 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 the chief financial 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 Majority Lenders.
Section 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.
Section 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.
Section 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.
Section 7.16. Open Position; Certain Permitted Financial Instruments;
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NYMEX Transactions.
------------------
(a)......Open Position. No Restricted Person 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 Majority
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 Restricted Person
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 Restricted Person 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 Rating Agency, or (B) is a Lender or an
Affiliate of a Lender, or (C) is listed in the Disclosure Schedule.
(c)......NYMEX Transactions. No Restricted Person 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."
Section 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 2.6 resulting from such reduced
Borrowing Base.
Section 7.18. Deposit Accounts. No Restricted Person shall at any time
maintain any Deposit Account at any Bank (as such terms are defined in Article 9
of the UCC) 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
Section 8.1. Events of Default. Each of the following events
-----------------
constitutes an Event of Default under this Agreement:
(a)......Any Restricted Person 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 Restricted Person 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 Restricted Person fails to duly observe, perform or comply
with any covenant, agreement or provision of Section 6.4 or Article VII;
(e)......Any Restricted Person 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 Restricted Person 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 5.5 for
any reason other than its release or subordination by Administrative Agent;
(g)......Any Restricted Person 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 Restricted
Person 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
ERISA Plan, whether or not waived by the Secretary of the Treasury or his
delegate, or (ii) any Termination Event occurs with respect to any ERISA Plan
and the amount of unfunded benefit liabilities as defined in Section 4001(a)(18)
of ERISA of such ERISA Plan exceeds $250,000 (or in the case of a Termination
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 Restricted Person:
(i) has entered against it of a judgment, decree or order for
relief by a Tribunal of competent jurisdiction in an involuntary
proceeding commenced under any applicable bankruptcy, insolvency or
other similar Law of any jurisdiction now or hereafter in effect,
including the federal Bankruptcy Code, as from time to time amended, or
has any such proceeding commenced against it, in each case, which
remains undismissed for a period of sixty days; or
(ii) commences a voluntary case under any applicable
bankruptcy, insolvency or similar Law now or hereafter in effect,
including the federal Bankruptcy Code, as from time to time amended; or
applies for or consents to the entry of an order for relief in an
involuntary case under any such Law; or makes a general assignment for
the benefit of creditors; or is generally unable to pay (or admits in
writing its inability to so pay) its debts as such debts become due; or
takes corporate or other action to authorize any of the foregoing; or
(iii) has entered against it the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of all or a substantial part of its
assets in a proceeding brought against or initiated by it, and such
appointment or taking possession is neither made ineffective nor
discharged within sixty days after the making thereof, or such
appointment or taking possession is at any time consented to, requested
by, or acquiesced to by it; or
(iv) has entered against it the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of any part of the Collateral in a
proceeding brought against or initiated by it, and such appointment or
taking possession is neither made ineffective nor discharged within
sixty days after the making thereof, or such appointment or taking
possession is at any time consented to, requested by, or acquiesced to
by it; or
(v) has entered against it a final judgment for the payment of
money in excess of $250,000 (in each case not covered by insurance
satisfactory to Administrative Agent in its discretion), unless the
same is discharged within thirty days after the date of entry thereof
or an appeal or appropriate proceeding for review thereof is taken
within such period and a stay of execution pending such appeal is
obtained; or
(vi) suffers a writ or warrant of attachment or any similar
process to be issued by any Tribunal against all or any substantial
part of its assets or any part of the Collateral, and such writ or
warrant of attachment or any similar process is not stayed or released
within thirty days after the entry or levy thereof or after any stay is
vacated or set aside;
(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 in 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 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 Restricted Person 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 LC
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 Majority
Lenders, Administrative Agent shall), without notice to Borrower or any other
Restricted Person, do either or both of the following: (1) terminate any
obligation of Lenders to make Loans hereunder and any obligation of LC 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 Restricted Person who at any time ratifies or approves this Agreement.
Section 8.2. Remedies. If any Default shall occur and be continuing,
each Lender Party may protect and enforce its rights under the Loan Documents by
any appropriate proceedings, including proceedings for specific performance of
any covenant or agreement contained in any Loan Document, and each Lender Party
may enforce the payment of any Obligations due it or enforce any other legal or
equitable right which it may have. All rights, remedies and powers conferred
upon Lender Parties under the Loan Documents shall be deemed cumulative and not
exclusive of any other rights, remedies or powers available under the Loan
Documents or at Law or in equity.
ARTICLE IX - Administrative Agent
Section 9.1. Appointment and Authority. Each Lender Party hereby
irrevocably authorizes Administrative Agent, and Administrative Agent hereby
undertakes, to receive payments of principal, interest and other amounts due
hereunder as specified herein and to take all other actions and to exercise such
powers under the Loan Documents as are specifically delegated to Administrative
Agent by the terms hereof or thereof, together with all other powers reasonably
incidental thereto. The relationship of Administrative Agent to the other Lender
Parties is only that of one commercial lender acting as administrative agent for
others, and nothing in the Loan Documents shall be construed to constitute
Administrative Agent a trustee or other fiduciary for any Lender Party or any
holder of any participation in a Note nor to impose on Administrative Agent
duties and obligations other than those expressly provided for in the Loan
Documents. With respect to any matters not expressly provided for in the Loan
Documents and any matters which the Loan Documents place within the discretion
of Administrative Agent, Administrative Agent shall not be required to exercise
any discretion or take any action, and it may request instructions from Lenders
with respect to any such matter, in which case it shall be required to act or to
refrain from acting (and shall be fully protected and free from liability to all
Lender Parties in so acting or refraining from acting) upon the instructions of
Majority Lenders (including itself), provided, however, that Administrative
Agent shall not be required to take any action which exposes it to a risk of
personal liability that it considers unreasonable or which is contrary to the
Loan Documents or to applicable Law. Upon receipt by Administrative Agent from
Borrower of any communication calling for action on the part of Lenders or upon
notice from Borrower or any Lender to Administrative Agent of any Default or
Event of Default, Administrative Agent shall promptly notify each other Lender
thereof.
Section 9.2. Exculpation, Administrative Agent's Reliance, Etc. Neither
Administrative Agent nor any of its directors, officers, agents, attorneys, or
employees shall be liable for any action taken or omitted to be taken by any of
them under or in connection with the Loan Documents, INCLUDING THEIR NEGLIGENCE
OF ANY KIND, except that each shall be liable for its own gross negligence or
willful misconduct. Without limiting the generality of the foregoing,
Administrative Agent (a) may treat the payee of any Note as the holder thereof
until Administrative Agent receives written notice of the assignment or transfer
thereof in accordance with this Agreement, signed by such payee and in form
satisfactory to Administrative Agent; (b) may consult with legal counsel
(including counsel for Borrower), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (c) makes no warranty or representation to any other
Lender Party and shall not be responsible to any other Lender Party for any
statements, warranties or representations made in or in connection with the Loan
Documents; (d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of the
Loan Documents on the part of any Restricted Person or to inspect the property
(including the books and records) of any Restricted Person; (e) shall not be
responsible to any other Lender Party for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of any Loan Document or any
instrument or document furnished in connection therewith; (f) may rely upon the
representations and warranties of each Restricted Person or Lender Party in
exercising its powers hereunder; and (g) shall incur no liability under or in
respect of the Loan Documents by acting upon any notice, consent, certificate or
other instrument or writing (including any facsimile, telegram, cable or telex)
believed by it to be genuine and signed or sent by the proper Person or Persons.
Section 9.3. Credit Decisions. Each Lender Party acknowledges that it
has, independently and without reliance upon any other Lender Party, made its
own analysis of Borrower and the transactions contemplated hereby and its own
independent decision to enter into this Agreement and the other Loan Documents.
Each Lender Party also acknowledges that it will, independently and without
reliance upon any other Lender Party and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Loan Documents.
Section 9.4. Indemnification. EACH LENDER AGREES TO INDEMNIFY
ADMINISTRATIVE AGENT (TO THE EXTENT NOT REIMBURSED BY BORROWER WITHIN TEN (10)
DAYS AFTER DEMAND) FROM AND AGAINST SUCH LENDER'S PERCENTAGE SHARE OF ANY AND
ALL LIABILITIES, OBLIGATIONS, CLAIMS, LOSSES, DAMAGES, PENALTIES, FINES,
ACTIONS, JUDGMENTS, SUITS, SETTLEMENTS, COSTS, EXPENSES OR DISBURSEMENTS
(INCLUDING REASONABLE FEES OF ATTORNEYS, ACCOUNTANTS, EXPERTS AND ADVISORS) OF
ANY KIND OR NATURE WHATSOEVER (IN THIS SECTION COLLECTIVELY CALLED "LIABILITIES
AND COSTS") WHICH TO ANY EXTENT (IN WHOLE OR IN PART) MAY BE IMPOSED ON,
INCURRED BY, OR ASSERTED AGAINST ADMINISTRATIVE AGENT GROWING OUT OF, RESULTING
FROM OR IN ANY OTHER WAY ASSOCIATED WITH ANY OF THE COLLATERAL, THE LOAN
DOCUMENTS AND THE TRANSACTIONS AND EVENTS (INCLUDING THE ENFORCEMENT THEREOF) AT
ANY TIME ASSOCIATED THEREWITH OR CONTEMPLATED THEREIN (WHETHER ARISING IN
CONTRACT OR IN TORT OR OTHERWISE AND INCLUDING ANY VIOLATION OR NONCOMPLIANCE
WITH ANY ENVIRONMENTAL LAWS BY ANY PERSON OR ANY LIABILITIES OR DUTIES OF ANY
PERSON WITH RESPECT TO HAZARDOUS MATERIALS FOUND IN OR RELEASED INTO THE
ENVIRONMENT).
THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND
COSTS ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM
OR THEORY OF STRICT LIABILITY OR CAUSED, IN WHOLE OR IN PART, BY ANY NEGLIGENT
ACT OR OMISSION OF ANY KIND BY ADMINISTRATIVE AGENT,
provided only that no Lender shall be obligated under this section to indemnify
Administrative Agent for that portion, if any, of any liabilities and costs
which is proximately caused by Administrative Agent's own individual gross
negligence or willful misconduct, as determined in a final judgment. Cumulative
of the foregoing, each Lender agrees to reimburse Administrative Agent promptly
upon demand for such Lender's Percentage Share of any costs and expenses to be
paid to Administrative Agent by Borrower under Section 10.4(a) to the extent
that Administrative Agent is not timely reimbursed for such expenses by Borrower
as provided in such section. As used in this section the term "Administrative
Agent" shall refer not only to the Person designated as such in Section 1.1 but
also to each director, officer, agent, attorney, employee, representative and
Affiliate of such Person.
Section 9.5. Rights as Lender. In its capacity as a Lender,
Administrative Agent shall have the same rights and obligations as any Lender
and may exercise such rights as though it were not Administrative Agent.
Administrative Agent may accept deposits from, lend money to, act as trustee
under indentures of, and generally engage in any kind of business with any
Restricted Person or their Affiliates, all as if it were not Administrative
Agent hereunder and without any duty to account therefor to any other Lender.
Section 9.6. Sharing of Set-Offs and Other Payments. Each Lender Party
agrees that if it shall, whether through the exercise of rights under Security
Documents or rights of banker's lien, set off, or counterclaim against Borrower
or otherwise, obtain payment of a portion of the aggregate Obligations owed to
it which, taking into account all distributions made by Administrative Agent
under Section 3.1, causes such Lender Party to have received more than it would
have received had such payment been received by Administrative Agent and
distributed pursuant to Section 3.1, then (a) it shall be deemed to have
simultaneously purchased and shall be obligated to purchase interests in the
Obligations as necessary to cause all Lender Parties to share all payments as
provided for in Section 3.1, and (b) such other adjustments shall be made from
time to time as shall be equitable to ensure that Administrative Agent and all
Lender Parties share all payments of Obligations as provided in Section 3.1;
provided, however, that nothing herein contained shall in any way affect the
right of any Lender Party to obtain payment (whether by exercise of rights of
banker's lien, set-off or counterclaim or otherwise) of indebtedness other than
the Obligations. Borrower expressly consents to the foregoing arrangements and
agrees that any holder of any such interest or other participation in the
Obligations, whether or not acquired pursuant to the foregoing arrangements, may
to the fullest extent permitted by Law and, subject to the provisions of Section
6.16, exercise any and all rights of banker's lien, set-off, or counterclaim as
fully as if such holder were a holder of the Obligations in the amount of such
interest or other participation. If all or any part of any funds transferred
pursuant to this section is thereafter recovered from the holder of any such
interest or other participation in the Obligations, under this section which
received the same, the purchase provided for in this section shall be deemed to
have been rescinded to the extent of such recovery, together with interest, if
any, if interest is required pursuant to the order of a Tribunal to be paid on
account of the possession of such funds prior to such recovery.
Section 9.7. Investments. Whenever Administrative Agent in good faith
determines that it is uncertain about how to distribute to Lender Parties any
funds which it has received, or whenever Administrative Agent in good faith
determines that there is any dispute among Lender Parties about how such funds
should be distributed, Administrative Agent may choose to defer distribution of
the funds which are the subject of such uncertainty or dispute. If
Administrative Agent in good faith believes that the uncertainty or dispute will
not be promptly resolved, or if Administrative Agent is otherwise required to
invest funds pending distribution to Lender Parties, Administrative Agent shall
invest such funds pending distribution; all interest on any such Investment
shall be distributed upon the distribution of such Investment and in the same
proportion and to the same Persons as such Investment. All moneys received by
Administrative Agent for distribution to Lender Parties (other than to the
Person who is Administrative Agent in its separate capacity as a Lender Party)
shall be held by Administrative Agent pending such distribution solely as
Administrative Agent for such Lender Parties, and Administrative Agent shall
have no equitable title to any portion thereof.
Section 9.8. Benefit of Article IX. The provisions of this Article are
intended solely for the benefit of Lender Parties, and no Restricted Person
shall be entitled to rely on any such provision or assert any such provision in
a claim or defense against any Lender (other than in relation to the reference
to Section 6.16 contained in Section 9.6 or the right to reasonably approve a
successor Administrative Agent under Section 9.9). Lender Parties may waive or
amend such provisions as they desire without any notice to or consent of
Borrower or any other Restricted Person.
Section 9.9. Resignation. Administrative Agent may resign at any time
by giving written notice thereof to Lenders and Borrower. Each such notice shall
set forth the date of such resignation. Upon any such resignation Majority
Lenders shall have the right to appoint a successor Administrative Agent,
subject to the approval of Borrower, unless a Default has occurred and is
continuing, which approval will not be unreasonably withheld. A successor must
be appointed for any retiring Administrative Agent, and such Administrative
Agent's resignation shall become effective when such successor accepts such
appointment. If, within thirty days after the date of the retiring
Administrative Agent's resignation, no successor Administrative Agent has been
appointed and has accepted such appointment, then the retiring Administrative
Agent may appoint a successor Administrative Agent, which shall be a commercial
bank organized or licensed to conduct a banking or trust business under the Laws
of the United States of America or of any state thereof. Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor Administrative
Agent, the retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement and the other Loan Documents. After any
retiring Administrative Agent's resignation hereunder the provisions of this
Article IX shall continue to inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under the Loan
Documents.
ARTICLE X - Miscellaneous
Section 10.1. Waivers and Amendments; Acknowledgments.
---------------------------------------
(a)......Waivers and Amendments. No failure or delay (whether by course
of conduct or otherwise) by any Lender in exercising any right, power or remedy
which such Lender Party may have under any of the Loan Documents shall operate
as a waiver thereof or of any other right, power or remedy, nor shall any single
or partial exercise by any Lender Party of any such right, power or remedy
preclude any other or further exercise thereof or of any other right, power or
remedy. No waiver of any provision of any Loan Document and no consent to any
departure therefrom shall ever be effective unless it is in writing and signed
as provided below in this section, and then such waiver or consent shall be
effective only in the specific instances and for the purposes for which given
and to the extent specified in such writing. No notice to or demand on any
Restricted Person shall in any case of itself entitle any Restricted Person to
any other or further notice or demand in similar or other circumstances. This
Agreement and the other Loan Documents set forth the entire understanding
between the parties hereto with respect to the transactions contemplated herein
and therein and supersede all prior discussions and understandings with respect
to the subject matter hereof and thereof, and no waiver, consent, release,
modification or amendment of or supplement to this Agreement or the other Loan
Documents shall be valid or effective against any party hereto unless the same
is in writing and signed by (i) if such party is Borrower, by Borrower, (ii) if
such party is Administrative Agent or LC Issuer, by such party, and (iii) if
such party is a Lender, by such Lender or by Administrative Agent on behalf of
Lenders with the written consent of Majority Lenders (which consent has already
been given as to the termination of the Loan Documents as provided in Section
10.9). Notwithstanding the foregoing or anything to the contrary herein,
Administrative Agent shall not, without the prior consent of each individual
Lender, execute and deliver on behalf of such Lender any waiver or amendment
which would: (1) waive any of the conditions specified in Article IV (provided
that Administrative Agent may in its discretion withdraw any request it has made
under Section 4.2(g)), (2) increase the Percentage Share of any such Lender or
increase the Maximum Facility Amount or Maximum Loan Amount or subject such
Lender to any additional obligations, (3) reduce any fees payable to such Lender
hereunder, or the principal of, or interest on, such Lender's Note, (4) change
any date fixed for any payment of any such fees, principal or interest, (5)
amend the definition herein of "Borrowing Base" or any of the terms used in that
definition, (6) amend the definition herein of "Majority Lenders" or otherwise
change the aggregate amount of Percentage Shares which is required for
Administrative Agent, Lenders or any of them to take any particular action under
the Loan Documents, (7) release Borrower from its obligation to pay such
Lender's Note or any Guarantor from its guaranty of such payment, 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, (8) release all or
any substantial portion of the Collateral, except such releases relating to
sales of property permitted under Section 7.5 or (9) permit a Restricted Person
to make an acquisition of or other Investments in any Person other than
Permitted Investments.
(b)......Acknowledgments and Admissions. Borrower hereby represents,
warrants, acknowledges and admits that (i) it has been advised by counsel in the
negotiation, execution and delivery of the Loan Documents to which it is a
party, (ii) it has made an independent decision to enter into this Agreement and
the other Loan Documents to which it is a party, without reliance on any
representation, warranty, covenant or undertaking by Administrative Agent or any
other Lender Party, whether written, oral or implicit, other than as expressly
set out in this Agreement or in another Loan Document delivered on or after the
date hereof, (iii) there are no representations, warranties, covenants,
undertakings or agreements by any Lender Party as to the Loan Documents except
as expressly set out in this Agreement or in another Loan Document delivered on
or after the date hereof, (iv) no Lender Party has any fiduciary obligation
toward Borrower with respect to any Loan Document or the transactions
contemplated thereby, (v) the relationship pursuant to the Loan Documents
between Borrower and the other Restricted Persons, on one hand, and each Lender
Party, on the other hand, is and shall be solely that of debtor and creditor,
respectively, (vi) no partnership or joint venture exists with respect to the
Loan Documents between any Restricted Person and any Lender Party, (vii)
Administrative Agent is not Borrower's Administrative Agent, but Administrative
Agent for Lenders, (viii) should an Event of Default or Default occur or exist,
each Lender Party will determine in its sole discretion and for its own reasons
what remedies and actions it will or will not exercise or take at that time,
(ix) without limiting any of the foregoing, Borrower is not relying upon any
representation or covenant by any Lender Party, or any representative thereof,
and no such representation or covenant has been made, that any Lender Party
will, at the time of an Event of Default or Default, or at any other time,
waive, negotiate, discuss, or take or refrain from taking any action permitted
under the Loan Documents with respect to any such Event of Default or Default or
any other provision of the Loan Documents, and (x) all Lender Parties have
relied upon the truthfulness of the acknowledgments in this section in deciding
to execute and deliver this Agreement and to become obligated hereunder.
(c)......Representation by Lenders. Each Lender hereby represents that
it will acquire its Note for its own account in the ordinary course of its
commercial lending business; however, the disposition of such Lender's property
shall at all times be and remain within its control and, in particular and
without limitation, such Lender may sell or otherwise transfer its Note, any
participation interest or other interest in its Note, or any of its other rights
and obligations under the Loan Documents subject to compliance with Sections
10.5(b) through (g), inclusive, and applicable Law.
(d)......Joint Acknowledgment. THIS WRITTEN AGREEMENT AND THE OTHER
LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN 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 BETWEEN THE PARTIES.
Section 10.2. Survival of Agreements; Cumulative Nature. All of
Restricted Persons' various representations, warranties, covenants and
agreements in the Loan Documents shall survive the execution and delivery of
this Agreement and the other Loan Documents and the performance hereof and
thereof, including the making or granting of the Loans and the delivery of the
Notes and the other Loan Documents, and shall further survive until all of the
Obligations are paid in full to each Lender Party and all of Lender Parties'
obligations to Borrower are terminated. All statements and agreements contained
in any certificate or other instrument delivered by any Restricted Person to any
Lender Party under any Loan Document shall be deemed representations and
warranties by Borrower or agreements and covenants of Borrower under this
Agreement. The representations, warranties, indemnities, and covenants made by
Restricted Persons in the Loan Documents, and the rights, powers, and privileges
granted to Lender Parties in the Loan Documents, are cumulative, and, except for
expressly specified waivers and consents, no Loan Document shall be construed in
the context of another to diminish, nullify, or otherwise reduce the benefit to
any Lender Party of any such representation, warranty, indemnity, covenant,
right, power or privilege. In particular and without limitation, no exception
set out in this Agreement to any representation, warranty, indemnity, or
covenant herein contained shall apply to any similar representation, warranty,
indemnity, or covenant contained in any other Loan Document, and each such
similar representation, warranty, indemnity, or covenant shall be subject only
to those exceptions which are expressly made applicable to it by the terms of
the various Loan Documents.
Section 10.3. Notices. All notices, requests, consents, demands and
other communications required or permitted under any Loan Document shall be in
writing, unless otherwise specifically provided in such Loan Document (provided
that Administrative Agent may give telephonic notices to the other Lender
Parties), and shall be deemed sufficiently given or furnished if delivered by
personal delivery, by facsimile or other electronic transmission, by delivery
service with proof of delivery, or by registered or certified United States
mail, postage prepaid, to Borrower and Restricted Persons at the address of
Borrower specified on the signature pages hereto and to each Lender Party at its
address specified on the signature pages hereto (unless changed by similar
notice in writing given by the particular Person whose address is to be
changed). Any such notice or communication shall be deemed to have been given
(a) in the case of personal delivery or delivery service, as of the date of
first attempted delivery during normal business hours at the address provided
herein, (b) in the case of facsimile or other electronic transmission, upon
receipt, or (c) in the case of registered or certified United States mail, three
days after deposit in the mail; provided, however, that no Borrowing Notice or
Continuation/Conversion Notice shall become effective until actually received by
Administrative Agent.
Section 10.4. Payment of Expenses; Indemnity.
------------------------------
(a)......Payment of Expenses. Whether or not the transactions
contemplated by this Agreement are consummated, Borrower will promptly (and in
any event, within 30 days after any invoice or other statement or notice) pay:
(i) all transfer, stamp, mortgage, documentary or other similar taxes,
assessments or charges levied by any governmental or revenue authority in
respect of this Agreement or any of the other Loan Documents or any other
document referred to herein or therein, (ii) all reasonable costs and expenses
incurred by or on behalf of Administrative Agent (including attorneys' fees,
consultants' fees and engineering fees, travel costs and miscellaneous expenses)
in connection with (1) the negotiation, preparation, execution and delivery of
the Loan Documents, and any and all consents, waivers or other documents or
instruments relating thereto, (2) the filing, recording, refiling and
re-recording of any Loan Documents and any other documents or instruments or
further assurances required to be filed or recorded or refiled or re-recorded by
the terms of any Loan Document, (3) the borrowings hereunder and other action
reasonably required in the course of administration hereof, (4) monitoring or
confirming (or preparation or negotiation of any document related to) any
Restricted Person's compliance with any covenants or conditions contained in
this Agreement or in any Loan Document, and (iii) all reasonable costs and
expenses incurred by or on behalf of any Lender Party (including attorneys'
fees, consultants' fees and accounting fees) in connection with the defense or
enforcement of any of the Loan Documents (including this section), any attempt
to cure any breach thereunder by any Restricted Person or the defense of any
Lender Party's exercise of its rights thereunder. In addition to the foregoing,
until all Obligations have been paid in full, Borrower will also pay or
reimburse Administrative Agent for all reasonable out-of-pocket costs and
expenses of Administrative Agent or its agents or employees in connection with
the continuing administration of the Loans and the related due diligence of
Administrative Agent, including travel and miscellaneous expenses and fees and
expenses of Administrative Agent's outside counsel, reserve engineers and
consultants engaged in connection with the Loan Documents.
(b)......Indemnity. Borrower agrees to indemnify each Lender Party,
upon demand, from and against any and all liabilities, obligations, claims,
losses, damages, penalties, fines, actions, judgments, suits, settlements,
costs, expenses or disbursements (including reasonable fees of attorneys,
accountants, experts and advisors) of any kind or nature whatsoever (in this
section collectively called "liabilities and costs") which to any extent (in
whole or in part) may be imposed on, incurred by, or asserted against such
Lender Party growing out of, resulting from or in any other way associated with
any of the Collateral, the Loan Documents and the transactions and events
(including the enforcement or defense thereof) at any time associated therewith
or contemplated therein whether arising in contract or in tort or otherwise and
including any violation or noncompliance with any Environmental Laws by any
Lender Party or any other Person or any liabilities or duties of any Lender
Party or any other Person with respect to Hazardous Materials found in or
released into the environment).
THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND
COSTS ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM
OR THEORY OF STRICT LIABILITY OR CAUSED, IN WHOLE OR IN PART, BY ANY NEGLIGENT
ACT OR OMISSION OF ANY KIND BY ANY LENDER PARTY,
provided only that no Lender Party shall be entitled under this section to
receive indemnification for that portion, if any, of any liabilities and costs
which is proximately caused by its own individual gross negligence or willful
misconduct, as determined in a final judgment. If any Person (including Borrower
or any of its Affiliates) ever alleges such gross negligence or willful
misconduct by any Lender Party, the indemnification provided for in this section
shall nonetheless be paid upon demand, subject to later adjustment or
reimbursement, until such time as a court of competent jurisdiction enters a
final judgment as to the extent and effect of the alleged gross negligence or
willful misconduct. As used in this section the term "Lender Party" shall refer
not only to each Person designated as such in Section 1.1 but also to each
director, officer, agent, attorney, employee, representative and Affiliate of
such Persons.
Section 10.5. Joint and Several Liability; Parties in Interest;
-------------------------------------------------
Assignments; Replacement Notes.
------------------------------
(a)......All Obligations which are incurred by two or more Restricted
Persons shall be their joint and several obligations and liabilities. All
grants, covenants and agreements contained in the Loan Documents shall bind and
inure to the benefit of the parties thereto and their respective successors and
permitted assigns; provided, however, that no Restricted Person may assign or
transfer any of its rights or delegate any of its duties or obligations under
any Loan Document without the prior consent of all Lenders. Neither Borrower nor
any Affiliates of Borrower shall directly or indirectly purchase or otherwise
retire any Obligations owed to any Lender nor will any Lender accept any offer
to do so, unless each Lender shall have received substantially the same offer
with respect to the same Percentage Share of the Obligations owed to it. If
Borrower or any Affiliate of Borrower at any time purchases some but less than
all of the Obligations owed to all Lender Parties, such purchaser shall not be
entitled to any rights of any Lender under the Loan Documents unless and until
Borrower or its Affiliates have purchased all of the Obligations.
(b)......No Lender shall sell any participation interest in its
commitment hereunder or any of its rights under its Loans or under the Loan
Documents to any Person unless the agreement between such Lender and such
participant at all times provides: (i) that such participation exists only as a
result of the agreement between such participant and such Lender and that such
transfer does not give such participant any right to vote as a Lender or any
other direct claims or rights against any Person other than such Lender, (ii)
that such participant is not entitled to payment from any Restricted Person
under Sections 3.2 through 3.7 of amounts in excess of those payable to such
Lender under such sections (determined without regard to the sale of such
participation), and (iii) unless such participant is an Affiliate of such
Lender, that such participant shall not be entitled to require such Lender to
take any action under any Loan Document or to obtain the consent of such
participant prior to taking any action under any Loan Document, except for
actions which would require the consent of all Lenders under subsection (a) of
Section 10.1. No Lender selling such a participation shall, as between the other
parties hereto and such Lender, be relieved of any of its obligations hereunder
as a result of the sale of such participation. Each Lender which sells any such
participation to any Person (other than an Affiliate of such Lender) shall give
prompt notice thereof to Administrative Agent and Borrower; provided, however,
that no liability shall arise if any Lender fails to give such notice to
Borrower.
(c)......Except for sales of participations under the immediately
preceding subsection, no Lender shall make any assignment or transfer of any
kind of its commitments or any of its rights under its Loans or under the Loan
Documents, except for assignments to an Eligible Transferee, or, subject to the
provisions of subsection (g) below, to an Affiliate and then only if such
assignment is made in accordance with the following requirements:
(i) Each such assignment shall apply to all Obligations owing
to the assignor Lender hereunder and to the unused portion of the
assignor Lender's commitments, so that after such assignment is made
the assignor Lender shall have a fixed (and not a varying) Percentage
Share in its Loans and Note and be committed to make that Percentage
Share of all future Loans, the assignee shall have a fixed Percentage
Share in such Loans and Note and be committed to make that Percentage
Share of all future Loans, and the Percentage Share of the Maximum Loan
Amount of each of the assignor and assignee shall equal or exceed
$10,000,000.
(ii) The parties to each such assignment shall execute and
deliver to Administrative Agent, for its acceptance and recording in
the "Register" (as defined below in this section), an Assignment and
Acceptance in the form of Exhibit J, appropriately completed, together
with the Note subject to such assignment and a processing fee payable
by such assignor Lender (and not at Borrower's expense) to
Administrative Agent of $3,500. Upon such execution, delivery, and
payment and upon the satisfaction of the conditions set out in such
Assignment and Acceptance, then (i) Borrower shall issue new Notes to
such assignor and assignee upon return of the old Notes to Borrower,
and (ii) as of the "Settlement Date" specified in such Assignment and
Acceptance the assignee thereunder shall be a party hereto and a Lender
hereunder and Administrative Agent shall thereupon deliver to Borrower
and each Lender a revised Schedule 1 hereto showing the revised
Percentage Shares of such assignor Lender and such assignee Lender and
the Percentage Shares of all other Lenders.
(iii) Each assignee Lender organized under the laws of a
jurisdiction outside of the United States shall (to the extent it has
not already done so) provide Administrative Agent and Borrower with the
"Prescribed Forms" referred to in Section 3.7(d).
(d)......Any Lender may at any time pledge all or any portion of its
Loan and Note (and related rights under the Loan Documents including any portion
of its Note) to any of the twelve (12) Federal Reserve Banks organized under
Section 4 of the Federal Reserve Act, 12 U.S.C. Section 341. No such pledge or
enforcement thereof shall release any such Lender from its obligations under any
of the Loan Documents; provided that all related costs, fees and expenses in
connection with any such pledge shall be for the sole account of such Lender.
(e)......By executing and delivering an Assignment and Acceptance, each
assignee Lender thereunder will be confirming to and agreeing with Borrower,
Administrative Agent and each other Lender Party that such assignee understands
and agrees to the terms hereof, including Article IX hereof.
(f)......Administrative Agent shall maintain a copy of each Assignment
and Acceptance and a register for the recordation of the names and addresses of
Lenders and the Percentage Shares of, and principal amount of the Loans owing
to, each Lender from time to time (in this section called the "Register"). The
entries in the Register shall be conclusive, in the absence of manifest error,
and Borrower and each Lender Party may treat each Person whose name is recorded
in the Register as a Lender Party hereunder for all purposes. The Register shall
be available for inspection by Borrower or any Lender Party at any reasonable
time and from time to time upon reasonable prior notice.
(g)......Any Lender may assign or transfer its commitment or its rights
under its Loans or under the Loan Documents to (i) any Affiliate that is
wholly-owned direct or indirect subsidiary of such Lender or of any Person that
wholly owns, directly or indirectly, such Lender, or (ii) if such Lender is a
fund that invests in bank loans, any other fund that invests in bank loans and
is advised or managed by (A) the same investment advisor as any Lender or (B)
any Affiliate of such investment advisor that is a wholly-owned direct or
indirect subsidiary of any Person that wholly owns, directly or indirectly, such
investment advisor, subject to the following additional conditions:
(x) any right of such Lender assignor and such assignee to vote as a
Lender, or any other direct claims or rights against any other Persons,
shall be uniformly exercised or pursued in the manner that such Lender
assignor would have so exercised such vote, claim or right if it had
not made such assignment or transfer;
(y) such assignee shall not be entitled to payment from any Restricted
Person under Sections 3.2 through 3.7 of amounts in excess of those
payable to such Lender assignor under such sections (determined without
regard to such assignment or transfer); and
(z) if such Lender assignor assigns or transfers to such assignee any
of such Lender's commitment, such assignee may become primarily liable
for such commitment, but such assignment or transfer shall not relieve
or release such Lender from such commitment.
(h)......Upon receipt of an affidavit reasonably satisfactory to
Borrower of an officer of any Lender as to the loss, theft, destruction or
mutilation of its Note or any Security Document which is not of public record,
and, in the case of any such loss, theft, destruction or mutilation, upon
cancellation of such Note or such Security Document, Borrower will execute and
deliver, in lieu thereof, a replacement Note in the same principal amount
thereof and otherwise of like tenor (or each Restricted Person a party to any
such Security Document will execute and deliver a replacement Security Document
of like tenor).
Section 10.6. Confidentiality. Each Lender Party agrees (on behalf of
itself and each of its Affiliates, and each of its and their directors,
officers, agents, attorneys, employees, and representatives) that it (and each
of them) will take all reasonable steps to keep confidential any non-public
information supplied to it by or at the direction of any Restricted Person so
identified when delivered, provided, however, that this restriction shall not
apply to (a) information which has at the time in question entered the public
domain, (b) information which is required to be disclosed by Law (whether valid
or invalid) of any Tribunal, (c) any disclosure to any Lender Party's
Affiliates, auditors, attorneys, or agents, (d) any disclosure to any other
Lender Party or to any purchaser or prospective purchaser of participations or
other interests in any Loan or Loan Document (provided each such Person first
agrees to hold such information in confidence on the terms provided in this
section), or (e) any disclosure in the course of enforcing its rights and
remedies during the existence of an Event of Default.
Section 10.7. Governing Law; Submission to Process. EXCEPT TO THE
EXTENT THAT THE LAW OF ANOTHER JURISDICTION IS EXPRESSLY ELECTED IN A LOAN
DOCUMENT, THE LOAN DOCUMENTS SHALL BE DEEMED CONTRACTS AND INSTRUMENTS MADE
UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK AND THE LAWS
OF THE UNITED STATES OF AMERICA, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW. BORROWER HEREBY AGREES THAT ANY LEGAL ACTION OR PROCEEDING AGAINST BORROWER
WITH RESPECT TO THIS AGREEMENT, THE NOTES OR ANY OF THE LOAN DOCUMENTS MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AS LENDER PARTIES MAY ELECT, AND,
BY EXECUTION AND DELIVERY HEREOF, BORROWER ACCEPTS AND CONSENTS FOR ITSELF AND
IN RESPECT TO ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS. BORROWER AGREES THAT SECTIONS 5-1401 AND
5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK SHALL APPLY TO
THE LOAN DOCUMENTS AND WAIVES ANY RIGHT TO STAY OR TO DISMISS ANY ACTION OR
PROCEEDING BROUGHT BEFORE SAID COURTS ON THE BASIS OF FORUM NON CONVENIENS. IN
FURTHERANCE OF THE FOREGOING, BORROWER HEREBY IRREVOCABLY DESIGNATES AND
APPOINTS CORPORATION SERVICE COMPANY, 80 STATE STREET, ALBANY, NEW YORK 12207,
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 AGENT THE WRITTEN CONSENT (IN FORM
AND SUBSTANCE SATISFACTORY TO ADMINISTRATIVE AGENT) OF SUCH NEW AGENT AGREEING
TO SERVE IN SUCH CAPACITY.
Section 10.8. Limitation on Interest. Lender Parties, Restricted
Persons and any other parties to the Loan Documents intend to contract in strict
compliance with applicable usury Law from time to time in effect. In furtherance
thereof such Persons stipulate and agree that none of the terms and provisions
contained in the Loan Documents shall ever be construed to create a contract to
pay, for the use, forbearance or detention of money, interest in excess of the
maximum amount of interest permitted to be contracted for, charged, or received
by applicable Law from time to time in effect. Neither any Restricted Person nor
any present or future guarantors, endorsers, or other Persons hereafter becoming
liable for payment of any Obligation shall ever be liable for unearned interest
thereon or shall ever be required to pay interest thereon in excess of the
maximum amount that may be lawfully contracted for, charged, or received under
applicable Law from time to time in effect, and the provisions of this section
shall control over all other provisions of the Loan Documents which may be in
conflict or apparent conflict herewith. Lender Parties expressly disavow any
intention to contract for, charge, or receive excessive unearned interest or
finance charges in the event the maturity of any Obligation is accelerated. If
(a) the maturity of any Obligation is accelerated for any reason, (b) any
Obligation is prepaid and as a result any amounts held to constitute interest
are determined to be in excess of the legal maximum, or (c) any Lender or any
other holder of any or all of the Obligations shall otherwise collect moneys
which are determined to constitute interest which would otherwise increase the
interest on any or all of the Obligations to an amount in excess of that
permitted to be contracted for, charged or received by applicable Law then in
effect, then all sums determined to constitute interest in excess of such legal
limit shall, without penalty, be promptly applied to reduce the then outstanding
principal of the related Obligations or, at such Lender's or holder's option,
promptly returned to Borrower or other payor thereof upon such determination. In
determining whether or not the interest paid or payable, under any specific
circumstance, exceeds the maximum amount permitted under applicable Law, Lender
Parties and Restricted Persons (and any other payors thereof) shall to the
greatest extent permitted under applicable Law, (i) characterize any
non-principal payment as an expense, fee or premium rather than as interest,
(ii) exclude voluntary prepayments and the effects thereof, and (iii) amortize,
prorate, allocate, and spread the total amount of interest throughout the entire
contemplated term of the instruments evidencing the Obligations in accordance
with the amounts outstanding from time to time thereunder and the maximum legal
rate of interest from time to time in effect under applicable Law in order to
lawfully charge the maximum amount of interest permitted under applicable Law.
Section 10.9. Termination; Limited Survival. In its sole and absolute
discretion Borrower may at any time that no Obligations are owing or outstanding
elect in a written notice delivered to Administrative Agent to terminate this
Agreement. Upon receipt by Administrative Agent of such a notice, if no
Obligations are then owing or outstanding this Agreement and all other Loan
Documents shall thereupon be terminated and the parties thereto released from
all prospective obligations thereunder. Notwithstanding the foregoing or
anything herein to the contrary, any waivers or admissions made by any
Restricted Person in any Loan Document, any Obligations under Sections 3.2
through 3.7, and any obligations which any Person may have to indemnify or
compensate any Lender Party shall survive any termination of this Agreement or
any other Loan Document. At the request and expense of Borrower, Administrative
Agent shall prepare and execute all necessary instruments to reflect and effect
such termination of the Loan Documents. Administrative Agent is hereby
authorized to execute all such instruments on behalf of all Lenders, without the
joinder of or further action by any Lender.
Section 10.10. Severability. If any term or provision of any Loan
Document shall be determined to be illegal or unenforceable all other terms and
provisions of the Loan Documents shall nevertheless remain effective and shall
be enforced to the fullest extent permitted by applicable Law.
Section 10.11. Counterparts. This Agreement may be separately executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to constitute one
and the same Agreement.
Section 10.12. Waiver of Jury Trial, Punitive Damages, etc. RESTRICTED
PERSONS AND LENDER PARTIES MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY, AND
INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED
HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH OR ANY COURSE
OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF ANY PARTY. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR LENDERS
TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND MAKE THE LOANS.
BORROWER AND EACH LENDER PARTY HEREBY FURTHER (A) IRREVOCABLY WAIVES, 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) CERTIFIES
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)
ACKNOWLEDGES 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.
Section 10.13. Restatement of Existing Credit Agreement. Effective as
of the Closing Date, the Existing Credit Agreement, all Loan Documents and
Security Documents (as such terms are defined therein), and all Liens and
security interests created thereunder have been assigned to Administrative
Agent, for the benefit of the Lenders pursuant to a certain Assignment of Note,
Mortgage and Liens in the form set forth as Exhibit L, save and except certain
Reserved Obligations specified therein. Accordingly, this Agreement amends and
restates the Existing Credit Agreement in its entirety, effective as of the
Closing Date. The loans and all other obligations outstanding under the Existing
Credit Agreement, except such Reserved Obligations, shall be deemed to be
outstanding Loans and Obligations under and governed by this Agreement,
effective as of the Closing Date. Borrower hereby acknowledges, warrants,
represents and agrees that this Agreement is not intended to be, and shall not
be deemed or construed to be, a novation or release of the Existing Credit
Agreement. Borrower, Administrative Agent and Lenders hereby acknowledge and
agree that (i) the Notes will amend and restate the Notes outstanding under the
Existing Credit Agreement and (ii) the initial Loans by each Lender on the
Closing Date shall, to the extent of the Loans outstanding under the Existing
Credit Agreement, be funded under such Assignment of Note, Mortgage and Liens.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, this Agreement is executed as of the date first
written above.
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
c:
y:
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 10008A
Telephone: (617) 434-9061
Fax: (617) 434-3652
FLEET SECURITIES, INC.,
Arranger and Book Manager
By: /s/ Richard Makin
-----------------
Richard Makin, Managing Director
GUARANTY BANK
a Lender
By: /s/ Jim R. Hamilton
-------------------
Name: Jim R. Hamilton
Title: Senior Vice President
Address:
1100 NE Loop 410
San Antonio, TX 78209
Attention: Jim Hamilton
Telephone: (210) 930-2926
Fax: (210) 930-1783
CITICORP NORTH AMERICA, INC.,
LC Issuer and a Lender
By: /s/ John Dorans
---------------
Name: John Dorans
Title: Vice President
Address:
1200 Smith Street, Suite 2000
Houston, Texas 77002
Attention: Brian Smith
Telephone: (713) 654-2911
Telecopy: (713) 654-2849
SIEMENS FINANCIAL SERVICES, INC.,
a Lender
By: /s/ Frank Amodio
----------------
Name: Frank Amodio
Title: Vice President-Credit
Address:
200 Somerset Corporate Boulevard
Bridgewater, New Jersey 08807-2843
Attention: Victor Alarcon
Telephone: (908) 575-4074
Telecopy: (908) 575-4060
U.S. BANK NATIONAL ASSOCIATION, a Lender
By: /s/ Monte E. Deckerd
--------------------
Name: Monte E. Deckerd
Title: Vice President
Address:
918 17th Street
DNCOBB3E
Denver, Colorado 80202
Attention: Monte E. Deckerd
Telephone: (303) 585-4212
Telecopy: (303) 585-4362