Exhibit
10.2


EXECUTION COPY


$225,000,000


AMENDED AND RESTATED
SENIOR SECURED CREDIT FACILITY


Dated as of December 22,
2006


among


TRANSMONTAIGNE OPERATING
COMPANY L.P.,


as Borrower,


EACH OF THE FINANCIAL
INSTITUTIONS

INITIALLY A SIGNATORY HERETO,

TOGETHER WITH THOSE ASSIGNEES

PURSUANT HERETO,


as Lenders,


BANK OF AMERICA, N.A. and
JPMORGAN CHASE BANK, N.A., as Syndication Agents,


BNP PARIBAS AND SOCIÉTÉ
GÉNÉRALE, as the Documentation Agents


and


WACHOVIA BANK, NATIONAL
ASSOCIATION,




as Administrative
Agent





WACHOVIA CAPITAL MARKETS, LLC,

As Sole Lead Arranger, Manager and Book Runner


 
















 


TABLE OF CONTENTS


	
  ARTICLE I

  	
   

  	
  DEFINITIONS

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.1

  	
   

  	
  General Definitions

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  a.

  	
   

  	
  Accounting Terms and Determinations

  	
   

  	
  32

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  b.

  	
   

  	
  Other Definitional Terms

  	
   

  	
  32

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
   

  	
  LOANS

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1

  	
   

  	
  Revolving Loans, Swing Loans, and Term Loans

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.2

  	
   

  	
  Optional and Mandatory Prepayments; Reduction or
  Increase of Committed Amount

  	
   

  	
  38

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.3

  	
   

  	
  Payments and Computations

  	
   

  	
  42

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.4

  	
   

  	
  Maintenance of Account

  	
   

  	
  43

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.5

  	
   

  	
  Statement of Account

  	
   

  	
  44

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.6

  	
   

  	
  Taxes

  	
   

  	
  44

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.7

  	
   

  	
  Sharing of Payments

  	
   

  	
  46

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.8

  	
   

  	
  Allocation of Payments; Pro Rata Treatment

  	
   

  	
  47

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.9

  	
   

  	
  Extensions and Conversions

  	
   

  	
  49

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.10

  	
   

  	
  Replacement of Lender

  	
   

  	
  50

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  	
  LETTERS OF CREDIT

  	
   

  	
  51

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.1

  	
   

  	
  Issuance

  	
   

  	
  51

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.2

  	
   

  	
  Notice and Reports

  	
   

  	
  51

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.3

  	
   

  	
  Participation

  	
   

  	
  51

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.4

  	
   

  	
  Reimbursement

  	
   

  	
  52

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.5

  	
   

  	
  Repayment with Revolving Loans

  	
   

  	
  53

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.6

  	
   

  	
  Renewal, Extension

  	
   

  	
  54

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.7

  	
   

  	
  Uniform Customs and Practices

  	
   

  	
  54

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.8

  	
   

  	
  Indemnification; Nature of Issuing Bank’s Duties

  	
   

  	
  54

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.9

  	
   

  	
  Responsibility of Issuing Bank

  	
   

  	
  55

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.10

  	
   

  	
  Conflict with Letter of Credit Documents

  	
   

  	
  55

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
   

  	
  INTEREST AND FEES

  	
   

  	
  55

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.1

  	
   

  	
  Interest on Loans

  	
   

  	
  55

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.2

  	
   

  	
  Interest After Event of Default

  	
   

  	
  56

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.3

  	
   

  	
  Commitment Fee

  	
   

  	
  56

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.4

  	
   

  	
  Lenders’ Fees/Agent’s Fees

  	
   

  	
  56

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.5

  	
   

  	
  Letter of Credit Fees

  	
   

  	
  56

  



 









 



 


	
  4.6

  	
   

  	
  Authorization to Charge Account

  	
   

  	
  57

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.7

  	
   

  	
  Indemnification in Certain Events

  	
   

  	
  57

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.8

  	
   

  	
  Inability To Determine Interest Rate

  	
   

  	
  58

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.9

  	
   

  	
  Illegality

  	
   

  	
  58

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.10

  	
   

  	
  Funding Indemnity

  	
   

  	
  58

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
   

  	
  CONDITIONS PRECEDENT

  	
   

  	
  59

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.1

  	
   

  	
  Closing Conditions

  	
   

  	
  59

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.2

  	
   

  	
  Conditions to Initial Loans and Letters of Credit

  	
   

  	
  62

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.3

  	
   

  	
  Conditions to all Loans and Letters of Credit

  	
   

  	
  65

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
   

  	
  REPRESENTATIONS AND WARRANTIES

  	
   

  	
  66

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.1

  	
   

  	
  Organization and Qualification

  	
   

  	
  66

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.2

  	
   

  	
  Solvency

  	
   

  	
  66

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.3

  	
   

  	
  Liens

  	
   

  	
  66

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.4

  	
   

  	
  No Conflict

  	
   

  	
  67

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.5

  	
   

  	
  Enforceability

  	
   

  	
  67

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.6

  	
   

  	
  Financial Data; Material Adverse Change

  	
   

  	
  68

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.7

  	
   

  	
  Locations of Offices and Records

  	
   

  	
  68

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.8

  	
   

  	
  Fictitious Business Names

  	
   

  	
  68

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.9

  	
   

  	
  Subsidiaries

  	
   

  	
  69

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.10

  	
   

  	
  No Judgments or Litigation

  	
   

  	
  69

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.11

  	
   

  	
  No Defaults

  	
   

  	
  69

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.12

  	
   

  	
  No Employee Disputes

  	
   

  	
  69

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.13

  	
   

  	
  Compliance with Law

  	
   

  	
  69

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.14

  	
   

  	
  ERISA

  	
   

  	
  70

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.15

  	
   

  	
  Compliance with Environmental Laws

  	
   

  	
  70

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.16

  	
   

  	
  Use of Proceeds

  	
   

  	
  71

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.17

  	
   

  	
  Intellectual Property

  	
   

  	
  71

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.18

  	
   

  	
  Licenses and Permits

  	
   

  	
  72

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.19

  	
   

  	
  Title to Property

  	
   

  	
  72

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.20

  	
   

  	
  Labor Matters

  	
   

  	
  73

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.21

  	
   

  	
  Investment Company, Etc.

  	
   

  	
  73

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.22

  	
   

  	
  Margin Security

  	
   

  	
  73

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.23

  	
   

  	
  No Event of Default

  	
   

  	
  74

  



 



 2
 






 



 


	
  6.24

  	
   

  	
  Taxes and Tax Returns

  	
   

  	
  74

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.25

  	
   

  	
  No Other Indebtedness

  	
   

  	
  74

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.26

  	
   

  	
  Status of Accounts

  	
   

  	
  74

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.27

  	
   

  	
  Material Contracts

  	
   

  	
  74

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.28

  	
   

  	
  Survival of Representations

  	
   

  	
  75

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.29

  	
   

  	
  Affiliate Transactions

  	
   

  	
  75

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.30

  	
   

  	
  Accuracy and Completeness of Information

  	
   

  	
  75

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.31

  	
   

  	
  Anti-Terrorism Laws

  	
   

  	
  75

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.32

  	
   

  	
  Deposit Accounts and Commodities Accounts

  	
   

  	
  76

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.33

  	
   

  	
  Force Majeure

  	
   

  	
  76

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
   

  	
  AFFIRMATIVE COVENANTS

  	
   

  	
  76

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.1

  	
   

  	
  Financial Information

  	
   

  	
  76

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.2

  	
   

  	
  Corporate Existence

  	
   

  	
  78

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.3

  	
   

  	
  ERISA

  	
   

  	
  78

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.4

  	
   

  	
  Proceedings or Adverse Changes

  	
   

  	
  79

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.5

  	
   

  	
  Environmental Matters

  	
   

  	
  80

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.6

  	
   

  	
  Books and Records; Inspection

  	
   

  	
  80

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.7

  	
   

  	
  Collateral Records

  	
   

  	
  81

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.8

  	
   

  	
  Security Interests

  	
   

  	
  81

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.9

  	
   

  	
  Insurance; Casualty Loss

  	
   

  	
  82

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.10

  	
   

  	
  Taxes

  	
   

  	
  83

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.11

  	
   

  	
  Compliance With Laws

  	
   

  	
  83

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.12

  	
   

  	
  Use of Proceeds

  	
   

  	
  83

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.13

  	
   

  	
  Fiscal Year; Accounting Policies

  	
   

  	
  84

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.14

  	
   

  	
  Notification of Certain Events

  	
   

  	
  84

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.15

  	
   

  	
  Additional Full Recourse Guarantors

  	
   

  	
  84

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.16

  	
   

  	
  Revisions or Updates to Schedules

  	
   

  	
  85

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.17

  	
   

  	
  Collection of Accounts

  	
   

  	
  85

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.18

  	
   

  	
  Maintenance of Property

  	
   

  	
  85

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.19

  	
   

  	
  Trademarks

  	
   

  	
  85

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.20

  	
   

  	
  Anti-Terrorism Laws

  	
   

  	
  85

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.21

  	
   

  	
  Real Property Documentation

  	
   

  	
  86

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.22

  	
   

  	
  Subsequent Drop Down Acquisitions

  	
   

  	
  86

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 



 3
 






 



 


	
  ARTICLE VIII

  	
   

  	
  FINANCIAL COVENANTS

  	
   

  	
  86

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8.1

  	
   

  	
  Maximum Total Leverage Ratio

  	
   

  	
  86

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8.2

  	
   

  	
  Minimum Interest Coverage Ratio

  	
   

  	
  87

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8.3

  	
   

  	
  Senior Secured Leverage Ratio

  	
   

  	
  87

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
   

  	
  NEGATIVE COVENANTS

  	
   

  	
  87

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.1

  	
   

  	
  Restrictions on Liens

  	
   

  	
  87

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.2

  	
   

  	
  Restrictions on Additional Indebtedness

  	
   

  	
  87

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.3

  	
   

  	
  Restrictions on Sale of Assets

  	
   

  	
  87

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.4

  	
   

  	
  No Corporate Changes

  	
   

  	
  88

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.5

  	
   

  	
  No Guarantees

  	
   

  	
  88

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.6

  	
   

  	
  No Restricted Payments

  	
   

  	
  89

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.7

  	
   

  	
  No Investments

  	
   

  	
  89

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.8

  	
   

  	
  No Affiliate Transactions

  	
   

  	
  89

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.9

  	
   

  	
  No Prohibited Transactions Under ERISA

  	
   

  	
  89

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.10

  	
   

  	
  No Additional Bank or Commodities Accounts

  	
   

  	
  90

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.11

  	
   

  	
  Restrictions on Partners

  	
   

  	
  90

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.12

  	
   

  	
  Additional Negative Pledges

  	
   

  	
  90

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.13

  	
   

  	
  Sale and Leaseback

  	
   

  	
  91

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.14

  	
   

  	
  Limitations

  	
   

  	
  91

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.15

  	
   

  	
  Operating Lease Obligations

  	
   

  	
  91

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.16

  	
   

  	
  Amendments to Certain Agreements

  	
   

  	
  91

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
   

  	
  POWERS

  	
   

  	
  92

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.1

  	
   

  	
  Appointment as Attorney-in-Fact

  	
   

  	
  92

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
   

  	
  EVENTS OF DEFAULT AND REMEDIES

  	
   

  	
  92

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  11.1

  	
   

  	
  Events of Default

  	
   

  	
  92

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  11.2

  	
   

  	
  Acceleration

  	
   

  	
  94

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII

  	
   

  	
  TERMINATION

  	
   

  	
  95

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIII

  	
   

  	
  THE AGENT

  	
   

  	
  96

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  13.1

  	
   

  	
  Appointment of Agent

  	
   

  	
  96

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  13.2

  	
   

  	
  Nature of Duties of Agent

  	
   

  	
  96

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  13.3

  	
   

  	
  Lack of Reliance on Agent

  	
   

  	
  97

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  13.4

  	
   

  	
  Certain Rights of the Agent

  	
   

  	
  97

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  13.5

  	
   

  	
  Reliance by Agent

  	
   

  	
  97

  



 



 4
 






 



 


	
  13.6

  	
   

  	
  Indemnification of Agent

  	
   

  	
  98

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  13.7

  	
   

  	
  The Agent in its Individual Capacity

  	
   

  	
  98

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  13.8

  	
   

  	
  Holders of Notes

  	
   

  	
  98

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  13.9

  	
   

  	
  Resignation of Agent

  	
   

  	
  98

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  13.10

  	
   

  	
  Collateral Matters

  	
   

  	
  99

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  13.11

  	
   

  	
  Actions with Respect to Defaults

  	
   

  	
  102

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  13.12

  	
   

  	
  Delivery of Information

  	
   

  	
  102

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  13.13

  	
   

  	
  No Reliance on Agent’s Customer Identification
  Program

  	
   

  	
  102

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  13.14

  	
   

  	
  USA Patriot Act

  	
   

  	
  102

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIV

  	
   

  	
  MISCELLANEOUS

  	
   

  	
  103

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14.1

  	
   

  	
  Waivers

  	
   

  	
  103

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14.2

  	
   

  	
  JURY TRIAL

  	
   

  	
  103

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14.3

  	
   

  	
  GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE

  	
   

  	
  103

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14.4

  	
   

  	
  Notices

  	
   

  	
  104

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14.5

  	
   

  	
  Assignability

  	
   

  	
  104

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14.6

  	
   

  	
  Information

  	
   

  	
  107

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14.7

  	
   

  	
  Payment of Expenses; Indemnification

  	
   

  	
  108

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14.8

  	
   

  	
  Entire Agreement, Successors and Assigns

  	
   

  	
  109

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14.9

  	
   

  	
  Amendments, Etc.

  	
   

  	
  109

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14.10

  	
   

  	
  Nonliability of Agent and Lenders

  	
   

  	
  110

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14.11

  	
   

  	
  Independent Nature of Lenders’ Rights

  	
   

  	
  110

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14.12

  	
   

  	
  Counterparts

  	
   

  	
  110

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14.13

  	
   

  	
  Effectiveness

  	
   

  	
  110

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14.14

  	
   

  	
  Severability

  	
   

  	
  110

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14.15

  	
   

  	
  Headings Descriptive

  	
   

  	
  111

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14.16

  	
   

  	
  Maximum Rate

  	
   

  	
  111

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14.17

  	
   

  	
  Right of Setoff

  	
   

  	
  111

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14.18

  	
   

  	
  Delegation of Authority

  	
   

  	
  112

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14.19

  	
   

  	
  Amendment and Restatement; Continuation of Security
  Interest

  	
   

  	
  112

  



 



 5
 






 



 


EXHIBITS AND SCHEDULES


EXHIBITS


	
  Exhibit A

  	
  Form of Assignment and Acceptance

  
	
  Exhibit B-1

  	
  Full Recourse Guaranty Agreement

  
	
  Exhibit B-2

  	
  Form of Amended and Restated Limited Recourse
  Guaranty Agreement

  
	
  Exhibit C

  	
  Form of Landlord Agreement

  
	
  Exhibit D

  	
  Pledge Agreement

  
	
  Exhibit E

  	
  Security Agreement

  
	
  Exhibit F-1

  	
  Form of Revolving Note

  
	
  Exhibit F-2

  	
  Form of Swing Note

  
	
  Exhibit F-3

  	
  Form of Term Note

  
	
  Exhibit G

  	
  Form of Notice of Borrowing

  
	
  Exhibit H

  	
  Form of Deposit Account Control Agreement

  
	
  Exhibit I

  	
  Form of Notice of Extension/Conversion

  
	
  Exhibit J

  	
  Form of Compliance Certificate

  
	
  Exhibit K

  	
  Form of Joinder Agreement

  
	
  Exhibit L

  	
  Form of Solvency Certificate

  
	
  Exhibit M

  	
  Contribution Agreement

  
	
  Exhibit N

  	
  Form of Notice of Letter of Credit

  
	
  Exhibit O

  	
  Form of Account Designation Letter

  
	
  Exhibit P

  	
  Consent, Reaffirmation and Agreement

  
	
  Exhibit Q

  	
  Form of Master Assignment and Assumption Agreement

  
	
  Exhibit R-

  	
  Form of TMG/TPSI Acknowledgement Agreement

  



 


SCHEDULES


 


	
  Schedule 1.1A

  	
  Lenders

  
	
  Schedule 1.1B

  	
  Liens

  
	
  Schedule 1.1C

  	
  Indebtedness

  
	
  Schedule 1.1D

  	
  Investments

  
	
  Schedule 1.1E

  	
  Drop-Down Assets

  
	
  Schedule 2

  	
  Existing Letters of Credit

  
	
  Schedule 6.1

  	
  Jurisdictions of Organization

  
	
  Schedule 6.7

  	
  Location of Offices and Records

  
	
  Schedule 6.8

  	
  Fictitious Business Names

  
	
  Schedule 6.9

  	
  Capital and Ownership Structure of the Credit
  Parties

  
	
  Schedule 6.10

  	
  Litigation

  
	
  Schedule 6.14

  	
  ERISA

  
	
  Schedule 6.15

  	
  Environmental Disclosures

  
	
  Schedule 6.17

  	
  Intellectual Property

  
	
  Schedule 6.19

  	
  Real Estate

  
	
  Schedule 6.27

  	
  Material Contracts

  
	
  Schedule 6.29

  	
  Affiliate Transactions

  
	
  Schedule 6.32

  	
  Bank Accounts and Commodities Accounts

  
	
  Schedule 14.4

  	
  Addresses for Notices

  



 



 6















 


AMENDED AND RESTATED SENIOR SECURED CREDIT FACILITY


THIS AMENDED AND RESTATED SENIOR SECURED CREDIT
FACILITY is entered into as of December 22, 2006, among
TRANSMONTAIGNE OPERATING COMPANY L.P., a Delaware limited partnership (the “Borrower”),
each of the financial institutions identified as Lenders on the signature pages
hereto (together with each of their successors and assigns, referred to
individually as a “Lender” and, collectively, as the “Lenders”),
BANK OF AMERICA, N.A. and JPMORGAN CHASE BANK, N.A., as Syndication Agents, BNP
PARIBAS AND SOCIÉTÉ GÉNÉRALE, as the Documentation Agents, and WACHOVIA BANK,
NATIONAL ASSOCIATION (“Wachovia”), acting in its capacity as
administrative agent for the Lenders in the manner and to the extent described
in Article XIII (in such capacity, the “Agent”).


This Credit Agreement is an amendment and restatement
of that certain Senior Secured Credit Facility, dated as of May 9, 2005, among
the Borrower, each of the financial institutions party thereto, BANK OF
AMERICA, N.A. (as successor to FLEET NATIONAL BANK) and JPMORGAN CHASE BANK,
N.A., as Syndication Agents, BNP PARIBAS and SOCIÉTÉ GÉNÉRALE, as the
Documentation Agents, and WACHOVIA, as Administrative Agent (as amended, the “Existing
Credit Agreement”).


The Borrower has requested that the Existing Credit
Agreement be amended and restated to (i) increase the amount of the “Revolving
Credit Commitments” thereunder, (ii) add Term Loan Commitments hereunder, and
(iii) effect the other amendments set forth herein.


The parties hereto agree that the Existing Credit
Agreement is hereby amended, restated and superseded in its entirety as
follows, as of Funding Date:


W I  T  N  E  S
S  E  T  H:


WHEREAS, the Borrower wishes to obtain financing (i)
to finance the Drop-Down Acquisitions from TMG, (ii) to finance other permitted
acquisitions, (iii) for general corporate purposes of Borrower and certain
subsidiaries of Partners (as defined below), including, without limitation,
working capital, capital expenditures in the ordinary course of business and
certain acquisitions, (iv) to fund certain distributions of the Borrower or its
Subsidiaries as contemplated herein, and (v) to pay fees and expenses related
to the consummation of the transactions contemplated herein; and


WHEREAS, upon the terms and subject to the conditions
set forth herein, the Lenders are willing to make loans and advances to the
Borrower;


NOW, THEREFORE, the Borrower, the Lenders and the
Agent hereby agree as follows:









 



 


ARTICLE I



DEFINITIONS


1.1          General Definitions.


As used herein, the following terms shall have the
meanings herein specified:


“Acceptance Date” means, as to any particular
Assignment and Acceptance, the date specified as the effective date in such
Assignment and Acceptance.


“Account Designation Letter” means the Notice
of Account Designation Letter dated the Funding Date from the Borrower to the
Agent substantially in the form attached hereto as Exhibit O.


“Accounts” means all of each Full Recourse
Credit Party’s “accounts” as such term is defined in the UCC, and, in any
event, includes, without limitation, (a) all accounts receivable (whether or
not specifically listed on schedules furnished to the Agent), and all other
rights to payment for property sold, leased, licensed, assigned or otherwise
disposed of, for a secondary obligation incurred or to be incurred, for energy
provided or to be provided, for the use or hire of a vessel under a charter or
other contract, arising out of the use of a credit card or charge card, or for
services rendered or to be rendered or in connection with any other transaction
(whether or not yet earned by performance), (b) all rights in, to, and under
all purchase orders or receipts for goods or services, (c) all rights to any
goods represented by any of the foregoing, including, without limitation, all
rights of rescission, replevin, reclamation, and stoppage in transit and rights
to returned, reclaimed, or repossessed goods, (d) all reserves and credit
balances held by each Full Recourse Credit Party with respect to any such accounts
receivable or account debtors, (e) all books, records, computer tapes, programs
and ledger books arising therefrom or relating thereto, and (f) all guarantees
and collateral security of any kind, given by any account debtor or any other
Person with respect to any of the foregoing, all whether now owned or existing
or hereafter acquired or arising, by or in favor of, any Full Recourse Credit
Party.


“Acquisition” means the purchase of (i) the
Capital Stock of any Person, (ii) the assets of any Person through merger or
consolidation with such Person or (iii) the plant, property and equipment of
such Person, or portion thereof, together with any related current assets and
intangible assets of such Person acquired in connection therewith.


“Adjusted LIBOR Index Rate” means, for any day,
a rate per annum equal to the quotient obtained (rounded upwards, if necessary,
to the next higher 1/100th of 1%) by dividing (i) the rate for 30-day Dollar
deposits as reported on Telerate page 3750 as of 11:00 a.m., London time, on
the first day of the month in which such day occurs, or if such day is not a
London business day, then the immediately preceding London business day (or if
not so reported, then as determined by the Agent from another recognized source
or interbank quotation), by (ii) 1 minus the Eurodollar Reserve Percentage.


“Affiliate” means, with respect to any Person,
any other individual or entity that
directly or indirectly controls, is controlled by or is under common control
with that Person.  For purposes of this
definition, (a) “control”, “controlled by” and “under common control with” mean




 2
 






 



 


possession, directly or
indirectly, of power to direct or cause the direction of management or policies
(whether through ownership of voting securities or other interests, by contract
or otherwise), and (b) the General Partner, Partners, the Operating GP, the
Borrower, and all other Credit Parties from time to time are Affiliates with
each other.


“Agent” means Wachovia as provided in the
preamble to this Credit Agreement or any successor to Wachovia.


“Agent’s Fees” means the fees payable by the
Borrower to the Agent as described in the Fee Letter.


“Aggregate Revolving Loan Amount Outstanding”
means at any time the sum of the aggregate principal amount outstanding under
the Revolving Loans.


“Aggregate Swing Loan Amount Outstanding” means
at any time the sum of the aggregate principal amount outstanding of the Swing
Loans.


“Anti-Terrorism Law” means the USA Patriot Act
as such law may be amended from time to time.


“Applicable Percentage” means, as to each Loan
and the Commitment Fee, respectively, the percentage per annum for each such
Loan or for the Commitment Fee, as the case may be, determined from the
following table and corresponding to the Total Leverage Ratio in effect as of
the most recent Calculation Date (as defined below) as shown below:




	
  

  	
   

  	
  Total Leverage Ratio

  	
   

  	
  Applicable Margin

  for Base Rate Loans

  	
   

  	
  Applicable Margin for

  Eurodollar Loans and

  LIBOR Index Loans

  	
   

  	
  Commitment

  Fee

  
	
  Level I

  	
   

  	
  >5.00 to 1.00

  	
   

  	
  1.50%

  	
   

  	
  2.50%

  	
   

  	
  0.50%

  
	
  Level II

  	
   

  	
  >4.50 to 1.00

  but

  <5.00 to 1.00

  	
   

  	
  1.25%

  	
   

  	
  2.25%

  	
   

  	
  0.50%

  
	
  Level III

  	
   

  	
  >4.00 to 1.00

  but

  <4.50 to 1.00

  	
   

  	
  1.00%

  	
   

  	
  2.00%

  	
   

  	
  0.375%

  
	
  Level IV

  	
   

  	
  >3.50 to 1.00

  but

  <4.00 to 1.00

  	
   

  	
  0.75%

  	
   

  	
  1.75%

  	
   

  	
  0.375%

  
	
  Level V

  	
   

  	
  <3.50
  to 1.00

  	
   

  	
  0.50%

  	
   

  	
  1.50%

  	
   

  	
  0.30%

  






 


The Applicable Percentages shall be determined and
adjusted quarterly on the date (each a “Calculation Date”) five (5)
Business Days after the date on which Partners provides the quarterly officer’s
certificate for each fiscal quarter in accordance with the provisions of Section
7.1(c); provided, however, that (i) the initial Applicable
Percentages shall be based on Level I (as shown above) and shall remain at
Level I until the first Calculation Date following the last day of the first
fiscal quarter ending after the Closing Date, and, thereafter, the Level shall
be determined by the then current Total Leverage Ratio, and (ii) if Partners
fails to provide the 



 3
 






 



 


officer’s certificate to the Agent for any fiscal
quarter as required by and within the time limits set forth in Section
7.1(c), the Applicable Percentages from the applicable date of such failure
shall be based on Level I until five (5) Business Days after an appropriate
officer’s certificate is provided, whereupon the Level shall be determined by
the then current Total Leverage Ratio. 
Except as set forth above, each Applicable Percentage shall be effective
from one Calculation Date until the next Calculation Date.  In the event that (i) any financial statement
or certificate required by Section 7.1(c) is shown to be inaccurate, and such
inaccuracy, if corrected, would have led to the application of a higher Applicable
Percentage for any period (an “Applicable Period”) than the Applicable
Percentage applied for such Applicable Period, and (ii) any Commitments are
effective or any Obligations are outstanding when such inaccuracy is
discovered: (x) the Borrower shall immediately deliver to the Agent a correct
certificate for such Applicable Period, (y) the Applicable Percentage for such
Applicable Period shall be determined by reference to such certificate, and (z)
the Borrower shall immediately pay to the Agent the accrued additional interest
owing as a result of such increased Applicable Percentage for such Applicable
Period, which payment shall be promptly applied by the Agent in accordance with
the terms hereof.  Nothing in this
paragraph shall limit the rights of the Agent or the Lenders with respect to
Section 4.2 or Article XI.


“Approved Assignee” means any Lender, an
Affiliate of a Lender or an Approved Fund.


“Approved Banks” means financial institutions
satisfying the conditions set forth in clause (a) of the definition of “Cash
Equivalents” herein.


“Approved Fund” means any Fund that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a Lender.


“Assignment and Acceptance” means an assignment and acceptance entered
into by an assigning Lender and an assignee Lender, accepted by the Agent, in
accordance with Section 14.5(f), substantially in the form of Exhibit
A.


“Bankruptcy Code” means Title 11 of the United States Code, as amended from time
to time, and any successor statute thereto.


“Base Rate” means,
for any day, the rate per annum equal to the greater of (a) the Federal Funds
Rate in effect on such day plus 1/2 of 1% or (b) the Prime Rate in
effect on such day.  If for any reason
the Agent shall have determined (which determination shall be conclusive absent
manifest error) that it is unable after due inquiry to ascertain the Federal
Funds Rate for any reason, including the inability or failure of the Agent to
obtain sufficient quotations in accordance with the terms hereof, the Base Rate
shall be determined without regard to clause (a) of the first sentence of this
definition until the circumstances giving rise to such inability no longer
exist.  Any change in the Base Rate due
to a change in the Prime Rate or the Federal Funds Rate shall be effective on
the effective date of such change in the Prime Rate or the Federal Funds Rate,
respectively.


“Base Rate Loan” means any Loan bearing interest at a rate determined by
reference to the Base Rate.



 4
 






 



 


“Benefit Plan” means a defined benefit plan as defined in Section 3(35)
of ERISA (other than a Multiemployer Plan) in respect of which any Credit Party
or any of its Subsidiaries or ERISA Affiliates is, or within the immediately
preceding six (6) years was, an “employer” as defined in Section 3(5) of
ERISA.


“Blocked Person” has the meaning given such
term in Section 6.31.


“Borrower” has the meaning given to such terms
in the preamble of this Credit Agreement.


“Business Day” means any day other than a Saturday, a Sunday, a legal holiday
or a day on which banking institutions are authorized or required by law or
other governmental action to close in Charlotte, North Carolina, Denver,
Colorado or New York, New York; provided that in the case of Eurodollar
Loans, such day is also a day on which dealings between banks are carried on in
U.S. dollar deposits in the London interbank market.


“Capital Lease” means, as
applied to any Person, any lease of any property (whether real, personal or
mixed) by that Person as lessee which, in accordance with GAAP, is or should be
accounted for as a capital lease on the balance sheet of that Person.


“Capital Stock” means (i) in the case of a corporation, capital stock, (ii) in
the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of capital
stock, (iii) in the case of a partnership, partnership interests (whether
general or limited), (iv) in the case of a limited liability company,
membership interests and (v) any other equity interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person.


“Cash Equivalents” means


(a)           negotiable
certificates of deposit, time deposits (including sweep accounts), demand
deposits and bankers’ acceptances having a maturity of nine months or less and
issued by any United States financial institution having capital and surplus
and undivided profits aggregating at least $100,000,000 and rated at least
Prime-1 by Moody’s or A-1 by S&P or issued by any Lender;


(b)           corporate
obligations having a maturity of nine months or less and rated at least Prime-1
by Moody’s or A-1 by S&P or issued by any Lender;


(c)           any
direct obligation of the United States of America or any agency or
instrumentality thereof, or of any state or municipality thereof, (i) which has
a remaining maturity at the time of purchase of not more than one year or which
is subject to a fully collateralized repurchase agreement with any Lender (or
any other financial institution referred to in clause (a) above) exercisable
within one year from the time of purchase and (ii) which, in the case of
obligations of any state or municipality, is rated at least Aa by Moody’s or AA
by S&P; and


(d)           any
mutual fund or other pooled investment vehicle rated at least Aa by Moody’s or
AA by S&P which invests principally in obligations described above.



 5
 






 



 


“Cash Management Products” means any one or more of the following
types of services or facilities extended to any of the Credit Parties by any
Lender or any Affiliate of a Lender in reliance on such Lender’s agreement to
indemnify such Affiliate: 
(a) Automated Clearing House (ACH) transactions; (b) cash
management, including controlled disbursement and lockbox services; and (c)
establishing and maintaining deposit accounts.


“Casualty Loss” has the meaning given to such
term in Section 7.9.


“Change of Control” means the occurrence of any of the following:


(a)           TransMontaigne
Services Inc. or any of its Affiliates (other than General Partner, Partners,
or any Subsidiaries of Partners) shall cease to “control” (which term, for
purposes of this clause (a) and clause (c) below, means possession, directly or indirectly, of power to direct or cause the
direction of management or policies, whether through ownership of voting
securities or other interests, by contract or otherwise) the General
Partner, or own at least 75% of the Capital Stock of the General Partner;


(b)           General
Partner shall cease to own all of the general partner interests in Partners;


(c)           Partners
shall cease to “control” (as defined in clause (a) above) the Borrower or the
Operating GP, or own at least 75% of the limited partner interests in the
Borrower and 75% of the Capital Stock of Operating GP;


(d)           Operating
GP shall cease to own all of the general partner interests in the Borrower; or


(e) any person or group of persons (within the meaning
of Section 13 or 14 of the Securities Exchange Act of 1934, as
amended), other than any employee benefit plan or plans (within the meaning of Section
3(3) of ERISA), shall have acquired beneficial ownership (within the
meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission
under said Act) of 35% or more in voting power of the outstanding Voting Stock
of TMG, or (ii) during any period of twelve (12) consecutive calendar months,
individuals who were directors of the TMG on the first day of such period shall
cease to constitute a majority of the board of directors of TMG other than
because of the replacement as a result of death or disability of one or more
such directors.


“Closing” means the satisfaction or waiver of
the conditions precedent set forth in Section 5.1, as provided therein;
provided that neither this Credit Agreement nor the Credit Documents shall be
effective until the Funding Date shall have occurred.


“Closing Date” means the date on which the
Closing occurs.


“Collateral” means
any and all assets and rights and interests in or to property of the Credit
Parties pledged from time to time as security for the Obligations pursuant to
the Security Documents.


“Commitment” of any Lender means the Revolving
Credit Commitment and the Term Loan Commitment of such Lender.



 6
 






 



 


“Committed Amount” means the Revolving Credit
Committed Amount and the Term Committed Amount.


“Commitment Fee” means the fee accruing
quarterly from the Closing Date and required to be paid to the Agent for the
benefit of the Lenders with a Revolving Credit Commitment each quarter, in
arrears, as partial compensation for extending the Revolving Credit Committed
Amount to the Borrower, and shall be determined by multiplying (i) the positive
difference, if any, between (A) the Revolving Credit Committed Amount in effect
at such time and (B) the average Working Capital Obligations (including Swing
Loans) outstanding during such quarter by (ii) the Applicable Percentage then
in effect for the number of days in said quarter; provided, that, only
for the purpose of calculating the Commitment Fee, Swing Loans shall constitute
a usage of Wachovia’s Revolving Credit Commitment.


“Commodities Account Control Agreement” means
an agreement among a Credit Party, a commodities intermediary, and the Agent,
which agreement is in such form as is reasonably acceptable to the Agent and
its counsel and which provides for the Agent’s having “control” (as such term
is used in Article 9 of the UCC) over the commodity accounts described therein,
in each case as the same may be amended, restated, supplemented, or otherwise
modified from time to time.


“Compliance Certificate” means a certificate, executed by an
Executive Officer, substantially in the form of Exhibit J.


“Consent, Reaffirmation and Agreement” means
that certain Consent, Reaffirmation and Agreement, substantially in the form
attached as Exhibit P hereto, executed and delivered by the Borrower and
each of the other Credit Parties in favor of the Agent, for the benefit of the
Lenders.


“Consolidated” or “consolidated”  with reference to any term defined herein, means that term as applied to the accounts
of Partners and all of its consolidated Subsidiaries, consolidated in
accordance with GAAP.


“Consolidated Capital Expenditures” means, for
any period, for Partners and its consolidated Subsidiaries, amounts added or
required to be added to the property, plant and equipment or other fixed assets
account on the Consolidated balance sheet of Partners and its consolidated
Subsidiaries, prepared in accordance with GAAP, including expenditures in
respect of (a) the acquisition, construction, improvement or replacement of
land, buildings, machinery, equipment, leaseholds and any other real or
personal property (other than an Acquisition), (b) to the extent not included
in clause (a) above, materials, contract labor and direct labor relating thereto
(excluding amounts properly expensed as repairs and maintenance in accordance
with GAAP) and (c) software development costs to the extent not expensed.


“Consolidated EBITDA” means, for any applicable
period of computation, (a) Consolidated Net Income for such period, but
excluding therefrom all extraordinary items of income or loss for such period,
plus (b) the sum of the following to the extent deducted (or added, in the case
of gains referred to in clause (iv) below) in calculating Consolidated Net Income:
(i) Consolidated Interest Expense for such period, plus (ii)
Consolidated Income Taxes 



 7
 






 



 


for such period, plus (iii) depreciation,
amortization, and other non-cash charges (excluding non-cash charges that are
expected to become cash charges in a future period or that are reserves for
future cash charges, unless otherwise agreed by the Agent in its reasonable
discretion) of Partners and its consolidated Subsidiaries for such period, plus
(iv) losses (or minus gains) on the sale of assets during such period; provided,
that Consolidated EBITDA shall be adjusted from time to time to the
satisfaction of the Agent as follows:


(1)           Consolidated
EBITDA for any applicable fiscal quarter shall be increased by the amount of
any net increase to deferred revenue, and decreased by the amount of any net
decrease to deferred revenue, in such fiscal quarter on account of minimum
quarterly payments for services under the Terminaling Services Agreement;


(2)           With
respect to any Acquisition, and solely for purposes of computing the Total
Leverage Ratio and the Senior Secured Leverage Ratio, an amount equal to
one-quarter of the EBITDA attributable to the Person or assets acquired
pursuant to such Acquisition shall be added to actual Consolidated EBITDA for
the fiscal quarter in which such Acquisition was completed and for each of the
immediately preceding three fiscal quarters (in each case, net of any actual
Consolidated EBITDA attributable to such assets or entity accruing after the
consummation of such Acquisition); provided that (A) the EBITDA which is
attributable to such Person or assets shall have been determined (i) in good
faith by an Executive Officer and in a manner acceptable to the Agent; (ii)
giving effect to any anticipated or proposed cost savings related to such
Acquisition, as well as any revenues reasonably anticipated to be generated
from terminaling agreements executed or amended on or about the date of such
Acquisition and in connection therewith, to the extent approved by the Agent,
and (B) no such adjustments shall be made unless, prior to the consummation of
such Acquisition, the Agent shall have been furnished written documentation in
form and substance satisfactory to the Agent demonstrating pro forma compliance
with all financial and other covenants contained herein after consummation of
such Acquisition (whether or not such written documentation was required as
part of a Permitted Acquisition);


(3)           With
respect to any Material Project, an amount equal to one-quarter of the EBITDA
projected for the first twelve (12) months of operations of such Material
Project shall be added to actual Consolidated EBITDA for the fiscal quarter in
which such Material Project was completed and for each of the immediately
preceding three fiscal quarters (in each case, net of any actual Consolidated
EBITDA attributable to such Material Project accruing after its completion); provided
that the aggregate amount of such additions shall never exceed the lesser of
(i) twenty percent (20%) of the capital cost of such Material Project and (ii)
the projected Consolidated EBITDA attributable thereto; provided further
that no such additions shall be allowed with respect to any Material Project
unless the Agent shall have received written pro forma projections of EBITDA
relating to such Material Project and such other documentation as the Agent may
reasonably request, all in form and substance satisfactory to the Agent; and


(4)           Solely
for purposes of computing the Total Leverage Ratio and the Senior Secured
Leverage Ratio, Consolidated EBITDA for each of the fiscal quarters ending on
or before December 31, 2006 shall be deemed to be of an amount equal to
$9,025,000.



 8
 






 



 


“Consolidated Funded Indebtedness” means, as of
any date of determination, all Funded Indebtedness of Partners and its consolidated
Subsidiaries, determined on a consolidated basis in accordance with GAAP.


“Consolidated Income Taxes” means, for any
applicable period of computation, the sum of all income taxes paid or payable
in cash (net of cash refunds) by Partners and its consolidated Subsidiaries
during such period (including, without limitation, any federal, state, local
and foreign income and similar taxes), determined on a consolidated basis in
accordance with applicable law and GAAP.


“Consolidated Interest Expense” means, for any
applicable period of computation, all interest expense, net of cash interest
income, paid or payable by Partners and its consolidated Subsidiaries during
such period, determined on a consolidated basis in accordance with GAAP.


“Consolidated Net Income” means, for any
applicable period of computation, the net income of Partners and its
consolidated Subsidiaries for such period, determined on a consolidated basis
in accordance with GAAP.


“Consolidated
Net Tangible Assets”  means, at any
date of determination, the total amount of Consolidated assets of the Borrower
and its Restricted Subsidiaries after deducting therefrom: (a) all current
liabilities (excluding (i) any current liabilities that by their terms are
extendable or renewable at the option of the obligor thereon to a time more
than 12 months after the time as of which the amount thereof is being computed,
and (ii) current maturities of long-term debt); and (b) the value (net of any
applicable reserves) of all goodwill, trade names, trademarks, patents and
other like intangible assets, all as set forth, or on a pro forma basis would
be set forth, on the Consolidated balance sheet of the Borrower and its
Restricted Subsidiaries for the most recently completed Fiscal Quarter,
prepared in accordance with GAAP.


“Contractual Obligations” means, with respect
to any Person, any term or provision of any securities issued by such Person,
or any indenture, mortgage, deed of trust, contract, undertaking, document,
instrument or other agreement to which such Person is a party or by which it or
any of its properties is bound or to which it or any of its properties is
subject.


“Contribution Agreement” means the Contribution
Agreement dated as of May 9, 2005, a copy of which is attached as Exhibit M,
which was delivered to the Agent pursuant to the Existing Credit Agreement, and
executed by each Credit Party and any Person who becomes party hereto or to the
Full Recourse Guaranty Agreement pursuant to a joinder agreement in form and
substance reasonably satisfactory to the Agent, including, without limitation,
and any Subsidiaries of Partners which may become Full Recourse Guarantors
pursuant to Section 7.15, as amended, restated or supplemented from time
to time.


“Credit Agreement” means this Amended and Restated
Senior Secured Credit Facility, dated as of the date hereof, as the same may be
amended, restated, supplemented, or otherwise modified from time to time.


“Credit and Collateral Termination Events” has
the meaning set forth in paragraph (b) of Article XII.



 9
 






 



 


“Credit Documents” means, collectively, this
Credit Agreement, any Revolving Notes, the Swing Note, any Term Notes, the
Letter of Credit Documents, the Full Recourse Guaranty Agreement, the Limited
Recourse Guaranty Agreement, the Contribution Agreement, the Security
Documents, the Consent, Reaffirmation and Agreement, and all other documents,
agreements, instruments, opinions and certificates executed and delivered in
connection herewith or therewith, excluding Lender Hedging Agreements, as the same
may be amended, restated, supplemented, or otherwise modified from time to
time.


“Credit Party” means each Full Recourse Credit
Party and the Limited Recourse Guarantor.


“Default” means an event, condition or default
which, with the giving of notice, the passage of time or both would become an
Event of Default.


“Default Rate” means with respect to (a) all
amounts due and payable with respect to LIBOR Rate Loans and LIBOR Index Loans,
a rate per annum equal to two percent (2%) in excess of the rate then applicable
to such LIBOR Rate Loans or LIBOR Index Loans until the end of the applicable
Interest Period or due date of principal thereof and, thereafter, a rate per
annum equal to two percent (2%) in excess of the rate then applicable to Base
Rate Loans and (b) all amounts due and payable with respect to Base Rate Loans
and all other Obligations arising under the Credit Agreement and the other
Credit Documents, a rate per annum equal to two percent (2%) in excess of the
rate then applicable to Base Rate Loans.


“Defaulting Lender” has the meaning given to
such term in Section 2.1(d)(ii).


“Deposit Account Control Agreement” means an
agreement among a Credit Party, a depositary institution, and the Agent, which
agreement (a) is substantially in the form of Exhibit H or (b) is in
such other form as is reasonably acceptable to the Agent and its counsel and
which provides for the Agent’s having “control” (as such term is used in
Article 9 of the UCC) over the deposit accounts described therein, in each case
as the same may be amended, restated, supplemented, or otherwise modified from
time to time.


“Dispute” means any judicial proceeding, any
dispute, claim or controversy arising out of, connected with or relating to
this Credit Agreement or any other Credit Document.


“DOL” means the U.S. Department of Labor and
any successor department or agency.


“Dollars” and “$” means dollars in
lawful currency of the United States of America.


“Domestic Subsidiaries” means, with respect to
any Person, any Subsidiary of such Person which is incorporated or organized
under the laws of any state of the United States or the District of
Columbia.  Any unqualified reference to
any “Domestic Subsidiary” shall be deemed to be a reference to a Domestic
Subsidiary of Partners, unless the context clearly indicates otherwise.


“Drop-Down Acquisitions” means the acquisition
by the Borrower of the Drop-Down Assets on the Funding Date.


 



 10














 


 


“Drop-Down Assets” means certain terminal and
related assets located in Brownsville, Texas and along the Mississippi and Ohio
Rivers on which the Borrower has an option to purchase from TMG pursuant to the
terms of the Omnibus Agreement, and as more fully described in Schedule 1.1E.


“Eligible Assignee” means (a) an Approved
Assignee or (b) any other Person (i) which is a commercial bank, finance
company, insurance company or other financial institution or fund or Affiliate
thereof and which, in the ordinary course of business, extends credit of the
type contemplated herein; (ii) whose becoming an assignee would not constitute
a prohibited transaction under Section 4975 of the Internal Revenue Code
or Section 406 of ERISA; (iii) which is organized under the laws of the
United States of America or any state thereof; and (iv) which has capital in
excess of $500,000,000, provided, however, that “Eligible
Assignee” shall not include the Credit Parties, or any of the Credit Parties’
Affiliates, financial sponsors or Subsidiaries.


“ERISA” means the Employee Retirement Income
Security Act of 1974, as amended from time to time, and any successor statute.


“ERISA Affiliate” means any (i) corporation
which is or was at any time a member of the same controlled group of corporations
(within the meaning of Section 414(b) of the Internal Revenue Code) as
the Credit Parties or any of their Subsidiaries; (ii) partnership or other
trade or business (whether or not incorporated) at any time under common
control (within the meaning of Section 414(c) of the Internal Revenue
Code) with the Credit Parties or any of their Subsidiaries; and (iii) member of
the same affiliated service group (within the meaning of Section 414(m)
of the Internal Revenue Code) as the Credit Parties or any of their
Subsidiaries, any corporation described in clause (i) above, or any partnership
or trade or business described in clause (ii) above.


“Eurodollar Loan” means a Loan bearing interest
based at a rate determined by reference to the Eurodollar Rate.


“Eurodollar Rate” means, for the Interest
Period for each Eurodollar Loan comprising part of the same borrowing
(including conversions, extensions and renewals), a per annum interest rate
determined pursuant to the following formula:




	
  Eurodollar Rate =

  	
  London Interbank
  Offered Rate

  	
   

  
	
   

  	
  1 - Eurodollar
  Reserve Percentage

  	
   

  






 


“Eurodollar Reserve Percentage” means for any
day, that percentage (expressed as a decimal) which is in effect from time to
time under Regulation D of the Board of Governors of the Federal Reserve System
(or any successor), as such regulation may be amended from time to time or any
successor regulation, as the maximum reserve requirement (including, without
limitation, any basic, supplemental, emergency, special, or marginal reserves)
applicable with respect to Eurocurrency liabilities as that term is defined in
Regulation D (or against any other category of liabilities that includes
deposits by reference to which the interest rate of Eurodollar Loans is
determined), whether or not any Lender has any Eurocurrency liabilities subject
to such reserve requirement at that time. 
Eurodollar Loans and LIBOR Index Loans shall be deemed to 



 11
 






 



 


constitute Eurocurrency liabilities and as such shall
be deemed subject to reserve requirements without benefits of credits for
proration, exceptions or offsets that may be available from time to time to a
Lender.  The Eurodollar Rate and the
LIBOR Index Rate shall be adjusted automatically on and as of the effective date
of any change in the Eurodollar Reserve Percentage.


“Event(s) of Default” has the meaning provided
for in Article XI.


“Excluded Taxes” has the meaning given to such
term in Section 2.6.


“Executive Officer” means the chief executive
officer, the chief financial officer, and the treasurer of the General Partner,
acting for and on behalf of Partners.


“Existing Credit Agreement” has the meaning set
forth in the preamble hereto.


“Existing Letters of Credit” means those
letters of credit identified on Schedule 2.


“Federal Funds Rate” means, for any period, a
fluctuating interest rate per annum equal, for each day during such period, to
the weighted average of the rates on overnight Federal Funds transactions with
members of the Federal Reserve System arranged by Federal Funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average of the
quotations for such day on such transactions received by the Agent from three
Federal Funds brokers of recognized standing selected by it.


“Fee Letter” means the letter agreement, dated
November 20, 2006, by and between the Agent, Partners and the Borrower
regarding, among other things, the fees respecting the credit facility
contemplated in this Agreement to be paid by TMG or Borrower to the Agent.


“Fees” means, collectively, the Agent’s Fees,
the Lenders’ Fees, Commitment Fees, Letter of Credit Fees and the Issuing Bank
Fees payable hereunder.


“Financials” has the meaning given to such term
in Section 6.6.


“Flood Hazard Property” means a property in an
area designated by the Federal Emergency Management Agency as having special
flood or mud slide hazards.


“Florida Real Property Assets” means any real
property asset which is (a) now or hereafter owned by a Credit Party and (b)
physically located in the State of Florida.


“Foreign Lender” means any Lender that is not a
United States person, as such term is defined in Section 7701(a)(30) of
the Internal Revenue Code.


“Foreign Subsidiary” means, with respect to any
Person, any Subsidiary of such Person which is not a Domestic Subsidiary.  Any unqualified reference to any Foreign
Subsidiary shall be deemed a reference to a Foreign Subsidiary of Partners,
unless the context clearly indicates otherwise.



 12
 






 



 


“Form S-1” means the final, effective Form S-1
Registration Statement of Partners filed by Partners with the Securities and
Exchange Commission on or about May 9, 2005.


“Full Recourse Credit Parties” means the
Borrower, the Full Recourse Guarantors, and any Subsidiary of the Borrower or
any Full Recourse Guarantor that has become party hereto as a “Borrower” or
executed or joined in the Full Recourse Guaranty Agreement or otherwise
furnished a guaranty or collateral to secure or guarantee the Obligations (but
excluding the Limited Recourse Guarantor).


“Full Recourse Guarantor” means (i) Coastal
Terminals L.L.C., Razorback L.L.C. and TPSI Terminals L.L.C., each a Delaware
limited liability company, and (ii) each other Person who enters into the Full
Recourse Guaranty Agreement or becomes party to the Full Recourse Guaranty
Agreement pursuant to a joinder agreement in form and substance reasonably
satisfactory to the Agent, including, without limitation, any Subsidiaries of
Partners which may become Full Recourse Guarantors hereunder pursuant to Section
7.15.  Notwithstanding any other
provision hereof, Operating GP shall not be a Full Recourse Guarantor.


“Full Recourse Guaranty Agreement” means the
Full Recourse Guaranty Agreement, a copy of which is attached as Exhibit B-1,
which was delivered to the Agent pursuant to the Existing Credit Agreement,
together with any joinder agreements executed and delivered in accordance with
the terms of the Existing Credit Agreement or this Credit Agreement, as the
same may be amended, restated, supplemented, or otherwise modified from time to
time.


“Fund” means any Person (other than a natural
person) that is (or will be) engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar extensions of credit in the
ordinary course of its business.


“Funded Indebtedness”
means, with respect to any Person, without duplication, all Indebtedness, other
than Indebtedness of the types described in clause (h) of the definition of “Indebtedness”).


“Funding Date” means the date on which the first of the following is
consummated:  (a) the making of the
initial Loan by the Lenders to the Borrower under this Credit Agreement and (b)
the issuance of any Letter of Credit by an Issuing Bank, in each case which
shall not occur until such time as the conditions precedent set forth in Section
5.2 have been satisfied or waived as provided therein.


“Funding Deadline” means January 31, 2007, or
such later date as to which the Agent has agreed in writing.  If, on
the Funding Deadline, the conditions precedent set forth in Section 5.1
and 5.2 have not been satisfied, the Commitments shall expire on such
date.


“GAAP” means
generally accepted accounting principles in the United States of America, as in
effect on the date hereof and applied on a consistent basis with the
Financials.


“General Partner” means TransMontaigne GP
L.L.C., a Delaware limited liability company which is wholly owned by
TransMontaigne Services Inc., and which owns a two (2) percent general partner
interest in, and is the sole general partner of, Partners.



 13
 






 



 


“Government Acts” means any act or omission, whether rightful or wrongful, of any
present or future de jure or de facto government or Governmental Authority


“Governmental Authority”
means any federal, state, local or foreign court or governmental agency,
authority, instrumentality or regulatory body.


“Guarantor” means each Full Recourse Guarantor
and the Limited Recourse Guarantor.


“Guaranty Agreement” means the Full Recourse
Guaranty Agreement and the Limited Recourse Guaranty Agreement, individually or
collectively, as the context requires.


“Hedging Agreements” means any interest rate
protection agreement or other interest rate
protection agreement, foreign currency exchange agreement, commodity
option agreement or other interest or exchange rate or commodity price hedging
agreements.


“Highest Lawful Rate” means, at any given time
during which any Obligations shall be outstanding hereunder, the maximum
nonusurious interest rate, if any, that at any time or from time to time may be
contracted for, taken, reserved, charged or received on the indebtedness under
this Credit Agreement, under the laws of the State of New York (or the law of
any other jurisdiction whose laws may be mandatorily applicable notwithstanding
other provisions of this Credit Agreement and the other Credit Documents), or
under applicable federal laws which may presently or hereafter be in effect and
which allow a higher maximum nonusurious interest rate than under the State of
New York or such other jurisdiction’s law, in any case after taking into
account, to the extent permitted by applicable law, any and all relevant
payments or charges under this Credit Agreement and any other Credit Documents
executed in connection herewith, and any available exemptions, exceptions and
exclusions.


“Indebtedness” means,
with respect to any Person, without duplication, (a) all obligations of such
Person for borrowed money, (b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, or upon which interest
payments are customarily made, (c) all obligations of such Person under
conditional sale or other title retention agreements relating to property
purchased by such Person (other than customary reservations or retentions of
title under agreements with suppliers entered into in the ordinary course of
business), (d) all obligations of such Person issued or assumed as the deferred
purchase price of property or services purchased by such Person (other than
trade debt incurred in the ordinary course of business and due within six
months of the incurrence thereof) which would appear as liabilities on a
balance sheet of such Person, (e) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on, or payable out of the proceeds of
production from, property owned or acquired by such Person, whether or not the
obligations secured thereby have been assumed, (f) all guaranties of such
Person with respect to Indebtedness of the type referred in this definition of
another Person, (g) the principal portion of all obligations of such Person under
Capital Leases, (h) all obligations of such Person under Hedging Agreements,
(i) the maximum amount of all letters of credit issued or bankers’ acceptances
facilities created for the account of such Person and, without duplication, all
drafts drawn thereunder (to the extent unreimbursed), (j) all preferred Capital
Stock issued by such Person and required by the terms thereof to be redeemed in
cash, or for which mandatory sinking fund payments in cash are due, by a fixed
date prior to the Maturity Date, (k) the principal component of payments due on
Capital 



 14
 






 



 


Leases or under any synthetic
lease, tax retention operating lease, off-balance sheet loan or similar
off-balance sheet financing product, other than operating leases that do not
constitute any of the foregoing, during the applicable period ending on such
date, determined on a consolidated basis in accordance with GAAP, and (l) the
Indebtedness of any partnership or unincorporated joint venture in which such
Person is a general partner or a joint venturer in which such Person is legally
obligated with respect thereto.


“Independent Accountant” means a firm of independent public
accountants of nationally recognized standing selected by Partners, which is “independent”
as that term is defined in Rule 2-01 of Regulation S-X promulgated by the
Securities and Exchange Commission.


“Interest Coverage Ratio” means, as of the last day of each of
Partners’ fiscal quarters, for such fiscal quarter and the immediately
preceding three fiscal quarters, (a) Consolidated EBITDA for such period to (b)
Consolidated Interest Expense for such period.


“Interest Payment Date” means the date that is five (5) days after receipt by the
Borrower of any invoice with respect to interest due, which invoice shall be
provided (a) as to any Base Rate Loan and any Swing Loan, for each calendar
quarter on the last Business Day of such calendar quarter while such Loan is
outstanding; provided, however, that accrued and unpaid interest
on any Swing Loan which is a LIBOR Index Loan shall be due and payable in full
upon payment of the principal amount of such Loan, (b) as to any Eurodollar
Loan having an Interest Period of three months or less, for such Interest
Period, and (c) as to any Eurodollar Loan having an Interest Period longer than
three months, for each three month period during such Interest Period and for
the period from the last full three month period during such Interest Period to
the last day of such Interest Period.


“Interest Period” means, as to Eurodollar Loans, a period of one month, two
months, three months, six months, or, subject to availability, twelve months,
as selected by the Borrower, commencing on the date of the borrowing (including
continuations and conversions thereof); provided, however, (i) if
any Interest Period would end on a day which is not a Business Day, such
Interest Period shall be extended to the next succeeding Business Day (except
that where the next succeeding Business Day falls in the next succeeding
calendar month, then on the next preceding Business Day), (ii) no Interest
Period shall extend beyond the Maturity Date and (iii) any Interest Period with
respect to a Eurodollar Loan that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the last
Business Day of the relevant calendar month at the end of such Interest Period.


“Internal Revenue” means the Internal Revenue
Service and any successor agency.


“Internal Revenue Code” means the Internal
Revenue Code of 1986, as amended from time to time, and any successor statute
thereto and all rules and regulations promulgated thereunder.


“Inventory” means all of each Full Recourse
Credit Party’s inventory as such term is defined in the UCC.



 15
 






 



 


“Investment” by any Person means (i) the
acquisition (whether for cash, property, services, assumption of Indebtedness,
securities or otherwise, but exclusive of the acquisition of inventory,
supplies, equipment and other property or assets used or consumed in the
ordinary course of business of such Person or any of its Subsidiaries) of
assets, shares of Capital Stock, bonds, notes, debentures, partnership
interests, joint ventures or other ownership interests or other securities of
any other Person, (ii) any deposit (other than deposits constituting a
Permitted Lien) with, or advance, loan or other extension of credit (other than
sales of inventory on credit in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms and sales on credit of
the type described in clauses (c) or (d) of Section 9.3) to, any other
Person or (iii) any other capital contribution to or investment in any other
Person, including, without limitation, any obligation incurred for the benefit
of such Person.  In determining the
aggregate amount of Investments outstanding at any particular time, (a) the
amount of any Investment represented by a guaranty shall be taken at not less
than the maximum principal amount of the obligations guaranteed and still
outstanding; (b) there shall be deducted in respect of each such Investment any
amount received as a return of capital (but only by repurchase, redemption,
retirement, repayment, liquidating dividend or liquidating distribution); (c)
there shall not be deducted in respect of any Investment any amounts received
as earnings on such Investment, whether as dividends, interest or otherwise;
and (d) there shall not be deducted from or added to the aggregate amount of
Investments any decrease or increases, as the case may be, in the market value
thereof.


“Involuntary Disposition” means any
loss of, damage to or destruction of, or any condemnation or other taking for
public use of, any property of the Borrower or any of its Subsidiaries.


“Issuing Bank” means Wachovia or any other
Lender which shall issue a Letter of Credit for the account of the Borrower; provided,
that, the Agent shall have approved such other Lender (such consent not
to be unreasonably withheld).


“Issuing Bank Fees” has the meaning given to
such term in Section 4.5(b).


“Landlord Agreement” means a Landlord Lien
Waiver Agreement, substantially in the form of Exhibit D (or such other
form as shall be reasonably acceptable to the Agent), between the Agent and a
Credit Party’s landlord with respect to the Mortgaged Real Estate.


“Leasehold Properties” has the meaning given to
such term in Section 5.2(h).


“Leases” means leases with respect to any
leased real property, together with any leases of real property entered into by
a Credit Party or any of its Subsidiaries after the date hereof.


“Lender” has the meaning given to such term in
the preamble of this Credit Agreement.


“Lender Hedging Agreement” means any Hedging Agreement (other than one
pertaining to the purchase or sale of commodities or commodity options) between
the Borrower and any Person (or affiliate of such Person) that was a Lender or
an Affiliate of Lender at the time it entered into such Hedging Agreement
whether or not such Person has ceased to be a Lender under the Credit
Agreement.



 16
 






 



 


“Lenders’ Fees” means the non-refundable fees
payable to each of the Lenders as set forth in each of the Lender’s respective
fee letter with the Agent.


“Lending Party” means the Agent and each
Lender.


“Letter of Credit Committed Amount” means
$35,000,000.


“Letter of Credit Documents” means, with
respect to any Letter of Credit, such Letter of Credit, any amendments thereto,
any documents delivered in connection therewith, any application therefor, and
any agreements, instruments, guarantees or other documents (whether general in
application or applicable only to such Letter of Credit) governing or providing
for (i) the rights and obligations of the parties concerned or at risk or (ii)
any collateral security for such obligations.


“Letter of Credit Fee” has the meaning given to
such term in Section 4.5(a).


“Letter of Credit Obligations” means, at any
time of determination, the sum of (i) the aggregate undrawn amount of all
Letters of Credit outstanding at such time, plus (ii) the aggregate amount
of all drawings under Letters of Credit for which the Issuing Bank has not at
such time been reimbursed, plus (iii) without duplication, the aggregate
amount of all payments made by each Lender to the Issuing Bank with respect to
such Lender’s participation in Letters of Credit as provided in Section 3.3
for which the Borrower has not at such time reimbursed the Lenders, whether by
way of a Revolving Loan or otherwise.


“Letters of Credit” means (i) the Existing
Letters of Credit, and (ii) all stand-by letters of credit issued by an Issuing
Bank for the account of the Borrower pursuant to this Credit Agreement on and
after the Funding Date, in each case, together with all amendments, renewals,
extensions or replacements thereof.


“LIBOR Index Loan” means a Swing Loan during
any period in which it bears interest at a rate determined by reference to the
Adjusted LIBOR Index Rate.


“Lien(s)” means any lien, claim, charge,
pledge, security interest, deed of trust, mortgage, or other encumbrance.


“Limited Recourse Guarantor”
means Partners.


“Limited Recourse Guaranty
Agreement” means the Amended and Restated Limited Recourse Guaranty
Agreement, a form of which is attached as Exhibit B-2, executed and
delivered by the Limited Recourse Guarantor to the Agent on the Funding Date,
as the same may be amended, restated, supplemented, or otherwise modified from
time to time.


“Loan” or “Loans”
means Revolving Loans (or a portion of any Revolving Loan), Term Loans (or a
portion of any Term Loan) and Swing Loans, or any or all of them, as the
context shall require.


“London Interbank Offered Rate” means, with
respect to any Eurodollar Loan for the Interest Period applicable thereto, the
rate of interest per annum (rounded upwards, if necessary, 



 17
 






 



 


to the nearest 1/100 of 1%) appearing on Telerate Page
3750 (or any successor page) as the London interbank offered rate for deposits
in Dollars at approximately 11:00 A.M. (London time) two (2) Business Days
prior to the first day of such Interest Period for a term comparable to such
Interest Period; provided, however, if more than one rate is
specified on Telerate Page 3750, the applicable rate shall be the arithmetic
mean of all such rates.  If, for any
reason, such rate is not available, the term “London Interbank Offered Rate”
means, with respect to any Eurodollar Loan for the Interest Period applicable
thereto, the rate of interest per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the London
interbank offered rate for deposits in Dollars at approximately 11:00 A.M.
(London time) two (2) Business Days prior to the first day of such Interest
Period for a term comparable to 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.


“Material Adverse Change” means a material
adverse change in (a) the business, prospects, operations, results of
operations, assets, liabilities or condition (financial or otherwise) of the
Credit Parties, taken as a whole, (b) a material part of the Collateral, (c)
the Credit Parties’ ability to perform their respective obligations under the
Credit Documents, or (d) the rights and remedies of the Lenders hereunder.


“Material Adverse Effect” means a material
adverse effect on (a) the business, prospects, operations, results of
operations, assets, liabilities or condition (financial or otherwise) of the
Credit Parties, taken as a whole, (b) a material part of the Collateral, (c)
the Credit Parties’ ability to perform their respective obligations under the
Credit Documents, or (d) the rights and remedies of the Lenders hereunder.


“Material Contract” means (a) the Omnibus
Agreement, (b) the Terminaling Services Agreement, and (c) any other written
contract or other arrangement (other than the Credit Documents), to which any
Credit Party or any of its Subsidiaries is a party as to which the breach,
nonperformance, cancellation or failure to renew by any party thereto could
reasonably be expected to have a Material Adverse Effect.


“Material Project” means any new terminal or
other capital expansion project undertaken by any Credit Party, the
Consolidated Capital Expenditures attributable to which exceeds $3,000,000.


“Maturity Date” means, as
to the Revolving Loans, Swing Loans, the Term Loans and Letters of Credit (and
the related Letter of Credit Obligations), the fifth (5th) anniversary of the Closing Date.


“Moody’s” means Moody’s Investor Service, Inc.


“Mortgage” means, as to each parcel or tract of
the Mortgaged Real Estate (or as to more than one parcel or tract, as the case
may be), the mortgage (or amendment to an existing mortgage) from the
applicable Credit Party on such Mortgaged Real Estate, in form and substance
reasonably satisfactory to the Agent, granting a Lien thereon to Agent, for the
benefit of the Lenders, to secure the Obligations, as amended on or about the
date hereof, if applicable, and as otherwise amended, restated or supplemented
from time to time.



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“Mortgage Document Extension
Period” means ninety (90) days from the Funding Date or such longer period
of time to which the Agent may agree, in its sole discretion.


“Mortgagee Policy” means,
for each parcel or tract of the Mortgaged Real Estate, other than the Razorback
Pipeline Property, an ALTA mortgagee title insurance policy issued by
the Title Insurance Company, assuring the Agent that the Mortgage on such
Mortgaged Real Estate creates a valid and enforceable first priority (subject
to Permitted Liens) mortgage lien on such Mortgaged Real Estate, free and clear
of all defects and encumbrances except Permitted Liens, which Mortgagee Policy
shall be in form and substance reasonably satisfactory to the Agent and shall
provide for affirmative insurance and such reinsurance as the Agent may
reasonably request, all of the foregoing in form and substance reasonably
satisfactory to the Agent.


“Mortgaged Real Estate”
means all Real Estate which, from time to time, is owned by a Credit Party and
subject to a Mortgage, including, without limitation, the terminal properties
located in Mount Vernon, Missouri and Rogers, Arkansas, the Razorback Pipeline
Property, the Florida Real Property Assets, and the Real Estate acquired from
time to time pursuant to the Omnibus Agreement.


“Multiemployer Plan” means a “multiemployer
plan” as defined in Section 4001(a)(3) of ERISA and (i) which is, or
within the immediately preceding six (6) years was, contributed to by any
Credit Parties or any of their Subsidiaries or ERISA Affiliates or (ii) with respect
to which any Credit Parties or any of their Subsidiaries may incur any
liability.


“Net Cash Proceeds” shall
mean the aggregate cash proceeds received by the Borrower or any of its
Subsidiaries in respect of any issuance of Capital Stock or Involuntary
Disposition, net of (a) direct costs (including, without limitation, legal,
accounting and investment banking fees, and sales commissions) and (b) taxes
paid or payable as a result thereof; it being understood that “Net Cash
Proceeds” shall include, without limitation, any cash received upon the sale or
other disposition of any non-cash consideration received by the Borrower or any
of its Subsidiaries in any such issuance or Involuntary Disposition.


“Note” or “Notes”
means the Revolving Notes, the Swing Note, and the Term Notes, or any or all of
them, as the context shall require.


“Notice of Borrowing” means a notice
substantially in the form of Exhibit G.


“Notice of Extension/Conversion” means a notice
substantially in the form of Exhibit I.


“Obligations” means the Loans, any other loans
and advances or extensions of credit made or to be made by any Lender to the Borrower, or to others for the Borrower’s account, in each case
pursuant to the terms and provisions of this Credit Agreement, together with
interest thereon (including interest which accrues after the commencement of
any bankruptcy or similar case, whether or not such post-petition interest is
allowed in such case) and, including, without limitation, any reimbursement
obligation or indemnity of the Borrower on account of Letters of Credit and all
other Letter of Credit Obligations and all indebtedness, fees, liabilities and
obligations which may at any time be owing by the
Borrower to any Lender (or an Affiliate of a Lender) in each case
pursuant to this Credit Agreement or any other Credit Document, whether now in
existence or incurred by the Borrower from time to time hereafter, whether
unsecured or 



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secured by pledge, Lien upon or security interest in
any of the Borrower’s assets or property or the assets or property of any other
Person, whether such indebtedness is absolute or contingent, joint or several,
matured or unmatured, direct or indirect and whether such Borrower is liable to
such Lender (or an Affiliate of a Lender) for such indebtedness as principal,
surety, endorser, guarantor or otherwise. 
Obligations shall also include any other indebtedness owing to any
Lender (or an Affiliate of a Lender) by the
Borrower under this Credit Agreement and the other Credit Documents, the Borrower’s liability to any Lender (or
an Affiliate of a Lender) pursuant to this Credit Agreement as maker or
endorser of any promissory note or other instrument for the payment of money, the Borrower’s liability to any Lender (or
an Affiliate of a Lender) pursuant to this Credit Agreement or any other Credit
Document under any instrument of guaranty or indemnity, or arising under any
guaranty, endorsement or undertaking which any Lender (or an Affiliate of a
Lender) may make or issue to others for any such Borrower’s account pursuant to
this Credit Agreement, including any accommodation extended with respect to
applications for Letters of Credit, all liabilities and obligations arising
under Lender Hedging Agreements owing from the
Borrower or any other Credit Party to any Lender, or any Affiliate of a
Lender (or any Person that was a Lender or an affiliate of a Lender at the time
such Lender Hedging Agreement was entered into), permitted under Section 9.2,
all liabilities and obligations now or hereafter arising from or in connection
with any Cash Management Products, and all obligations of the Guarantors or any
other Credit Party to any Lender (or an Affiliate of any Lender) and the Agent
arising under or in connection with any Guaranty Agreement, or any other Credit
Document, including, without limitation, the Guaranteed Obligations (as defined
in each Guaranty Agreement).


“Omnibus Agreement” means that certain Omnibus
Agreement dated as of May 27, 2005 by and among TMG, Operating GP, General
Partner, Partners and Borrower, which provides, among other things, (a) the
terms and conditions upon which TMG will provide management services to
Partners and its Subsidiaries, (b) certain options in favor of the Borrower and
certain Subsidiaries of Partners to purchase or acquire certain additional
refined product terminals from TMG and its Subsidiaries or Affiliates, as
amended by that certain First Amendment to Omnibus Agreement dated as of
October 31, 2005, as further amended by that certain Second Amendment to
Omnibus Agreement dated as of January 1, 2006, as further amended by that
certain Third Amendment to Omnibus Agreement dated as of December 29, 2006, as
the same may be further amended, restated, supplemented, or otherwise modified
from time to time to the extent permitted herein.


“Operating GP” means TransMontaigne Operating
GP L.L.C., a Delaware limited liability company which, as of the Closing Date,
owns a 0.001% general partnership interest in, and is the sole general partner
of, the Borrower.


“Other Taxes” has the meaning given to such
term in Section 2.6(e).


“PBGC” means the Pension Benefit Guaranty
Corporation and any Person succeeding to the functions thereof.


“Partners” means TransMontaigne Partners L.P.,
a Delaware limited partnership, which qualifies for taxation as a “master
limited partnership” under the Internal Revenue Code, the sole general partner
of which is the General Partner.


 



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“Partners’ Partnership Agreement” means that
certain First Amended and Restated Partnership Agreement of Partners executed
on or about the May 27, 2005, as the same may be amended, restated,
supplemented, or otherwise modified from time to time to the extent permitted
herein.


“Permitted Acquisitions” means (a) the Drop-Down Acquisitions and (b) any other
Acquisition by Borrower or any of Partners’ other consolidated Subsidiaries, so
long as (i) no Default or Event of Default is in existence or would be created
thereby, (ii) the Person or assets being acquired by the Borrower or such
Subsidiary are for a Permitted Line of Business, and (iii) at least one of the
following conditions is satisfied (as determined by Agent in its commercially
reasonable discretion):


(A)          the
aggregate amount of consideration paid by Borrower or such Subsidiary for such
Acquisition, when added to the aggregate amount of all consideration paid by
Borrower and all of Partners’ consolidated Subsidiaries for other Acquisitions
consummated by Borrower or any of such Subsidiaries in the same fiscal year as
such Acquisition, does not exceed $25,000,000; or


(B)           such
Acquisition is a Subsequent Drop-Down Acquisition; or


(C)           Partners
shall have (1) provided the Agent prior written documentation in form and
substance reasonably satisfactory to the Agent demonstrating Partners’ pro
forma compliance with all financial and other covenants contained herein after
giving effect to such Acquisition and (2) satisfied all other conditions
precedent to such Acquisition which the Agent may reasonably require in
connection therewith.


“Permitted
Indebtedness” means:


(a)           Indebtedness
to the Lenders with respect to the Revolving Loans, the Term Loans, the Swing
Loans, the Letters of Credit or otherwise, pursuant to the Credit Documents
and, prior to the Funding Date, Indebtedness pursuant to the Existing Credit
Agreement;


(b)           trade
payables incurred in the ordinary course of the Credit Parties’ business;


(c)           unsecured
Indebtedness to TMG or any of its Subsidiaries, other than Partners and its
Subsidiaries, in the form of loans and advances, provided that (A) the
aggregate amount of such Indebtedness outstanding at any one time shall not
exceed $5,000,000 and (B) at the time of incurring such Indebtedness no Default
or Event of Default exists or would arise therefrom;


(d)           obligations
of Partners or any of its Subsidiaries in respect of Hedging Agreements entered
into in order to manage existing or anticipated interest rate and exchange rate
risks and not for speculative purposes;


(e)           Indebtedness
described on Schedule 1.1C and any refinancings of such Indebtedness; provided
that such Indebtedness is not increased in excess of the principal 



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balance outstanding thereon plus any interest, prepayment premium and
other related costs at the time of such refinancing so long as all such costs
do not exceed $2,000,000, the scheduled maturity dates of such Indebtedness are
not shortened and such refinancing is on terms and conditions no more
restrictive than the terms and conditions of the Indebtedness being refinanced;


(f)            unsecured
Funded Indebtedness of the Credit Parties, provided, that (i) the Agent
has been given prior written notice of the material terms and conditions
thereof and has found such terms and conditions acceptable, (ii) the weighted
average life to maturity of such unsecured Funded Indebtedness is no earlier
than six (6) months after the Maturity Date, (iii) such unsecured Funded
Indebtedness does not contain financial covenants of a type not contained in this
Credit Agreement and the financial covenants contained therein are no more
restrictive than the financial covenants contained in this Credit Agreement,
(iv) the provisions of Section 9.12 are not breached, and (v) after
giving effect to the issuance of such unsecured Funded Indebtedness and the
application of any of the proceeds thereof on the issuance date no Default or
Event of Default shall exist;


(g)           Indebtedness secured by Liens
described in clause (d) of the definition of Permitted Liens;


(h)           Indebtedness in an aggregate amount
not exceeding 5% of Consolidated Net Tangible Assets;


(i)            intercompany loans made by any
Credit Party to any Full Recourse Credit Party; and


(j)            Indebtedness of Partners’ Foreign
Subsidiaries for financing of the type described in clause (l) of the
definition of Permitted Liens, which Indebtedness may be unsecured or secured
as permitted by such clause (l).


Notwithstanding the foregoing, if any of the foregoing Indebtedness is
Subordinated Indebtedness, then (i) the material terms and conditions of such
Indebtedness must be acceptable to the Agent and (ii) a Subordination Agreement
with respect to such Indebtedness shall be delivered to the Agent, for the
benefit of the Lenders, on or prior to the incurrence of such Indebtedness.


“Permitted Investments”
means:


(a)           Cash
Equivalents;


(b)           interest-bearing
demand or time deposits (including certificates of deposit) which are insured
by the Federal Deposit Insurance Corporation (“FDIC”) or a similar federal
insurance program; provided, however, that the Credit Parties may, in the
ordinary course of their respective businesses, maintain in their disbursement
accounts from time to time amounts in excess of then applicable FDIC or other
program insurance limits;



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(c)           Investments
existing on the Closing Date and set forth on Schedule 1.1D;


(d)           advances
to officers, directors and employees for expenses incurred or anticipated to be
incurred in the ordinary course;


(e)           Permitted
Acquisitions;


(f)            Investments
in (i) the Full Recourse Credit Parties; (ii) newly created direct or indirect
Domestic Subsidiaries of Partners, and newly created direct or indirect Foreign
Subsidiaries of Partners, provided that (A) the applicable requirements
of Section 7.15 are satisfied (such that, as to any Domestic Subsidiary,
such Domestic Subsidiary becomes a Full Recourse Credit Party) and (B) the
aggregate amount of loans to and Investments in Foreign Subsidiaries shall not
exceed $5,000,000 at any time; and (iii) TMG or any of its Subsidiaries, other
than Partners and its Subsidiaries, in the form of loans and advances, provided
that (A) the aggregate amount of such Investments outstanding at any one time
shall not exceed $5,000,000 and (B) at the time of making any such Investment
no Default or Event of Default exists or would arise therefrom;


(g)           investments
(including debt obligations) received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of delinquent
obligations of, and other disputes with, customers and suppliers arising in the
ordinary course of business;


(h)           Hedging
Agreements entered into by the Borrower relating to the Loans hereunder and
other Hedging Agreements entered into in order to manage existing or
anticipated interest rate and exchange rate risks and not for speculative
purposes; and


(i)            such
other Investments as the Required Lenders may approve in writing in their
reasonable discretion.


“Permitted Liens”
means


(a)           Liens granted to the Agent or the
Lenders (or their Affiliates to secure Lender Hedging Agreements) by the Credit
Parties pursuant to any Credit Document, and, prior to the Funding Date, the
Liens granted pursuant to the Existing Credit Agreement;


(b)           Liens,
encumbrances and title exceptions listed on Schedule 1.1B and, as to the
Mortgaged Real Estate, (i) any Liens, encumbrances and title exceptions
encumbering all or any portion of the Razorback Pipeline Property, except those
granted by a Credit Party, and (ii) such Liens, encumbrances and title
exceptions of record as are reasonably acceptable to the Agent in its
reasonable discretion;


(c)           Liens
on fixed assets securing Indebtedness permitted under clause (h) of the
definition of Permitted Indebtedness;


(d)           Liens
of warehousemen, mechanics, materialmen, workers, repairmen, fillers,
packagers, processors, common carriers, landlords and other similar Liens
arising 



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by operation of law or otherwise, not waived in connection herewith,
for amounts that are not yet overdue or which are being appropriately contested
in good faith by the relevant Credit Party by proceedings, provided that
in any such case an adequate reserve is being maintained by such Credit Party
to the extent required by GAAP;


(e)           attachment
or judgment Liens individually or in the aggregate not in excess of $10,000,000
(exclusive of (i) any amounts that are duly bonded to the satisfaction of the
Agent in its reasonable discretion or (ii) any amount adequately covered by
insurance);


(f)            Liens
for taxes, assessments or other governmental charges not yet overdue or that
are being contested in good faith by a Credit Party by appropriate proceedings,
provided that in any such contest an adequate reserve in respect there
of is being maintained by such Credit Party to the extent required by GAAP;


(g)           zoning
ordinances, easements, covenants, rights of way and other restrictions on the
use of real property and other title exceptions that do not interfere in any
material respect with the ordinary course of business or, in the case of owned
real property, the marketability of such real property;


(h)           deposits
or pledges to secure obligations under workmen’s compensation, social security
or similar laws, or under unemployment insurance;


(i)            deposits
or pledges to secure bids, tenders, contracts (other than contracts for the
payment of money), leases, regulatory or statutory obligations, surety and
appeal bonds and other obligations of like nature arising in the ordinary
course of business;


(j)            restrictions
under federal and state securities laws on the transfer of securities;


(k)           restrictions
under foreign trade regulations on the transfer or licensing of assets of
Partners and its Subsidiaries;


(l)            liens
on assets of any Foreign Subsidiary of Partners to secure financing made
available to such Foreign Subsidiary (as to which no Credit Party is liable on
such financing) for working capital and capital expenditures of such Foreign
Subsidiaries; and


(m)          Liens
on commodities accounts in favor of commodities intermediaries securing margin
loans pertaining to such accounts.


“Permitted Line of Business” means, with
respect to a given Person, lines of business engaged in by such Person and its
Subsidiaries such that such Person and its Subsidiaries, taken as a whole, are
substantially engaged in business that (a) permits Partners to continue to be
treated as a partnership under the Internal Revenue Code and (b) constitutes,
or is related to, the business of storage, processing, marketing, terminaling,
and/or transportation of natural gas, natural gas liquids, oil, or products
thereof or related thereto.



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“Permitted Restricted Payment” means (a) so
long as no Triggering Event has occurred, any dividend or distribution by
Partners of “Available Cash” (as such term is defined in Partners’ Partnership
Agreement) to the limited and general partners of Partners, as “Available Cash”
is defined and calculated in such partnership agreement and only to the extent
permitted by such partnership agreement, and any corresponding dividend or
distribution by the Borrower to Partners to enable it to make such dividend or
distribution, (b) so long as no Triggering Event has occurred, any repurchase
by Partners of its limited partnership units, in an aggregate amount not to
exceed $3,000,000 from and after the Closing Date, (c) other Restricted
Payments made to Partners that are necessary to enable Partners to pay its
expenses incurred in the ordinary course of business, including payments
pursuant to the Omnibus Agreement, professional expenses, directors fees,
transactional expenses incurred in connection with a Permitted Acquisition, and
(d) payments with respect to Subordinated Indebtedness so long as such payment
is expressly permitted under the terms of the Subordination Agreement with
respect to such Subordinated Indebtedness.


“Person” means any individual, sole
proprietorship, partnership, joint venture, limited liability company, trust,
unincorporated organization, association, corporation, institution, entity,
party or government (including any division, agency or department thereof),
and, as applicable, the successors, heirs and assigns of each.


“Plan” means any employee benefit plan, program
or arrangement, whether oral or written, maintained or contributed to by any
Credit Party or any of its Subsidiaries, or with respect to which such Credit
Party or any such Subsidiary may incur liability.


“Pledge Agreement” means the Pledge Agreement
dated as of May 9, 2005, delivered to the Agent pursuant to the Existing Credit
Agreement, between the Agent and the relevant Credit Parties, a copy of which
is attached as Exhibit D, as the same may be amended, restated,
supplemented, or otherwise modified from time to time.


“Pledged Collateral” has the meaning given to
such term in the Pledge Agreement.


“Prime Rate” means the rate which Wachovia
announces from time to time as its prime, base or equivalent lending rate, as
in effect from time to time.  The Prime
Rate is a reference rate and does not necessarily represent the lowest or best
rate actually charged to any customer. 
Wachovia (and its affiliates) may make commercial loans or other loans
at rates of interest at, above or below the Prime Rate.


“Proprietary Rights” has the meaning given to
such term in Section 6.17.


“Qualifying Equity Offering” shall mean the
completion of an issuance of Capital Stock by the Borrower resulting in Net
Cash Proceeds to the Borrower of at 
least $65,000,000.00.


“Razorback Pipeline Property” means the parcels
of real property owned, leased, or licensed by a Credit Party (or as to which a
Credit Party has any easement or other interest) on, over, under, or through
which the Borrower’s  pipeline between
its terminals in Mount Vernon, Missouri and Rogers, Arkansas is located.



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“Real Estate” means the real property owned or
leased (not including the mere right of use or possession of storage space or
similar arrangements, with no interest in the underlying fee) by the relevant
Credit Parties described in Schedule 6.19, as it may be updated from
time to time pursuant to Sections 7.8 and 7.16, together with all
Structures thereon.


“Real Property Documentation” means, with
respect each parcel or tract of the Mortgaged Real Estate:


(a)           a
fully executed and notarized Mortgage encumbering the fee interest of the
Credit Parties in such Mortgaged Real Estate;


(b)           an
owner’s affidavit for such Mortgaged Real Estate, addressed to the title
company, for such Mortgaged Real Estate;


(c)           as
to leased property, a Landlord Agreement;


(d)           a
Mortgagee Policy for such Mortgaged Real Estate, in an amount not less than the
respective amounts designated in Schedule 6.19 for such Mortgaged Real
Estate;


(e)           evidence in the form of a standard flood hazard
determination certificate as to whether (i) such Mortgaged Real Estate is a
Flood Hazard Property and (ii) the community in which such Flood Hazard
Property is located is participating in the National Flood Insurance Program;


(g)           if
such Mortgaged Real Estate is a Flood Hazard Property, the relevant Credit
Party’s written acknowledgment of receipt of written notification from the
Agent (i) as to the existence of such Flood Hazard Property and (ii) as to
whether the community in which each such Flood Hazard Property is located is
participating in the National Flood Insurance Program;


(h)           evidence
reasonably satisfactory to the Agent that such Mortgaged Real Estate, and the
uses of such Mortgaged Real Estate, are in compliance in all material respects
with all applicable zoning laws, regulations and ordinances (the evidence
submitted as to zoning may be in the form of a “zoning letter” from the municipality or other
applicable jurisdiction in which the applicable property is located and should
include the zoning designation made for such Mortgaged Real Estate and the
permitted uses of such Mortgaged Real Estate under such zoning designation;


(i)            UCC
fixture financing statements for such Mortgaged Real Estate, in form and
substance reasonably satisfactory to the Agent, to be filed in the appropriate
jurisdiction as is necessary, in the Agent’s reasonable discretion, to perfect
the Agent’s lien on such Mortgaged Real Estate;


(j)            copies
of all existing environmental reports and Regulatory Agency correspondence
regarding the Emergency Response Notification Site listing (including any
underground storage tank closure reports, subsurface investigations and “No
Further Action” letters and other existing correspondence and reports)
respecting such Mortgaged Real Estate;



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(k)           boundary
surveys of the sites of such Mortgaged Real Estate, together with a
certification of the surveyor that all Structures are within, and do not encroach
upon, such boundaries;


“Reportable Event” means any of the events
described in Section 4043 of ERISA and the regulations thereunder.


“Required Lenders” means, at any time, Lenders (excluding Defaulting Lenders) holding at least
50.1% of the sum of (i) the aggregate amount of the Revolving Credit
Commitments (or if the Revolving Credit Commitments have been terminated, the
aggregate outstanding principal amount of the Working Capital Obligations
(including participation interests in Letter of Credit Obligations, but
excluding Swing Loans)) plus (ii) the aggregate outstanding principal
amount of the Term Loans.


“Restricted Payment” means (i) any cash
dividend or other cash distribution, direct or indirect, on account of any
Capital Stock of any Credit Party or any of its Subsidiaries, as the case may
be, now or hereafter outstanding, (ii) any redemption, retirement, sinking fund
or similar payment, purchase or other acquisition for value, direct or
indirect, of any Capital Stock (other than purchase or redemption of Partner’s
Capital Stock issued to any officer, director or employee in connection with
the payment of withholding taxes on the vesting thereof) of any Credit Party or
any of its Subsidiaries now or hereafter outstanding by such Credit Party or Subsidiary,
as the case may be, except for any redemption, retirement, sinking funds or
similar payment payable (x) by one Full Recourse Credit Party solely to another
Full Recourse Credit Party or (y) solely in Capital Stock of the same rights
and designation as such Capital Stock or in any class of Capital Stock junior
to such Capital Stock, (iii) any cash payment made to redeem, purchase,
repurchase or retire, or to obtain the surrender of, any outstanding warrants,
options or other rights to acquire any Capital Stock of any Credit Party (other
than any such payment in respect of withholding taxes due upon the vesting or
exercise of any option to acquire Capital Stock granted to an officer, director
or employee of a Credit Party) or any of its Subsidiaries now or hereafter
outstanding, or (iv) any payment of principal, interest or fees or any
purchase, redemption, retirement, acquisition or defeasance with respect to any
Subordinated Indebtedness.


“Revolving Credit Commitment” means, with respect to each Lender, the
commitment of such Lender to make its portion of the Revolving Loans in a
principal amount up to such Lender’s Revolving Credit Commitment Percentage of
the Revolving Credit Committed Amount.


“Revolving Credit Commitment
Percentage” means, for any Lender, its percentage of the aggregate
Revolving Credit Commitments of all of the Lenders as shown on the books and
records of the Agent, as such percentage may be modified in connection with any
assignment made in accordance with the provisions of Section 14.5.


“Revolving Credit Committed
Amount” means the aggregate revolving credit line extended by the
Lenders to the Borrower for Revolving Loans, and Letters of Credit pursuant to
and in accordance with the terms of this Credit Agreement, in an amount up to
$150,000,000, as such revolving credit line may be reduced from time to time in
accordance with Section 2.2(c)(i) and Section 2.2(b) or increased
from time to time in accordance with Section 2.2(c)(ii).



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“Revolving Loans” means loans and advances made
to the Borrower by all of the Lenders on a revolving basis in accordance with
their respective Revolving Credit Commitments pursuant to Section 2.1(a)(i),
and includes Base Rate Loans and Eurodollar Loans.


“Revolving Notes” means promissory notes of the
Borrower to the Lenders that request such notes pursuant to Section 2.1(c),
substantially in the form of Exhibit F-1, evidencing the obligation
of the Borrower to repay the Revolving Loans made by such Lenders, as the same
may be amended, restated, supplemented, or otherwise modified from time to
time.


“S&P” means Standard & Poor’s Ratings
Group, a division of The McGraw-Hill Companies, Inc.


“Security Agreement” means the Security
Agreement, dated as of May 9, 2005, delivered to the Agent pursuant to the Existing
Credit Agreement, between the Agent and the Full Recourse Credit Parties (and
such other Persons who may from time to time become party thereto by joinder
agreement), a copy of which is attached as Exhibit E hereto, as the
same may be amended, restated, supplemented, or otherwise modified from time to
time.


“Security Documents” means, collectively, the
Pledge Agreement, the Security Agreement, each Mortgage, each Deposit Account
Control Agreement, and each Commodities Account
Control Agreement, as each of the same may be amended, restated, supplemented
or otherwise modified from time to time.


“Senior Secured Leverage Ratio”
means, as of the last day of each of Partners’ fiscal quarters, for such fiscal
quarter and the immediately preceding three fiscal quarters, the ratio of (a)
Consolidated Funded Indebtedness which is secured by a Lien as of such date to
(b) Consolidated EBITDA for such fiscal quarter and the immediately preceding
three fiscal quarters.


“Settlement Period” means
each week, or such lesser period or periods as the Agent shall reasonably
determine.


“Sole Lead Arranger” means Wachovia Capital
Markets, LLC.


“Solvent”
means that Partners and its consolidated Subsidiaries will not (i) be “insolvent,”
within the meaning of such term as defined in section 101 of the “Bankruptcy
Code”, or section 2 of either the “UFTA”
or the “UFCA”, or as defined or used in any “Other Applicable Law” (as those
terms are defined below), or (ii) be unable to pay its debts generally as such
debts become due within the meaning of section 548 of the Bankruptcy Code,
section 4 of the UFTA or section 6 of the UFCA, or (iii) have an unreasonably
small capital to engage in any business or transaction, whether current or
contemplated, within the meaning of section 548 of the Bankruptcy Code, section
4 of the UFTA or section 5 of the UFCA. For purposes of the foregoing, “Bankruptcy
Code” means 11 U.S.C. section 101 et
seq., “UFTA” means the Uniform Fraudulent Transfer Act, “UFCA” means the
Uniform Fraudulent Conveyance Act, and “Other Applicable Law” means any other
applicable law pertaining to fraudulent transfers or acts voidable by
creditors, in each case as such law may be amended from time to time.



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“Solvency Certificate” means an officer’s certificate of Partners prepared by
an Executive Officer as to the financial condition, solvency and related
matters of the Credit Parties, on a pro forma basis after giving effect to the
initial borrowings under the Credit Documents, substantially in the form of Exhibit
L.


“Specified Acquisition” means any Permitted
Acquisition for a purchase price in excess of $25,000,000 in aggregate
consideration (including without limitation, assumed debt and earn-out
obligations).


“Specified Period” means, in the event of the
consummation of a Specified Acquisition by the Borrower, the period beginning
on the date on which such Specified Acquisition closes and ending on (and
including) the last day of the second full fiscal quarter following such
closing.


“Structures” means all plants, offices, manufacturing
facilities, warehouses, administration buildings and related facilities located
on the Real Estate.


“Subordination Agreement” shall mean an agreement between the
Agent, the Borrower (and any applicable Credit Party) and the Person providing
Subordinated Indebtedness to any Credit Party containing intercreditor and
subordination terms and conditions satisfactory to the Agent.


“Subordinated Indebtedness” shall mean
Indebtedness of any Credit Party permitted under Section 9.2 which, in each
case, is expressly subordinated and made junior to the payment and performance
in full of the Obligations.


“Subsequent Drop-Down Acquisitions” means the
acquisition by the Borrower of the Subsequent Drop-Down Assets after the
Funding Date.


“Subsequent Drop-Down Assets” means all
terminal and related assets other than the Drop-Down Assets upon which the
Borrower has an option to purchase pursuant to the Omnibus Agreement as of the
Closing Date.


“Subsidiary” means, as to any
Person, (a) any corporation more than 50% of whose Capital Stock of any class
or classes having by the terms thereof ordinary voting power to elect a
majority of the directors of such corporation (irrespective of whether or not
at the time, any class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) is at the time
owned by such Person directly or indirectly through Subsidiaries, (b) any
partnership, limited liability company, association, joint venture or other
entity in which such Person directly or indirectly through Subsidiaries has
more than a fifty percent (50%) interest in the total capital, total income
and/or total ownership interests of such entity at any time and (c) any
partnership in which such Person is a general partner.  Unless otherwise qualified, all references to
a “Subsidiary” or to “Subsidiaries” in this Credit Agreement shall refer to a
Subsidiary or Subsidiaries of Partners.


“Swing Loan” means a Loan made by Wachovia
pursuant to Section 2.1(a)(ii), which must be a Base Rate Loan or,
subject to Section 2.1(a)(ii), a LIBOR Index Loan.



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“Swing Note” means the promissory note of the
Borrower in favor of Wachovia, substantially in the form of Exhibit F-2,
evidencing the obligation of the Borrower to repay the Swing Loans, as the same
may be amended, restated, supplemented, or otherwise modified from time to
time.


“Taxes” means any federal, state, local or
foreign income, sales, use, transfer, payroll, personal, property, occupancy,
franchise or other tax, levy, impost, fee, imposition, assessment or similar
charge, together with any interest or penalties thereon.


“Term Committed Amount” shall mean (a) the
aggregate term loan facility extended by the Lenders to the Borrower on the
Funding Date pursuant to and in accordance with the terms of this Credit
Agreement, in an amount up to $75,000,000 and (b) the aggregate term loan
facility extended by the Lenders to the Borrower for Term Loans after the
Funding Date as a result of an increase effected pursuant to Section 2.2(c)(ii).


“Term Loan Commitment” shall mean, with respect
to each Lender, the commitment of such Lender to make its portion of the Term
Loan in a principal amount equal to such Lender’s Term Loan Commitment
Percentage of the Term Committed Amount.


“Term Loan Commitment Percentage” shall mean,
for any Lender, the percentage identified as its Term Loan Commitment
Percentage as shown on the books and
records of the Agent.


“Term Loans” shall mean the term loans made to
the Borrower on the Funding Date pursuant to Section 2.1(a)(iii) and any
term loans made after the Funding Date pursuant to Section 2.2(c)(ii),
and includes Base Rate Loans and Eurodollar Loans.


“Term Notes” shall mean promissory notes of the
Borrower to the Lenders that request such notes under this Agreement,
substantially in the form of Exhibit F-3.


“Terminaling Services Agreement” means that
certain Terminaling and Transportation Services Agreement dated as of May 27,
2005 by and among TransMontaigne Product Services Inc., a Delaware corporation,
Coastal Fuels Marketing Inc., a Florida corporation, Partners, Borrower, and
certain other parties thereto, which provides, among other things, the terms
and conditions upon which the Borrower and its Subsidiaries will provide
transportation, storage, and throughput services for refined products to TMG
and its Affiliates, as the same may be amended, restated, supplemented, or
otherwise modified from time to time to the extent permitted herein


“Termination Event” means (i) a Reportable
Event with respect to any Benefit Plan or Multiemployer Plan; (ii) the
withdrawal of any Credit Parties or any of their Subsidiaries or ERISA
Affiliates from a Benefit Plan during a plan year in which such entity was a “substantial
employer” as defined in Section 4001(a)(2) of ERISA; (iii) the providing
of notice of intent to terminate a Benefit Plan pursuant to Section 4041
of ERISA; (iv) the institution by the PBGC of proceedings to terminate a
Benefit Plan or Multiemployer Plan; (v) any event or condition (a) which might
constitute grounds under Section 4042 of ERISA for the termination of,
or the appointment of a trustee to administer, any Benefit Plan or
Multiemployer Plan, or (b) that may result in termination of a
Multiemployer Plan pursuant to Section 4041A of ERISA; or (vi) the


 



 30














 


 


partial or complete withdrawal within the meaning of Sections
4203 and 4205 of ERISA, of any Credit Parties or any of their
Subsidiaries or ERISA Affiliates from a Multiemployer Plan.


“Title Insurance Company” means, as to each parcel or tract of the Mortgaged Real Estate,
Lawyers Title Insurance Corporation or any other title insurance company,
mutually acceptable to the Borrower and the Agent, issuing the Mortgagee Policy
with respect thereto.


“TMG” means TransMontaigne Inc.


“TMG/TPSI Acknowledgement Agreement” means that
certain TMG and TPSI Acknowledgement Agreement, substantially in the form of Exhibit R.


“Total Leverage Ratio” means, as of the last
day of each of Partners’ fiscal quarters, the ratio of (a) Consolidated Funded
Indebtedness as of such date to (b) Consolidated EBITDA for such fiscal quarter
and the immediately preceding three fiscal quarters.


“Triggering Event” means the occurrence of any
of the following: (i) a Default or Event of Default under Section 11.1(a);
(ii) notice by the Agent, given at the direction of the Required Lenders,
during the existence of a Default or Event of Default (other than a Default or
Event of Default under Section 11.1(a)) that the Borrower shall not make
the payments set forth in clauses (a) and (b) of the definition of Permitted
Restricted Payment; or (iii) the acceleration of the Obligations in accordance
with Section 11.2


“UCC” means the Uniform Commercial Code as in
effect from time to time in the State of New York.


“UCP” means The Uniform Customs and Practice
for Documentary Credits, as published as of the date of issue of any Letter of
Credit by the International Chamber of Commerce.


“USA Patriot Act” means the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT)
Act of 2001, as in effect from time to time.


“Voting Stock” means, with respect to any
Person, Capital Stock issued by such Person the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the election
of directors (or persons performing similar functions) of such Person, even
though the right so to vote has been suspended by the happening of such a
contingency.


“Wachovia” means Wachovia Bank, National
Association, and its successors and permitted assigns.


“Working Capital Obligations” means the sum at
any time of (a) the Aggregate Revolving Loan Amount Outstanding, (b) the
Aggregate Swing Loan Amount Outstanding and (c) the Letter of Credit
Obligations.



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a.               Accounting Terms
and Determinations.


Unless otherwise defined or specified herein, all
accounting terms shall be construed herein and all accounting determinations
for purposes of determining compliance with Section 8.1  and otherwise to be made under this Credit
Agreement shall be made in accordance with GAAP applied on a basis consistent
in all material respects with the Financials.   
If GAAP shall change from the basis used in preparing the Financials,
the certificates required to be delivered pursuant to Section 7.1
demonstrating compliance with the covenants contained herein shall include
calculations setting forth the adjustments necessary to demonstrate how
Partners is in compliance with the financial covenants based upon GAAP as in
effect on the Closing Date.  If the
Credit Parties shall change their method of inventory accounting, all
calculations necessary to determine compliance with the covenants contained
herein shall be made as if such method of inventory accounting had not been so
changed.


Partners or the Borrower shall deliver to the Agent
and each Lender at the same time as the delivery of any annual financial
statements given in accordance with the provisions of Section 7.1, (i) a
description in reasonable detail of any material change in the application of
accounting principles employed in the preparation of such financial statements
from those applied in the most recently preceding annual financial statements
and (ii) a reasonable estimate of the effect on the financial statements on
account of such changes in application.


b.               Other
Definitional Terms.


Terms not otherwise defined herein which are defined
in the UCC shall have the meanings given them in the UCC.  The words “hereof”, “herein” and “hereunder”
and words of similar import when used in this Credit Agreement shall refer to
the Credit Agreement as a whole and not to any particular provision of this
Credit Agreement, unless otherwise specifically provided.  References in this Credit Agreement to “Articles”,
“Sections”, “Schedules” or “Exhibits” shall be to Articles, Sections, Schedules
or Exhibits of or to this Credit Agreement unless otherwise specifically
provided.  Any of the terms defined in Section
1.1 may, unless the context otherwise requires, be used in the singular or
plural depending on the reference.  “Include”,
“includes” and “including” shall be deemed to be followed by “without
limitation” whether or not they are in fact followed by such words or words of
like import.  “Writing”, “written” and
comparable terms refer to printing, typing, computer disk, e-mail and other
means of reproducing words in a visible form. 
References to any agreement or contract are to such agreement or
contract as amended, modified or supplemented from time to time in accordance
with the terms hereof and thereof. 
References to any Person include the successors and permitted assigns of
such Person.  References “from” or “through”
any date mean, unless otherwise specified, “from and including” or “through and
including”, respectively.  References to
any times herein shall refer to Eastern Standard or Daylight Savings time, as
applicable.



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ARTICLE
II


LOANS


2.1                               Revolving
Loans, Swing Loans, and Term Loans.


(a)           Commitments.  


(i)            Revolving Loans.  Subject to the terms and conditions hereof
and in reliance upon the representations and warranties set forth herein, each
of the Lenders severally agrees to lend to the Borrower at any time or from
time to time on or after the Funding Date and before the Maturity Date, such
Lender’s Revolving Credit Commitment Percentage of the Revolving Loans as may
be requested or deemed requested by the Borrower.


(ii)           Swing Loans.  In addition to the foregoing, Wachovia shall
from time to time after the Funding Date but before the Maturity Date, upon the
request of the Borrower, if the applicable conditions precedent in Article V
have been satisfied, make Swing Loans to the Borrower in an aggregate principal
amount at any time outstanding not exceeding $20,000,000; provided that,
immediately after such Swing Loan is made, the conditions set forth in Section
2.1(b) shall have been satisfied. 
Except for calculation of the Commitment Fee as set forth in the
definition thereof, Swing Loans shall not be considered a utilization of the
Revolving Credit Commitment of Wachovia or any other Lender hereunder.  All Swing Loans shall be made as Base Rate
Loans or as LIBOR Index Loans; provided, however, that (A) the
entire principal balance of the Swing Loans shall at all times bear interest as
either a LIBOR Index Loan or a Base Rate Loan; (B) while any Swing Loan is
outstanding all subsequent Swing Loans must bear interest at the same rate as
the Swing Loans then outstanding; (C) the Borrower may not convert any
outstanding Swing Loans from Base Rate Loans to LIBOR Index Loans, or vice
versa; (D) no Swing Loan shall constitute a LIBOR Index Loan for more than ten
(10) succeeding Business Days; and (E) if any Swing Loan remains outstanding
for more than ten (10) Business Days as a LIBOR Index Loan, then the entire
principal balance of the Swing Loans shall, automatically and without notice to
Borrower or any other Person, convert to a Base Rate Loan and, thereafter, bear
interest as a Base Rate Loan.  At any
time, upon the request of Wachovia, each Lender other than Wachovia shall, on
the third (3rd)
Business Day after such request is made, purchase a participating interest in
Swing Loans in an amount equal to its ratable share (based upon its respective
Revolving Credit Commitment) of such Swing Loans.  On such third (3rd) Business Day, each Lender will
immediately transfer to Wachovia, in immediately available funds, the amount of
its participation.  Whenever, at any time
after Wachovia has received from any such Lender its participating interest in
a Swing Loan, the Agent receives any payment on account thereof, the Agent will
promptly distribute to such Lender its participating interest in such amount
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender’s participating interest was
outstanding and 



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funded); provided,
however, that in the event that such payment received by the Agent is
required to be returned, such Lender will return to the Agent any portion
thereof previously distributed by the Agent to it.  Each Lender’s obligation to purchase such
participating interests shall be absolute and unconditional and shall not be
affected by any circumstance, including, without limitation:  (i) any set-off, counterclaim, recoupment,
defense or other right which such Lender or any other Person may have against
Wachovia requesting such purchase or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of a Default or an Event of
Default or the termination of the Revolving Credit Commitments; (iii) the
occurrence or existence of any Material Adverse Change or Material Adverse
Effect or the existence or occurrence of any adverse change in the condition
(financial or otherwise) of any other Person; (iv) any breach of any Credit
Document by any Credit Party or any other Lender; or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the
foregoing.  Purchase of any participating
interest in the Swing Loans shall not relieve Borrower of any default in the
payment thereof.


(iii)          Term Loans.  Subject to the terms and conditions hereof
and in reliance upon the representations and warranties set forth herein, each
of the Lenders severally agrees to make available to the Borrower on the
Funding Date a Term Loan equal to such
Lender’s Term Loan Commitment Percentage of the Term Committed Amount for
the purposes hereinafter set forth.


(b)           Certain Limitations Applicable to
the Loans.


No Lender shall be
obligated at any time to make available to the Borrower its Revolving Credit
Commitment Percentage of any requested Revolving Loan if such amount plus
its Revolving Credit Commitment Percentage of all Revolving Loans and its
Revolving Credit Commitment Percentage of all Letter of Credit Obligations
would exceed such Lender’s Revolving Credit Commitment at such time.  The aggregate balance of Working Capital
Obligations shall not at any time exceed the Revolving Credit Committed
Amount.  No Lender shall be obligated to
make available, nor shall the Agent make available, any Revolving Loans to the
Borrower to the extent such Revolving Loan when added to the then outstanding
Revolving Loans, Swing Loans and Letter of Credit Obligations would cause the
aggregate outstanding Working Capital Obligations to exceed the Revolving
Credit Committed Amount then in effect. 
If at any time the amount of all Working Capital Obligations outstanding
exceeds the Revolving Credit Committed Amount then in effect, the Borrower
immediately shall make a mandatory prepayment in accordance with the provisions
of Section 2.2(b)(i).


(c)           Notes.


(i)            Revolving Notes.  If so requested by a Lender (at or at any time
after the Funding Date), the obligations of the Borrower to repay the Revolving
Loans to such Lender and to pay interest thereon shall be evidenced by a
separate Revolving Note to such Lender, with appropriate insertions.  One Revolving Note 



 34
 






 



 


shall be payable to the
order of each Lender which so requests a Revolving Note, and each such
Revolving Note shall be in a principal amount equal to such Lender’s Revolving
Credit Commitment and shall represent the obligations of the Borrower to pay
such Lender the amount of such Lender’s Revolving Credit Commitment or, if
less, the aggregate unpaid principal amount of all Revolving Loans made by such
Lender hereunder, plus interest accrued thereon, as set forth herein.  Subject to Sections 2.5, 13.8
and 14.5(e), the Borrower irrevocably authorizes each Lender which has
been issued a Revolving Note to make or cause to be made appropriate notations
on its Revolving Note, or on a record pertaining thereto, reflecting Revolving
Loans and repayments thereof.  The
outstanding amount of the Revolving Loans set forth on such Lender’s Revolving
Note or record shall be prima  facie evidence of the principal
amount thereof owing and unpaid to such Lender, but the failure to make such
notation or record, or any error in such notation or record shall not limit or
otherwise affect the obligations of the Borrower hereunder or under any
Revolving Note to make payments of principal of or interest on any Revolving
Note when due.  Any of the foregoing to
the contrary notwithstanding, any lack of a Lender’s request to be issued a
Revolving Note shall not, in any manner, diminish the Borrower’s obligations to
repay the Revolving Loans made by such Lender, together with all other amounts
owing to such Lender by the Borrower.


(ii)           Swing Note.  The obligations of the Borrower to repay the
Swing Loans shall be evidenced by a single Swing Note payable to the order of
Wachovia in the original principal amount of $20,000,000.


(iii)          Term Notes. If so requested by
a Lender (at or at any after the Funding Date), the obligations of the Borrower
to repay the Term Loans and to pay interest thereon shall be evidenced by a
Term Note, with appropriate insertions. 
One Term Note shall be issued to the order of each Lender that so
requests a Term Note, and such Term Note shall be in a principal amount equal
to such Lender’s Term Loan Commitment (or in the event such Notes are issued
after the Funding Date, the amount of Term Loans owed to such Lender) and shall
represent the obligations of the Borrower to pay such Lender the amount of such
Lender’s Term Loan, plus interest accrued thereon, as set forth herein.  The Borrower irrevocably authorizes each
Lender that has been issued a Term Note to make or cause to be made appropriate
notations on its Term Note, or on a record pertaining thereon, reflecting Term
Loans and repayments thereof.  The
outstanding amount of the Term Loan set forth on such Lender’s Term Note or
record shall be prima  facie evidence of the principal amount
thereof owing and unpaid to such Lender, but the failure to make such notation
or record, or any error in such notation or record shall not limit or otherwise
affect the obligations of the Borrower hereunder or under any Term Note to make
payments of principal of or interest on any Term Note when due.  Any of the foregoing to the contrary
notwithstanding, any lack of a Lender’s request to be issued a Term Note shall
not, in any manner, diminish the Borrower’s obligations to repay the Term Loans
made by such Lender, together with all other amounts owing to such Lender by
the Borrower.



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(d)           Borrowings.


(i)            Each request for a Revolving or
Swing Loan hereunder shall be made by a Notice of Borrowing from the Borrower
to the Agent, given not later than (A) 2:00 P.M. on the Business Day on which
the proposed borrowing is requested to be made for Revolving Loans that will be
Base Rate Loans and for Swing Loans and (B) during normal business hours on the
date that is three Business Days prior to the date of the requested borrowing
of Revolving Loans that will be Eurodollar Loans.  Each request for borrowing made in a Notice
of Borrowing shall be given by telecopy, setting forth (1) the requested date
of such borrowing, (2) the aggregate amount of such requested borrowing and
whether it is for a Revolving Loan or Swing Loan, (3) whether such Revolving
Loans will be Base Rate Loans or Eurodollar Rate Loans, and if appropriate, the
applicable Interest Period, (4) whether such Swing Loan will be a Base Rate Loan
or LIBOR Index Loan (subject to Section 2.1(a)(ii)), (5) certification
by the Borrower that it has complied in all respects with Section 5.3,
all of which shall be specified in such manner as is necessary to comply with
all limitations on Revolving Loans and Swing Loans outstanding hereunder and
(6) the account at which such requested funds should be made available.  Each request for borrowing made in a Notice
of Borrowing shall be irrevocable by and binding on the Borrower.  The Borrower shall be entitled to borrow
Revolving Loans in a minimum principal amount of $3,000,000 and integral
multiples of $1,000,000 in excess thereof (or the remaining amount of the
Revolving Credit Committed Amount, if less) and shall be entitled to borrow
Base Rate Loans or Eurodollar Loans, or a combination thereof, as the Borrower
may request; provided, that no more than six (6) Eurodollar Loans
(including Term Loans which are Eurodollar Loans) shall be outstanding
hereunder at any one time; and provided, further, that Eurodollar
Loans shall be in a minimum principal amount of at least $3,000,000 and
integral multiples of $1,000,000 in excess thereof.  Each Swing Loan shall be in a minimum
principal amount of at least $100,000 and integral multiples of $100,000 in
excess thereof.  Revolving Loans and
Swing Loans may be repaid and reborrowed in accordance with the provisions
hereof.


The Agent shall give to each Lender prompt notice (but in no event
later than 3:00 P.M. on the date of the Agent’s receipt of notice from the
Borrower) of each requested borrowing in a Notice of Borrowing by telecopy,
telex or cable (other than any Notice of Borrowing which will be funded by the
Agent in accordance with subsection (d)(ii) below).  No later than 4:00 P.M. on the date on
which a Revolving Loan borrowing is requested to be made pursuant to the
applicable Notice of Borrowing, each Lender will make available to the Agent at
the address of the Agent set forth on the signature pages hereto, in
immediately available funds, its Revolving Credit Commitment Percentage of such
borrowing requested to be made (unless such funding is to be made by the Agent
in accordance with subsection (d)(ii) below). 
Unless the Agent shall have been notified by any Lender prior to the
date of borrowing that such Lender does not intend to make available to the
Agent its portion of the Revolving Loan borrowing to be made on such date, the
Agent may assume that such Lender will 



 36
 






 



 


make such amount available to the Agent as required
above and the Agent may, in reliance upon such assumption, make available the
amount of the borrowing to be provided by such Lender.  Upon fulfillment of the conditions set forth
in Section 5.3 for such borrowing, the Agent will make such funds
available to the Borrower at the account specified by the Borrower in such
Notice of Borrowing.


(ii)           If the amounts of Revolving Loans
described in subsection (d)(i) of this Section 2.1 or the amounts of
Term Loans described in subsection (d)(vi) of this Section 2.1 are not
in fact made available to the Agent by a Lender (such Lender being hereinafter
referred to as a “Defaulting Lender”) and the Agent has made such amount
available to the Borrower, the Agent shall be entitled to recover such
corresponding amount on demand from such Defaulting Lender.  If such Defaulting Lender does not pay such
corresponding amount forthwith upon the Agent’s demand therefor, the Agent
shall promptly notify the Borrower and the Borrower shall immediately (but in
no event later than five Business Days after such demand) pay such
corresponding amount to the Agent.  The
Agent shall also be entitled to recover from such Defaulting Lender and the
Borrower, (A) interest on such corresponding amount in respect of each day from
the date such corresponding amount was made available by the Agent to the
Borrower to the date such corresponding amount is recovered by the Agent, at a
rate per annum equal to either (1) if paid by such Defaulting Lender, the
overnight Federal Funds Rate or (2) if paid by the Borrower, the then
applicable rate of interest, calculated in accordance with Section 4.1, plus
(B) in each case, an amount equal to any reasonable costs (including reasonable
legal expenses) and losses incurred as a result of the failure of such
Defaulting Lender to provide such amount as provided in this Credit
Agreement.  Nothing herein shall be
deemed to relieve any Lender from its obligation to fulfill its commitments
hereunder or to prejudice any rights which the Borrower may have against any Lender
as a result of any default by such Lender hereunder, including, without
limitation, the right of the Borrower to seek reimbursement from any Defaulting
Lender for any amounts paid by the Borrower under clause (B) above on account
of such Defaulting Lender’s default.


(iii)          The failure of any Lender to make the
Revolving Loan or Term Loan to be made by it as part of any borrowing shall not
relieve any other Lender of its obligation, if any, hereunder to make its
Revolving Loan or Term Loan on the date of such borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Revolving Loan or
Term Loan to be made by such other Lender on the date of any borrowing.


(iv)          Each Lender shall be entitled to earn
interest at the then applicable rate of interest, calculated in accordance with
Article IV, on outstanding Revolving Loans and Term Loans which it has
funded to the Agent from the date such Lender funded such Revolving Loan or
Term Loan to, but excluding, the date on which such Lender is repaid with
respect to such Revolving Loan or Term Loan.



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(v)           A request for a borrowing may not be
made by telephone, unless no other means are available at the time of such
request.


(vi)          The full amount of the Term Loans
shall be disbursed without further request of the Borrower on the Funding Date
as Base Rate Loans (subject, in all events, to the closing conditions contained
in Article V).  Each Lender shall
make the amount of its Term Loan Commitment
Percentage of the Term Committed Amount available to the Agent for the
account of the Borrower at the address of the Agent set forth on the signature
pages hereto, by 1:00 P.M. on the Funding Date and in funds immediately
available to the Agent.  The Term Loan
Commitments of the Lenders shall automatically terminate at the close of business
on the Funding Date.  Once a portion of
the Term Loan is repaid, it cannot be reborrowed.  Each Eurodollar Loan or Base Rate Loan that
is part of the Term Loans shall be in an aggregate principal amount that is not
less than $3,000,000 and integral multiples of $1,000,000 (or the then
remaining principal balance of the Term Loans, if less).


2.2                               Optional
and Mandatory Prepayments; Reduction or Increase of Committed Amount.


(a)           Voluntary Prepayments.  The Borrower shall have the right to prepay
Loans in whole or in part from time to time, but otherwise without premium or
penalty; provided, however, that (i) Loans that are Eurodollar
Loans may only be prepaid on three (3) Business Days’ prior written notice to
the Agent specifying the applicable Loans to be prepaid; (ii) any prepayment of
Loans that are Eurodollar Loans will be subject to Section 4.10; (iii)
each such partial prepayment of Revolving or Term Loans shall be in a minimum
principal amount of $1,000,000 for Base Rate Loans and $3,000,000 for Eurodollar
Loans and (iv) each such partial prepayment of Swing Loans shall be in a
minimum principal amount of $100,000, or in each
case, the outstanding balance, if less. 
Unless otherwise directed in writing by the Borrower, voluntary
prepayments shall be applied first to Swing Loans, second to Revolving Loans,
and third to Term Loans.  Prepayments on
Revolving Loans and Term Loans will be applied first to Base Rate Loans and
then to Eurodollar Loans in the direct order of Interest Period maturities
thereof.


(b)           Mandatory
Prepayments.


(i)            Revolving Credit Committed Amount.  If at any time, the Working Capital
Obligations outstanding shall exceed the Revolving Credit Committed Amount then
in effect, the Borrower immediately shall pay to the Agent, for the ratable
account of the Lenders, an amount sufficient to eliminate such excess.


(ii)           Capital Stock Issuance.  Promptly and in any event within ten (10)
days following the occurrence of any issuance of Capital Stock by Partners, the
Borrower shall prepay the Loans in an aggregate amount equal to the lesser of
(i) 100% of the Net Cash Proceeds of such issuance and (ii) the amount of such
Net Cash Proceeds that would result in the Total Leverage Ratio, after giving
effect to 



 38
 






 



 


such issuance and
prepayment, to be less than 4.0 to 1.0. 
Such prepayment shall be applied as set forth in clause (iv).


(iii)          Involuntary Disposition.  Promptly and in any event within ten (10)
days following the occurrence of any Involuntary Disposition and the expiration
of the 270 day period referred to below, the Borrower shall prepay the Loans in
an aggregate amount equal to the Net Cash Proceeds of such disposition;
provided, that, such prepayment shall not be required to the extent such Net
Cash Proceeds are used to restore, repair or replace the applicable property or
to acquire or improve other tangible property to be used in the Borrower’s line
of business within 270 days of such Involuntary Disposition.  Such prepayment shall be applied as set forth
in clause (iv).


(iv)          Application of Mandatory
Prepayments.  All amounts required to
be paid pursuant to this Section 2.2(b) shall be applied as follows: (A)
with respect to all amounts prepaid pursuant to Section 2.2(b)(i), to
Swing Loans, and then Revolving Loans and (after all Revolving Loans have been
repaid) to a cash collateral account held by the Agent in respect of Letter of
Credit Obligations, and (B) with respect to all amounts prepaid pursuant to Section
2.2(b)(ii) and (iii), to the Revolving Loans or Term Loans as
directed by the Borrower at the time of such prepayment.  All prepayments made hereunder against the
Revolving Loans shall not result in a permanent reduction in the Revolving
Credit Commitments; provided, that in the case of a mandatory prepayment
pursuant to Section 2.2(b)(ii) if the Borrower elects to apply the
proceeds to the Revolving Loans, there will be a corresponding permanent
reduction in the Revolving Credit Commitments; provided, that such
permanent reductions in Revolving Credit Commitments shall not exceed
$25,000,000 (it being understood that any payments of Revolving Loans or Term
Loans with proceeds of an issuance of Capital Stock in excess of the amount
required pursuant to Section 2.2(b)(ii) shall be deemed to be a voluntary
prepayment).  Within the parameters of
the applications set forth above for Loans, prepayments shall be applied first
to Base Rate Loans and then to Eurodollar Loans in direct order of Interest
Period maturities.  All prepayments under
this Section 2.2(b) shall be subject to Section 4.10.


(c)           Voluntary Reductions of Revolving
Credit Committed Amount; Increases to Revolving Credit Committed Amount and
Term Loans.


(i)            The Borrower may from time to time
permanently reduce or terminate the Revolving Credit Committed Amount in whole
or in part (in minimum aggregate amounts of $3,000,000 or in integral multiples
of $1,000,000 in excess thereof (or, if less, the full remaining amount of the
then applicable Revolving Credit Committed Amount)) upon three (3) Business
Days’ prior written notice to the Agent; provided, however, no
such termination or reduction shall be made which would cause the aggregate
principal amount of outstanding Revolving Loans plus Letter of Credit
Obligations outstanding to exceed the Revolving Credit Committed 



 39
 






 



 


Amount (as so reduced),
unless, concurrently with such termination or reduction, the Borrower make a
mandatory prepayment in accordance with the provisions of Section 2.2(b)(i).  The Agent shall promptly notify each affected
Lender of receipt by the Agent of any notice from the Borrower pursuant to this
Section 2.2(c).


(ii)           The Revolving Credit Committed
Amounts may be increased and additional Term Loan Commitments may be obtained
from time to time as follows:


(A)          At the Borrower’s written request to
the Agent, the Revolving Credit Committed Amount may be increased from time to
time and new Term Loan Commitments may be obtained in increments of $5,000,000,
up to an additional $50,000,000 in the aggregate, for a maximum amount of
Revolving Credit Committed Amounts plus Term Committed Amounts plus
outstanding Term Loans of $275,000,000; provided, however, that
no such increase or additional commitments shall be effective unless:


(1)           The Agent shall have received one or
more additional commitments from existing Lenders (as provided below in
subparagraph (B), below) or such other Person satisfying the terms and
conditions set forth in subparagraph (C), below;


(2)           The Agent shall have consented to
such increase;


(3)           No Default or Event of Default shall
have occurred and be continuing at the time any such request is made by the
Borrower or at the time such increase would otherwise become effective;


(4)           Unless the Borrower has otherwise
agreed in writing to provide the indemnification provided for in Section
4.10, no Eurodollar Loan shall be outstanding, and


(5)           The Borrower shall have delivered to
the Agent and the Lenders such other documents, instruments, agreements or
information reasonably requested by the Agent or any Lender that is providing
additional Commitments, including, without limitation, amendments to the Real
Property Documentation reflecting such increase.


(B)           Upon its receipt of any written
request to increase the Revolving Credit Committed Amount or to obtain new Term
Loan Commitments, the Agent will deliver such notice to each of the Lenders,
each of whom shall have the right to provide all or a part of the specified
increase or new commitments  (in either
case, an “increase”) in increments of at least $1,000,000.  If any then existing Lender desires to provide
all or


 



 40














 


 


any part of such
increase, it must, within two Business Days of its receipt of such notice from
the Agent, respond to the Agent in writing, which response must clearly
indicate the amount of such increase such responding Lender would like to
provide (which election shall be irrevocable). 
If the aggregate amount of additional commitments proposed by all of the
responding Lenders exceeds the amount of the increase requested by the
Borrower, then the Agent shall allocate the increase to each such responding Lender
pro rata based on the amount of such increase proposed by such Lender, divided
by the aggregate amount proposed by all responding Lenders.  Except as provided in this paragraph, no
Lender shall have any obligation to provide any such increase.


(C)           If the then existing Lenders do not
provide additional commitments to meet the requested increase, then any other
Person or Persons who, unless otherwise agreed to in writing by the Agent,
would constitute Eligible Assignees and who are acceptable to Agent may provide
the remaining portion of requested increase (as determined by Agent) by joining
this Credit Agreement as Lenders, executing and delivering a joinder agreement
in form and substance satisfactory to the Agent, and otherwise providing all
documentation as would be required of an Eligible Assignee pursuant to Section
14.5, all the extent requested by the Agent, whereupon such Persons shall
be deemed Lenders for all purposes hereunder.


(D)          With respect to any increase regarding
the Revolving Credit Committed Amount, to the extent deemed reasonably
necessary by the Agent, each Lender shall sell to or purchase from, as
applicable, each other Lender an amount necessary to place the aggregate
outstanding amount of such Lender’s Revolving Loans in proportion to its
Revolving Credit Commitment Percentage, in light of such increase and
reallocation of the Revolving Loans (with the Borrower being liable for any
indemnification required pursuant to Section 4.10). Upon the
effectiveness of any increase to the Revolving Credit Committed Amount, the
Agent will modify its books and records to reflect the revised Revolving Credit
Commitments of each of the Lenders.  Any
Lender that increases its Revolving Credit Commitment pursuant to this Section
shall be entitled to request and receive a replacement Revolving Credit Note in
the amount of its increased Revolving Credit Commitment which the Borrower
shall promptly provide.


(E)           With respect to any additional Term
Loan Commitment, the full amount of such Term Loans corresponding thereto shall
be disbursed on the effective date relating to such increase.  Each Lender shall make the amount of its Term Loan Commitment Percentage of such
additional Term Committed Amount available to the Agent for the account
of the Borrower at the address of the Agent set forth on the signature pages
hereto, by 1:00 P.M. on the effective date in funds immediately 



 41
 






 



 


available to the
Agent.  The Term Loan Commitments of the
Lenders relating to such Term Loans shall automatically terminate at the close
of business on such effective date.  Once
a portion of such Term Loans are repaid, it cannot be reborrowed.  All other provisions of this Credit Agreement
applicable to Term Loans shall be applicable to the Term Loans advanced
hereunder.


(d)           Maturity Date.  Unless the Loans have been previously
declared due and payable (and the Revolving Credit Commitments have been
terminated) in accordance with Section 11.02 hereof, on the Maturity Date: (i)
the Revolving Credit Commitment of the Lenders, the commitment of Wachovia to
make Swing Loans and the Letter of Credit Commitment of the Issuing Bank shall
automatically terminate and (ii) the principal amount of all Loans shall be due
and payable.


(e)           General.  The Borrower shall pay to the Agent for the
account of the Lenders in accordance with the terms of Section 4.3, on
the date of each termination or reduction of the Revolving Credit Committed
Amount, the Commitment Fee accrued through the date of such termination or
reduction on the amount of the Revolving Credit Committed Amount so terminated
or reduced.


(f)            Hedging Obligations Unaffected.  Any prepayment made pursuant to this Section 2.2
shall not affect the Borrower’s obligation to continue to make payments under
any Lender Hedging Agreement, which shall remain in full force and effect
notwithstanding such prepayment, subject to the terms of such Lender Hedging Agreement.


2.3                               Payments
and Computations.


(a)           Payments.  The Borrower shall make each payment
hereunder and under the Notes not later than 2:00 P.M. on the day when
due.  Payments made by the Borrower shall
be in Dollars to the Agent at its address referred to in Section 14.4 in
immediately available funds without deduction, withholding, setoff or
counterclaim.  As soon as practicable
after the Agent receives payment from the Borrower, but in no event later than
one Business Day after such payment has been made, subject to Section
2.1(d)(ii), the Agent will cause to be distributed like funds relating to
the payment of principal, interest, or Fees (other than amounts payable on the
Swing Loans or to the Agent to reimburse the Agent and the Issuing Bank for
fees and expenses payable solely to them pursuant to Article IV) or
expenses payable to the Agent and the Lenders in accordance with Section
14.7 ratably to the Lenders, and like funds relating to the payment of any
other amounts payable to such Lender. 
The Borrower’s obligations to the Lenders with respect to such payments
shall be discharged by making such payments to the Agent pursuant to this Section
2.3(a) or if not timely paid or any Event of Default then exists, may be
added to the principal amount of the Revolving Loans outstanding.


(b)           Treatment of Accounts After an
Event of Default.  After the
occurrence of an Event of Default, if so demanded by the Agent:



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(i)            the Full Recourse Credit Parties
shall instruct all of their respective account debtors that do not already do
so to remit all payments directly to Agent for deposit by the Agent in a
deposit account designated by Agent, which deposit account shall be maintained
at the Agent and over which the Agent shall have control;


(ii)           all amounts received directly by the
Full Recourse Credit Parties from any account debtor, in addition to all other
cash received from any other source (including but not limited to proceeds from
asset sales and judgments), shall be held in trust for the benefit of the Agent
and the Lenders and shall be promptly forwarded to Agent for deposit into such
deposit account;


(iii)          funds forwarded to the Agent or
deposited into the deposit account described above shall immediately become the
property of the Agent and, at the Agent’s discretion, all funds forwarded to
Agent or deposited into such deposit account shall be applied to the
Obligations as provided in Section 2.8;


(iv)          no Full Recourse Credit Party shall
direct any account debtor to submit payment on any Account to any address or
location other than to Agent and the deposit account described above; and


(v)           Agent shall have the right, but not
the obligation, to contact each of the Full Recourse Credit Parties’ account
debtors directly to verify balances and to direct such account debtor to make
payment on the Accounts directly to Agent for application to the Obligations as
provided herein.


(c)           After the occurrence and during the
continuance of an Event of Default, the Borrower hereby authorizes each Lender
to charge from time to time against the Borrower’s deposit or other accounts
with such Lender any of the Obligations which are then due and payable.  Each Lender receiving any payment as a result
of charging any such account shall promptly notify the Agent thereof and make
such arrangements as the Agent shall request to share the benefit thereof in
accordance with Section 2.7.


(d)           Except as otherwise provided herein
with respect to Eurodollar Loans, any payments falling due under this Credit
Agreement on a day other than a Business Day shall be due and payable on the
next succeeding Business Day and shall accrue interest at the applicable
interest rate provided for in this Credit Agreement to but excluding such
Business Day.  Except as otherwise
provided herein, computation of interest and fees hereunder shall be made on
the basis of actual number of days elapsed over a year of 360 days.  Interest on Base Rate Loans bearing interest
based on the Prime Rate shall be calculated on the basis of a year of 365 (or
366, if applicable) days.


2.4                               Maintenance
of Account.


The Agent shall maintain an account on its books in
the name of the Borrower in which the Borrower will be charged with all loans
and advances made by the Lenders to the Borrower or for the Borrower’s account,
including the Revolving Loans, the Swing Loans, the Term Loans, the Letter of
Credit Obligations and any other Obligations, including any and all costs, expenses




 43
 






 



 


and attorney’s fees which the Agent may incur,
including, without limitation, in connection with the exercise by or for the
Lenders of any of the rights or powers herein conferred upon the Agent (other
than in connection with any assignments or participations by any Lender) or in
the prosecution or defense of any action or proceeding by or against the Borrower or the Lenders concerning any
matter arising out of, connected with, or relating to this Credit Agreement or
the Accounts, or any Obligations owing to the Lenders by the Borrower.  The Borrower will be credited with all
amounts received by the Lenders from the Borrower or from others for the
Borrower’s account, including, as above set forth, all amounts received by the
Agent in payment of Accounts.  In no
event shall prior recourse to any Accounts or other Collateral be a
prerequisite to the Agent’s right to demand payment of any Obligation upon its
maturity.  Further, it is understood that
the Agent shall have no obligation whatsoever to perform in any respect any of
the Borrower’s contracts or obligations relating to the Accounts.


2.5                               Statement
of Account.


Within fifteen (15) days after the end of each month
the Agent shall send the Borrower a statement showing the accounting for the
charges, loans, advances and other transactions occurring between the Lenders
and the Borrower during that month.  The
monthly statements shall be deemed correct and binding upon the Borrower and
shall constitute an account stated between the Borrower and the Lenders unless
the Agent receives a written statement of the Borrower’s exceptions within
forty-five  (45) days after same is
mailed to the Borrower.


2.6                               Taxes.


(a)           All payments made by the Borrower
hereunder or under any Note will be, except as provided in Section 2.6(b),
made free and clear of, and without deduction or withholding for, any present
or future taxes, levies, imposts, duties, fees, assessments or other charges of
whatever nature now or hereafter imposed by any Governmental Authority or by
any political subdivision or taxing authority thereof or therein with respect
to such payments (but excluding any tax imposed on or measured by the net
income or profits of a Lender pursuant to the laws of the jurisdiction in which
it is organized or the jurisdiction in which the principal office or applicable
lending office of such Lender is located or any subdivision thereof or therein
(the “Excluded Taxes”)) and all interest, penalties or similar
liabilities with respect thereto (all such non-excluded taxes, levies, imposts,
duties, fees, assessments or other charges being referred to collectively as “Payment
Taxes”).  If any Payment Taxes are so
levied or imposed, the Borrower agrees to pay the full amount of such Payment
Taxes, and such additional amounts as may be necessary so that every payment of
all amounts due under this Credit Agreement or any other Credit Document, after
withholding or deduction for or on account of any Payment Taxes, will not be
less than the amount provided for herein or therein.  The Borrower agrees to indemnify and hold
harmless each Lender, and reimburse such Lender upon its written request, for
the amount of any Payment Taxes so levied or imposed and paid by such Lender.


(b)           Each Foreign Lender agrees to deliver
to the Borrower and the Agent on or prior to the Closing Date, or in the case
of a Lender that is an assignee or transferee of an interest under this Credit
Agreement pursuant to Section 14.5(c) (unless the respective 



 44
 






 



 


Lender was already a
Lender hereunder immediately prior to such assignment or transfer), on the date
of such assignment or transfer to such Foreign Lender, two accurate and
complete original signed copies of Internal Revenue Service Form W-8 BEN, W-8
ECI or W-8 IMY, as applicable (or successor forms) certifying such Foreign
Lender’s entitlement to a complete exemption from United States withholding tax
with respect to payments to be made under this Credit Agreement and under any
Note.  In addition, each Foreign Lender
agrees that it will deliver updated versions of the foregoing, as applicable,
whenever the previous certification has become obsolete or inaccurate in any
material respect, together with such other forms as may be required in order to
confirm or establish the entitlement of such Foreign Lender to a continued
exemption from or reduction in United States withholding tax with respect to
payments under this Agreement and any Note. 
Notwithstanding anything to the contrary contained in Section 2.6(a),
but subject to the immediately succeeding sentence, (x) the Borrower shall be
entitled, to the extent it is required to do so by law, to deduct or withhold
Payment Taxes imposed by the United States (or any political subdivision or
taxing authority thereof or therein) from interest, fees or other amounts payable
hereunder for the account of any Foreign Lender to the extent that such Foreign
Lender has not provided to the Borrower U.S. Internal Revenue Service Forms
that establish a complete exemption from such deduction or withholding and (y)
the Borrower shall not be obligated pursuant to Section 2.6(a) to
gross-up payments to be made to a Foreign Lender in respect of Payment Taxes
imposed by the United States if such Foreign Lender has not provided to the
Borrower the Internal Revenue Service Forms required to be provided to the
Borrower pursuant to this Section 2.6(b) or if such forms do not provide
for a complete exemption from withholding tax. 
Notwithstanding anything to the contrary contained in the preceding
sentence or elsewhere in this Section 2.6, the Borrower agrees to pay
additional amounts and to indemnify each Lender in the manner set forth in Section
2.6(a) (without regard to the identity of the jurisdiction requiring the
deduction or withholding) in respect of any amounts deducted or withheld by it
as described in the immediately preceding sentence as a result of any changes
after the Closing Date in any applicable law, treaty, governmental rule,
regulation, guideline or order, or in the interpretation thereof, relating to
the deducting or withholding of Payment Taxes. 
Notwithstanding anything to the contrary contained in this Section
2.6, the Borrower shall not be required to pay any Payment Taxes for any
period ending ninety (90) days or more prior to the request for payment of such
Other Taxes.


(c)           Each Lender agrees to use reasonable
efforts (including reasonable efforts to change its lending office) to avoid or
to minimize any amounts which might otherwise be payable pursuant to this Section
2.6; provided, however, that such efforts shall not cause the
imposition on such Lender of any additional costs or legal or regulatory
burdens deemed by such Lender in its reasonable discretion to be material.


(d)           If the Borrower pays any additional
amount pursuant to this Section 2.6 with respect to a Lender, such
Lender shall use reasonable efforts to obtain a refund of tax or credit against
its tax liabilities on account of such payment; provided that such
Lender shall have no obligation to use such reasonable efforts if either (i) it
is in an excess foreign tax credit position or (ii) it believes in good faith,
in its reasonable discretion, that claiming a refund or credit would cause
adverse tax consequences to it.  



 45
 






 



 


In the event that such
Lender receives such a refund or credit, such Lender shall pay to the Borrower
an amount that such Lender reasonably determines is equal to the net tax
benefit obtained by such Lender as a result of such payment by the
Borrower.  In the event that no refund or
credit is obtained with respect to the Borrower’s payments to such Lender
pursuant to this Section 2.6, then such Lender shall upon request
provide a certification that such Lender has not received a refund or credit
for such payments.  Nothing contained in
this Section 2.6 shall require a Lender to disclose or detail the basis
of its calculation of the amount of any tax benefit or any other amount or the
basis of its determination referred to in the proviso to the first sentence of
this Section 2.6(a) to the Borrower or any other party.


(e)           In addition, the Borrower agrees to
pay any present or future stamp, documentary, privilege, intangible or similar
Taxes or any other excise or property Taxes, charges or similar levies that
arise at any time or from time to time (other than Excluded Taxes)
(i) from any payment made under any and all Credit Documents,
(ii) from the transfer of the rights of any Lender under any Credit
Documents to any other Lender or Lenders or (iii) from the execution or
delivery by the Borrower of, or from
the filing or recording or maintenance of, or otherwise with respect to, any
and all Credit Documents (hereinafter referred to as “Other Taxes”).


(f)            The Borrower will indemnify each
Lender and the Agent for the full amount of Payment Taxes (including, without
limitation and without duplication, any Payment Taxes imposed by any
jurisdiction on amounts payable under this Section 2.6), subject to
(i) the exclusion set out in the first sentence of Section 2.6(a),
and (ii) the provisions of Section 2.6(b), and will indemnify
each Lender and the Agent for the full amount of Other Taxes (including,
without limitation and without duplication, any Payment Taxes imposed by any
jurisdiction on such Other Taxes paid by such Lender or the Agent (on its own
behalf or on behalf of any Lender), as the case may be, in respect of payments
made or to be made hereunder, and any liability (including penalties, interest
and expenses) arising solely therefrom or with respect thereto, whether or not
such Payment Taxes or Other Taxes were correctly or legally asserted.  Payment of this indemnification shall be made
within thirty (30) days from the date such Lender or the Agent, as the
case may be, makes written demand therefor.


(g)           Within thirty (30) days after
the date of any payment of Payment Taxes or Other Taxes by the Borrower,
the  Borrower shall furnish to the Agent,
at its address referred to in Section 14.4, the original or
certified copy of a receipt evidencing payment thereof.


(h)           Without
prejudice to the survival of any other agreement of the Borrower hereunder, the
agreements and obligations of the Borrower contained in this Section 2.6
shall survive the payment in full of all Obligations hereunder and under any
Notes.


2.7                               Sharing
of Payments.


If any Lender shall obtain any payment (whether
voluntary, involuntary, through the exercise of any right of setoff or
otherwise) on account of the Loans made by it in excess of its 



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pro  rata
share of such payment as provided in this Credit Agreement or its participation
in Letters of Credit in excess of its pro  rata share of its
participation therein as provided for in this Credit Agreement, such Lender
shall forthwith purchase from the other Lenders such participations in the
Loans made by them or in their participation in Letters of Credit as shall be
necessary to cause such purchasing Lender to share the excess payment accruing
to all Lenders in accordance with their respective ratable shares as provided
for in this Credit Agreement; provided, however, that if all or
any portion of such excess is thereafter recovered from such purchasing Lender,
such purchase from each Lender shall be rescinded and each such Lender shall
repay to the purchasing Lender the purchase price to the extent of such
recovery together with an amount equal to such Lender’s ratable share (according
to the proportion of (i) the amount of such Lender’s required repayment to (ii)
the total amount so recovered from the purchasing Lender) or any interest or
other amount paid or payable by the purchasing Lender in respect to the total
amount so recovered.  The Borrower agrees
that any Lender so purchasing a participation from another Lender pursuant to
this Section 2.7 may, to the fullest extent permitted by law, exercise
all of its rights of payment (including the right of setoff) with respect to such
participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.


2.8                               Allocation
of Payments; Pro Rata Treatment.


(a)           Allocation of Payments Prior to
Event of Default; Payments Generally. Each borrowing of Revolving Loans and
any reduction of the Revolving Credit Commitments shall be made pro  rata
according to the respective Revolving Credit Commitment Percentages of the
Lenders and each payment on account of Term Loans shall be made pro  rata
according to the respective amounts of Term Loans held by the Lenders.  Unless otherwise specifically set forth
herein, each payment under this Agreement or any Note shall be applied, first,
to any Fees then due and owing pursuant to Article IV, second, to
interest then due and owing in respect of the Swing Loans, third to principal
then due and owing hereunder and under the Swing Loans, fourth, to interest
then due and owing in respect of the Loans, and lastly, to principal then due
and owing hereunder and under the Loans. 
Each payment on account of any Fees pursuant to Sections 4.3 and 4.5
shall be made to the Lenders holding Revolving Credit Commitments pro  rata
(or if the Revolving Credit Commitments
have been terminated, pro  rata based upon the aggregate outstanding
principal amount of the Working Capital Obligations, including participation
interests in Letter of Credit Obligations, but excluding Swing Loans) in
accordance with the respective amounts due and owing (except the Issuing Bank
Fees which shall be payable solely to the Issuing Bank).  Each payment (other than prepayments) by the
Borrower on account of principal of and interest on the Loans shall be
allocated pro  rata among the Lenders in accordance with the
respective principal amounts of their outstanding Loans.  Payments made pursuant to Section 4.9
shall be applied in accordance with such Section.  Each voluntary and mandatory prepayment on
account of principal of the Loans shall be applied in accordance with Section 2.2(a)
or (b), as applicable.


(b)           Allocation of Payments After Event
of Default and Proceeds of Collateral. 
Notwithstanding any other provisions of this Credit Agreement or any
other Credit Document to the contrary, after the occurrence and during the
continuance of an Event of 



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Default, all amounts
collected or received by the Agent or any Lender on account of the Obligations
(whether in an insolvency or bankruptcy case or proceeding or otherwise) or any
other amounts outstanding under any of the Credit Documents or in respect of the
Collateral shall be paid over or delivered as follows:


FIRST, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation reasonable attorneys’ fees) of the
Agent in connection with enforcing the rights of the Lenders under the Credit
Documents and any protective advances made by the Agent with respect to the
Collateral under or pursuant to the terms of the Security Documents;


SECOND, to payment of any Fees owed to the Agent or an Issuing Bank
hereunder or under any other Credit Document;


THIRD, to the payment of all reasonable out-of-pocket costs
and expenses, (including, without limitation, reasonable attorneys’ fees) of
each of the Lenders in connection with enforcing its rights under the Credit
Documents;


FOURTH, to the payment of all Obligations consisting of accrued fees
and interest payable to the Lenders hereunder (and Wachovia, with respect to
Swing Loans) in connection with the Loans and the Revolving Credit Commitments;


FIFTH, to the payment of the outstanding principal
amount of the Swing Loans,


SIXTH, to the payment of the outstanding
principal amount of the Loans (other than Swing Loans) and to the payment or
cash collateralization of the outstanding Letters of Credit Obligations, pro
rata, as set forth below and including with respect to any Lender
Hedging Agreement, to the extent such Lender
Hedging Agreement is permitted by this
Agreement, any breakage, termination or other payments due under such Lender
Hedging Agreement and any interest accrued
thereon;


SEVENTH, to all other Obligations which shall have become due and
payable under the Credit Documents and not repaid pursuant to clauses “FIRST”
through “SIXTH” above, including all liabilities and obligations now or
hereafter arising from or in connection with any Cash Management Products
provided by any of the Lenders; and


EIGHTH, to the payment of the surplus, if any, to whomever may be
lawfully entitled to receive such surplus.


In carrying out the foregoing,
(a) amounts received shall be applied in the numerical order provided
until exhausted prior to application to the next succeeding category;
(b) except for payments on Swing Loans, each of the Lenders shall receive
an amount equal to its pro rata share (based on the proportion that its then
outstanding Loans, Letters of Credit Obligations and obligations outstanding under the Lender Hedging Agreements permitted
by this Credit Agreement bears to the aggregate then outstanding Loans, Letters
of Credit Obligations, and 



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obligations outstanding under
the Lender Hedging Agreements) of amounts available to be applied
pursuant to clauses “THIRD,” “FOURTH,” “FIFTH,”
“SIXTH”  and “SEVENTH” above; (c) to
the extent that any amounts available for distribution pursuant to clause “SIXTH”
above are attributable to the issued but undrawn amount of outstanding Letters
of Credit, such amounts shall be held by the Agent in a cash collateral account
(which account shall be an interest bearing checking account) and applied
(x) first, to reimburse the Issuing Bank from time to time for any
drawings under such Letters of Credit and (y) then, following the
expiration of any particular  Letter of
Credit, the cash collateral held therefor to all other obligations of the types
described in clause “SEVENTH” above in the manner provided in this Section 2.8
and in the Security Documents.


(c)           Express
Terms.  The provisions of Section
2.8(a) and (b) shall not be construed to apply to (x) any payment made by
Borrower pursuant to and in accordance with the express terms of this Credit
Agreement or (y) any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in Letter of Credit Obligations to any assignee or participant, other than to
Borrower or any Subsidiary thereof (as to which the provisions of this
paragraph shall apply).


2.9                               Extensions
and Conversions.


Subject to the terms of Article V, the Borrower
shall have the option, on any Business Day, to extend existing Eurodollar Loans
into a subsequent permissible Interest Period, to convert Base Rate Loans into
Eurodollar Loans, or to convert Eurodollar Loans into Base Rate Loans; provided,
however, that (i) except as provided in Section 4.10, Eurodollar
Loans may be converted into Base Rate Loans only on the last day of the
Interest Period applicable thereto, (ii) Eurodollar Loans may be extended, and
Base Rate Loans may be converted into Eurodollar Loans, only if no Default or
Event of Default is in existence on the date of extension or conversion, (iii)
Loans extended as, or converted into, Eurodollar Loans shall be subject to the
terms of the definition of “Interest Period” and shall be in such
minimum amounts as provided in with respect
to Revolving Loans, Section 2.1(d)(i), and with respect to Term
Loans, Section 2.1(d)(vi), and (iv) no more than six (6) separate
Eurodollar Loans shall be outstanding hereunder at any time.  Each such extension or conversion shall be
effected by the Borrower by giving a written Notice of Extension/Conversion (or
telephone notice promptly confirmed in writing) to the Agent prior to 2:00 P.M.
on the Business Day of, in the case of the conversion of a Eurodollar Loan into
a Base Rate Loan, and on the third (3rd) Business Day prior to, in the case of
the extension of a Eurodollar Loan as, or conversion of a Base Rate Loan into,
a Eurodollar Loan, the date of the proposed extension or conversion, specifying
the date of the proposed extension or conversion, the Loans to be so extended
or converted, the types of Loans into which such Loans are to be converted and,
if appropriate, the applicable Interest Periods with respect thereto.  Each request for extension or conversion
shall constitute a representation and warranty by the Borrower of the matters
specified in Article V. In the event the Borrower fails to request an
extension or conversion of any Eurodollar Loan in accordance with this Section,
or any such conversion or extension is not permitted or required by this
Section, then such Loan shall be automatically converted into a Base Rate Loan
at the end of the Interest Period applicable thereto.  The Agent shall give each Lender notice as
promptly as practicable of any such proposed extension or conversion affecting
any Loan.



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2.10                        Replacement
of Lender.


In the event that any Lender or, to the extent
applicable, any participant thereof (the “Affected Lender”),


(a)           fails to perform its obligations to
fund any portion of the Loans or to issue any Letter of Credit when required to
do so by the terms of the Credit Documents;


(b)           demands payment under the tax
provisions of Section 2.6, the reserve or capital adequacy provisions of
Section 4.7, or the regulatory change provisions in Section 4.9
or the funding indemnity provisions of Section 4.10 in an amount the
Borrower deems materially in excess of the amounts with respect thereto
demanded by the other Lenders; or


(c)           refuses to consent to a proposed
amendment, modification, waiver or other action requiring consent of the
holders of 100% of the Revolving Credit Commitment Percentage and Term Loans
under Section 14.9 that is consented to by the Required Lenders prior to
such replacement of any Lenders in connection therewith;


then, so long as no Event
of Default exists, the Borrower shall have the right to seek one or more
replacement lenders which is reasonably satisfactory to the Agent (the “Replacement Lender”).  The Replacement Lender shall purchase the
interests of the Affected Lender in the Loans, the Letters of Credit, and its
Revolving Credit Commitment and shall assume the obligations of the Affected
Lender hereunder and under the other Credit Documents upon execution by the
Replacement Lender of an Assignment and Acceptance and the tender by it to the
Affected Lender of a purchase price agreed between it and the Affected Lender
(or, if they are unable to agree, a purchase price in the amount of the
outstanding Term Loans, the Affected Lender’s Revolving Credit Commitment
Percentage in Revolving Loans and Letter of Credit Obligations, or appropriate
credit support for contingent amounts included therein, and all other
outstanding Obligations then owed to the Affected Lender).  Such assignment by the Affected Lender shall
be deemed an early termination of any Eurodollar Loan to the extent of the
Affected Lender’s portion thereof, and the Borrower will pay to the Affected
Lender any resulting amounts due under Section 4.10.  Upon consummation of such assignment, the
Replacement Lender shall become party to this Credit Agreement as a signatory
hereto and shall have all the rights and obligations of the Affected Lender
under this Credit Agreement and the other Credit Documents with a Revolving
Credit Commitment Percentage equal to the Revolving Credit Commitment
Percentage of the Affected Lender and hold Term Loans in an amount equal to the
Term Loans held by the Affected Lender, the Affected Lender shall be released
from its obligations hereunder and under the other Credit Documents, and no
further consent or action by any party shall be required.  Upon the consummation of such assignment, the
Borrower, the Agent and the Affected Lender shall make appropriate arrangements
so that new Notes are issued to the Replacement Lender.  Partners and the Borrower shall cause the
Credit Parties to sign such documents and take such other actions reasonably requested
by the Replacement Lender to enable it to share in the benefits of the rights
created by the Credit Documents.  Until
the consummation of an assignment in accordance with the foregoing provisions
of this Section 2.10, the Borrower shall continue to pay to the Affected
Lender any Obligations as they become due and payable.


 



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ARTICLE
III


LETTERS
OF CREDIT


3.1                               Issuance.


Subject to the terms
and conditions hereof and of the Letter of Credit Documents, if any, and any
other terms and conditions which the Issuing Bank may reasonably require, the
Lenders will participate in the issuance by the Issuing Bank from time to time
of such Letters of Credit in Dollars from the Closing Date until the Maturity
Date as the Borrower may request, in a form reasonably acceptable to the
Issuing Bank; provided, however, that (a) the Letter of Credit
Obligations outstanding shall not at any time exceed the Letter of Credit
Committed Amount and (b) the aggregate Working Capital Obligations outstanding
shall not at any time exceed the Revolving Credit Committed Amount then in
effect.  No Letter of Credit shall (x)
have an original expiry date more than one year from the date of issuance or
(y) as originally issued or as extended, have an expiry date extending beyond
the date that is five (5) Business Days prior to the Maturity Date (but,
subject to the foregoing, may provide for automatic renewal in the absence of
notice of non-renewal by the Issuing Bank), provided that the Issuing
Bank shall not permit any such renewal if it has received notice on or before
the day that is two Business Days before the scheduled maturity date of such
Letter of Credit from the Agent or Borrower that one or more of the applicable
conditions specified in Section 5.3 are not then satisfied.  Each Letter of Credit shall comply with the related
Letter of Credit Documents.  The issuance
and expiry date of each Letter of Credit shall comply with the related Letter
of Credit Documents.  The issuance and
expiry date of each Letter of Credit shall be a Business Day.  The Existing Letters of Credit shall be
deemed to have been issued hereunder on the Funding Date, and no request for
issuance thereof need be made.


3.2                               Notice
and Reports.


The request for the issuance of a Letter of Credit
shall be submitted by the Borrower to the Issuing Bank (with a copy to the
Agent) at least two (2) Business Days prior to the requested date of
issuance.  The Issuing Bank (other than
Wachovia, so long as it also is the Agent) will give the Agent written or telex
notice in substantially the form of Exhibit N or telephonic notice
confirmed promptly thereafter in writing, of the issuance of a Letter of
Credit.  In addition, upon request, the
Issuing Bank will disseminate to the Agent and each of the Lenders a detailed
report specifying the Letters of Credit which are then issued and outstanding
and any activity with respect thereto which may have occurred since the date of
the prior report, and including therein, among other things, the beneficiary,
the face amount and the expiry date as well as any payment or expirations which
may have occurred.


3.3                               Participation.


Each Lender, upon issuance of a Letter of Credit,
shall be deemed to have purchased without recourse a risk participation from
the Issuing Bank in such Letter of Credit and the obligations arising
thereunder, in each case in an amount equal to its Revolving Credit Commitment
Percentage of such Letter of Credit, and shall absolutely, unconditionally and
irrevocably assume, as primary obligor and not as surety, and be obligated to
pay to the Issuing 



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Bank therefor and discharge when due, its Revolving
Credit Commitment Percentage of the obligations arising under such Letter of
Credit.  Without limiting the scope and
nature of each Lender’s participa­tion in any Letter of Credit, to the extent
that the Issuing Bank has not been reimbursed as required hereunder or under
any such Letter of Credit, each such Lender shall pay to the Issuing Bank its
Revolving Credit Commitment Percentage of such unreimbursed drawing pursuant to
the provisions of Section 3.4. 
The obligation of each Lender to so reimburse the Issuing Bank shall be
absolute and unconditional and shall not be affected by the occurrence of a
Default, an Event of Default or any other occurrence or event.  Any such reimbursement shall not relieve or
otherwise impair the obligation of the Borrower to reimburse the Issuing Bank
under any Letter of Credit, together with interest as hereinafter provided.


3.4                               Reimbursement.


In the event of any drawing under any Letter of
Credit, the Issuing Bank will promptly notify the Borrower.  Unless the Borrower shall immediately notify
the Issuing Bank that the Borrower intends to otherwise reimburse the Issuing
Bank for such drawing, the Borrower shall be deemed to have requested that the
Lenders make a Revolving Loan in the amount of the drawing as provided in Section
3.5 on the related Letter of Credit, the proceeds of which will be used to
satisfy the related reimbursement obligations. 
The Borrower promises to reimburse the Issuing Bank on the day of
drawing under any Letter of Credit (either with the proceeds of a Revolving
Loan obtained hereunder or otherwise) in same day funds.  If the Borrower shall fail to reimburse the
Issuing Bank as provided hereinabove, the unreimbursed amount of such drawing
shall bear interest at a per annum rate equal to the Base Rate plus the
sum of (i) the Applicable Percentage for Base Rate Loans and (ii) two percent
(2%).  The Borrower’s reimbursement
obligations hereunder shall be absolute and unconditional under all
circumstances irrespective of any rights of setoff, counterclaim or defense to
payment the Borrower may claim or have against the Issuing Bank, the Agent, the
Lenders, the beneficiary of the Letter of Credit drawn upon or any other
Person, including without limitation any defense based on any failure of the
Borrower to receive consideration or the legality, validity, regularity or
unenforceability of the Letter of Credit. 
The Issuing Bank will promptly notify the other Lenders of the amount of
any unreimbursed drawing and each Lender shall promptly pay to the Agent for
the account of the Issuing Bank in Dollars and in immediately available funds,
the amount of such Lender’s Revolving Credit Commitment Percentage of such
unreimbursed drawing.  Such payment shall
be made on the Business Day such notice is received by such Lender from the
Issuing Bank if such notice is received at or before 2:00 P.M. otherwise such
payment shall be made at or before 12:00 Noon on the Business Day next
succeeding the day such notice is received. 
If such Lender does not pay such amount to the Issuing Bank in full upon
such request, such Lender shall, on demand, pay to the Agent for the account of
the Issuing Bank interest on the unpaid amount during the period from the date
of such drawing until such Lender pays such amount to the Issuing Bank in full
at a rate per annum equal to, if paid within two (2) Business Days of the date
that such Lender is required to make payments of such amount pursuant to the
preceding sentence, the Federal Funds Rate and thereafter at a rate equal to
the Base Rate.  Each Lender’s obligation
to make such payment to the Issuing Bank, and the right of the Issuing Bank to
receive the same, shall be absolute and unconditional, shall not be affected by
any circumstance whatsoever and without regard to the termination of this
Credit Agreement or the Revolving Credit Commitments hereunder, the existence
of a Default or Event of Default or the acceleration of the obligations of the
Borrower hereunder and shall be made without any offset, 



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abatement, withholding or reduction whatsoever.  Simultaneously with the making of each such
payment by a Lender to the Issuing Bank, such Lender shall, automatically and
without any further action on the part of the Issuing Bank or such Lender, acquire
a participation in an amount equal to such payment (excluding the portion of
such payment constituting interest owing to the Issuing Bank) in the related
unreimbursed drawing portion of the Letter of Credit Obligation and in the
interest thereon and in the related Letter of Credit Documents, and shall have
a claim against the Borrower with respect thereto.


3.5                               Repayment
with Revolving Loans.


On any day on which the Borrower shall have requested,
or been deemed to have requested, a Revolving Loan advance to reimburse a
drawing under a Letter of Credit, the Agent shall give notice to the Lenders
that a Revolving Loan has been requested or deemed requested by the Borrower to
be made in connection with a drawing under a Letter of Credit, in which case a
Revolving Loan advance comprised of Base Rate Loans (or Eurodollar Loans to the
extent the Borrower has complied with the procedures of Section 2.1(d)(i)
with respect thereto) shall be immediately made to the Borrower by all Lenders
(notwithstanding any termination of the Revolving Credit Commitments pursuant
to Section 11.2) pro  rata based on the respective
Revolving Credit Commitment Percentages of the Lenders (determined before
giving effect to any termination of the Revolving Credit Commitments pursuant
to Section 11.2) and the proceeds thereof shall be paid directly by the
Agent to the Issuing Bank for application to the respective Letter of Credit
Obligations.  Each such Lender hereby
irrevocably agrees to make its Revolving Credit Commitment Percentage of each
such Revolving Loan immediately upon any such request or deemed request in the
amount, in the manner and on the date specified in the preceding sentence notwithstanding
(i) the amount of such borrowing may not comply with the minimum amount for
advances of Revolving Loans otherwise required hereunder, (ii) whether any
conditions specified in Article V are then satisfied, (iii) whether a
Default or an Event of Default then exists, (iv) failure for any such request
or deemed request for Revolving Loan to be made by the time otherwise required
hereunder, (v) whether the date of such borrowing is a date on which Revolving
Loans are otherwise permitted to be made hereunder or (vi) any termination of
the Revolving Credit Commitments relating thereto immediately prior to or
contemporaneously with such borrowing. 
In the event that any Revolving Loan cannot for any reason be made on
the date otherwise required above (including, without limitation, as a result
of the commencement of a bankruptcy or insolvency case or proceeding with
respect to the Borrower), then each
such Lender hereby agrees that it shall forthwith purchase (as of the date such
borrowing would otherwise have occurred, but adjusted for any payments received
from the Borrower on or after such date and prior to such purchase) from the
Issuing Bank such participation in the outstanding Letter of Credit Obligations
as shall be necessary to cause each such Lender to share in such Letter of
Credit Obligations ratably (based upon the respective Revolving Credit
Commitment Percentages of the Lenders (determined before giving effect to any
termination of the Revolving Credit Commitments pursuant to Section 11.2)),
provided that at the time any purchase of participation pursuant to this
sentence is actually made, the purchasing Lender shall be required to pay to
the Issuing Bank, to the extent not paid to the Issuing Bank by the Borrower in
accordance with the terms of Section 3.4, interest on the principal
amount of participation purchased for each day from and including the day upon
which such borrowing would otherwise have occurred to but excluding the date of
payment for such 



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participation, at the rate equal to, if paid within
two (2) Business Days of the date of the Revolving Loan advance, the Federal
Funds Rate, and thereafter at a rate equal to the Base Rate.


3.6                               Renewal,
Extension.


The renewal or extension of any Letter of Credit
shall, for purposes hereof, be treated in all respects the same as the issuance
of a new Letter of Credit hereunder.


3.7                               Uniform
Customs and Practices.


The Issuing Bank may provide that the Letters of
Credit shall be subject to the UCP, in which case the UCP may be incorporated
by reference therein and deemed in all respects to be a part thereof.


3.8                               Indemnification;
Nature of Issuing Bank’s Duties.


(a)           In addition to its other obligations
under this Article III, the Borrower agrees to protect, indemnify, pay
and save the Issuing Bank harmless from and against any and all claims,
demands, liabilities, damages, losses, costs, charges and expenses (including
reasonable attorneys’ fees) that the Issuing Bank may incur or be subject to as
a consequence, direct or indirect, of (A) the issuance of any Letter of Credit
or (B) the failure of the Issuing Bank to honor a drawing under a Letter of
Credit as a result of Government Acts.


(b)           As between the Borrower and the
Issuing Bank, the Borrower shall assume all risks of the acts, omissions or
misuse of any Letter of Credit by the beneficiary thereof.  The Issuing Bank shall not be responsible:  (i) for the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document submitted by any party in
connec­tion with the application for and issuance of any Letter of Credit, even
if it should in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged; (ii) for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign any
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, that may prove to be invalid or ineffective for any reason;
(iii) for errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or otherwise,
whether or not they be in cipher; (iv) for any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under a Letter of Credit or of the proceeds thereof; and (v) for any
consequences arising from causes beyond the control of the Issuing Bank,
including, without limitation, any Government Acts.  None of the above shall affect, impair, or
prevent the vesting of the Issuing Bank’s rights or powers hereunder.


(c)           In furtherance and extension and not
in limitation of the specific provisions hereinabove set forth, any action taken
or omitted by the Issuing Bank, under or in connection with any Letter of
Credit or the related certificates, if taken or omitted in good faith, shall
not put such Issuing Bank under any resulting liability to the Borrower.  It is the intention of the parties that this
Credit Agreement shall be construed and applied to protect and indemnify the
Issuing Bank against any and all risks involved in the 



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issuance of the Letters
of Credit, all of which risks are hereby assumed by the Borrower, including, without
limitation, any and all Government Acts. 
The Issuing Bank shall not, in any way, be liable for any failure by the
Issuing Bank or anyone else to pay any drawing under any Letter of Credit as a
result of any Government Acts or any other cause beyond the control of the
Issuing Bank.


(d)           Nothing in this Section 3.8 is
intended to limit the reimbursement obligations of the Borrower contained in Section
3.4.  The obligations of the Borrower
under this Section 3.8 shall survive the termination of this Credit
Agreement.  No act or omission of any
current or prior beneficiary of a Letter of Credit shall in any way affect or
impair the rights of the Issuing Bank to enforce any right, power or benefit
under this Credit Agreement.


(e)           Notwithstanding anything to the
contrary contained in this Article III, the Borrower shall have no
obligation to indemnify the Issuing Bank in respect of any liability incurred
by the Issuing Bank (i) arising solely out of the gross negligence or willful
misconduct of the Issuing Bank on any action or omission by the Issuing Bank
not in accordance with the standards of care specified in the UCP or the UCC,
as determined by a court of competent jurisdiction, or (ii) caused by the
Issuing Bank’s failure to pay under any Letter of Credit after presentation to
it of a request strictly complying with the terms and conditions of such Letter
of Credit, as determined by a court of competent jurisdiction, unless such
payment is prohibited by any law, regulation, court order or decree.


3.9                               Responsibility
of Issuing Bank.


It is expressly understood and agreed that the
obligations of the Issuing Bank hereunder to the Lenders are only those
expressly set forth in this Credit Agreement and that the Issuing Bank shall be
entitled to assume that the conditions precedent set forth in Article III or
V have been satisfied unless it shall have acquired actual knowledge that
any such condition precedent has not been satisfied; provided, however,
that nothing set forth in this Article III shall be deemed to prejudice
the right of any Lender to recover from the Issuing Bank any amounts made
available by such Lender to the Issuing Bank pursuant to this Article III
in the event that it is determined by a court of competent jurisdiction that
the payment with respect to a Letter of Credit constituted gross negligence or
willful misconduct on the part of the Issuing Bank.


3.10                        Conflict
with Letter of Credit Documents.


In the event of any conflict between this Credit
Agreement and any Letter of Credit Document (including any letter of credit
application), this Credit Agreement shall control.


ARTICLE
IV


INTEREST
AND FEES


4.1                               Interest
on Loans.


Subject to the provisions of Section 4.2, the
Loans shall bear interest as follows:



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(a)           Base Rate Loans.  During such periods as the Loans shall be
comprised of Base Rate Loans, each such Base Rate Loan shall bear interest at a
per annum rate equal to the sum of the Base Rate plus the Applicable
Percentage;


(b)           Eurodollar Loans.  During such periods as the Loans shall be
comprised of Eurodollar Loans, each such Eurodollar Loan shall bear interest at
a per annum rate equal to the sum of the Eurodollar Rate plus the
Applicable Percentage; and


(c)           LIBOR Index Loans.  During such periods as the Swing Loans shall
bear interest at the LIBOR Index Rate, each such LIBOR Index Loan shall bear
interest at a per annum rate equal to the sum of the LIBOR Index Rate plus
the Applicable Percentage.


Interest on the Loans shall be payable in arrears on
each Interest Payment Date.


4.2                               Interest
After Event of Default.


Automatically (and without notice to any Person) upon
the occurrence of any Event of Default of the types described in Sections
11.1(a), (e), and (f), or, in the case of the occurrence of
any other Event of Default, at the election of the Required Lenders, any
Interest on any amount of matured principal under the Loans, and interest on
the amount of principal under the Loans outstanding as of the date an Event of
Default occurs, and at all times thereafter until the earlier of the date upon
which (a) all Obligations have been paid and satisfied in full or (b) such
Event of Default shall have been cured or waived, shall be payable on the Agent’s
demand at the Default Rate.  Interest
shall be payable on any other amount due hereunder and shall accrue at the
Default Rate, from the date due and payable until paid in full.


4.3                               Commitment
Fee.


The Borrower shall pay to the Agent for the benefit of
the applicable Lenders the Commitment Fee due in respect of each quarter within
five (5) days after receipt of a statement therefor.  The Commitment Fee shall accrue from the
Funding Date and the first payment thereof shall be due on March 31, 2007.


4.4                               Lenders’
Fees/Agent’s Fees.


On the Funding Date the Agent shall pay to each Lender
its respective Lender’s Fees that are required to be paid on the Funding Date
pursuant to the terms of the Fee Letter with the Agent.  The Borrower shall pay all fees required to
be paid to the Agent under the Fee Letter at the times and in the amounts set
forth therein.


4.5                               Letter
of Credit Fees.


(a)           Letter of Credit Fee.  In consideration of the issuance of standby
Letters of Credit hereunder, the Borrower promises to pay, in arrears, to the
Agent for the account of each Lender a quarterly fee (the “Letter of Credit
Fee”) on such Lender’s Revolving Credit Commitment Percentage of the
average daily maximum amount available to be drawn under each such Letter of
Credit computed at a per annum rate for each day from 



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the date of issuance (or
the Funding Date, as to Existing Letters of Credit) to the date of expiration
equal to the Applicable Percentage for Eurodollar Loans.  The Letter of Credit Fee will be payable five
(5) days after receipt of an invoice which shall be billed on the last Business
Day of the calendar quarter.


(b)           Issuing Bank Fees.  In addition to the Letter of Credit Fee
payable pursuant to clause (a) above, the Borrower promises to pay to the
Issuing Bank for its own account without sharing by the other Lenders letter of
credit fronting fees in the amount of 0.125% and the negotiation fees agreed to
by the Borrower and the Issuing Bank from time to time and the customary
charges from time to time of the Issuing Bank with respect to the issuance,
amendment, transfer, administration, cancellation and conversion of, and
drawings under, such Letters of Credit (collectively, the “Issuing Bank Fees”).


4.6                               Authorization
to Charge Account.


The Borrower hereby authorizes the Agent to charge the
Borrower’s Swing Loan account, or Revolving Loan accounts, as applicable, with
the amount of all payments and fees due hereunder to the Lenders, the Agent and
the Issuing Bank as and when such payments become due.  The Borrower confirms that any charges which
the Agent may so make to the Borrower’s Swing Loan Account or Revolving Loan
accounts as herein provided will be made as an accommodation to the Borrower
and solely at the Agent’s discretion.


4.7                               Indemnification
in Certain Events.


If after the Closing Date, either (a) any change in or
in the interpretation of any law or regulation is introduced, including,
without limitation, with respect to reserve requirements, applicable to any of
the Lenders, or (b) any of the Lenders complies with any future guideline or
request from any central bank or other Governmental Authority or (c) any of the
Lenders determines that the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof has or would have the effect described below, or any of the Lenders
complies with any request or directive regarding capital adequacy (whether or
not having the force of law) of any such authority, central bank or comparable
agency, and in the case of any event set forth in this clause (c), such
adoption, change or compliance has or would have the direct or indirect effect
of reducing the rate of return on any of the Lenders’ capital as a consequence
of its obligations hereunder to a level below that which such Lender could have
achieved but for such adoption, change or compliance (taking into consideration
the Lenders’ policies with respect to capital adequacy) by an amount deemed by
such Lender to be material, and the result of any of the foregoing events
described in clauses (a), (b) or (c) is or results in an increase in the cost
to any of the Lenders of funding or maintaining the Revolving Credit Committed
Amount, the Revolving Loans or the Letters of Credit, then the Borrower shall
from time to time upon demand by the Agent, pay to the Agent additional amounts
sufficient to indemnify the Lenders against such increased cost.  A certificate as to the amount of such
increased cost shall be submitted to the Borrower by the Agent and shall be
conclusive and binding absent manifest error.



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4.8                               Inability
To Determine Interest Rate.


If prior to the first day of any Interest Period, (a)
the Agent shall have determined in good faith (which determination shall be
conclusive and binding upon the Borrower) that, by reason of circumstances
affecting the relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Interest Period, (b) the Agent has
received notice from the Required Lenders that the Eurodollar Rate determined
or to be determined for such Interest Period will not adequately and fairly
reflect the cost to such Lenders of making or maintaining their Eurodollar
Loans during such Interest Period, or (c) Dollar deposits in the principal
amounts of the Eurodollar Loans to which such Interest Period is to be
applicable are not generally available in the London interbank market, the
Agent shall give telecopy or telephonic notice thereof to the Borrower and the
Lenders as soon as practicable thereafter, and will also give prompt written
notice to the Borrower when such conditions no longer exist.  If such notice is given (i) any Eurodollar
Loans requested to be made on the first day of such Interest Period shall be
made as Base Rate Loans, (ii) any Loans that were to have been converted on the
first day of such Interest Period to or continued as Eurodollar Loans shall be
converted to or continued as Base Rate Loans and (iii) each outstanding
Eurodollar Loan shall be converted, on the last day of the then-current
Interest Period thereof, to Base Rate Loans. 
Until such notice has been withdrawn by the Agent, no further Eurodollar
Loans shall be made or continued as such, nor shall the Borrower have the right
to convert Base Rate Loans to Eurodollar Loans.


4.9                               Illegality.


Notwithstanding any other provision herein, if the
adoption of or any change in any law, treaty, rule or regulation or final,
non-appealable determination of an arbitrator or a court or other Governmental
Authority or in the interpretation or application thereof occurring after the
Closing Date shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Credit Agreement, (a) such Lender
shall promptly give written notice of such circumstances to the Borrower and
the Agent (which notice shall be withdrawn whenever such circumstances no
longer exist), (b) the commitment of such Lender hereunder to make Eurodollar
Loans, continue Eurodollar Loans as such and convert a Base Rate Loan to
Eurodollar Loans shall forthwith be canceled and, until such time as it shall
no longer be unlawful for such Lender to make or maintain Eurodollar Loans,
such Lender shall then have a commitment only to make a Base Rate Loan when a
Eurodollar Loan is requested and (c) such Lender’s Loans then outstanding as
Eurodollar Loans, if any, shall be converted automatically to Base Rate Loans
on the respective last days of the then current Interest Periods with respect
to such Loans or within such earlier period as required by law.  If any such conversion of a Eurodollar Loan
occurs on a day which is not the last day of the then current Interest Period
with respect thereto, the Borrower shall pay to such Lender such amounts, if
any, as may be required pursuant to Section 4.10.


4.10                        Funding
Indemnity.


The Borrower promises to indemnify each Lender and to
hold each Lender harmless from any loss or expense which such Lender may
sustain or incur (other than through such Lender’s gross negligence or willful
misconduct) as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or extension of Eurodollar Loans after the
Borrower has 



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given a notice requesting the same in accordance with
the provisions of this Credit Agreement, (b) default by the Borrower in making
any prepayment of a Eurodollar Loan after the Borrower has given a notice
thereof in accordance with the provisions of this Credit Agreement, and (c) the
making of a prepayment of Eurodollar Loans on a day which is not the last day
of an Interest Period with respect thereto. 
With respect to Eurodollar Loans, such indemnification may include an
amount equal to the excess, if any, of (i) the amount of interest which would
have accrued on the amount so prepaid, or not so borrowed, converted or
extended, for the period from the date of such prepayment or of such failure to
borrow, convert or extend to the last day of the applicable Interest Period
(or, in the case of a failure to borrow, convert or extend, the Interest Period
that would have commenced on the date of such failure) in each case at the
applicable rate of interest for such Eurodollar Loans provided for herein over
(ii) the amount of interest (as reasonably determined by such Lender) which
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank Eurodollar
market.  This covenant shall survive the
termination of this Credit Agreement and the payment of the Loans and all other
amounts payable hereunder.


ARTICLE V


CONDITIONS PRECEDENT


5.1                               Closing
Conditions.


The Closing shall occur upon the satisfaction or
waiver by the Agent in its reasonable discretion, on or before the Closing
Date, of the conditions precedent set forth in this Section 5.1; provided,
however, notwithstanding the occurrence of the Closing, neither this
Credit Agreement nor any Credit Document shall be effective (and Lenders shall
not have any obligation to make any Revolving Loan or Term Loans nor shall the
Issuing Bank have any obligation to issue any Letter of Credit hereunder)
unless and until the satisfaction of, or waiver of, the conditions precedent
set forth in Section 5.2 (on or before the Funding Deadline) and in Section
5.3:


(a)           Executed
Credit Agreement.  Receipt by the
Agent of duly executed counterparts of this Credit Agreement.


(b)           Financial
Statements.  Receipt by the Agent and the Lenders of the
financial statements and accompanying accountants’ opinion described in Section
6.6  and such other information relating
to the Credit Parties, General Partner, and Operating GP as the Agent may reasonably require in
connection with the structuring and syndication of credit facilities of the
type described herein.


(c)           Corporate Structure.  The Agent shall be reasonably satisfied that,
as of the Funding Date, the capital and ownership structure of the Credit
Parties shall be (i) as described in Schedule 6.9 and (ii) reasonably
acceptable to the Agent.


(d)           Litigation.  There shall not exist any pending or
threatened action, suit, investigation or proceeding against any Credit Party
or its assets that could reasonably be expected to (i) have a Material Adverse
Effect or (ii) affect any transaction contemplated 



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by this Credit Agreement
or any other Credit Document or the ability of the Credit Parties to perform
their respective obligations under the Credit Documents.


(e)           Officer’s Certificates.  Receipt by the Agent of a certificate or
certificates of Partners executed by an Executive Officer as of the Closing
Date, stating that (A) no Default or Event of Default exists or will exist, (B)
all representations and warranties contained herein and in the other Credit
Documents are, and will remain through the Funding Date to be, true and correct
in all material respects, and (C) each of the conditions set forth in this
Section 5.1 has been satisfied.


(f)            Indebtedness.  None of Partners and its Subsidiaries (a)
shall have any Indebtedness other than (i) the Obligations, (ii) accounts
payable in the ordinary course of business, and (iii) other limited
indebtedness and liabilities disclosed to, and in amounts and on terms
satisfactory to, the Agent and the Lenders and (b) shall have any Liens
encumbering any of its assets other than Permitted Liens.


(g)           Material Adverse Change.  (i) No Material Adverse Change or any
occurrence or development reasonably likely to have a Material Adverse Effect
shall have occurred since December 31, 2005, except for any matters described
in the Form 10Q from September 30, 2006, and (ii) none of the facts or
information relating to the Credit Parties, General Partner, or Operating GP
and provided to the Agent or the Lenders before the Closing Date shall be
materially different on the Closing Date in any manner adverse to the Agent or
the Lenders from the facts and information described in the Form 10Q for
September 30, 2006.


(h)           Financial Information Relating to
the Drop-Down Acquisitions.  The
Agent shall have received and, in each case, shall be satisfied with such
historical financial information relating to the Drop-Down Assets to be
transferred from TMG and its Affiliates as part of the Drop-Down Acquisitions
and pro forma financial information giving effect thereto as the Agent shall
request, and such other information as the Agent may require.


(i)            Organizational Documents.  Receipt by the Agent of the following:


(i)            Charter Documents.  Copies of the Partners’ Partnership Agreement
and articles or certificates of incorporation, limited partnership, or other
formation or charter documents of each Credit Party, General Partner, and
Operating GP, in each case certified to be true and complete as of a recent
date by the appropriate Governmental Authority of the state or other
jurisdiction of its incorporation or organization and certified by an
applicable secretary, assistant secretary, manager, general partner, or other
Person acceptable to Agent to be true and correct as of the Closing Date.


(ii)           Bylaws or Similar Documents.  A copy of the bylaws, limited partnership
agreement, operating agreement, or similar agreement of each Credit Party,
General Partner, and Operating GP, in each case certified by a secretary,


 



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assistant secretary,
manager, general partner, or other Person acceptable to Agent to be true and
correct as of the Closing Date.


(iii)          Resolutions.  Copies of resolutions of the Board of
Directors, managers, members, or similar managing body of each Credit Party,
General Partner, and Operating GP approving and adopting the Credit Documents
to which it is a party or which it will execute on behalf of another party, the
transactions contemplated therein and authorizing execution and delivery
thereof, in each case certified by a secretary, assistant secretary, manager,
general partner, or other Person acceptable to Agent to be true and correct and
in force and effect as of the Closing Date.


(iv)          Good Standing.  Copies of (i) certificates of good standing,
existence or its equivalent with respect to each Credit Party, General Partner,
and Operating GP certified as of a recent date by the appropriate Governmental
Authorities of the state or other jurisdiction of incorporation or organization
and each other jurisdiction in which the failure to so qualify and be in good
standing could reasonably be expected to have a Material Adverse Effect and
(ii) to the extent available, a certificate indicating payment of all corporate
or other franchise taxes certified as of a recent date by the appropriate
taxing Governmental Authorities.


(v)           Incumbency.  An incumbency certificate of each Credit
Party, General Partner, and Operating GP certified by a secretary, assistant
secretary, manager, general partner, or other Person acceptable to Agent to be
true and correct as of the Closing Date.


(j)            Completion of Due Diligence.  The Agent shall have completed all due
diligence with respect to Partners, General Partner, Operating GP, Borrower and
their respective Subsidiaries in scope and determination satisfactory to the
Agent and the Sole Lead Arranger in their sole discretion, including, without
limitation, review, with results satisfactory to the Agent of information
regarding litigation, tax, tax sharing arrangements, environmental, accounting,
labor, insurance, pension liabilities (actual or contingent), employee benefits
(including post-retirement benefits), real estate leases, material contracts,
debt agreements, supply, the Drop-Down Acquisitions, the Terminaling Services
Agreement and the Omnibus Agreement, together with all amendments thereto, any
other terminaling agreements, intercompany agreements, property ownership,
transactions with affiliates and contingent liabilities of Partners and its
Subsidiaries.


(k)           Master Assignment and Assumption
Agreement.  Receipt by the Agent of
duly executed counterparts of the Master Assignment and Assumption Agreement,
in substantially the form attached as Exhibit Q hereto, from each of the
parties thereto.


(l)            Other.  Receipt by the Lenders of such other
documents, instruments, agreements or information as reasonably requested by
any Lender.



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5.2                               Conditions
to Initial Loans and Letters of Credit.


The obligation of each Lender to make the Loans or of
Wachovia to make any Swing Loan and/or of the Issuing Bank to issue Letters of
Credit hereunder shall be subject to the satisfaction or waiver by the Agent in
its reasonable discretion, on or before the Funding Deadline, of  the following conditions precedent:


(a)           Conditions
Precedent.  All conditions precedent
set forth in Section 5.1 shall have been satisfied or waived as provided
therein.


(b)           Notice.  The Borrower shall have delivered to the
Agent written notice stating the date on which the Funding Date shall occur,
such notice to be received by the Agent not less than two (2) Business Days
prior to the Funding Date, together with any Notice of Borrowing (unless the
Borrower has previously delivered a Notice of Borrowing in accordance with
Section 2.1(d) in order for such Revolving Loans to be based upon the
Eurodollar Rate).


(c)           Executed Credit Documents.  Receipt by the Agent of duly executed
counterparts of any requested Revolving Notes, Term Notes and the Swing Note
and all other Credit Documents (to the extent not previously delivered in connection
with Existing Credit Agreement) including the Consent, Reaffirmation and
Agreement, together with all amendments, waivers or other modifications
thereto, each in form and substance acceptable to the Sole Lead Arranger, the
Agent, and the Lenders in their reasonable discretion.


(d)           Drop-Down
Acquisitions.  The Agent shall have
received fully executed copies of all of the principal documents for the
Drop-Down Acquisitions, and each such document shall be in form and substance
reasonably satisfactory to the Agent. 
All conditions precedent to the consummation of the Drop-Down
Acquisitions shall have been satisfied (other than any condition precedent
respecting the funding of Loans for payment of the purchase price therefor and
any conditions precedent respecting the effectiveness of this Credit Agreement
and the other Credit Documents).


(e)           Opinions of Counsel.  Receipt by the Agent of an opinion, or
opinions (which shall cover, among other things, authority, legality, validity,
binding effect, no conflicts with organization documents or other agreements,
enforceability, and attachment and perfection of Liens) reasonably satisfactory
to the Agent, addressed to the Agent and the Lenders and dated the Funding
Date, from legal counsel to the Credit Parties.


(f)            Priority of Liens.  The Agent shall have received satisfactory
evidence that the Agent, on behalf of the Lenders, holds a perfected, first
priority Lien on all Collateral, subject to no other Liens other than Permitted
Liens.


(g)           Evidence of Insurance.  Receipt by the Agent of copies of insurance
policies or certificates of insurance of the Credit Parties evidencing
liability and casualty insurance meeting the requirements set forth in the
Credit Documents, including, without limitation, naming the Agent as additional
insured.



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(h)           Governmental, Shareholder and
Third Party Consents.  Receipt by the
Agent of evidence that all governmental, shareholder and third party consents
and approvals necessary in connection with the transactions contemplated hereby
and expiration of all applicable waiting periods without any action being taken
by any authority that could restrain, prevent or impose any material adverse
conditions on such transactions or that could seek or threaten any of the
foregoing, and no law or regulation shall be applicable which in the reasonable
judgment of the Agent could have such effect; subject to, as to the leased real
properties in Brownsville, Texas, Port Manatee, Florida, and Tampa, Florida
(collectively, the “Leasehold Properties”), the Mortgage Documents
Extension Period, if necessary, and in connection therewith, the Borrower shall
use commercially reasonable efforts to obtain a consent to a Mortgage thereon
and other customary landlord agreements, and the Agent shall have the discretion
to waive the requirement for a Mortgage thereon if it has determined, in its
sole discretion, that no such consent and agreement can be obtained through the
exercise of commercially reasonable efforts.


(i)            Solvency Certificate.  Receipt by the Agent of the Solvency
Certificate.


(j)            Officer’s Certificates.  Receipt by the Agent of a certificate or
certificates of Partners executed by an Executive Officer as of the Funding
Date stating that (i) after giving effect to the making of the Loans and application
of the proceeds thereof, each Credit Party is in compliance with all existing
financial obligations, (ii) all governmental, shareholder and third party
consents and approvals, if any, with respect to the Credit Documents and the
transactions contemplated thereby have been obtained, (iii) no action, suit,
investigation or proceeding is pending or threatened in any court or before any
arbitrator or governmental instrumentality that purports to affect any Credit
Party or any transaction contemplated by the Credit Documents, if such action,
suit, investigation or proceeding could reasonably be expected to have a
Material Adverse Effect and (iv) on the Funding Date, (A) each of the Credit
Parties is and will be Solvent, (B) no Default or Event of Default exists or
will exist, (C) all representations and warranties contained herein and in the
other Credit Documents are true and correct in all material respects, (D) the
Borrower is in compliance with the financial covenants set forth in Article
VIII, (E) all documents and certificates delivered pursuant to Section
5.1 are true and correct and in force and effect as of the Funding Date,
and (F) each of the conditions set forth in Section 5.1 and 5.2
has been satisfied.


(k)           Personal Property Collateral.  The Agent shall have received:


(i)            searches of UCC filings in the
jurisdiction of organization of each Credit Party, the chief executive office
of each Credit Party and each jurisdiction where any Collateral is located or
where a filing could have been properly made by a creditor of a Credit Party,
copies of the financing statements on file in such jurisdictions and evidence
that no Liens exist on any of the Collateral other than Permitted Liens;



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(ii)           UCC financing statements for each
appropriate jurisdiction as is necessary, in the Agent’s reasonable discretion,
to perfect the Agent’s security interest in the Collateral;


(iii)          searches of ownership of intellectual
property in the appropriate governmental offices and such
patent/trademark/copyright filings as reasonably requested by the Agent;


(iv)          all stock certificates, if any,
evidencing the Capital Stock pledged to the Agent pursuant to the Pledge
Agreement, together with duly executed in blank undated stock powers attached
thereto;


(v)           Deposit Account Control Agreements and Commodities Account Control Agreements with
respect to all deposit accounts and commodities accounts of the Credit Parties
listed on Schedule 6.32, except as
otherwise provided in Section 9.10; and


(vi)          to the extent required under the Security
Documents, all instruments and chattel paper in the possession of any of the
Credit Parties, together with allonges or assignments as may be necessary to
perfect the Agent’s security interest in the Collateral.


(l)            Real Property Collateral.  The Agent shall have received (i) evidence
that any Liens securing TMG’s revolving credit facilities have been released
pursuant to the Drop-Down Acquisitions, and (ii) a Mortgage and all other Real
Property Documentation for the Razorback Pipeline and each parcel or tract of
the Real Estate owned by any Full Recourse Credit Party as of the Funding Date
(including the Drop-Down Assets) other than the Leasehold Properties; provided,
that, as to (A) the Mortgages and other Real Property Documentation with
respect to Leasehold Mortgages and (B) any other Real Estate that the Real
Property Documentation (other than the Mortgages delivered pursuant to clause
(ii) above) cannot with reasonable diligence be completed and provided on or
prior to the Funding Date, such Real Property Documentation shall be completed
and provided upon the conclusion of the Mortgage Document Extension Period.


(m)          Disbursement Authorization; Payment
Instructions.  Receipt by the Agent
of (a) a disbursement authorization covering all payments reasonably expected
to be made by the Borrower in connection with the transactions contemplated by
the Credit Documents to be consummated on the Funding Date, including an
itemized estimate of all fees, expenses and other closing costs and (b) payment
instructions with respect to each wire transfer to be made by the Agent on
behalf of the Lenders or the Borrower or the Borrower on the Funding Date
setting forth the amount of such transfer, the purpose of such transfer, the
name and number of the account to which such transfer is to be made, the name
and ABA number of the bank or other financial institution where such account is
located and the name and telephone number of an individual that can be
contacted to confirm receipt of such transfer.



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(n)           Fees and Expenses.  Payment by the Borrower of all fees and
expenses owed by the Borrower to the Lenders, the Agent, and Agent’s counsel,
including, without limitation, payment to the Agent of the fees set forth in
the Fee Letter.


(o)           Account Designation Letter.  Receipt by the Agent of the Account
Designation Letter.


(p)           Compliance Certificate.  Receipt by the Agent of a Compliance
Certificate prepared on a pro-forma basis after giving effect to the Drop-Down
Acquisitions and the transactions contemplated hereunder, dated as of the
Funding Date.


(q)           Completion of Due Diligence.  The Agent shall have completed all due
diligence with respect to Partners, General Partner, Operating GP, Borrower and
their respective Subsidiaries in scope and determination satisfactory to the
Agent and the Sole Lead Arranger in their sole discretion, including, without
limitation, review, with results satisfactory to the Agent of information
regarding litigation, tax, tax sharing arrangements, accounting, labor,
insurance, pension liabilities (actual or contingent), employee benefits
(including post-retirement benefits), real estate leases, material contracts,
debt agreements, supply, the Drop-Down Acquisitions, the Terminaling Services
Agreement and the Omnibus Agreement, together with all amendments thereto, any
other terminaling agreements, intercompany agreements, property ownership,
transactions with affiliates and contingent liabilities of Partners and its
Subsidiaries.


(r)            TMG/TPSI Acknowledgment Agreement.  Execution and delivery by TMG and certain of
its Affiliates, the Borrower and the Agent of the TMG /TPSI Acknowledgment
Agreement.


(s)           Other.  Receipt by the Lenders of such other
documents, instruments, agreements or information as reasonably requested by
any Lender.


5.3                               Conditions
to all Loans and Letters of Credit.


(a)           On the date of the making of any Loan
or the issuance of any Letter of Credit, both before and after giving effect
thereto and to the application of the proceeds therefrom, the following
statements shall be true to the satisfaction of the Agent (and each request for
a Term Loan, a Revolving Loan and request for a Letter of Credit, and the
acceptance by the Borrower of the proceeds of such Term Loan, Revolving Loan or
Swing Loan or issuance of such Letter of Credit, shall constitute a
representation and warranty by the Borrower that on the date of such Term Loan,
Revolving Loan, Swing Loan or issuance of such Letter of Credit before and
after giving effect thereto and to the application of the proceeds therefrom,
such statements are true):


(i)            the representations and warranties
contained in this Credit Agreement are true and correct in all material
respects on and as of the date of such Term Loan, Revolving Loan or Swing Loan
or issuance of such Letter of Credit as though made on and as of such date,
except to the extent that such representations and warranties expressly relate
solely to an earlier date (in which 



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case such representations
and warranties shall have been true and complete on and as of such earlier
date); and


(ii)           no event has occurred and is
continuing, or would result from such Term Loan, Revolving Loan or Swing Loan
or issuance of such Letter of Credit or the application of the proceeds
thereof, which would constitute a Default or an Event of Default under this
Credit Agreement.


(b)           Notice of Borrowing.  On the date of the making of any Revolving
Loan, the Agent shall have received a Notice of Borrowing to the extent such
Notice of Borrowing is required to be given with respect to the making of such
Revolving Loan.


ARTICLE VI


REPRESENTATIONS AND WARRANTIES


In order to induce the Lenders to enter into this
Credit Agreement and the Issuing Bank to issue the Letters of Credit, and to
make available the credit facilities contemplated hereby, the Borrower and (by
execution and delivery of any Guaranty Agreement or of a joinder thereto and
incorporation by reference therein) each Guarantor hereby represents and
warrants to the Lenders and the Issuing Bank as of the Closing Date, the
Funding Date and on the date of each extension of credit hereunder, as follows:


6.1                               Organization
and Qualification.


Such Credit Party and each of its Subsidiaries (i) is
a corporation, limited partnership, or limited liability company duly
organized, validly existing and in good standing under the laws of the state of
its organization, (ii) has the power and authority to own its properties and
assets and to transact the businesses in which it is presently, or proposes to
be, engaged, and (iii) is duly qualified and is authorized to do business and
is in good standing in every jurisdiction in which the failure to be so
qualified could  reasonably be expected
to have a Material Adverse Effect.  Schedule
6.1 contains a true, correct and complete list of all jurisdictions in
which such Credit Party and its Subsidiaries are qualified to do business as a
foreign corporation or foreign limited liability company as of the Closing
Date.


6.2                               Solvency.


The fair saleable value of such Credit Party’s assets
exceeds all liabilities (other than any inter-company amounts payable to
another Credit Party), including those to be incurred pursuant to this Credit
Agreement.  Such Credit Party
(i) does not have unreasonably small capital in relation to the business
in which it is or proposes to be engaged or (ii) has not incurred, and does not
intend to incur after giving effect to the transactions contemplated by this
Credit Agreement, debts beyond its ability to pay such debts as they become
due.


6.3                               Liens.


There are no Liens in favor of third parties with respect
to any of the Collateral other than Permitted Liens.  Upon the proper filing of financing
statements and the proper recordation of 



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other applicable documents with the appropriate filing
or recordation offices in each of the necessary jurisdictions, the security
interests granted pursuant to the Credit Documents constitute and shall at all
times constitute, as required pursuant to the Credit Documents, valid and
enforceable first, prior and perfected Liens on the Collateral (other than
Permitted Liens).  The Credit Parties
are, or will be at the time additional Collateral is acquired by them, the
absolute owners of the Collateral with full right to pledge, sell, consign,
transfer and create a Lien therein, free and clear of any and all Liens in
favor of third parties, except Permitted Liens. 
The Credit Parties will at their expense warrant (other than Permitted
Liens), until all of the Credit and Collateral Termination Events have
occurred, and, at the Agent’s request, defend the Collateral from any and all
Liens (other than Permitted Liens) of any third party.  The Credit Parties will not grant, create or
permit to exist, any Lien upon the Collateral, or any proceeds thereof, in
favor of any third party (other than Permitted Liens).


6.4                               No
Conflict.


The execution and delivery by such Borrower of this
Credit Agreement and by the Credit Parties of each of the other Credit
Documents executed and delivered in connection herewith and the performance of
the obligations of such Credit Party hereunder and thereunder, as applicable,
and the consummation by such Credit Party of the transactions contemplated
hereby and thereby: (i) are within the corporate or other organizational, as
the case may be, powers of such Credit Party; (ii) are duly authorized by the
Board of Directors or similar managing body of such Credit Party; (iii) are not
in contravention of the terms of the organizational documents of such Credit
Party or of any material indenture, agreement, mortgage, deed of trust, loan
agreement, credit agreement or other material agreement or instrument to which
such Credit Party is a party or by which such Credit Party or its material
properties are bound; (iv) do not require the consent, registration or
approval of any Governmental Authority or any other Person (except such as have
been duly obtained, made or given, and are in full force and effect), except
for minor matters where failure would not have or be reasonably expected to
cause a material adverse effect on the ability of the Agent to exercise rights,
powers and remedies with respect to the Collateral; (v) do not contravene any
statute, law, ordinance regulation, rule, order or other governmental
restriction applicable to or binding upon such Credit Party, except for minor
matters where failure would not have or be reasonably expected to cause a
material adverse effect on the ability of the Agent to exercise rights, powers
and remedies with respect to the Collateral; and (vi) will not, except as
contemplated herein for the benefit of the Agent on behalf of the Lenders,
result in the imposition of any Liens (other than Permitted Liens) upon any
property of such Credit Party under any existing indenture, mortgage, deed of
trust, loan or credit agreement or other material agreement or instrument to
which such Credit Party is a party or by which it or any of its property may be
bound or affected.


6.5                               Enforceability.


The Credit Agreement and all of the other Credit
Documents to which such Credit Party is party are the legal, valid and binding
obligations of such Credit Party, and with respect to those Credit Documents
executed and delivered by any other Subsidiary, of each such other Subsidiary,
and are enforceable against such Credit Party and such other Subsidiaries, as
the case may be, in accordance with their terms except as such enforceability
may be limited by (i) the 



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effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights
generally and (ii) general principles of equity.


6.6                               Financial
Data; Material Adverse Change.


(a)           Partners or the Borrower has
furnished to the Lenders the following financial statements (the “Financials”):  (i) the consolidated balance sheet of
Partners and its consolidated Subsidiaries as of, and consolidated statements of
income, retained earnings and changes in financial position for the fiscal year
ended December 31, 2005, audited by KPMG LLP, and (ii) for each of the Closing
Date and the Funding Date, as applicable, the unaudited consolidated balance
sheet of Partners and its consolidated Subsidiaries as of, and consolidated
statement of income, retained earnings and changes in financial position for
the period, for which the most recent Financials are available, prepared by an
Executive Officer.  The Financials are
and the historical financial statements to be furnished to the Lenders in
accordance with Section 7.1 below will be in accordance with the books
and records of Partners and its consolidated Subsidiaries and fairly present
the financial condition of each of Partners and its consolidated Subsidiaries
at the dates thereof and the results of operations for the periods indicated
(subject, in the case of unaudited financial statements, to normal year-end
adjustments), and such financial statements have been and will be prepared in
conformity with GAAP consistently applied throughout the periods involved,
except as provided in Section 7.1.


(b)           Since the date of the Financials,
there have been no changes in the condition, financial or otherwise, of
Partners or any of its Consolidated Subsidiaries as shown on the balance sheets
of Partners and its consolidated Subsidiaries, except (i) as contemplated
herein and (ii) for changes in the ordinary course of business or resulting
from transactions permitted under this Credit Agreement (none of which
individually or in the aggregate constitutes a Material Adverse Change, or, if
a Material Adverse Change occurred, it has been satisfactorily resolved by the
requisite percentage of Lenders or the Agent, as applicable).


6.7                               Locations
of Offices and Records.


The Credit Parties’ states of domicile, principal
places of business and chief executive offices are (or on the Closing Date,
will be, as of the Funding Date) set forth in Schedule 6.7, and the
books and records of the Credit Parties and all chattel paper and all records
of accounts are located at the principal places of business and chief executive
offices of the Credit Parties.  Schedule
6.7 is (or on the Closing Date, will be, as of the Funding Date) a true,
correct and complete list of (i) the address of the chief executive offices of
the Credit Parties and each of their Subsidiaries and (ii) the address of all
offices where records and books of account of the Credit Parties and each of
their Subsidiaries are kept.


6.8                               Fictitious
Business Names.


No Credit Party has used any corporate or fictitious
name during the five (5) years preceding the date hereof, other than the
corporate name shown on its or such Credit Party’s articles or certificate of
incorporation or formation or as set forth on Schedule 6.8.



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6.9                               Subsidiaries.


The only direct or indirect Subsidiaries of Partners
are (or on the Closing Date, will be, as of the Funding Date) those listed on Schedule
6.9.  The Persons identified on Schedule
6.9 are (or on the Closing Date, will be, as of the Funding Date) the
record and beneficial owners of all of the shares of Capital Stock of each of
the Persons listed on Schedule 6.9 as being owned by thereby, there are
no proxies, irrevocable or otherwise, with respect to such shares, and no
equity securities of any of such Persons are or may become required to be
issued by reason of any options, warrants, scrip, rights to subscribe to, calls
or commitments of any character whatsoever relating to, or securities or rights
convertible into or exchangeable for, shares of any Capital Stock of any such
Person, and there are no contracts, commitments, understandings or arrangements
by which any such Person is or may become bound to issue additional shares of
its Capital Stock or securities convertible into or exchangeable for such
shares.  All of such shares are (or on
the Closing Date, will be, as of the Funding Date) owned by such Persons free
and clear of any Liens other than Permitted Liens.


6.10                        No
Judgments or Litigation.


Except as set forth on Schedule 6.10, no
judgments, orders, writs or decrees are outstanding against such Credit Party
or any of its Subsidiaries nor is there now pending or, to the best of such
Credit Party’s knowledge after due inquiry, threatened any litigation, contested
claim, investigation, arbitration, or governmental proceeding by or against
such Credit Party or any of its Subsidiaries except judgments and pending or
threatened litigation, contested claims, investigations, arbitrations and
governmental proceedings which could not reasonably be expected to have a
Material Adverse Effect.


6.11                        No
Defaults.


Neither such Credit Party nor any of its Subsidiaries
is in default under any term of any indenture, contract, lease, agreement,
instrument or other commitment to which any of them is a party or by which any
of them is bound which default has had or could be reasonably expected to have
a Material Adverse Effect.  Such Credit
Party knows of no dispute regarding any indenture, contract, lease, agreement,
instrument or other commitment which could reasonably be expected to have a
Material Adverse Effect.


6.12                        No
Employee Disputes.


There are no controversies pending or, to the best of
such Credit Party’s knowledge after diligent inquiry, threatened between such
Credit Party or any of its Subsidiaries and any of their respective employees,
other than those arising in the ordinary course of business which could not, in
the aggregate, reasonably be expected to have a Material Adverse Effect.


6.13                        Compliance
with Law.


Neither such Credit Party nor any of its Subsidiaries
has violated or failed to comply with any statute, law, ordinance, regulation,
rule or order of any foreign, federal, state or local government, or any other
Governmental Authority or any self regulatory organization, or any judgment,
decree or order of any court, applicable to its business or operations except
where the 



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aggregate of all such violations or failures to comply
could not reasonably be expected to have a Material Adverse Effect.  The conduct of the business of such Credit
Party and each of its Subsidiaries is in conformity with all securities,
commodities, energy, public utility, zoning, building code, health, OSHA and
environmental requirements and all other foreign, federal, state and local governmental
and regulatory requirements and requirements of any self regulatory
organizations, except where such non-conformities could not reasonably be
expected to have a Material Adverse Effect. 
Neither such Credit Party nor any of its Subsidiaries has received any
notice to the effect that, or otherwise been advised that, it is not in
compliance with, and neither such Credit Party nor any of its Subsidiaries has
any reason to anticipate that any currently existing circumstances are likely
to result in the violation of any such statute, law, ordinance, regulation,
rule, judgment, decree or order which failure or violation could reasonably be
expected to have a Material Adverse Effect.


6.14                        ERISA.


None of such Credit Parties nor any of their
Subsidiaries or ERISA Affiliates maintains or contributes to any Benefit Plan
other than those listed on Schedule 6.14. Each Benefit Plan has been and
is being maintained and funded in accordance with its terms and in compliance
in all material respects with all provisions of ERISA and the Internal Revenue
Code applicable thereto.  Such Credit
Party, each of its Subsidiaries and each of its ERISA Affiliates has fulfilled
all obligations related to the minimum funding standards of ERISA and the
Internal Revenue Code for each Benefit Plan, is in compliance in all material
respects with the currently applicable provisions of ERISA and of the Internal
Revenue Code and has not incurred any liability (other than routine liability
for premiums) under Title IV of ERISA. 
No Termination Event has occurred nor has any other event occurred that
may result in such a Termination Event. 
No event or events have occurred in connection with which such Credit
Parties or any of its Subsidiaries or ERISA Affiliates, any fiduciary of a
Benefit Plan or any Benefit Plan, directly or indirectly, would be subject to
any material liability, individually or in the aggregate, under ERISA, the
Internal Revenue Code or any other law, regulation or governmental order or
under any agreement, instrument, statute, rule of law or regulation pursuant to
or under which any such entity has agreed to indemnify or is required to
indemnify any person against liability incurred under, or for a violation or
failure to satisfy the requirements of, any such statute, regulation or order.


6.15                        Compliance
with Environmental Laws.


Except as disclosed on Schedule 6.15, and
except where the aggregate of all such violations or failures to comply could
not reasonably be expected to have a Material Adverse Effect (a) the operations
of such Credit Party and each of its Subsidiaries comply with all applicable
federal, state or local environmental, health and safety statutes, regulations,
or ordinances, and (b) none of the operations of such Credit Party or any of
its Subsidiaries is the subject of any judicial or administrative proceeding
alleging the violation of any federal, state or local environmental, health or
safety statute, regulation, direction, ordinance, criteria or guidelines.
Except as disclosed on Schedule 6.15 and except as could not reasonably
be expected to have a Material Adverse Effect, to the knowledge of each Credit
Party and any of its Subsidiaries, none of the operations of such Credit Party
or any of its Subsidiaries is the subject of any federal or state investigation
evaluating whether such Credit Party or any of its


 



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Subsidiaries disposed any hazardous or toxic waste,
substance or constituent or other substance at any site that may require
remedial action, or any federal or state investigation evaluating whether any
remedial action is needed to respond to a release of any hazardous or toxic
waste, substance or constituent, or other substance into the environment.  Except as disclosed on Schedule 6.15
and except for any notices required in connection with any environmental
permits or annual reporting requirements in the ordinary course of business,
neither such Credit Party nor any of its Subsidiaries have filed any notice
under any federal or state law indicating past or present treatment, storage or
disposal of a hazardous waste or reporting a spill or release of a hazardous or
toxic waste, substance or constituent, or other substance into the
environment.  Except as disclosed on Schedule
6.15 and except as could not reasonably be expected to have a Material
Adverse Effect, neither such Credit Party nor any of its Subsidiaries have any
contingent liability of which such Credit Party has knowledge in connection
with any release of any hazardous or toxic waste, substance or constituent, or
other substance into the environment, nor has such Credit Party or any of its
Subsidiaries received any notice or letter advising it of potential liability
arising from the disposal of any hazardous or toxic waste, substance or
constituent or other substance into the environment.


6.16                        Use
of Proceeds.


All proceeds of the Loans will be used only in
accordance with Section 7.12.


6.17                        Intellectual
Property.


Such Credit Party and each of its Subsidiaries
possesses (or on the Closing Date, will possess, as of the Funding Date)
adequate assets, licenses, patents, patent applications, copyrights, service
marks, trademarks and tradenames to continue to conduct its business as
heretofore conducted by it.  Schedule 6.17
sets forth (a) all of the federal, state and foreign registrations of
trademarks, service marks and other marks, trade names or other trade rights of
such Credit Party and its Subsidiaries, and all pending applications for any
such registrations, (b) all of the patents and copyrights of such Credit Party
and its Subsidiaries and all pending applications therefor and (c) all other
trademarks, service marks and other marks, trade names and other trade rights
used by such Credit Party or any of its Subsidiaries in connection with their
businesses, in each case necessary for the conduct of such Credit Party’s and
such Credit Party’s or Subsidiaries’ business (collectively, the “Proprietary
Rights”).  Such Credit Party and its
Subsidiaries are (or on the Closing Date, will be, as of the Funding Date)
collectively the owners of each of the trademarks listed on Schedule 6.17
as indicated on such schedule, and, except as otherwise disclosed on
Schedule 6.17, no other Person has the right to use any of such marks in
commerce either in the identical form or in such near resemblance thereto as
may be likely to cause confusion or to cause mistake or to deceive.  Each of the trademarks listed on Schedule
6.17 is a federally registered trademark of such Credit Party or its
Subsidiaries having the registration number and issue date set forth on Schedule
6.17, except as otherwise disclosed on Schedule 6.17.  The Proprietary Rights listed on Schedule
6.17 are all those used in the businesses of such Credit Party and its
Subsidiaries.  Except as disclosed on Schedule
6.17, no person has a right to receive any royalty or similar payment in
respect of any Proprietary Rights pursuant to any contractual arrangements
entered into by such Credit Party, or any of its Subsidiaries and no person
otherwise has a right to receive any royalty or similar payment in respect of
any such Proprietary Rights except as disclosed on Schedule 6.17.  Except as 



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otherwise disclosed on Schedule 6.17, neither
such Credit Party nor any of its Subsidiaries has granted any license or sold
or otherwise transferred any interest in any of the Proprietary Rights to any
other person.  The use of each of the
Proprietary Rights by such Credit Party and its Subsidiaries is not infringing
upon or otherwise violating the rights of any third party in or to such
Proprietary Rights, and no proceeding has been instituted against or notice
received by such Credit Party or any of its Subsidiaries that are presently
outstanding alleging that the use of any of the Proprietary Rights infringes
upon or otherwise violates the rights of any third party in or to any of the
Proprietary Rights.  Neither such Credit
Party nor any of its Subsidiaries has given notice to any Person that it is
infringing on any of the Proprietary Rights and to the best of such Credit
Party’s knowledge, no Person is infringing on any of the Proprietary
Rights.  All of the Proprietary Rights of
such Credit Party and its Subsidiaries are valid and enforceable rights of such
Credit Party and its Subsidiaries and will not cease to be valid and in full
force and effect by reason of the execution and delivery of this Credit
Agreement or the Credit Documents or the consummation of the transactions
contemplated hereby or thereby.


6.18                        Licenses
and Permits.


Such Credit Party and each of its Subsidiaries have
(or on the Closing Date, will have, as of the Funding Date) obtained and hold
in full force and effect, all material franchises, licenses, leases, permits,
certificates, authorizations, qualifications, easements, rights of way and
other rights and approvals which are necessary for the operation of their
businesses as presently conducted and as proposed to be conducted and whose
absence or failure to obtain could reasonably be expected to have a Material
Adverse Effect.  Neither of such Credit
Party nor any of its Subsidiaries is in violation of the terms of any such
franchise, license, lease, permit, certificate, authorization, qualification,
easement, right of way, right or approval in any such case which could
reasonably be expected to have a Material Adverse Effect.


6.19                        Title
to Property.


Such Credit Party has (on the Closing Date, or will have,
as of the Funding Date) to its best knowledge (i) defensible fee simple title
to or valid leasehold interests in all of its real property, including, without
limitation, the Real Estate (all such real property and the nature of such
Credit Party’s or any of its Subsidiary’s interest therein is disclosed on Schedule
6.19, as it may be updated from time to time pursuant to Section 7.8)
and (ii) defensible title to all of its other property (including without
limitation, all real and other property in each case as reflected in the
Financial Statements delivered to the Agent hereunder), other than properties
disposed of in the ordinary course of business or in any manner otherwise
permitted under this Credit Agreement since the date of the most recent audited
consolidated balance sheet of such Credit Party, and in each case subject to no
Liens other than Permitted Liens and such other defects in title as are minor
in nature and such defects do not constitute a Lien that secures Indebtedness
and do not have or would reasonably be expected to cause a material adverse
effect on the ability of the Agent to exercise rights, powers and remedies with
respect to the Collateral.  Such Credit
Party and its Subsidiaries, to the best of their respective knowledge, enjoy
peaceful and undisturbed possession of all its real property, including,
without limitation, the Real Estate, 
except for minor matters that do not have or would reasonably be
expected to cause a material adverse effect on the ability of the Agent to exercise
rights, powers and remedies with respect to the Collateral, and there is no
pending or, to the best of their knowledge, threatened 



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condemnation proceeding relating to any such real
property.    No material default exists
under (i) any Lease on any property on which a Mortgage is granted, or (ii) any
other Lease, to the extent such default would reasonably be expected to have a
Material Adverse Effect.  All of the
Structures and other tangible assets owned, leased or used by such Credit Party
or any of its Subsidiaries in the conduct of their respective businesses are
(a) insured to the extent and in a manner required by Section 7.9, (b)
structurally sound with no known defects which have or could reasonably be
expected to have a Material Adverse Effect, (c) in good operating condition and
repair, subject to ordinary wear and tear and except to the extent failure
could not reasonably be expected to have a Material Adverse Effect, (d) not in
need of maintenance or repair except for ordinary, routine maintenance and
repair the cost of which is immaterial and except to the extent failure to so
maintain and repair could not reasonably be expected to have a Material Adverse
Effect, (e) sufficient for the operation of the businesses of such Credit
Party and its Subsidiaries as currently conducted, except to the extent failure
to be so sufficient could not reasonably be expected to have a Material Adverse
Effect and (f) in conformity with all applicable laws, ordinances, orders,
regulations and other requirements (including applicable zoning, environmental,
motor vehicle safety, occupational safety and health laws and regulations)
relating thereto, except where the failure to conform could not reasonably be
expected to have a Material Adverse Effect.


6.20                        Labor
Matters.


Neither such Credit Party nor any of its Subsidiaries
is engaged in any unfair labor practice which could reasonably be expected to
have a Material Adverse Effect.  There is
(a) no material unfair labor practice complaint pending against such Credit
Party or any of its Subsidiaries or, to the best knowledge of such Credit
Party, threatened against any of them, before the National Labor Relations
Board, and no grievance or arbitration proceeding arising out of or under
collective bargaining agreements that has or could reasonably be expected to
have a Material Adverse Effect is so pending against such Credit Party or any
of its Subsidiaries or, to the best knowledge of such Credit Party, threatened
against any of them, (b) no strike, labor dispute, slowdown or stoppage pending
against either of such Credit Party or any of its Subsidiaries or, to the best
knowledge of such Credit Party, threatened against any of them, and (c) no
union representation questions with respect to the employees of such Credit
Party or any Subsidiaries and no union organizing activities.


6.21                        Investment
Company, Etc.


Neither such Credit Party nor any of its Subsidiaries
is (a) an “investment company” or a company “controlled” by an “investment
company” within the meaning of the Investment Company Act of 1940, as amended,
or (b) subject to any other law which regulates or restricts its ability to
borrow money or to consummate the transactions contemplated by this Credit
Agreement or the other Credit Documents or to perform its obligations hereunder
or thereunder.


6.22                        Margin
Security.


Such Credit Party does not own any margin stock and no
portion of the proceeds of any Loans or Letters of Credit shall be used by such
Credit Party for the purpose of purchasing or carrying any “margin stock” (as
defined in Regulation U of the Board of Governors of the 



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Federal Reserve System) or for any other purpose which
violates the provisions or Regulation U, of said Board of Governors or for any
other purpose in violation of any applicable statute or regulation, or of the
terms and conditions of this Credit Agreement.


6.23                        No
Event of Default.


No Default or Event of Default has occurred and is
continuing.


6.24                        Taxes
and Tax Returns.


Each Credit Party has filed, or caused to be filed,
all material tax returns (federal, state, local and foreign, including relating
to excise taxes) required to be filed and paid all amounts of taxes shown
thereon to be due (including interest and penalties) and has paid all other
material taxes, fees, assessments and other governmental charges (including
mortgage recording taxes, documentary stamp taxes and intangibles taxes) owing
by it, except for such taxes (a) that are not yet delinquent or (b) that are
being appropriately contested in good faith, and against which adequate
reserves are being maintained in accordance with GAAP.  None of the Credit Parties is aware of any
proposed material tax assessments against it or any other Credit Party.


6.25                        No
Other Indebtedness.


Such Credit Party has no Indebtedness that is senior,
pari passu or subordinated in right of payment to their Indebtedness to the
Lenders hereunder, except for Permitted Indebtedness.


6.26                        Status
of Accounts.


Each Account is based on an actual and bona fide sale
and delivery of goods or rendition of services to customers, made by a Credit
Party in the ordinary course of its business; the goods and inventory being
sold and the Accounts created are such Credit Party’s exclusive property and
are not and shall not be subject to any Lien, consignment arrangement,
encumbrance, security interest or financing statement whatsoever, other than
the Permitted Liens; and such Credit Party’s customers have accepted the goods
or services, owe and are obligated to pay the full amounts stated in the
invoices according to their terms, without any dispute, offset, defense,
counterclaim or contra that could reasonably be expected to have, when
aggregated with any such other disputes, offsets, defenses, counterclaims or
contras, a Material Adverse Effect.  Such
Credit Party confirms to the Lenders that any and all taxes or fees relating to
its business, its sales, the Accounts or the goods relating thereto, are its
sole responsibility and that same will be paid by such Credit Party when due
(unless duly contested and adequately reserved for).


6.27                        Material
Contracts.


Schedule 6.27 sets forth a true,
correct and complete list of all the Material Contracts  currently in effect (on the Closing Date,
anticipated to be currently in effect) as of the Funding Date.  All of the Material Contracts are in full
force and effect, and no material defaults currently exist thereunder.



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6.28                        Survival
of Representations.


All representations made by such Credit Party in this
Credit Agreement (including by incorporation by reference in any Guaranty
Agreement) and in any other Credit Document shall survive the execution and
delivery hereof and thereof.


6.29                        Affiliate
Transactions.


Except with respect to the Omnibus Agreement, any
Permitted Acquisitions, the Terminaling Services Agreement, the other documents
pertaining to the formation of the General Partner, Partners and its
Subsidiaries as described in the Form S-1, and as otherwise set forth on Schedule
6.29, neither such Credit Party nor any of its Subsidiaries is a party to
or bound by any agreement or arrangement (whether oral or written) to which any
Affiliate of such Credit Party or any of its Subsidiaries is a party except (a)
in the ordinary course of and pursuant to the reasonable requirements of such
Credit Party’s or such Subsidiary’s business and (b) upon fair and reasonable
terms no less favorable to such Credit Party and such Subsidiary than it could
obtain in a comparable arm’s-length transaction with an unaffiliated Person.


6.30                        Accuracy
and Completeness of Information.


All factual information heretofore, contemporaneously
or hereafter furnished by or on behalf of the Credit Parties or any of their
respective Subsidiaries in writing to the Agent, any Lender, or the Independent
Accountant for purposes of or in connection with this Credit Agreement or any
Credit Documents, or any transaction contemplated hereby or thereby is or will
be true and accurate in all material respects on the date as of which such
information is dated or certified and not incomplete by omitting to state any material
fact necessary to make such information not misleading at such time.


6.31                        Anti-Terrorism
Laws.


(a)           General.  None of the
Credit Parties or their Affiliates is knowingly in violation of any
Anti-Terrorism Law or engages in or conspires to engage in any transaction that
evades or avoids, or has the purpose of evading or avoiding, or attempts to
violate, any Anti-Terrorism Law.


(b)           Executive
Order No. 13224.  None of the Credit Party or their Affiliates
is, to the best of their knowledge, any of the following (each a “Blocked
Person”):


(i)            a
Person owned or controlled by, or acting for or on behalf of, any Person that
is listed in the annex to, or is otherwise subject to the provisions of,
Executive Order No. 13224;


(ii)           a
Person or entity with which any bank or other financial institution is
prohibited from dealing or otherwise engaging in any transaction by any
Anti-Terrorism Law;


(iii)          a
Person or entity that commits, threatens or conspires to commit or supports “terrorism”
as defined in Executive Order No. 13224;



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(iv)          a
Person or entity that is named as a “specially designated national” on the most
current list published by the U.S. Treasury Department Office of Foreign Asset
Control at its official website or any replacement website or other replacement
official publication of such list; or


(v)           a
Person or entity who is affiliated with a Person or entity listed above.


(c)           None
of the Credit Parties or their Affiliates knowingly (i) conducts any business
or engages in making or receiving any contribution of funds, goods or services
to or for the benefit of any Blocked Person or (ii) deals in, or otherwise
engages in any transaction relating to, any property or interests in property
blocked pursuant to Executive Order No. 13224.


6.32                        Deposit
Accounts and Commodities Accounts.


As of the Funding Date, none of the
Full Recourse Credit Parties has any checking, savings or other accounts at any
bank or other financial institution, or any commodities accounts with any
commodities intermediary, or any other account where money is or may be
deposited or maintained with any Person that is not described on Schedule
6.32.  Schedule 6.32
accurately sets forth the purpose for which each such deposit account is
maintained.


6.33                        Force
Majeure.


None of any Full Recourse Credit Parties’ business is
suffering from effects of fire, accident, strike, drought, storm, earthquake,
embargo, tornado, hurricane, act of God, acts of a public enemy or other
casualty that would reasonably be likely to have a Material Adverse Effect.


ARTICLE VII


AFFIRMATIVE COVENANTS


From the Funding Date and until all of the Credit and
Collateral Termination Events have occurred, the Borrower and (by execution and
delivery of any Guaranty Agreement or of a joinder thereto and incorporation by
reference therein) each Guarantor agrees that, unless the Required Lenders
shall have otherwise consented in writing:


7.1                               Financial
Information.


The Borrower will furnish to the Agent on behalf of
the Lenders the following information within the following time periods:


(a)           within ninety (90) days after the
close of the fiscal year of Partners, the audited consolidated balance sheets
and statements of income and retained earnings and of changes in cash flow of
Partners and its consolidated Subsidiaries, for such year, each setting forth
in comparative form the corresponding figures for the preceding year, prepared
in accordance with GAAP, and accompanied by a report and unqualified 



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opinion of KPMG LLP
(which shall not be limited as to the scope
of the audit or qualified as to the status of Partners and its consolidated
Subsidiaries as a going concern) or other Independent Accountant
selected by Partners and approved by the Agent; provided, that at all
times when Partners is required to file and has timely filed a 10-K with the
SEC, such filing will satisfy this covenant;


(b)           within forty-five (45) days after the
end of each fiscal quarter of Partners other than the final fiscal quarter of
each fiscal year, unaudited consolidated financial statements of Partners and its
Subsidiaries as of the end of such period and for such period then ended and
for the period from the beginning of the current fiscal year to the end of such
period, setting forth in comparative form the corresponding figures for the
comparable period in the preceding fiscal year, prepared in accordance with
GAAP (except that such quarterly statements need not include footnotes) and
certified by an Executive Officer; provided, that at all times when the
Borrower is required to file and has timely filed a 10-Q with the SEC, such
filing will satisfy this covenant;


(c)           at the time of delivery of each
quarterly and annual statement, a Compliance Certificate executed by an
Executive Officer stating that such officer has caused this Credit Agreement to
be reviewed and has no knowledge of any default by Partners or any other Credit
Party in the performance or observance of any of the provisions of this Credit
Agreement, during, or at the end of, as applicable, such quarter, or year, or,
if such officer has such knowledge, specifying each default and the nature
thereof, and showing compliance by the Credit Parties as of the date of such
statement with the financial covenants set forth in Section 8.1, and
calculations for such financial covenants shall be included, and the other
applicable covenants set forth in Exhibit J;


(d)           promptly upon receipt thereof, copies
of all management letters which are submitted to Partners by its Independent
Accountant in connection with any annual or interim audit of the books of Partners
or its consolidated Subsidiaries made by such accountants;


(e)           as soon as practicable but, in any
event, within ten (10) Business Days after the issuance thereof, to the extent
not electronically filed and publicly available, copies of such other financial
statements and reports as Partners shall send to
its limited partnership unit holders as such, and copies of all regular and
periodic reports which Partners may be required to file with the Securities and
Exchange Commission or any similar or corresponding governmental commission,
department or agency substituted therefor, or any similar or corresponding
Governmental Authority;


(f)            no later than thirty (30) days prior
to the commencement of each fiscal year during each year when this Credit
Agreement is in effect, an annual forecast setting forth the quarterly budget
for each quarter of such fiscal year in a form consistent with the annual
forecast provided to the Agent prior to the Closing Date for the period ending
on December 31, 2005;


(g)           promptly and in any event within five
(5) Business Days after becoming aware of the occurrence of a Default or Event
of Default, a certificate of an Executive 



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Officer specifying the
nature thereof and the Credit Parties’
proposed response thereto, each in reasonable detail; and


(h)           with reasonable promptness, such
other data as the Agent may reasonably request.


7.2                               Corporate
Existence.


Each Credit Party
and each of its Subsidiaries: (a) will (i) maintain its current corporate or
other organizational existence, except as permitted by Section 9.4, (ii)
maintain in full force and effect all material licenses, bonds, franchise,
leases, trademarks and qualifications to do business, except as could not
reasonably be expected to have a Material Adverse Effect; (b) will obtain or
maintain patents, contracts and other rights necessary to the  conduct of their businesses; (c) will limit
their operations to Permitted Lines of Business; (d) will comply with all
applicable laws and regulations of any federal, state or local Governmental
Authority, except where noncompliance could not reasonably be expected to have
a Material Adverse Effect.


7.3                               ERISA.


The Credit Party
will deliver to the Agent, at the Credit Party’
expense, the following information at the times specified below:


(a)           within ten (10) Business Days after
any Credit Party or any of its
Subsidiaries or ERISA Affiliates knows or has reason to know that a Termination
Event has occurred, a written statement of an Executive Officer describing such
Termination Event and the action, if any, which such Credit Party or other such
entities have taken, are taking or propose to take with respect thereto, and
when known, any action taken or threatened by the Internal Revenue Service, DOL
or PBGC with respect thereto;


(b)           within ten (10) Business Days after
any Credit Party or any of its
Subsidiaries or ERISA Affiliates knows or 
has reason to know that a prohibited transaction (as defined in Section
406 of ERISA and Section 4975 of the Internal Revenue Code) has
occurred, a statement of an Executive Officer describing such transaction and
the action which such Credit Party or
other such entities have taken, are taking or propose to take with respect
thereto;


(c)           within thirty (30) Business Days
after the filing thereof with the DOL, Internal Revenue Service or PBGC, copies
of each annual report (form 5500 series), including all schedules and
attachments thereto, filed with respect to each Benefit Plan;


(d)           within thirty (30) Business Days
after receipt by any Credit Party or any
of its Subsidiaries or ERISA Affiliates of each actuarial report for any
Benefit Plan or Multiemployer Plan and each annual report for any Multiemployer
Plan, copies of each such report;


(e)           within three (3) Business Days after
the filing thereof with the Internal Revenue Service, a copy of each funding
waiver request filed with respect to any Benefit 



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Plan and all
communications received by any Credit Party or any
of its Subsidiaries or ERISA Affiliates with respect to such request;


(f)            within ten (10) Business Days upon
the occurrence thereof, notification of any material increase in the benefits
of any existing Plan or the establishment of any new Plan or the commencement
of contributions to any Plan to which any Credit
Party or any of its Subsidiaries or ERISA Affiliates was not previously
contributing;


(g)           within three (3) Business Days after
receipt by any Credit Party or any of
its Subsidiaries or ERISA Affiliates of the PBGC’s intention to terminate a
Benefit Plan or to have a trustee appointed to administer a Benefit Plan,
copies of each such notice;


(h)           within ten (10) Business Days after
receipt by any Credit Party or any of
its Subsidiaries or ERISA Affiliates of any favorable or unfavorable
determination letter from the Internal Revenue Service regarding the
qualification of a Plan under Section 401(a) of the Internal Revenue
Code, copies of each such letter;


(i)            within ten (10) Business Days after
receipt by any Credit Party or any of
its Subsidiaries or ERISA Affiliates of a notice regarding the imposition of
withdrawal liability, copies of each such notice;


(j)            within ten (10) Business Days after
any Credit Party or any of its
Subsidiaries or ERISA Affiliates fail to make a required installment or any
other required payment under Section 412 of the Internal Revenue Code on
or before the due date for such installment or payment, a notification of such
failure; and


(k)           within three (3) Business Days after
any Credit Party or any of its
Subsidiaries or ERISA Affiliates knows (a) a Multiemployer Plan has been
terminated, (b) the administrator or plan sponsor of a Multiemployer Plan
intends to terminate a Multiemployer Plan, or (c) the PBGC has instituted or
will institute proceedings under Section 4042 of ERISA to terminate a
Multiemployer Plan, a written statement setting forth any such event or
information.


For purposes of this Section 7.3, any Credit Party or any of its Subsidiaries or
ERISA Affiliates shall be deemed to know all facts known by the administrator
of any Plan of which such entity is the plan sponsor.


The Credit Parties will establish, maintain and
operate all Plans to comply in all material respects with the provisions of
ERISA, the Internal Revenue Code, and all other applicable laws, and the
regulations and interpretations thereunder other than to the extent that the
Credit Parties are in good faith contesting by appropriate proceedings the
validity or implication of any such provision, law, rule, regulation or
interpretation.


7.4                               Proceedings
or Adverse Changes.


The Credit Parties will as soon as possible, and in
any event within five (5 Business Days after any Executive Officer learns of
the following, give written notice to the Agent of (any material proceeding(s)
being instituted or threatened in writing to be instituted by or against any 



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Credit Party or any of its Subsidiaries in any
federal, state, local or foreign court or before any commission or other
regulatory body (federal, state, local or foreign), if the amount involved is
equal to or in excess of $10,000,000 and (ii) any event has occurred that
has or could reasonably be expected to cause a Material Adverse Change.  Provision of such notice by the Credit
Parties will not constitute a waiver or excuse of any Default or Event of
Default occurring as a result of such changes or events.


7.5                               Environmental
Matters.


Each Credit Party will conduct its business and the
businesses of each of the Subsidiaries so as to comply in all material respects
with all applicable environmental laws, regulations, orders and ordinances, in
all jurisdictions in which any of them is or may at any time be doing business
including, without limitation, environmental land use, occupational safety or
health laws, regulations, requirements or permits in all jurisdictions in which
any of them is or may at any time be doing business, except to the extent that
any Credit Party or any of its Subsidiaries is contesting, in good faith by
appropriate legal proceedings, any such law, regulation, order or ordinance, or
interpretation thereof or application thereof; provided, further, that each Credit Party and each of
the Subsidiaries will comply with the order of any court or other governmental
body of the applicable jurisdiction relating to such laws unless such Credit
Party or Subsidiary shall currently be prosecuting an appeal or proceedings for
review and shall have secured a stay of enforcement or execution or other
arrangement postponing enforcement or execution pending such appeal or
proceedings for review.  If any Credit
Party or any of its Subsidiaries shall receive any notice from a federal,
state, or local agency that (a) any violation of any federal, state or local
environmental law, regulation, order or ordinance, may have been committed or
is about to be committed by such Credit Party or any of its Subsidiaries, (b)
any administrative or judicial complaint or order has been filed or is about to
be filed against such Credit Party or any of its Subsidiaries alleging
violations of any federal, state or local environmental law, regulation, order,
ordinance, or requiring such Credit Party or any of its Subsidiaries to take
any action in connection with the release of toxic or hazardous substances into
the environment or (c) alleging that such Credit Party or any of its
Subsidiaries may be liable or responsible for costs associated with a response
to or cleanup of a release of a toxic or hazardous substance into the
environment or any damages caused thereby, and any Credit Party reasonably
believes that such costs or damages would likely be material, such Credit Party
will provide the Agent with a copy of such notice within fifteen (15) days
after the receipt thereof by the applicable Credit Party or any of its
Subsidiaries.  Each Credit Party will
promptly take all actions necessary to prevent the imposition of any Liens on
any of its properties arising out of or related to any environmental matters
except to the extent such Liens that would not reasonably be expected to create
an Event of Default.


7.6                               Books
and Records; Inspection.


Each Credit Party will, and will cause each of its
Subsidiaries to, maintain books and records pertaining to the Collateral in
such detail, form and scope as is consistent with good business practice.  Each Credit Party agrees that the Agent or
its agents may enter upon the premises of each Credit Party or any of its
Subsidiaries at any time and from time to time, during normal business hours,
and at any time at all on and after the occurrence of an Event of Default, and
which has not otherwise been waived by the Agent, for the purpose of (a)
enabling the


 



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Agent’s internal auditors or outside third party
designees to conduct any periodic field examinations at such Credit Party’s
expense, (b) inspecting the Collateral, (c) inspecting and/or copying (at
such Credit Party’ expense) any and all records pertaining thereto, and (d)
discussing the affairs, finances and business of any Credit Party or with any
officers, employees and directors of any Credit Party with the Independent
Accountant.  The Lenders, in the
reasonable discretion of the Agent, may accompany the Agent at their sole
expense in connection with the foregoing inspections.


7.7                               Collateral
Records.


Each Credit Party will, and will cause each of its
Subsidiaries to, execute and deliver to the Agent, from time to time, for the
Agent’s use in maintaining a record of the Collateral, such written statements
and schedules that are reasonably available and as the Agent may reasonably
require, including without limitation those described in Section 7.1,
designating, identifying or describing the Collateral pledged to the Lenders
hereunder.  Any Credit Party’s failure,
however, to promptly give the Agent such statements or schedules shall not
affect, diminish, modify or otherwise limit the Lenders’ security interests in
the Collateral. Such Credit Party agrees to maintain such books and records
regarding Accounts and the other Collateral as the Agent may reasonably
require.


7.8                               Security
Interests.


Each Credit Party will use commercially reasonable
efforts to defend the Collateral against all claims and demands of all Persons
at any time claiming the same or any interest therein other than Permitted
Liens.  Each Credit Party agrees to, and
will cause the other Credit Parties to, comply with the requirements of all
applicable state and federal laws necessary to grant to the Lenders valid and
perfected first security interest in the Collateral as required by this
Agreement and the Security Documents. 
The Agent is hereby authorized by each Credit Party to file any
financing statements in accordance with Section 5(f) of the Security
Agreement.  Each Credit Party agrees to
take the following actions as the Agent may reasonably request, from time to
time, by way of: reasonably cooperating with the Agent’s custodians; keeping
stock records; paying claims, which might if unpaid, become a Lien (other than
a Permitted Lien) on the Collateral except for claims which are being contested
in good faith; as to Full Recourse Credit Parties, assigning its rights to the
payment of Accounts pursuant to the Assignment of Claims Act of 1940, as
amended (31 U.S.C. §3727 et. seq.); and performing such further acts as the
Agent may reasonably require in order to effect the purposes of Security
Documents.  Subject to any limitation
expressly set forth herein any and all reasonable fees, costs and expenses of
whatever kind and nature (including any Taxes, reasonable attorneys’ fees or
costs for insurance of any kind), which the Agent may incur with respect to the
Collateral or the Obligations: in filing public notices; in preparing or filing
documents; in protecting, maintaining, or preserving the Collateral or its
interest therein; in enforcing or foreclosing the Liens hereunder, whether
through judicial procedures or otherwise; or in defending or prosecuting any
actions or proceedings arising out of or relating to its transactions with any
Credit Party or any of its Subsidiaries under this Credit Agreement or any
other Credit Document, will be borne and paid by the Credit Parties.  If same are not promptly paid by the Credit
Parties upon presentation of correct, detailed invoices, the Agent may pay same
on the Credit Parties’ behalf, and the amount thereof shall be an Obligation
secured hereby and due to the Agent on demand. 
If any Credit 



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Party acquires or leases any Real Estate after the date
hereof, such Credit Party will promptly (i) submit to the Agent an updated Schedule
6.19 pursuant to Section 7.15 and (ii) with respect to all such Real
Estate that is (x) owned by a Full Recourse Credit Party, except for minor
owned Real Estate that is acquired solely as a convenience, is not integral to
or necessary for the use and operation of any Mortgaged Real Estate and has
only minor value, where the Agent determines in its reasonable credit judgment
that no Mortgage will be required due to such considerations, and (y) all such
Real Estate that is leased by a Full Recourse Credit Party and is designated in
writing by the Agent in its sole discretion, within forty-five (45) days,
execute and deliver to the Agent a Mortgage on such Real Estate, and deliver to
the Agent the other items of the types described in the definition of Real
Property Documentation with respect thereto as the Agent may require, and all
provisions of this Credit Agreement (including, without limitation, the
foregoing provisions of this Section 7.8 and all other applicable
representations, warranties and covenants) that are applicable to Real Estate
or Mortgages shall apply thereto.


7.9                               Insurance;
Casualty Loss.


Each Credit Party will, and will cause each of the
Subsidiaries to, maintain public liability insurance and replacement value
property damage insurance on the Collateral under such policies of insurance,
with such insurance companies, in such amounts and covering such risks as are
commercially reasonable for the industry and taking into account the interests
of the Agent in the Collateral.  All
policies covering the Collateral are to name the Credit Parties and the Agent
as additional insureds, as their interests may appear.  Certificates of insurance evidencing such
insurance covering the Collateral are to be delivered to the Agent on or prior
to the Closing Date, premium prepaid, with the Agent as additional insured, and
shall provide for not less than thirty (30) days prior written notice to the
Agent or ten (10) days in the case of non-payment of premium, of the exercise
of any right of cancellation.  In the
event any Credit Party or any of its Subsidiaries fail to respond in a timely
and appropriate manner (as determined by the Agent in its reasonable
discretion) with respect to collecting under any insurance policies required to
be maintained under this Section 7.9, and if the amount involved is
$5,000,000 or more, the Agent shall have the right, in the name of the Agent
such Credit Party or Subsidiary, to file claims under such insurance policies,
to receive and give acquittance for any payments that may be payable
thereunder, and to execute any and all endorsements, receipts, releases,
assignments, reassignments or other documents that may be necessary to effect
the collection, compromise or settlement of any claims under any such insurance
policies.  Each Credit Party will provide
written notice to the Agent of the occurrence of any of the following events
within fifteen (15) Business Days after the occurrence of such event: any
material asset or property owned or used by any Credit Party or any of its
Subsidiaries is (i) materially damaged or destroyed, or suffers any other
material loss or (ii) is condemned, confiscated or otherwise taken, in whole or
in part, or the use thereof is otherwise diminished so as to render
impracticable or unreasonable the use of such asset or property for the purpose
to which such asset or property were used immediately prior to such
condemnation, confiscation or taking, by exercise of the powers of condemnation
or eminent domain or otherwise, and in either case the amount of the damage,
destruction, loss or diminution in value of the Collateral which is in excess
of $4,000,000 (collectively, a “Casualty Loss”).  Each Credit Party will diligently file and
prosecute its claim or claims for any award or payment in connection with a
Casualty Loss.  After the occurrence and
during the continuance of an Event of Default, (i) no settlement on
account of any such Casualty Loss shall be made without the consent of the
Agent and (ii) the Agent may 



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participate in any such proceedings and the Credit
Parties will deliver to the Agent such documents as may be requested by the
Agent to permit such participation and will consult with the Agent, its attorneys
and agents in the making and prosecution of such claim or claims.  Each Credit Party hereby irrevocably
authorizes and appoints the Agent its attorney-in-fact, after the occurrence
and continuance of an Event of Default, to collect and receive for any such
award or payment and to file and prosecute such claim or claims, which power of
attorney shall be irrevocable and shall be deemed to be coupled with an
interest, and each Credit Party shall, upon demand of the Agent, make, execute
and deliver any and all assignments and other instruments sufficient for the
purpose of assigning any such award or payment to the Agent for the benefit of
the Lenders, free and clear of any encumbrances, other than Permitted Liens.


7.10                        Taxes.


Each Credit Party will, and will cause each of the
Subsidiaries to, pay, when due, all Taxes levied or assessed against any Credit
Party, any of its Subsidiaries or any of the Collateral; provided, however,
that unless such Taxes have become a federal tax or ERISA Lien on any of the
assets of any Credit Party or any of its Subsidiaries, in each case in an
amount that would create an Event of Default, no such Tax, other than state
excise taxes, need be paid if the same is being contested in good faith, by
appropriate proceedings promptly instituted and appropriately conducted and if
an adequate reserve or other appropriate provision shall have been made
therefor as required in order to be in conformity with GAAP.  Partners will, and will cause each of its
Subsidiaries to, engage only in a Permitted Line of Business.


7.11                        Compliance
With Laws.


Each Credit Party will, and will cause each of its
Subsidiaries to, comply with all acts, rules, regulations, orders, directions
and ordinances of any legislative, administrative or judicial body or official
applicable to the Collateral or any part thereof, or to the operation of its
business, except where the failure to so comply could not reasonably be
expected to have a Material Adverse Effect.


7.12                        Use
of Proceeds.


The proceeds of the Loans may be used by the Borrower
solely (a) for the acquisition of the Drop-Down Assets, in an aggregate amount
not exceeding $140,000,000, (b) for general corporate purposes of the Full
Recourse Credit Parties, including, without limitation, working capital,
capital expenditures in the ordinary course of business and Permitted
Acquisitions, (c) to fund distributions of Available Cash permitted by Section
9.6, and (d) to pay fees and expenses related to the consummation of this
Credit Agreement and the Drop-Down Acquisitions and related transactions; provided,
however, that in any event, no portion of the proceeds of any such
advances shall be used by any Credit Party for the purpose of purchasing or
carrying any “margin stock” (as defined in Regulation U of the Board of
Governors of the Federal Reserve System) or for any other purpose which
violates the provisions or Regulation U of said Board of Governors or for any
other purpose in violation of any applicable statute or regulation, or of the
terms and conditions of this Credit Agreement.



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7.13                        Fiscal
Year; Accounting Policies.


Each Credit Party agrees that it will not change its
fiscal year from a year ending December 31 unless required by law, in which
case such Credit Party will give the Agent prompt written notice thereof.  Subject to Section 1.2, each Credit
Party agrees that it will provide prompt notice to the Agent of any material
change to its accounting policies from those used to prepare the financial
statements delivered pursuant to Section 5.1(c).


7.14                        Notification
of Certain Events.


Each Credit Party agrees that it will promptly, and in
any case within five (5) Business Days, notify the Agent of the occurrence of
any of the following events:


(a)           any Material Contract of any Credit
Party is terminated or amended in any material adverse respect or any new
Material Contract is entered into (in which event such Credit Party shall
provide the Agent with a copy of such Material Contract); or


(b)           any order, judgment or decree shall
have been entered against any Credit Party or any of its Subsidiaries or any of
their respective properties or assets, if a Lien arising therefrom would create
an Event of Default; or


(c)           any notification of violation of any
law or regulation or any inquiry shall have been received by any Credit Party
from any local, state, federal or foreign Governmental Authority or agency
which could reasonably be expected to have a Material Adverse Effect; or


(d)           the filing or receipt by any Credit
Party of notice of, any federal or state tax lien, if such Lien would create an
Event of Default.


7.15                        Additional
Full Recourse Guarantors.


With respect to any newly created or acquired
Subsidiary of Partners, Partners will provide the Agent with written notice
thereof setting forth information in reasonable detail describing all of the
material assets of such Person and shall (a) cause any such Person that is a
Domestic Subsidiary to execute and deliver to the Agent a Joinder Agreement in
substantially the form of Exhibit K, causing such Subsidiary to become a
party to (i) the Full Recourse Guaranty, as a joint and several “Guarantor”
thereunder, (ii) the Security Agreement, as an “Obligor” granting a first
priority Lien on its personal property, subject to Permitted Liens, (iii) the
Contribution Agreement, as a “Contributing Party” and (iv) as appropriate, the
Pledge Agreement, as a “Pledgor,” causing all of its Capital Stock (or, in the
case of any Foreign Subsidiary, and without waiving the requirement for the
prior consent of the Required Lenders for the formation or acquisition thereof,
sixty-five percent (65%) of its Capital Stock) to be delivered to the Agent
(together with undated stock powers signed in blank and pledged to the Agent),
and (b) deliver such other documentation as the Agent may reasonably request in
connection with the foregoing, including, without limitation, appropriate UCC-1
financing statements,  certified
resolutions and other organizational and authorizing documents of such Person
and favorable opinions of counsel to such Person (which shall cover, among
other things, the legality, validity, binding effect, no conflicts with
constitutional documents or material 



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agreements, and enforceability of the documentation
referred to above, and attachment and perfection of the Agent’s Lien in such
Subsidiary’s Collateral), all in form, content and scope reasonably
satisfactory to the Agent.


7.16                        Revisions
or Updates to Schedules.


If any of the information or disclosures provided on
any of Schedules 6.7, 6.8, 6.9, 6.17 or 6.19, originally attached hereto
become outdated or incorrect in any material respect, the Credit Parties shall
deliver to the Agent and the Lenders as part of the compliance certificate
required pursuant to Section 7.1(c) such revision or updates to such
Schedule(s) as may be necessary or appropriate to update or correct such
Schedule(s); provided, that such revisions or updates to any such
Schedule(s) shall be deemed to have amended, modified or superseded such
Schedule(s) as originally attached hereto or revised or updated pursuant
hereto, but shall not be deemed to have cured any breach of warranty or
misrepresentation resulting from the inaccuracy or incompleteness of any such
Schedule(s) as it existed prior to such revision or update unless and until the
Agent, in its sole and absolute discretion, shall have accepted in writing such
revisions or updates to such Schedule(s).


7.17                        Collection
of Accounts.


Rights with respect to collection of Accounts shall be
as set forth in the Security Agreement.


7.18                        Maintenance
of Property.


Each Credit Party will, and will cause each of its
Subsidiaries to, use commercially reasonable efforts to keep all property
useful and necessary to its respective business in good working order and
condition (ordinary wear and tear excepted) in accordance with their past
operating practices except for such property not material to the conduct of
such Credit Party’s business.


7.19                        Trademarks.


Each Credit Party will do and cause to be done all
things reasonably necessary to preserve and keep in full force and effect all
registrations of trademarks, service marks and other marks, trade names or
other trade rights, in each case to the extent material to the conduct of such
Credit Party’s business.


7.20                        Anti-Terrorism
Laws.


None of the Credit Parties shall, nor shall any of
them permit any of their respective Subsidiaries to, (i) conduct any business
or engage in any transaction or dealing with any Blocked Person, including the
making or receiving any contribution of funds, goods or services to or for the
benefit of any Blocked Person; (ii) deal in, or otherwise engage in any
transaction relating to, any property or interests in property blocked pursuant
to Executive Order No. 13224; or (iii) knowingly engage in or conspire to
engage in any transaction that evades or avoids, or has the purpose of evading
or avoiding, or attempts to violate, any of the prohibitions set forth in
Executive Order No. 13224 or the USA Patriot Act.  Each of the Credit Parties shall deliver to 



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the Agent and Lenders any certification or other
evidence reasonably requested from time to time by the Agent or any Lender, in
the Agent’s reasonable discretion, confirming such Person’s compliance with
this Section.


7.21                        Real
Property Documentation.


As to any Mortgage or other Real Property Documentation
that was not delivered on or before the Funding Date, the Borrower shall
deliver such Mortgage or other Real Property Documentation (including any
documents or other actions with respect to any previously delivered Mortgages
as reasonably requested by the Agent) to the Agent on or before the conclusion
of the Mortgage Documentation Extension Period, in form and substance
reasonably satisfactory to the Agent  In
addition, in connection with any Subsequent Drop-Down Acquisition, the Borrower
shall deliver a Mortgage and other related Real Property Documentation, in form
and substance reasonably satisfactory to the Agent, with respect to Real Estate
that is being acquired by the Borrower or any Credit Party as promptly as
possible, but prior to or simultaneously with the consummation of each
Subsequent Drop-Down Acquisition provided, that, as to any Real
Estate that the Real Property Documentation (other than the Mortgage) cannot
with reasonable diligence be completed and provided on or prior to the date of
the consummation of the applicable Subsequent Drop-Down Acquisition, such Real
Property Documentation shall be completed and provided upon the conclusion of
the Mortgage Document Extension Period (if applicable).


7.22                        Subsequent
Drop Down Acquisitions.


Subject to Section 7.21, on or prior to the
consummation of each Subsequent Drop-Down Acquisition, the Borrower shall have
delivered to the Agent, an executed acknowledgement agreement, substantially in
the form of the TMG/TPSI Acknowledgement Agreement (with appropriate
modifications to reflect such Subsequent Drop-Down Acquisition), together with
any other documents or consents reasonably requested by Agent to ensure that
the Lien of the Agent and the Lenders under the Credit Documents is in full force
and effect with respect to such Subsequent Drop-Down Assets.


ARTICLE VIII


FINANCIAL COVENANTS


From the Funding Date and until all of the Credit and
Collateral Termination Events have occurred, the Borrower and (by execution and
delivery of the Guaranty Agreement or of a joinder thereto and incorporation by
reference therein) each Guarantor agrees that, unless the Required Lenders
shall have otherwise consented in writing:


8.1                               Maximum
Total Leverage Ratio.


A Total Leverage Ratio shall be maintained as of the
last day of each fiscal quarter of Partners of not greater than (i) 5.75 to
1.00, for each fiscal quarter ending on and after December 31, 2006 until the
earlier of (A) the fiscal quarter ending September 30, 2007 or (B) the fiscal
quarter in which a Qualifying Equity Offering is consummated and (ii) 4.50 to
1.00, for the earliest applicable fiscal quarter referenced in clauses (A) or
(B) and for each fiscal quarter 



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thereafter; provided, however, that a
Total Leverage Ratio of not greater than 5.00 to 1.00 may be maintained during
any Specified Period.


8.2                               Minimum
Interest Coverage Ratio.


An Interest Coverage Ratio shall be maintained as of
the last day of each fiscal quarter of Partners of not less than (i) 2.25 to
1.00, for each fiscal quarter commencing with the fiscal quarter ending
December 31, 2006 through and including the fiscal quarter ending September 30,
2007, (ii) 2.50 to 1.00, for the fiscal quarter ending December 31, 2007, and
(iii) 2.75 to 1.00, for each fiscal quarter thereafter.


8.3                               Senior
Secured Leverage Ratio.


A Senior Secured Leverage Ratio shall be maintained as
of the last day of each fiscal quarter of Partners of not greater than (i) 5.75
to 1.00, for each fiscal quarter ending on and after December 31, 2006 until
the earlier of (A) the fiscal quarter ending September 30, 2007 or (B) the
fiscal quarter in which a Qualifying Equity Offering is consummated and (ii)
4.00 to 1.00, for the earliest applicable fiscal quarter referenced in clauses
(A) or (B) and for each fiscal quarter thereafter; provided, however,
that a Senior Secured Leverage Ratio of not greater than 4.50 to 1.00 may be
maintained during any Specified Period.


ARTICLE IX


NEGATIVE COVENANTS


From the Funding Date and until all of the Credit and
Collateral Termination Events have occurred, the Borrower and (by execution and
delivery of the Guaranty Agreement or of a joinder thereto and incorporation by
reference therein) each Guarantor agrees that, unless the Required Lenders
shall have otherwise consented in writing, it will not, and will not permit any
of its Subsidiaries to:


9.1                               Restrictions
on Liens.


Mortgage, assign, pledge, transfer or otherwise permit
any Lien or judgment (whether as a result of a purchase money or title
retention transaction, or other security interest, or otherwise) to exist on
any of its assets or properties, whether real, personal or mixed, whether now
owned or hereafter acquired, except for Permitted Liens.  Other than Liens securing the Obligations, no
consensual (non statutory) Liens (other than Permitted Liens not securing
Indebtedness) shall be permitted on the Florida Real Property Assets.


9.2                               Restrictions
on Additional Indebtedness.


Incur or create any liability or Indebtedness other
than Permitted Indebtedness.


9.3                               Restrictions
on Sale of Assets.


Sell, lease, assign, transfer or otherwise dispose of
any assets (including the Capital Stock of any Subsidiary of Partners) other
than: (a) sales of Inventory in the ordinary course of 



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business; (b) sale-leaseback transactions permitted by
Section 9.13; (c) sales or other dispositions in the ordinary course of
business of assets or properties that are obsolete or that are no longer used
or useful in the conduct of such Credit Party’s or Subsidiary’s business; (d)
sales in the ordinary course of business of assets or properties (other than
Inventory) used in such Credit Party’s or Subsidiary’s business that are worn
out or in need of replacement and that are replaced within six (6) months with
assets of reasonably equivalent value or utility; (e) other asset sales not
exceeding in the aggregate for all Credit Parties (1) $10,000,000 in any fiscal
year and (2) 10% of Consolidated Net Tangible Assets since the Closing Date;
and (f) transfers among Full Recourse Credit Parties provided that with respect
to any Real Estate that is transferred, Borrower shall provide Agent at least
30 days prior written notice of such transfer, and prior to such transfer
deliver any Mortgages and Real Estate Documentation, as requested by the Agent,
to the Agent to maintain the priority of the Lien of the Agent in respect of
such Real Estate.


9.4                               No
Corporate Changes.


(a)           Merge or consolidate with any Person,
provided, however, that subject to Section 7.15 and Section
9.11, Partners and its Subsidiaries may merge or consolidate with and into
each other (so long as, if such merger or consolidation involves the Borrower,
the Borrower is the surviving entity, if such merger or consolidation involves
a Domestic Subsidiary and a Foreign Subsidiary, the Domestic Subsidiary is the
surviving entity, if such merger or consolidation involves a Credit Party and a
Subsidiary that is not a Credit Party, the Credit Party is the surviving
entity, and if such merger or consolidation involves a Full Recourse Credit
Party, a Full Recourse Credit Party is the surviving entity) and the Credit
Parties may engage in Permitted Acquisitions, (b) alter or modify any Credit
Party’s or any of its Subsidiary’s Articles or Certificate of Incorporation or
other equivalent organizational document or form of organization in any manner
adverse to the interests of the Agent or the Lenders or in any way which could
reasonably be expected to have a Material Adverse Effect, (c) without providing
thirty (30) days prior written notice to the Agent (or such shorter period as
determined by the Agent) and without filing (or confirming that the Agent has
filed) such amendments to any previously filed financing statements as may be
necessary to maintain perfection of the security interest created under the
Credit Documents as the Agent may require, (i) change its state of
incorporation or formation, (ii) change its registered corporate, limited
liability company, or partnership name, (iii) change the location of its books
and records from the locations set forth on Schedule 6.7, or (iv) change
the location of its Collateral from the locations set forth for such Person on Schedule
6.7, or (d) enter into or engage in any business, operation or activity
other than a Permitted Line of Business; provided, however, that
notwithstanding the foregoing, any Credit Party may dissolve or liquidate any
Subsidiary that is not a Credit Party and is not required to be one pursuant
hereto.


9.5                               No
Guarantees.


Assume, guarantee, endorse, or otherwise become liable
upon the obligations of any other Person, including, without limitation, any
Subsidiary or Affiliate of any Credit Party, except (a) by the endorsement of
negotiable instruments in the ordinary course of business, (b) by the giving of
indemnities in connection with the sale of Inventory or other asset
dispositions permitted hereunder and (c) in connection with the incurrence of
Permitted Indebtedness.



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9.6                               No
Restricted Payments.


Make a Restricted Payment, other than (i) to pay
dividends from any Subsidiary to any Full Recourse Credit Party and (ii)
Permitted Restricted Payments.


9.7                               No
Investments.


Make any Investment other than Permitted Investments.


9.8                               No
Affiliate Transactions.


Enter into any transaction with, including, without
limitation, the purchase, sale or exchange of property or the rendering of any
service to any Subsidiary or Affiliate of any Credit Party except (a) in the
ordinary course of such Credit Party’s business and upon fair and reasonable
terms no less favorable to such Credit Party than could be obtained in a comparable
arm’s-length transaction with an unaffiliated Person, (b) as permitted under Section
9.6, or (c)  pursuant to the Omnibus
Agreement or the Terminaling Services Agreement or the other documents
pertaining to the formation of the General Partner, Partners and its
Subsidiaries as described in the Form S-1.


9.9                               No
Prohibited Transactions Under ERISA.


(a)           Engage, or permit any ERISA Affiliate
to engage, in any prohibited transaction which could result in a material civil
penalty or excise tax described in Section 406 of ERISA or Section
4975 of the Internal Revenue Code for which a statutory or class exemption
is not available or a private exemption has not been previously obtained from
the DOL;


(b)           permit to exist with respect to any
Benefit Plan any accumulated funding (as defined in Sections 302 of
ERISA and 412 of the Internal Revenue Code), whether or not waived;


(c)           fail, or permit any ERISA Affiliate
to fail, to pay timely required contributions or annual installments due with
respect to any waived funding deficiency to any Benefit Plan;


(d)           terminate, or permit any ERISA
Affiliate to terminate, any Benefit Plan where such event would result in any
liability of the Credit Party or any of its Subsidiaries or ERISA Affiliates
under Title IV of ERISA;


(e)           fail, or permit any ERISA Affiliate
to fail to make any required contribution or payment to any Multiemployer Plan;


(f)            fail, or permit any ERISA Affiliate
to fail, to pay any required installment or any other payment required under Section
412 of the Internal Revenue Code on or before the due date for such
installment or other payment;



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(g)           amend, or permit any ERISA Affiliate
to amend, a Benefit Plan resulting in an increase in current liability for the
plan year such that any of the Credit Parties or any of their Subsidiaries or
ERISA Affiliates is required to provide security to such Benefit Plan under Section
401(a)(29) of the Internal Revenue Code;


(h)           withdraw, or permit any ERISA
Affiliate to withdraw, from any Multiemployer Plan where such withdrawal may
result in any liability of any such entity under Title IV of ERISA; or


(i)            allow any representation made in Section
6.14 to be untrue at any time during the term of this Credit Agreement.


9.10                        No
Additional Bank or Commodities Accounts.


Open, maintain or otherwise have any checking, savings
or other accounts at any bank or other financial institution, or any other
account where money is or may be deposited or maintained with any Person, other
than (a) commodities accounts maintained with commodities brokers in the
ordinary course of business in accordance with historical practices, each of
which shall be subject to a Commodities Account Control Agreement, except to
the extent otherwise determined by the Agent, (b) the deposit accounts set forth
on Schedule 6.32, each of which shall be subject to a Deposit Account
Control Agreement, except to the extent otherwise determined by the Agent, (c) deposit accounts established after the Closing Date
that are subject to a Deposit Account Control Agreement, (d) other deposit
accounts established after the Closing Date solely as payroll and other zero
balance accounts and (e) other deposit accounts established after the Closing
Date, so long as at any time the aggregate balance in all such accounts does not
exceed $2,000,000.


9.11                        Restrictions
on Partners.


Hold, in the case of Partners only, any material
assets other than the Capital Stock of the Credit Parties and the other
Subsidiaries listed on Schedule 6.9 and have, in the case of Partners
only, any liabilities other than (a) the liabilities under the Credit
Documents, (b) other Indebtedness in existence on the date hereof and
refinancings thereof, and (c) tax, routine administrative and other liabilities
not constituting Indebtedness, expenses of the types described in clause (d) of
the definition of Permitted Restricted Payments, Indebtedness of the types
described in clauses (c), (f) and (h) of the definition of Permitted
Indebtedness, intercompany liabilities not prohibited hereby and guarantees
constituting Permitted Indebtedness,  in
each case incurred in the ordinary course of business.  In the case of Partners only, sell, transfer
or otherwise dispose of any Capital Stock in the Credit Parties or such
Subsidiaries, or engage in any business other than owning the Capital Stock of
the Credit Parties and such Subsidiaries.


9.12                        Additional
Negative Pledges.


Create or otherwise cause or suffer to exist or become
effective, or permit any of the Subsidiaries to create or otherwise cause or
suffer to exist or become effective, directly or indirectly: (i) any
prohibition or restriction (including any agreement to provide equal and
ratable security to any other Person in the event a Lien is granted to or for
the benefit of the Agent and the Lenders) on the creation or existence of any
Lien upon the assets of any Credit Party or any


 



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of its Subsidiaries, other than Permitted Liens,
except (1) this Agreement and the other Credit Documents, (2) covenants in
documents creating Permitted Liens (none of which shall include consensual (non
statutory) Liens on the Florida Real Property Assets, other than Permitted
Liens not securing Indebtedness and Liens securing the Obligations), but only
to the extent of the property encumbered by such Permitted Lien, and (3) any
other agreement that does not restrict in any manner (directly or indirectly)
Liens created pursuant to the Credit Documents on property or assets of
Partners or any of its Subsidiaries (whether now owned or hereafter acquired)
securing the Loans or any Lender Hedging Agreement; or (ii) any Contractual
Obligation which may restrict or inhibit the Agent’s rights or ability to sell
or otherwise dispose of the Collateral or any part thereof after the occurrence
of an Event of Default.


9.13                        Sale
and Leaseback.


Enter into any arrangement, directly or indirectly,
whereby any Credit Party or any of its Subsidiaries shall sell or transfer any
property owned by it to a Person (other than the Credit Parties or any of their
Subsidiaries) in order then or thereafter to lease such property or lease other
property which such Credit Party or Subsidiary intends to use for substantially
the same purpose as the property being sold or transferred.


9.14                        Limitations.


Create, nor will it permit any of its Subsidiaries to,
directly or indirectly, create or otherwise cause, incur, assume, suffer or
permit to exist or become effective any consensual encumbrance or restriction
of any kind on the ability of any such Person to (a) pay dividends or make
any other distribution on any of such Person’s Capital Stock, (b) pay any
Indebtedness owed to the Credit Parties, (c) make loans or advances to any
other Credit Party or (d) transfer any of its property to any other Credit
Party, except for encumbrances or restrictions existing under or by reason of
(i) customary non-assignment provisions in any lease governing a leasehold
interest, (ii) any agreement or other instrument of a Person existing at the
time it becomes a Subsidiary of a Credit Party; provided that such
encumbrance or restriction is not applicable to any other Person, or any
property of any other Person, other than such Person becoming a Subsidiary of a
Credit Party and was not entered into in contemplation of such Person becoming
a Subsidiary of a Credit party and (iii) this Credit Agreement and the other
Credit Documents.


9.15                        Operating
Lease Obligations.


Enter into or permit any
Subsidiary to enter into, assume or permit to exist any obligations for the
payment of rent under operating leases which in the aggregate for all such
Persons would exceed $5,000,000 in
any fiscal year, exclusive of payments for the chartering of vessels in the
ordinary course of business, rental payments made on leases that are in effect
with respect to assets acquired pursuant to the Omnibus Agreement, and leases
of terminaling or storage facilities that give rise to revenues that are
greater than the lease expense and any other direct operating expenses.


9.16                        Amendments
to Certain Agreements.


Without the prior written
consent of the Agent, amend, restate, modify or otherwise supplement the
Omnibus Agreement, the Terminaling Services Agreement or Partners’ Partnership 



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Agreement in any way that (a)
would or could reasonably be expected to have or cause a Material Adverse
Effect or (b) would, taking into account the Borrower’s and Partners’
circumstances at the time and treating such amendment as if it occurred at the
beginning of the current fiscal year, reduce projected Consolidated EBITDA for
the current fiscal year to less than 90% of the projected Consolidated EBITDA
shown on the annual forecast most recently delivered pursuant to Section
7.1(f).


ARTICLE X


POWERS


10.1                        Appointment
as Attorney-in-Fact.


A power of attorney in favor of the Agent for the
benefit of the Lenders with respect to the Collateral shall be as set forth in
the Security Documents.


ARTICLE
XI


EVENTS OF
DEFAULT AND REMEDIES


11.1                        Events
of Default.


The occurrence of any of the following events shall
constitute an “Event of Default” hereunder:


(a)           failure of the Borrower to pay (i)
any interest or Fees hereunder within three (3) Business Days of when due
hereunder, in each case whether at stated maturity, by acceleration, or
otherwise, (ii) any principal of the Revolving Loans or the Letter of Credit
Obligations when due, whether at stated maturity, by acceleration or otherwise
or (iii) any other amounts owing hereunder or any other Credit Document within
five (5) Business Days after such amounts are
due;


(b)           any representation or warranty,
contained in this Credit Agreement, the other Credit Documents or any other
agreement, document, instrument or certificate among any Credit Party, the
Agent and the Lenders or executed by any Credit Party in favor of the Agent or
the Lenders shall prove untrue in any material respect on or as of the date it
was made or was deemed to have been made;


(c)           failure of any Credit Party to
perform, comply with or observe any term, covenant or agreement applicable to
it contained in Section 7.1(g), Section 7.2, Section 7.6
(but only as to inspection rights), Section 7.21, Article VIII or
Sections 9.3, 9.4, 9.6, or 9.13;


(d)           failure to comply with any other
covenant contained in this Credit Agreement, the other Credit Documents or any
other agreement, document, instrument or certificate among any Credit Party,
the Agent and the Lenders or executed by any Credit Party in favor of the Agent
or the Lenders and, in the event such breach or failure to comply is capable of
cure, such breach or failure to comply is not cured within thirty (30) 



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days after the earlier of
(a) notice thereof by the Agent, (b) an Executive Officer becoming
aware thereof or (c) as to any failure to give notice as required by Section
7.4, such failure is not cured within five (5) Business Days after an
Executive Officer becomes aware of such failure to give such notice;


(e)           dissolution, liquidation, winding up
or cessation of the business of any Credit Party or any of its Subsidiaries, or
the failure of any Credit Party or any of its Subsidiaries to meet its debts
generally as they mature, or the calling of a meeting of any Credit Party’s or
any of its Subsidiaries’ creditors for purposes of compromising any Credit
Party’s or any of its Subsidiaries’ debts, or the failure by any Credit Party
or any of its Subsidiaries generally, or the admission by any Credit Party or
any of its Subsidiaries of its inability, to pay its debts as they become due
(unless such debts are the subject of a bona fide dispute);


(f)            the commencement by or against any
Credit Party or any of its Subsidiaries of any bankruptcy, insolvency,
arrangement, reorganization, receivership or similar case or proceeding with
respect to it under any federal or state law and, in the event any such
proceeding is commenced against any Credit Party or any of its Subsidiaries,
such proceeding is not dismissed within sixty (60) days or an order for relief
is entered at any time;


(g)           the occurrence of a Change of
Control;


(h)           any Credit Party or any of its
Subsidiaries shall fail to make any payment in respect of Indebtedness
outstanding (other than the Loans) in an aggregate principal amount of
$5,000,000 or more when due or within any applicable grace period; or


(i)            (i) any event or condition shall
occur which results in the acceleration of the maturity of Indebtedness
outstanding of any Credit Party or any of its Subsidiaries in an aggregate
principal amount of $5,000,000 or more (including, without limitation, any
required mandatory prepayment or “put” of such Indebtedness to such Credit
Party or Subsidiary or enables (or, with the giving of notice or lapse of time
or both, would enable) the holders of such Indebtedness or commitment or any
Person acting on such holders’ behalf to accelerate the maturity thereof or
terminate any such commitment prior to its normal expiration (including,
without limitation, any required mandatory prepayment or “put” of such
Indebtedness to such Credit Party or Subsidiary), or (ii) the failure of any
Credit Party to pay any termination payment when due upon the termination of
any Lender Hedging Agreement;


(j)            any material covenant, agreement or
obligation of any party contained in or evidenced by any of the Credit
Agreement, the Consent, Reaffirmation and Agreement, any Notes, the Letter of
Credit Documents, any Guaranty Agreement, the Contribution Agreement or the
Security Documents shall cease to be enforceable in accordance with its terms
or to give the Agent and/or the Lenders the security interests, liens, rights,
powers and privileges purported to be created thereby (except as such documents
may be terminated or no longer in force and effect in accordance with the terms
thereof, other than those indemnities and provisions which by their terms shall




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survive), or any party
(other than the Agent or the Lenders) to any Credit Document shall deny or
disaffirm its obligations under any of the Credit Documents, or any Credit
Document shall be canceled, terminated, revoked or rescinded without the
express prior written consent of the Agent, or any action or proceeding shall
have been commenced by any Person (other than the Agent or any Lender) seeking
to cancel, revoke, rescind or disaffirm the obligations of any party to any
Credit Document, or any court or other Governmental Authority shall issue a
judgment, order, decree or ruling to the effect that any of the obligations of
any party to any Credit Document are illegal, invalid or unenforceable;


(k)           one or more judgments or decrees
shall be entered against, or Lien arising from any environmental liability
shall be imposed against one or more of the Credit Parties or any of their
Subsidiaries involving a liability of $5,000,000 or more in the aggregate (to
the extent not paid or covered by insurance as determined by the Agent in its
reasonable discretion) and any such judgments or decrees shall not have been
vacated, discharged or stayed or bonded pending appeal within sixty (60) days
from the entry thereof;


(l)            any Termination Event with respect
to a Benefit Plan shall have occurred and be continuing thirty (30) days after
notice thereof shall have been given to the Borrower or Partners by the Agent
or any Lender, and the then current value of such Benefit Plan’s benefits
guaranteed under Title IV of ERISA exceeds the then current value of such
Benefit Plan’s assets allocable to such benefits by more than $5,000,000 (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);


(m)          any event of default on the part of a
Credit Party shall have occurred under any Material Contract to which any
Credit Party is a party, or any Material Contract is terminated in whole or in
part, if, in any case, such event of default or termination could have a
Material Adverse Effect or as a result of such event of default the liability
of such Credit Party thereunder is $5,000,000 or more; or


(n)           The fees payable to Borrower or its
Subsidiaries pursuant to the Terminaling Services Agreement decrease from the
fees historically paid thereunder from and after May 27, 2005, if such
decrease, in light of the economic, business, and financial circumstances prevailing
at such time, could have a Material Adverse Effect.


11.2                        Acceleration.


Upon the occurrence and during the continuance of an
Event of Default, and at any time thereafter, at the direction of the Required
Lenders, the Agent shall, upon the written, telecopied or telex request of the
Required Lenders, and by delivery of written notice to the Credit Parties from
the Agent, take any or all of the following actions, without prejudice to the
rights of the Agent, any Lender or the holder of any Note to enforce its claims
against the Borrower:  (a) declare
all Obligations (other than those arising in connection with a Lender Hedging Agreement) to be
immediately due and payable (except with respect to any Event of Default set
forth in Section 11.1(f), in which case all Obligations (other than
those arising in connection with 



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a Lender Hedging Agreement)
shall automatically become immediately due and payable without the necessity of
any notice or other demand) without presentment, demand, protest or any other action,
notice or obligation of the Agent or any Lender, (b) immediately terminate this
Credit Agreement and the Revolving Credit Commitments hereunder; and (c) enforce any and all rights and interests created
and existing under the Credit Documents or arising under applicable law,
including, without limitation, all rights and remedies existing under the
Security Documents and all rights of setoff. 
The enumeration of the foregoing rights is not intended to be
exhaustive and the exercise of any right shall not preclude the exercise of any
other rights, all of which shall be cumulative.


In addition, upon demand by the Agent or the Required
Lenders upon the occurrence of any Event of Default, and at any time thereafter
unless and until such Event of Default has been waived by the requisite Lenders
(in accordance with the voting requirements of Section 14.9), the
Borrower shall deposit with the Agent for the benefit of the Lenders with
respect to each Letter of Credit then outstanding, promptly upon such demand, cash
or Cash Equivalents in an amount equal to the greatest amount for which such
Letter of Credit may be drawn.  Such
deposit shall be held by the Agent for the benefit of the Issuing Bank and the
other Lenders as security for, and to provide for the payment of, outstanding
Letters of Credit.


ARTICLE XII


TERMINATION


(a)           Except as otherwise provided in Article
XI, the Revolving Loan Commitments made hereunder shall terminate on the
Maturity Date and all then outstanding Loans (including all Term Loans) shall
be immediately due and payable in full and all outstanding Letters of Credit
shall immediately terminate.  Unless
sooner demanded, all Obligations shall become due and payable as of any
termination hereunder or under Article XI and, pending a final accounting,
the Agent may withhold any balances in the Borrower’s Loan accounts, in an
amount sufficient, in the Agent’s reasonable discretion, to cover all of the
Obligations, whether absolute or contingent, unless supplied with a
satisfactory indemnity to cover all of such Obligations.  All of the Agent’s and the Lenders’ rights,
liens and security interests shall continue after any termination until
terminated in accordance with the provisions of paragraph (b) of this Article
XII.


(b)           This Credit Agreement, together with
all other Credit Documents, shall continue in full force and effect, until each
of the following events (collectively, the “Credit and Collateral
Termination Events”) has occurred: (i) all Obligations have been fully and
finally paid and performed (other than inchoate indemnity obligations), (ii)
all Letters of Credit have expired or terminated (or other arrangements
relating thereto that are reasonably satisfactory to the Agent have been made
in a writing signed by the Borrower and the Issuing Bank in respect of such
Letter of Credit), (iii) all Lender Hedging Agreements have expired or
terminated (or other arrangements relating thereto have been made in a writing
signed by all Persons party to such Lender Hedging Agreement and the Agent), (iv)
all agreements relating to Cash Management Products have expired or terminated
(or other arrangements relating thereto have been made in a 



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writing signed by all
Persons party to such agreements and the Agent), and (v) all Commitments have
been terminated and no Person or Governmental Authority shall have any right to
request any return or reimbursement of funds from the Agent or the Lenders in
connection with any of the foregoing.


ARTICLE XIII


THE AGENT


13.1                        Appointment
of Agent.


(a)           Each Lender hereby designates
Wachovia as Agent to act as herein specified. 
Each Lender hereby irrevocably authorizes, and each holder of any Note
or participant in any Letter of Credit by the acceptance of a Note or
participation shall be deemed irrevocably to authorize, the Agent to take such
action on its behalf under the provisions of this Credit Agreement and the
Notes and any other instruments and agreements referred to herein and to
exercise such powers and to perform such duties hereunder and thereunder as are
specifically delegated to or required of the Agent by the terms hereof and
thereof and such other powers as are reasonably incidental thereto.  The Agent shall hold all Collateral and all
payments of principal, interest, Fees, charges and expenses received pursuant
to this Credit Agreement or any other Credit Document for the ratable benefit
of the Lenders.  The Agent may perform
any of its duties hereunder by or through its agents or employees.  Each
Lender hereby designates Bank of America, N.A. and JPMorgan Chase Bank. N.A.,
as the Syndication Agents and BNP Paribas and Société Générale as the
Documentation Agents.  The Syndication
Agents and the Documentation Agents, in such capacity, shall have no duties or
obligations whatsoever under this Credit Agreement or any other Credit Document
or any other document or any matter related hereto and thereto, but shall
nevertheless be entitled to all the indemnities and other protection afforded
to the Agent under this Article XIII.


(b)           The provisions of this Article XIII
are solely for the benefit of the Agent and the Lenders, and none of the Credit
Parties shall have any rights as a third party beneficiary of any of the
provisions hereof (other than Section 13.9).  In performing its functions and duties under
this Credit Agreement, the Agent shall act solely as agent of the Lenders and
does not assume and shall not be deemed to have assumed any obligation toward
or relationship of agency or trust with or for the Borrower.


13.2                        Nature
of Duties of Agent.


The Agent shall have no duties or responsibilities
except those expressly set forth in this Credit Agreement.  Neither the Agent nor any of its officers,
directors, employees or agents shall be liable for any action taken or omitted by
it as such hereunder or in connection herewith, unless caused by its or their
gross negligence or willful misconduct. 
The duties of the Agent shall be mechanical and administrative in
nature; the Agent shall not have by reason of this Credit Agreement a fiduciary
relationship in respect of any Lender; and nothing in this Credit Agreement,
expressed or implied, is intended to or shall be so construed as to impose upon
the Agent any obligations in respect of this Credit Agreement except as
expressly set forth herein.



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13.3                        Lack
of Reliance on Agent.


(a)           Independently and without reliance
upon the Agent, each Lender, to the extent it deems appropriate, has made and
shall continue to make (i) its own independent investigation of the financial
or other condition and affairs of each Credit Party in connection with the
taking or not taking of any action in connection herewith and (ii) its own
appraisal of the creditworthiness of each Credit Party, and, except as
expressly provided in this Credit Agreement, the Agent shall have no duty or
responsibility, either initially or on a continuing basis, to provide any
Lender with any credit or other information with respect thereto, whether
coming into its possession before the making of the Revolving Loans or at any
time or times thereafter.


(b)           The Agent shall not be responsible to
any Lender for any recitals, statements, information, representations or
warranties herein or in any document, certificate or other writing delivered in
connection herewith or for the execution, effectiveness, genuineness, validity,
enforceability, collectibility, priority or sufficiency of this Credit
Agreement, the Notes or any other Credit Document or the financial or other
condition of any Credit Party.  The Agent
shall not be required to make any inquiry concerning either the performance or
observance of any of the terms, provisions or conditions of this Credit
Agreement, the Notes or any other Credit Document, or the financial condition
of any Credit Party, or the existence or possible existence of any Default or
Event of Default, unless specifically requested to do so in writing by any
Lender.


13.4                        Certain
Rights of the Agent.


The Agent shall have the right to request instructions
from the Required Lenders or, as required, each of the Lenders.  If the Agent shall request instructions from
the Required Lenders or each of the Lenders, as the case may be, with respect
to any act or action (including the failure to act) in connection with this
Credit Agreement, the Agent shall be entitled to refrain from such act or
taking such action unless and until the Agent shall have received instructions
from the Required Lenders or each of the Lenders, as the case may be, and the
Agent shall not incur liability to any Person by reason of so refraining.  Without limiting the foregoing, no Lender
shall have any right of action whatsoever against the Agent as a result of the
Agent acting or refraining from acting hereunder in accordance with the
instructions of the Required Lenders or each of the Lenders, as the case may
be.


13.5                        Reliance
by Agent.


The Agent shall be entitled to rely, and shall be
fully protected in relying, upon any note, writing, resolution, notice,
statement, certificate, telex teletype or telecopier message, cablegram,
radiogram, order or other documentary, teletransmission or telephone message
believed by it in good faith to be genuine and correct and to have been signed,
sent or made by the proper person.  The
Agent may consult with legal counsel (including counsel for the Credit Parties
with respect to matters concerning the Credit Parties), independent public
accountants and other experts selected by it in good faith and shall not be
liable for any action taken or omitted to be taken by it in good faith in
accordance with the advice of such counsel, accountants or experts.



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13.6                        Indemnification
of Agent.


To the extent the Agent is not reimbursed and
indemnified by the Credit Parties, each Lender will reimburse and indemnify the
Agent, in proportion to its respective pro rata share of the aggregate
Revolving Credit Commitments and amount of Term Loans outstanding, for and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses (including counsel fees and
disbursements) or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against the Agent in performing its duties
hereunder, in any way relating to or arising out of this Credit Agreement or
any other Credit Documents, provided that no Lender shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
Agent’s gross negligence or willful misconduct or any action or omission by the
Agent not in accordance with the standards of care specified in the UCP or the
UCC, as determined by a court of competent jurisdiction, or caused by the Agent’s
failure to pay under any Letter of Credit after presentation to it of a request
strictly complying with the terms and conditions of such Letter of Credit, as
determined by a court of competent jurisdiction, unless such payment is
prohibited by any law, regulation, court order or decree.


13.7                        The
Agent in its Individual Capacity.


With respect to its obligation to lend under this
Credit Agreement, the Loans made by it and the Notes issued to it, its
participation in Letters of Credit issued hereunder, and all of its rights and
obligations as a Lender hereunder and under the other Credit Documents, the
Agent shall have the same rights and powers hereunder as any other Lender or
holder of a Note or participation interests and may exercise the same as though
it was not performing the duties specified herein; and the terms “Lenders”, “Required
Lenders”, “holders of Notes”, or any similar terms shall, unless the context
clearly otherwise indicates, include the Agent in its individual capacity.  The Agent may accept deposits from, lend
money to, acquire equity interests in, and generally engage in any kind of
banking, trust, financial advisory or other business with the Credit Parties or
any Affiliate of the Credit Parties as if it were not performing the duties
specified herein, and may accept fees and other consideration from the Credit
Parties for services in connection with this Credit Agreement and otherwise
without having to account for the same with the Lenders.


13.8                        Holders
of Notes.


The Agent may deem and treat the payee of any Note as
the owner thereof for all purposes hereof unless and until a written notice of
the assignment or transfer thereof shall have been filed with the Agent.  Any request, authority or consent of any
Person who, at the time of making such request or giving such authority or
consent, is the holder of any Note, shall be conclusive and binding on any
subsequent holder, transferee or assignee of such Note or of any Note or Notes
issued in exchange therefor.


13.9                        Resignation
of Agent.


The Agent may at any time give notice of its resignation to the Lenders, the Issuing
Bank and the Borrower.  Upon receipt of
any such notice of resignation, the Required Lenders shall 



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have the right, in consultation with the Borrower, to
appoint a successor, which shall be a Lender as of the Closing Date or a bank
with an office in New York, New York, or an Affiliate of any such bank with an
office in New York, New York, or any other financial institution with an office
in New York, New York that is engaged in the making of commercial loans and the
provision of agency services in syndicated commercial loan transactions.  If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within thirty (30) days after the retiring Agent gives notice of its
resignation, then the retiring Agent may on behalf of the Lenders and the
Issuing Bank, appoint a successor Agent meeting the qualifications set forth
above, provided that if the Agent shall notify the Borrower and the
Lenders that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice
and (1) the retiring Agent shall be discharged from its duties and obligations
hereunder and under the other Credit Documents (except that in the case of any
Collateral held by the Agent on behalf of the Lenders or the Issuing Bank under
any of the Credit Documents, the retiring Agent shall continue to hold such
Collateral until such time as a successor Agent is appointed) and (2) all
payments, communications and determinations provided to be made by, to or
through the Agent shall instead be made by or to each Lender and the Issuing
Bank directly, until such time as the Required Lenders appoint a successor
Agent as provided for above in this Section. 
Upon the acceptance of a successor’s appointment as Agent hereunder,
such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring (or retired) Agent, and the
retiring Agent shall be discharged from all of its duties and obligations
hereunder or under the other Credit Documents (if not already discharged
therefrom as provided above in this Section). 
The fees payable by the Borrower to a successor Agent shall be the same
as those payable to its predecessor unless otherwise agreed between the
Borrower and such successor.  After the
retiring Agent’s resignation hereunder and under the other Credit Documents,
the provisions of this Article and Sections 13.6 and 14.8 shall continue in effect for the
benefit of such retiring Agent, its sub-agents and their respective Affiliates
and the partners, directors, officers, employees, agents and advisors of such
Person and of such Person’s Affiliates in respect of any actions taken or
omitted to be taken by any of them while the retiring Agent was acting as Agent
or continuing to hold Collateral in accordance with this Section.


13.10                 Collateral
Matters.


(a)           Each Lender authorizes and directs
the Agent to enter into the Security Documents for the benefit of the
Lenders.  Each Lender authorizes and
directs the Agent to make such changes to the form Landlord Agreement attached
hereto as Exhibit C as the Agent deems necessary in order to obtain any
Landlord Agreement from any landlord of any Credit Party with respect to a
leasehold Mortgage.  Each Lender hereby
agrees, and each holder of any Note by the acceptance thereof will be deemed to
agree, that, except as otherwise set forth herein, any action taken by the
Required Lenders or each of the Lenders, as applicable, in accordance with the
provisions of this Credit Agreement or the Security Documents, and the exercise
by the Required Lenders or each of the Lenders, as applicable, of the powers
set forth herein or therein, together with such other powers as are reasonably
incidental thereto, shall be authorized and binding upon all of the Lenders.  The Agent is hereby authorized on behalf of
all of the Lenders, without the necessity of any notice to or further consent
from any Lender, from time to time prior to an Event of Default, to take any
action with respect to any Collateral or Security 



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Document which may be
necessary or appropriate to perfect and maintain perfected the security
interest in and liens upon the Collateral granted pursuant to the Security
Documents.  The rights, remedies, powers
and privileges conferred upon the Agent hereunder and under the other Credit
Documents may be exercised by the Agent without the necessity of the joinder of
any other parties unless otherwise required by applicable law.


(b)           The Lenders hereby authorize the
Agent, at its option and in its discretion, to release any Lien granted to or
held by the Agent upon any Collateral (i) upon the occurrence of all of the
Credit and Collateral Termination Events, (ii) constituting property being sold
or disposed of upon receipt of the proceeds of such sale by the Agent if the
applicable Credit Party certifies to the Agent that the sale or disposition is
made in compliance with Section 9.3 (and the Agent may rely conclusively
on any such certificate, without further inquiry) or (iii) if approved,
authorized or ratified in writing by the Required Lenders, unless such release
is required to be approved by all of the Lenders hereunder.  Upon request by the Agent at any time, the
Lenders will confirm in writing the Agent’s authority to release particular
types or items of Collateral pursuant to this Section 13.10(b).


(c)           Upon any sale and transfer of
Collateral which is expressly permitted pursuant to the terms of this Credit
Agreement, or consented to in writing by the Required Lenders or all of the
Lenders, as applicable, and upon at least five (5) Business Days’ prior written
request by the applicable Credit Party, the Agent shall (and is hereby
irrevocably authorized by the Lenders to) execute such documents as may be
necessary to evidence the release of the Liens granted to the Agent for the
benefit of the Lenders herein or pursuant hereto upon the Collateral that was
sold or transferred; provided that (i) the Agent shall not be required
to execute any such document on terms which, in the Agent’s reasonable opinion,
would expose the Agent to liability or create any obligation or entail any
consequence other than the release of such Liens without recourse or warranty
and (ii) such release shall not in any manner discharge, affect or impair the
Obligations or any Liens upon (or obligations of such Credit Party or any of
its Subsidiaries in respect of) all interests retained by such Credit Party or
Subsidiary, including (without limitation) the proceeds of the sale, all of
which shall continue to constitute part of the Collateral.  In the event of any sale or transfer of
Collateral, or any foreclosure with respect to any of the Collateral, the Agent
shall be authorized to deduct all of the expenses reasonably incurred by the
Agent from the proceeds of any such sale, transfer or foreclosure.


(d)           The Agent shall have no obligation
whatsoever to the Lenders or to any other Person to assure that the Collateral
exists or is owned by the Credit Parties or is cared for, protected or insured
or that the liens granted to the Agent for the benefit of the Lenders herein or
pursuant hereto have been properly or sufficiently or lawfully created,
perfected, protected or enforced or are entitled to any particular priority, or
to exercise or to continue exercising at all or in any manner or under any duty
of care, disclosure or fidelity any of the rights, authorities and powers
granted or available to the Agent in this Section 13.10 or in any of the
Security Documents, it being understood and agreed that in respect of the
Collateral, or any act, omission or event related thereto, the Agent may act


 



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in any manner it may deem
appropriate, in its reasonable discretion, given the Agent’s own interest in
the Collateral as one of the Lenders and that the Agent shall have no duty or
liability whatsoever to the Lenders, except for its gross negligence or willful
misconduct.


(e)           The Agent shall promptly, upon
receipt thereof, forward to each Lender copies of the results of any field
examinations by the Agent with respect to any Credit Party and any appraisals
obtained by the Agent with respect to any of the Collateral. The Agent shall
have no liability to any Lender for any errors in or omissions from any field
examination or other examination of any Credit Party or the Collateral, or in
any such appraisal, unless such error or omission was the direct result of the
Agent’s gross negligence or willful misconduct.


(f)            It is the purpose of this Credit
Agreement that there shall be no violation of any applicable law denying or
restricting the right of financial institutions to transact business as an
agent in any jurisdiction.  It is
recognized that, in case of litigation under any of the Credit Documents, or in
case the Agent deems that by reason of present or future laws of any
jurisdiction the Agent might be prohibited from exercising any of the powers,
rights or remedies granted to the Agent or the Lenders hereunder or under any
of the Credit Documents or from holding title to or a Lien upon any Collateral
or from taking any other action which may be necessary hereunder or under any
of the Credit Documents, the Agent may appoint an additional Person or Persons
as a separate collateral agent or co-collateral agent which is not so
prohibited from taking any of such actions or exercising any of such powers,
rights or remedies.  If the Agent shall
appoint an additional Person as a separate collateral agent or co-collateral
agent as provided above, each and every remedy, power, right, claim, demand or
cause of action intended by this Agreement and any of the Credit Documents and
every remedy, power, right, claim, demand or cause of action intended by this
Agreement and any of the Credit Documents to be exercised by or vested in or
conveyed to the Agent with respect thereto shall be exercisable by and vested
in such separate collateral agent or co-collateral agent, but only to the
extent necessary to enable such separate collateral agent or co-collateral
agent to exercise such powers, rights and remedies, and every covenant and
obligation necessary to the exercise thereof by such separate collateral agent
or co-collateral agent shall run to and be enforceable by any of them.  Should any instrument from the Lenders be
required by the separate collateral agent or co-collateral agent so appointed
by the Agent in order more fully and certainly to vest in and confirm to him or
it such rights, powers, duties and obligations, any and all of such instruments
shall, on request, be executed, acknowledged and delivered by the Lenders
whether or not a Default or Event of Default then exists.  In case any separate collateral agent or co-collateral
agent, or a successor to either, shall die, become incapable of acting, resign
or be removed, all the estates, properties, rights, power, duties and
obligations of such separate collateral agent or co-collateral agent, so far as
permitted by applicable law, shall vest in and be exercised by the Agent until
the appointment of a new collateral agent or successor to such separate
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13.11                 Actions
with Respect to Defaults.


In addition to the Agent’s right to take actions on
its own accord as permitted under this Credit Agreement, the Agent shall take
such action with respect to a Default or Event of Default as shall be directed
by the Required Lenders or all of the Lenders, as the case may be; provided
that, until the Agent shall have received such directions, the Agent may (but
shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable and in the best interests of the Lenders, including, without
limitation, actions permitted by clause (c) of Section 11.2.


13.12                 Delivery
of Information.


The Agent shall not be required to deliver to any
Lender originals or copies of any documents, instruments, notices,
communications or other information received by the Agent from the Credit
Parties or any of their Subsidiaries, the Required Lenders, any Lender or any
other Person under or in connection with this Credit Agreement or any other
Credit Document except (a) as specifically provided in this Credit Agreement or
any other Credit Document and expressly including the information provided
pursuant to Sections 7.1 (other than (a) and (b) thereof) and 7.14;
and (b) as specifically requested from time to time in writing by any Lender with
respect to a specific document instrument, notice or other written
communication received by and in the possession of the Agent at the time of
receipt of such request and then only in accordance with such specific request.


13.13                 No
Reliance on Agent’s Customer Identification Program.


Each Lender acknowledges and agrees
that neither such Lender, nor any of its affiliates, Participants
or Assignees, may rely on Agent to carry out such Lender’s, Affiliate’s,
participant’s or assignee’s customer identification program, or other
obligations required or imposed under or pursuant to the USA Patriot Act or the
regulations thereunder, including the regulations contained in 31 CFR 103.121
(as hereafter amended or replaced, the “CIP Regulations”), or
any other Anti-Terrorism Law, including any programs involving any of the
following items relating to or in connection with the Borrower, its Affiliates
or its agents, the Credit Documents or the transactions hereunder:  (1) any identity verification procedures,
(2) any record keeping, (3) any comparisons with government lists, (4) any
customer notices or (5) any other procedures required under the CIP Regulations
or such other laws.


13.14                 USA
Patriot Act.


Each Lender or assignee or
participant of a Lender that is not organized under the laws of the United
States of America or a state thereof (and is not excepted from the
certification requirement contained in Section 313 of the USA Patriot Act and
the applicable regulations because it is both (i) an affiliate of a depository
institution or foreign bank that maintains a physical presence in the United
States or foreign country, and (ii) subject to supervision by a banking
authority regulating such affiliated depository institution or foreign bank)
shall deliver to Agent the certification, or, if applicable, recertification,
certifying that such Lender is not a “shell” and certifying to other matters as
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applicable regulations:  (1) within ten (10) days after the Closing
Date and (2) at such other times as are required under the USA Patriot Act.


ARTICLE
XIV


MISCELLANEOUS


14.1                        Waivers.


The Borrower hereby waives due diligence, demand,
presentment and protest and any notices thereof as well as notice of
nonpayment.  No delay or omission of the
Agent or the Lenders to exercise any right or remedy hereunder, whether before
or after the happening of any Event of Default, shall impair any such right or
shall operate as a waiver thereof or as a waiver of any such Event of Default.  No single or partial exercise by the Agent or
the Lenders of any right or remedy shall preclude any other or further exercise
thereof, or preclude any other right or remedy.


14.2                        JURY
TRIAL.


TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE
BORROWER AND (BY EXECUTION AND DELIVERY OF ANY GUARANTY AGREEMENT OR OF A
JOINDER THERETO AND INCORPORATION BY REFERENCE THEREIN) EACH GUARANTOR, AND THE
AGENT AND THE LENDERS EACH HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING ARISING OUT OF THIS CREDIT AGREEMENT, THE CREDIT DOCUMENTS
OR ANY OTHER AGREEMENTS OR TRANSACTIONS RELATED HERETO OR THERETO.


14.3                        GOVERNING
LAW; SUBMISSION TO JURISDICTION; VENUE.


(a)           THIS CREDIT AGREEMENT AND THE OTHER
CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND
THEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CHOICE OF
LAW PROVISIONS THEREOF other than Section 5-1401 of the New York General Obligations
Law.  Any legal action or proceeding with
respect to this Credit Agreement or any other Credit Document shall be brought
in the courts of the State of New York in New York County or of the United
States for the Southern District of New York, and, by execution and delivery of
this Credit Agreement the Borrower, and by execution and delivery of any
Guaranty Agreement or of a joinder thereto and incorporation by reference
therein each of the Guarantors, hereby irrevocably accepts for itself and in respect
of its property, generally and unconditionally, the nonexclusive jurisdiction
of such courts, and agrees to be bound by the other provisions set forth in
this Section 14.3.  Each of the
Credit Parties further irrevocably consents to the service of process out of
any of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
it at the address set out for notices pursuant to Section 14.4, such
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such mailing.  Nothing herein shall affect the right of the
Agent or any Lender to serve process in any other manner permitted by law or to
commence legal proceedings or to otherwise proceed against any Credit Party in
any other jurisdiction.


(b)           Each of the Credit Parties hereby
irrevocably waives any objection which it may now or hereafter have to the
laying of venue of any of the aforesaid actions or proceedings arising out of
or in connection with this Credit Agreement or any other Credit Document
brought in the courts referred to in subsection (a) above and hereby further
irrevocably waives and agrees not to plead or claim in any such court that any
such action or proceeding brought in any such court has been brought in an inconvenient
forum.


14.4                        Notices.


Except as otherwise expressly
provided herein, all notices, requests and other communications shall have been
duly given and shall be effective (a) when delivered by hand,
(b) when transmitted via telecopy (or other facsimile device),
(c) the Business Day following the day on which the same has been
delivered prepaid to a reputable national overnight air courier service, or (d)
the fifth Business Day following the day on which the same is sent by certified
or registered mail, postage prepaid, in each case to the respective parties at
the address or telecopy numbers set forth on Schedule 14.4 attached
hereto, or at such other address as such party may specify by written notice to
the other parties hereto; provided, however, that if any notice
is delivered on a day other than a Business Day, or after 5:00 P.M. on any
Business Day, then such notice shall not be effective until the next Business
Day.


14.5                        Assignability.


(a)           The Borrower shall not have the right
to assign this Credit Agreement or any interest therein except with the prior
written consent of the Lenders.


(b)           Notwithstanding subsection (c)
of this Section 14.5, nothing herein shall restrict, prevent or
prohibit any Lender from (i) pledging its Loans hereunder to a Federal
Reserve Bank in support of borrowings made by such Lender from such Federal
Reserve Bank or (ii) granting assignments or participations in such Lender’s
Loans and/or Commitments hereunder to any Approved Assignee.  Any Lender may make, carry or transfer Loans
at, to or for the account of, any of its branch offices or the office of an
affiliate of such Lender except to the extent such transfer would result in
increased costs to the Borrower.


(c)           Any Lender may, in the ordinary
course of its lending business and in accordance with applicable law, at any
time, assign to any Approved Assignee and, with the consent of the Agent and, so long as no Event of Default is
in existence, the Borrower (such consent not to be unreasonably withheld or
delayed) and concurrent notice to the Borrower, but without the consent of any
other Lender, assign to one or more other Eligible Assignees all or a portion
of its rights and obligations under this Credit Agreement and any Notes held by
it; provided, however, that (i) any such assignment of a portion
of Revolving Loans and Revolving Credit Commitments must be for a constant 



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and non varying portion
of its Revolving Loans and Revolving Credit Commitments, (ii) for each such
assignment, the parties thereto shall execute and deliver to the Agent, for its
acceptance and recording in the Register (as defined below), an Assignment and
Acceptance, together with any Note or Notes subject to such assignment and a
processing and recordation fee of $3,500 to be paid by the assignee, (iii) no
such assignment shall be for less than $4,000,000 or, if less, the entire
remaining Revolving Credit Commitments of such Lender of the Revolving Credit
Commitments (or, with respect to Swing Loans, 100% thereof and of the
commitment to make Swing Loans) or, with respect to Term Loans, the entire
amount of Term Loans owed to such Lender (or the entire remaining Term Loan
Commitments of such Lender if prior to the Funding Date), and (iv) if such
assignee is a Foreign Lender, all of the requirements of Section 2.6(b)
shall have been satisfied as a condition to such assignment; and provided,
further, that any assignment to an Approved Assignee shall not be
subject to the minimum assignment amounts specified herein.  Upon such execution and delivery of the
Assignment and Acceptance to the Agent, from and after the Acceptance Date,
(x) the assignee thereunder shall be a party hereto, and, to the extent
that rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, such assignee shall have the rights and obligations
of a Lender hereunder and (y) the assignor thereunder shall, to the extent
that rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights (other than any rights it may
have pursuant to Section 14.7 which will survive) and be released
from its obligations under this Credit Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender’s rights and obligations under this Credit Agreement, such Lender shall
cease to be a party hereto).


(d)           By executing and delivering an
Assignment and Acceptance, the assignee thereunder confirms and agrees as
follows: (i) other than as provided in such Assignment and Acceptance, the
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Credit
Agreement, the Notes or any other instrument or document furnished pursuant
hereto, (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the Credit
Parties or the performance or observance by the Credit Parties of any of its
obligations under this Credit Agreement or any of the other Credit Documents or
any other instrument or document furnished pursuant hereto or thereto,
(iii) such assignee confirms that it has received a copy of this Credit
Agreement, together with copies of the financial statements referred to in Section 7.1
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such Assignment and
Acceptance, (iv) such assignee will, independently and without reliance
upon the Agent, such assigning Lender or any other Lender 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 this Credit
Agreement, (v) such assignee appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers under this
Credit Agreement and the other Credit Documents as are delegated to the Agent
by the terms hereof, together with such powers as are reasonably incidental
thereto and (vi) such assignee agrees that it 



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will perform in
accordance with their terms all of the obligations which by the terms of this
Credit Agreement are required to be performed by it as a Lender.


(e)           The Agent shall maintain at its
address referred to in Section 14.4 a copy of each Assignment and
Acceptance delivered to and accepted by it and a register for the recordation
of the names and addresses of the
Lenders and (if applicable) the Revolving Credit Commitments of, and principal
amount of the Loans owing to, each Lender from time to time (the “Register”).  The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this Credit
Agreement.  The Register and copies of
each Assignment and Acceptance shall be available for inspection by the
Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.


(f)            Upon its receipt of an Assignment
and Acceptance executed by an assigning Lender, together with any Note or Notes
subject to such assignment, the Agent shall, if such Assignment and Acceptance
has been completed and is in substantially the form of Exhibit A,
(i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower.  Within
five (5) Business Days after its receipt of such notice, if requested by
the assignee, the Borrower shall execute and deliver to the Agent in exchange
for any surrendered Note or Notes (which the assigning Lender agrees to
promptly deliver to the Borrower) a new Note or Notes to the order of the
assignee in an amount equal to the Revolving Credit Commitment (and commitment
to make Swing Loans, if applicable) assumed by it and Term Loans assigned to it
pursuant to such Assignment and Acceptance and, if the assigning Lender has
retained a Revolving Credit Commitment or Term Loans owing to it hereunder and
if requested by it, a new Note or Notes to the order of the assigning Lender in
an amount equal to the Revolving Credit Commitment or amount of Term Loans
retained by it hereunder.  Any such new
Note or Notes shall re-evidence the indebtedness outstanding under any old
Notes or Notes and shall be in an aggregate principal amount equal to the
aggregate principal amount of any such surrendered Note or Notes (or in the
case of a Revolving Credit Commitment, if none, the amount of the Revolving
Credit Commitments so assigned), shall be dated the Closing Date and shall
otherwise be in substantially the form of any Note or Notes subject to such
assignments.


(g)           Each Lender may sell participations,
without the consent of the Agent, the Borrower (as to any Person, other than a
fund, that would be an Eligible Assignee for an assignment) any other Lender,
to one or more parties in or to all or a portion of its rights and obligations
under this Credit Agreement (including, without limitation, all or a portion of
its Revolving Credit Commitments, the Loans owing to it and any Note or Notes
held by it); provided that (i) such Lender’s obligations under this Credit Agreement
(including, without limitation, its Revolving Credit Commitments to the
Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender shall remain the holder of any such Note
for all purposes of this Credit Agreement, (iv) the Borrower, the Agent,
and the other Lenders shall continue to deal solely and directly with 



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such Lender in connection
with such Lender’s rights and obligations under this Credit Agreement and
(v) such Lender shall not transfer, grant, assign or sell any
participation under which the participant shall have rights to approve any
amendment or waiver of this Credit Agreement except to the extent such
amendment or waiver would (A) extend the final maturity date or the date
for the payments of any installment of fees or principal or interest of any
Loans or Letter of Credit reimbursement obligations in which such participant
is participating, (B) reduce the amount of any installment of principal of
the Loans or Letter of Credit reimbursement obligations in which such
participant is participating, (C) except as otherwise expressly provided
in this Credit Agreement, reduce the interest rate applicable to the Loans or
Letter of Credit reimbursement obligations in which such participant is
participating, or (D) except as otherwise expressly provided in this
Credit Agreement, reduce any Fees payable hereunder.


(h)           Each Lender agrees that, without the prior written consent of the
Borrower and the Agent, it will not make any assignment or sell a participation
hereunder in any manner or under any circumstances that would require
registration or qualification of, or filings in respect of, any Loan, Note or
other Obligation under the securities laws of the United States of America or
of any jurisdiction.


(i)            In connection with the efforts of
any Lender to assign its rights or obligations or to participate interests,
such Lender may disclose any information in its possession regarding the
Borrower or any of its Subsidiaries.


14.6                        Information.


Each Lending Party agrees to keep confidential any
information furnished or made available to it by the Borrower pursuant to this
Credit Agreement that is marked confidential; provided that nothing
herein shall prevent any Lending Party from disclosing such information (a) to
any other Lending Party or any affiliate of any Lending Party, or any officer,
director, employee, agent, or advisor of any Lending Party or affiliate of any
Lending Party, (b) to any other Person if reasonably incidental to the
administration of the credit facility provided herein, (c) as required by any
law, rule, or regulation, (d) upon the order of any court or administrative
agency, (e) upon the request or demand of any regulatory agency or authority; provided,
however, that, to the extent permitted by law, the affected Lending Party
shall provide prior written notice to the affected Borrower of any such request
or demand, (f) that is or becomes available to the public or that is or becomes
available to any Lending Party other than as a result of a disclosure by any
Lending Party prohibited by this Credit Agreement, (g) in connection with any
litigation to which such Lending Party or any of its affiliates may be a party,
whether to defend itself, reduce its liability, protect or exercise any of its
claims, rights, remedies or interests under or in connection with the Credit
Documents or any Lender Hedging Agreement, or otherwise, (h) to the extent
necessary in connection with the exercise of any remedy under this Credit
Agreement or any other Credit Document, (i) subject to provisions substantially
similar to those contained in this Section 14.6, to any actual or
proposed participant or assignee or any actual or prospective counterparty (or
its advisors) to any securitization, swap or derivative transaction relating to
the Borrower, any other Credit Party, and the Obligations, and (j) to Gold
Sheets and other similar bank trade publications; such information to
consist of deal terms and other information customarily found in such
publications.



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14.7                        Payment
of Expenses; Indemnification.


The Borrower agrees to: (a) pay all reasonable
out-of-pocket costs and expenses of (i) the Agent in connection with (A) the
syndication, negotiation, preparation, execution, delivery, administration and
monitoring of this Credit Agreement and the other Credit Documents and the
documents and instruments referred to therein or executed in connection
therewith, including evaluating the compliance by the Credit Parties with law
and the provisions of such documents, including, without limitation, the
reasonable fees and expenses of special counsel to the Agent, the reasonable
fees and expenses of counsel for the Agent in connection with collateral issues
and all due diligence, and the costs and expenses incurred in connection with
all appraisals, field exams, and of obtaining all Real Property Documentation,
and all recording costs, fees and taxes payable in connection with the
Collateral, and (B) any amendment, waiver or consent relating hereto and
thereto including, without limitation, any such amendments, waivers or consents
resulting from or related to any work-out, re-negotiation or restructure
relating to the performance by any of the Credit Parties under this Credit
Agreement or any other Credit Documents and (ii) the Agent and the Lenders in
connection with enforcement of the Credit Documents and the documents and
instruments referred to therein or executed in connection therewith, including
but not limited to, any work-out, re-negotiation or restructure relating to the
performance by any of the Credit Parties under this Credit Agreement or any other
Credit Documents, including, without limitation, in connection with any such
enforcement upon receipt of a correct invoice, the reasonable fees and
disbursements of counsel for the Agent and each of the Lenders (including the
allocated costs of internal counsel), and the reasonable fees and expenses of a
financial consultant engaged by the Agent or its counsel in connection with the
foregoing.  The Borrower shall indemnify,
defend and hold harmless the Agent, Wachovia Capital Markets, LLC (in its capacity
as arranger), the Issuing Bank and each of the Lenders and their respective
directors, officers, agents, employees and counsel from and against (x) any and
all losses, claims, damages, liabilities, deficiencies, judgments or expenses
incurred by any of them (except to the extent that it is finally judicially
determined to have resulted from their own gross negligence or willful
misconduct) arising out of or by reason of any litigation, investigation, claim
or proceeding which arises out of or is in any way related to (i) this Credit
Agreement, any Letter of Credit or any other Credit Documents or the
transactions contemplated hereby or thereby, (ii) any actual or proposed use by
the Borrower of the proceeds of the Loans or (iii) the Agent’s, the Issuing
Bank’s or the Lenders’ entering into this Credit Agreement, the other Credit
Documents or any other agreements and documents relating hereto, including,
without limitation, amounts paid in settlement, court costs and the fees and
disbursements of counsel incurred in connection with any such litigation,
investigation, claim or proceeding or any advice rendered in connection with
any of the foregoing and (y) any such losses, claims, damages, liabilities,
deficiencies, judgments or expenses (except to the extent that any of the
foregoing are finally judicially determined to have resulted from their own
gross negligence or willful misconduct)incurred in connection with any remedial
or other action taken by the Borrower or any of the Lenders in connection with
compliance by the Borrower or any of its Subsidiaries, or any of their
respective properties, with any federal, state or local environmental laws,
acts, rules, regulations, orders or ordinances. 
If and to the extent that the obligations of the Borrower hereunder are
unenforceable for any reason, such Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under applicable law.  The
Borrower’s obligations under this Section 14.7 shall survive any
termination of this Credit Agreement and the other Credit Documents and the
payment in full of 



 108
 






 



 


the Obligations, and are in addition to, and not in
substitution of, any other of their Obligations set forth in this Credit
Agreement.  In addition, the Borrower
shall, upon demand, pay to the Agent and any Lender all costs and expenses
(including the reasonable fees and disbursements of counsel and other
professionals) paid or incurred by the Agent, the Issuing Bank or such Lender
in (A) enforcing or defending its rights under or in respect of this Credit
Agreement, the other Credit Documents or any other document or instrument now
or hereafter executed and delivered in connection herewith, (B) in collecting
the Loans, (C) in foreclosing or otherwise collecting upon the Collateral or
any part thereof and (D) obtaining any legal, accounting or other advice in
connection with any of the foregoing.


14.8                        Entire
Agreement, Successors and Assigns.


This Credit Agreement along with the other Credit
Documents and the Fee Letter constitutes the entire agreement among the Credit
Parties, the Agent and the Lenders, supersedes any prior agreements among them,
and shall bind and benefit the Credit Parties and the Lenders and their
respective successors and permitted assigns.


14.9                        Amendments,
Etc.


Neither the amendment or waiver of any provision of
this Credit Agreement or any other Credit Document, nor the consent to any
departure by any Credit Party therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Required Lenders, or if the
Lenders shall not be parties thereto, by the parties thereto and consented to
by the Required Lenders and (so long as no Event of Default has occurred and is
continuing) the Borrower, and each such amendment, waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided that no amendment, waiver or consent shall unless in
writing and signed by all the Lenders, do any of the following: (a) extend or
increase the Commitments of the Lenders or subject the Lenders to any
additional obligations, (b) except as otherwise expressly provided in this
Credit Agreement, reduce the principal of, or interest on, any Loan or Note or
any Letter of Credit reimbursement obligations or any fees hereunder, (c)
postpone any date fixed for any payment or mandatory prepayment in respect of
principal of, or interest on, any Loan or Note or any Letter of Credit
reimbursement obligations or any fees hereunder, (d) change the percentage of
the Commitments, or any minimum requirement necessary for the Lenders or the
Required Lenders to take any action hereunder, (e) amend or waive Section
2.2(b), Section 2.7, Section 2.8, Section 13.6 or this Section
14.9, or change the definition of Required Lenders, (f) except as otherwise
expressly provided in this Credit Agreement, and other than in connection with
the financing, refinancing, sale or other disposition of any asset of the
Credit Parties permitted under this Credit Agreement, release any Liens in
favor of the Lenders on any material portion of
the Collateral, or (g) except as expressly permitted hereunder, release any
Credit Party from its obligations hereunder or under any Guaranty Agreement and
the other Credit Documents to which it is a party and, provided, further,
that no amendment, waiver or consent affecting the rights or duties of the
Agent or the Issuing Bank under any Credit Document shall in any event be
effective, unless in writing and signed by the Agent or of Wachovia with
respect to Swing Loans and/or the Issuing Bank or Wachovia, as applicable, in
addition to the Lenders required hereinabove to take such action.  Notwithstanding any of the foregoing to the
contrary, the consent of the Borrower shall not be required for any amendment,
modification or waiver of the provisions of Article XIII (other than 



 109
 






 



 


the provisions of Section 13.9).  In addition, the Borrower and the Lenders
hereby authorize the Agent to modify this Credit Agreement by unilaterally
amending or supplementing Schedule 1.1A from time to time in the manner
requested by the Borrower, the Agent or any Lender in order to reflect any
assignments or transfers of the  Loans as
provided for hereunder; provided, however, that the Agent shall
promptly deliver a copy of any such modification to the Borrower and each
Lender.


14.10                 Nonliability
of Agent and Lenders.


The relationship between the Borrower on the one hand
and the Lenders and the Agent on the other hand shall be solely that of
borrower and lender.  Neither the Agent
nor any Lender shall have any fiduciary responsibilities to the Borrower.  Neither the Agent nor any Lender undertakes
any responsibility to the Borrower to review or inform such Borrower of any
matter in connection with any phase of such Borrower’s business or operations.


14.11                 Independent
Nature of Lenders’ Rights.


The amounts payable at any time hereunder to each
Lender on account of such Lender’s Loans and under any Note or Notes held by it
shall be a separate and independent debt.


14.12                 Counterparts.


This Credit Agreement may be executed in any number of
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.


14.13                 Effectiveness.


This Credit Agreement shall
become effective (although the making of Loans and the issuance of any Letter
of Credit are subject to the satisfaction or waiver of the conditions precedent
set forth in Sections 5.2 and 5.3) at such time when all of the
conditions set forth in Section 5.1 have been satisfied or waived by the
Lenders and it shall have been executed by the Borrower and the Agent, and the
Agent shall have received copies hereof (telefaxed or otherwise) which, when
taken together, bear the signatures of each Lender, and thereafter this Credit
Agreement shall be binding upon and inure to the benefit of each Credit Party,
the Agent and each Lender and their respective successors and assigns.


14.14                 Severability.


In case any provision in or obligation under this
Credit Agreement or any Notes or the other Credit Documents shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or of such provision
or obligation in any other jurisdiction, shall not in any way be affected or
impaired thereby.


 



 110














 


 


14.15                 Headings
Descriptive.


The headings of the several Sections and subsections
of this Credit Agreement, and the Table of Contents, are inserted for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.


14.16                 Maximum
Rate.


Notwithstanding anything to the contrary contained
elsewhere in this Credit Agreement or in any other Credit Document, the
Borrower, the Agent and the Lenders hereby agree that all agreements among them
under this Credit Agreement and the other Credit Documents, whether now
existing or hereafter arising and whether written or oral, are expressly
limited so that in no contingency or event whatsoever shall the amount paid, or
agreed to be paid, to the Agent or any Lender for the use, forbearance, or
detention of the money loaned to the Borrower and evidenced hereby or thereby
or for the performance or payment of any covenant or obligation contained
herein or therein, exceed the Highest Lawful Rate.  If due to any circumstance whatsoever,
fulfillment of any provisions of this Credit Agreement or any of the other
Credit Documents at the time performance of such provision shall be due shall
exceed the Highest Lawful Rate, then, automatically, the obligation to be
fulfilled shall be modified or reduced to the extent necessary to limit such
interest to the Highest Lawful Rate, and if from any such circumstance any
Lender should ever receive anything of value deemed interest by applicable law
which would exceed the Highest Lawful Rate, such excessive interest shall be
applied to the reduction of the principal amount then outstanding hereunder or
on account of any other then outstanding Obligations and not to the payment of
interest, or if such excessive interest exceeds the principal unpaid balance
then outstanding hereunder and such other then outstanding Obligations, such
excess shall be refunded to the applicable Borrower.  All sums paid or agreed to be paid to the
Agent or any Lender for the use, forbearance, or detention of the Obligations
and other indebtedness of the Borrower to the Agent or any Lender shall, to the
extent permitted by applicable law, be amortized, prorated, allocated and
spread throughout the full term of such indebtedness until payment in full so
that the actual rate of interest on account of all such indebtedness does not
exceed the Highest Lawful Rate throughout the entire term of such
indebtedness.  The terms and provisions
of this Section shall control every other provision of this Credit Agreement
and all agreements among the Borrower, the Agent and the Lenders.


14.17                 Right
of Setoff.


In addition to and not in limitation of all rights of
offset that any Lender or other holder of a 
Note may have under applicable law, each Lender or other holder of a
Loan or Note shall, if any Event of Default has occurred and is continuing and
whether or not such Lender or such holder has made any demand or the
Obligations of the Borrower are matured, have the right to appropriate and
apply to the payment of the Obligations of such Borrower all deposits (general
or special, time or demand, provisional or final) then or thereafter held by
and other indebtedness or property then or thereafter owing by such Lender or
other holder.  Any amount received as a
result of the exercise of such rights shall be reallocated among the Lenders as
set forth in Section 2.7.



 111
 






 



 


14.18                 Delegation
of Authority.


Each Guarantor (by execution and delivery of any
Guaranty Agreement or of a joinder thereto and incorporation by reference
therein) hereby authorizes and appoints the Borrower and each of the chief
financial officer, chief executive officer, treasurer and controller of
Operating GP, acting for and of behalf of the 
Borrower, to be its attorneys (“its Attorneys”) and in its name
and on its behalf and as its act and deed or otherwise to execute and deliver
all documents and carry out all such acts as are necessary or appropriate in
connection with borrowing Loans and the making of other extensions of credit
hereunder, the granting and perfection of security interests under the Security
Documents, and complying with the terms and provisions hereof and the other
Credit Documents.  This delegation of
authority and appointment shall be valid for the duration of the term of this
Credit Agreement; provided, however, that such delegation of
authority and appointment shall terminate automatically without any further act
with respect to any such chief financial officer, chief executive officer,
treasurer or controller if such chief financial officer, chief executive
officer, treasurer or controller is no longer
an employee of the Borrower.  Each Full
Recourse Credit Party and (by execution and delivery of any Guaranty Agreement
or of a joinder thereto and incorporation by reference therein) each Guarantor
hereby undertakes to ratify everything which any of its Attorneys shall do in
furtherance of this delegation of authority and appointment.


14.19                 Amendment
and Restatement; Continuation of Security Interest.


The Revolving Notes and Swing Notes issued hereunder
are issued in replacement of the “Revolving Notes” and “Swing Notes” issued
under the Existing Credit Agreement. 
This Credit Agreement is an amendment and restatement of the Existing
Credit Agreement and not a novation.  The
security interests granted pursuant to the Existing Credit Agreement and “Security
Documents” thereunder shall continue to perfect the Obligations hereunder
without interruption.  Not in limitation
of the foregoing, all references in each Credit Document to the “Credit
Agreement” or any “Note” (other than historical references) shall be deemed to
be a reference to this Credit Agreement and the Notes.



 112
 






 



 


IN WITNESS WHEREOF the
parties hereto have caused this Amended and Restated Credit Agreement to be
executed and delivered by their proper and duly authorized officers as of the
date set forth above.


	
  BORROWER:

  	
  TRANSMONTAIGNE OPERATING COMPANY L.P.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  TransMontaigne Operating GP L.L.C., 

  its sole general partner 

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Randall J. Larson

  
	
   

  	
   

  	
  Name:

  	
  Randall J. Larson

  
	
   

  	
   

  	
  Title:

  	
  President

  



 



 113
 






 



 


	
  AGENT AND LENDERS:

  	
  WACHOVIA BANK, 

  NATIONAL ASSOCIATION, 

  as Agent and as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Todd Schanzlin

  
	
   

  	
   

  	
  Name:

  	
  Todd Schanzlin

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Base Rate Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  201 South College Street 

  Mail Code: NC 0680, CP-8 

  Charlotte, North Carolina 28288 

  
	
   

  	
   

  	
   

  	
  Attention:

  	
  Syndication Agency Services 

  
	
   

  	
   

  	
   

  	
  Telephone: 

  	
  704-374-2698 

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  704-383-0288

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Eurodollar Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  201 South College Street 

  Mail Code: NC 0680, CP-8 

  Charlotte, North Carolina 28288 

  
	
   

  	
   

  	
   

  	
  Attention:

  	
  Syndication Agency Services 

  
	
   

  	
   

  	
   

  	
  Telephone: 

  	
  704-374-2698 

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  704-383-0288

  



 



 114
 






 



 


	
  

  	
  BANK OF AMERICA, N.A., 

  as a Syndication Agent and a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Adam H. Fey

  
	
   

  	
   

  	
  Name:

  	
  Adam H. Fey

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Base Rate Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  100 Federal Street, MA5-100-08-04 

  Boston, MA 02110 

  Attn: Thomas Gorham 

  
	
   

  	
   

  	
   

  	
  Telephone:

  	
  617-434-9111

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  617-310-2266

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Eurodollar Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  100 Federal Street, MA5-100-08-04 

  Boston, MA 02110 

  Attn: Thomas Gorham 

  
	
   

  	
   

  	
   

  	
  Telephone:

  	
  617-434-9111

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  617-310-2266

  



 



 115
 






 



 


	
  

  	
  JPMORGAN CHASE BANK, N.A., 

  as a Syndication Agent and a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Tara Narasiman

  
	
   

  	
   

  	
  Name:

  	
  Tara Narasiman

  
	
   

  	
   

  	
  Title:

  	
  Associate

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Base Rate Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  10 South Dearborn, Suite IL 1-0010 

  Chicago, IL 60603-0010 

  Attn: Claudia Kech 

  
	
   

  	
   

  	
   

  	
  Telephone:

  	
  312-385-7041

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  312-385-7096

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Eurodollar Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  10 South Dearborn, Suite IL 1-0010 

  Chicago, IL 60603-0010 

  Attn: Claudia Kech 

  
	
   

  	
   

  	
   

  	
  Telephone:

  	
  312-385-7041

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  312-385-7096

  



 



 116
 






 



 


	
  

  	
  BNP PARIBAS, 

  as a Documentation Agent and a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Edward K. Chin

  
	
   

  	
   

  	
  Name:

  	
  Edward K. Chin

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ A. C. Mathiot

  
	
   

  	
   

  	
  Name:

  	
  A. C. Mathiot

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Base Rate Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  919 Third Avenue 

  New York, NY 10022 

  Attn: Yuri Latorre 

  
	
   

  	
   

  	
   

  	
  Telephone:

  	
  212-471-6637

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  212-471-6603

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Eurodollar Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  919 Third Avenue 

  New York, NY 10022 

  Attn: Yuri Latorre 

  
	
   

  	
   

  	
   

  	
  Telephone:

  	
  212-471-6637

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  212-471-6603

  



 



 117
 






 



 


	
  

  	
  SOCIÉTÉ GÉNÉRALE, NEW YORK BRANCH, 

  as a Documentation Agent and a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Chung Tack Oh

  
	
   

  	
   

  	
  Name:

  	
  Chung Tack Oh

  
	
   

  	
   

  	
  Title:

  	
  Associate

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Barbara Paulsen

  
	
   

  	
   

  	
  Name:

  	
  Barbara Paulsen

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Base Rate Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  560 Lexington Avenue 

  New York, NY 10022 

  Attn: Carmen Espinal 

  
	
   

  	
   

  	
   

  	
  Telephone:

  	
  212-278-7011

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  212-278-7953

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Eurodollar Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  560 Lexington Avenue 

  New York, NY 10022 

  Attn: Carmen Espinal 

  
	
   

  	
   

  	
   

  	
  Telephone:

  	
  212-278-7011

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  212-278-7953

  



 



 118
 






 



 


	
  

  	
  WELLS FARGO BANK, N.A., 

  as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sushim R. Shah

  
	
   

  	
   

  	
  Name:

  	
  Sushim R. Shah

  
	
   

  	
   

  	
  Title:

  	
  VP & Senior Relationship Manager

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Base Rate Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  1700 Broadway 

  Denver, CO 80274 

  Attn: Elizabeth Yowell 

  
	
   

  	
   

  	
   

  	
  Telephone:

  	
  303-863-5114 

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  303-863-2729

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Eurodollar Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  1700 Broadway 

  Denver, CO 80274 

  Attn: Elizabeth Yowell 

  
	
   

  	
   

  	
   

  	
  Telephone:

  	
  303-863-5114 

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  303-863-2729

  



 



 119
 






 



 


	
  

  	
  U.S. BANK NATIONAL ASSOCIATION, 

  as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Monte E. Deckerd

  
	
   

  	
   

  	
  Name:

  	
  Monte E. Deckerd

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Base Rate Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  555 SW Oak, PDORP7LS 

  Portland, OR 97202 

  Attn: Hanny Nawawi 

  
	
   

  	
   

  	
   

  	
  Telephone:

  	
  503-275-7894

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  503-275-8181

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Eurodollar Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  555 SW Oak, PDORP7LS 

  Portland, OR 97202 

  Attn: Hanny Nawawi 

  
	
   

  	
   

  	
   

  	
  Telephone:

  	
  503-275-7894

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  503-275-8181

  



 



 120














 


 


	
  

  	
  MERRILL LYNCH CAPITAL, a division of 

  Merrill Lynch Business Financial Services Inc., as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David M. Henderson

  
	
   

  	
   

  	
  Name:

  	
  David M. Henderson

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Base Rate Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  101 Federal Street, Suite 1900
  

  Boston, MA 02110 

  Attn: Gregory Hanson 

  
	
   

  	
   

  	
   

  	
  Telephone:

  	
  617-695-6943 

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  866-818-7984

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Eurodollar Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  101 Federal Street, Suite 1900
  

  Boston, MA 02110 

  Attn: Gregory Hanson 

  
	
   

  	
   

  	
   

  	
  Telephone:

  	
  617-695-6943 

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  866-818-7984

  



 



 121
 






 



 


	
  

  	
  AMEGY BANK NATIONAL ASSOCIATION, 

  as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Allen Rheem

  
	
   

  	
   

  	
  Name:

  	
  Allen Rheem

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Base Rate Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  P.O. Box 27459 

  Houston, TX 77227 

  Attn: Chris Petersen

  
	
   

  	
   

  	
   

  	
  Telephone:

  	
  713-232-1193 

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  713-561-0345

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Eurodollar Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  P.O. Box 27459 

  Houston, TX 77227 

  Attn: Chris Petersen

  
	
   

  	
   

  	
   

  	
  Telephone:

  	
  713-232-1193 

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  713-561-0345

  



 



 122
 






 



 


	
  

  	
  GUARANTY BANK, 

  as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jim R. Hamilton

  
	
   

  	
   

  	
  Name:

  	
  Jim R. Hamilton

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Base Rate Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  8333 Douglas Avenue 

  Dallas, TX 75225 

  Attn: Robert Lyons 

  
	
   

  	
   

  	
   

  	
  Telephone:

  	
  214-360-3325

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  214-360-1938

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Eurodollar Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  8333 Douglas Avenue 

  Dallas, TX 75225 

  Attn: Robert Lyons 

  
	
   

  	
   

  	
   

  	
  Telephone:

  	
  214-360-3325

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  214-360-1938

  



 



 123
 






 



 


	
  

  	
  BMO CAPITAL MARKETS FINANCING, INC., 

  as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Cahal Carmody

  
	
   

  	
   

  	
  Name:

  	
  Cahal Carmody

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Base Rate Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  115 S. LaSalle, 17th Floor 

  Chicago, IL 60603 

  Attn: Sameer Dewji 

  
	
   

  	
   

  	
   

  	
  Telephone: 

  	
  416-867-6983 

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  416-867-4050

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Eurodollar Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  115 S. LaSalle, 17th Floor 

  Chicago, IL 60603 

  Attn: Sameer Dewji 

  
	
   

  	
   

  	
   

  	
  Telephone: 

  	
  416-867-6983 

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  416-867-4050

  



 



 124
 






 



 


	
  

  	
  SUNTRUST BANK, 

  as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Edge

  
	
   

  	
   

  	
  Name:

  	
  David Edge

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Base Rate Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  303 Peachtree Street, 10th Floor 

  Atlanta, GA 30308 

  Attn: Tina Marie Edwards 

  
	
   

  	
   

  	
   

  	
  Telephone:

  	
  404-588-8660

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  404-588-4401

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Eurodollar Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  303 Peachtree Street, 10th Floor 

  Atlanta, GA 30308 

  Attn: Tina Marie Edwards 

  
	
   

  	
   

  	
   

  	
  Telephone:

  	
  404-588-8660

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  404-588-4401

  



 



 125
 






 



 


	
  

  	
  UNION BANK OF CALIFORNIA, N.A., 

  as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sean Murphy

  
	
   

  	
   

  	
  Name:

  	
  Sean Murphy

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Base Rate Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  1980 Saturn Street, Mail Code V01-120 

  Monterey Park, CA 91755 

  Attn: Maria Suncin 

  
	
   

  	
   

  	
   

  	
  Telephone: 

  	
  323-720-2870 

  
	
   

  	
   

  	
   

  	
  Facsimile: 

  	
  323-720-2252

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Eurodollar Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  1980 Saturn Street, Mail Code V01-120 

  Monterey Park, CA 91755 

  Attn: Maria Suncin 

  
	
   

  	
   

  	
   

  	
  Telephone: 

  	
  323-720-2870 

  
	
   

  	
   

  	
   

  	
  Facsimile: 

  	
  323-720-2252

  



 



 126
 






 



 


	
  

  	
  COMERICA BANK, 

  as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter L. Sefzik

  
	
   

  	
   

  	
  Name:

  	
  Peter L. Sefzik

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Base Rate Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  999 18th Street, Suite 2001 

  Denver, CO 80202 

  Attn: Matthew J. Purchase

  
	
   

  	
   

  	
   

  	
  Telephone:

  	
  303-294-3351

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  303-294-9232

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Eurodollar Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  999 18th Street, Suite 2001 

  Denver, CO 80202 

  Attn: Matthew J. Purchase

  
	
   

  	
   

  	
   

  	
  Telephone:

  	
  303-294-3351

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  303-294-9232

  



 



 127
 






 



 


	
  

  	
  NATIONAL CITY BANK, 

  as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stephen Morito

  
	
   

  	
   

  	
  Name:

  	
  Stephen Morito

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Base Rate Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  6750 Miller Road, LOC 01-7164 

  Brecksville, OH 44141 

  Attn: Isalene Hasan 

  
	
   

  	
   

  	
   

  	
  Telephone:

  	
  440-546-7388 

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  440-546-7346

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Eurodollar Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  6750 Miller Road, LOC 01-7164 

  Brecksville, OH 44141 

  Attn: Isalene Hasan 

  
	
   

  	
   

  	
   

  	
  Telephone:

  	
  440-546-7388 

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  440-546-7346

  



 



 128
 






 



 


	
  

  	
  NATIXIS, 

  as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel Payer

  
	
   

  	
   

  	
  Name:

  	
  Daniel Payer

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Louis P. Laville, III

  
	
   

  	
   

  	
  Name:

  	
  Louis P. Laville, III

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Base Rate Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  333 Clay Street, Suite 4340 

  Houston, TX 77002 

  Attn: Honi Gregory 

  
	
   

  	
   

  	
   

  	
  Telephone:

  	
  713-495-1351 

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  713-583-7745

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Eurodollar Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  333 Clay Street, Suite 4340 

  Houston, TX 77002 

  Attn: Honi Gregory 

  
	
   

  	
   

  	
   

  	
  Telephone:

  	
  713-495-1351 

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  713-583-7745

  



 



 129
 






 



 


	
  

  	
  UBS LOAN FINANCE LLC, 

  as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard T. Tavrow

  
	
   

  	
   

  	
  Name:

  	
  Richard T. Tavrow

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Irja R. Otsa

  
	
   

  	
   

  	
  Name:

  	
  Irja R. Otsa

  
	
   

  	
   

  	
  Title:

  	
  Associate Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Base Rate Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  677 Washington Blvd. 

  Stamford, CT 06901 

  Attn: Elizabeth White 

  
	
   

  	
   

  	
   

  	
  Telephone:

  	
  203-719-3618 

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  203-719-3888

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Eurodollar Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  677 Washington Blvd. 

  Stamford, CT 06901 

  Attn: Elizabeth White 

  
	
   

  	
   

  	
   

  	
  Telephone:

  	
  203-719-3618 

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  203-719-3888

  
	
   

  	
   

  	
   

  	
   

  	
   

  




 130
 






 



 


	
  

  	
  CATERPILLAR FINANCIAL SERVICES CORPORATION,

  as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Christopher C. Patterson

  
	
   

  	
   

  	
  Name:

  	
  Christopher C. Patterson

  
	
   

  	
   

  	
  Title:

  	
  Global Operations Manager—Capital Markets

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Base Rate Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  2120 West End Avenue 

  Nashville, TN 37203 

  Attn: Chris Patterson 

  
	
   

  	
   

  	
   

  	
  Telephone:

  	
  615-341-8623 

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  615-341-1828

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lending Office (Eurodollar Loans)*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  2120 West End Avenue 

  Nashville, TN 37203 

  Attn: Chris Patterson 

  
	
   

  	
   

  	
   

  	
  Telephone:

  	
  615-341-8623 

  
	
   

  	
   

  	
   

  	
  Facsimile:

  	
  615-341-1828

  



 



 131