Exhibit 10.25


	
   

  



 


 


TRANSMONTAIGNE
INC.


 


$275,000,000


 


FIRST
AMENDED AND RESTATED CREDIT AGREEMENT


 


Dated
as of June 25, 2003


 


UBS
AG, Stamford Branch


Administrative
Agent and Collateral Agent


 


UBS
SECURITIES LLC


Sole
Lead Arranger and Sole Book Manager


 


WACHOVIA
BANK, NATIONAL ASSOCIATION


Syndication
Agent


 


BNP
PARIBAS and SOCIÉTÉ GÉNÉRALE, New York Branch

Co-Documentation Agents


 


CERTAIN
FINANCIAL INSTITUTIONS


Lenders


 


 


	
   

  



 

















 


TABLE
OF CONTENTS


 


	
  1.

  	
  Definitions; Certain Rules of Construction

  
	
   

  	
   

  
	
  2.

  	
  The
  Credits.

  
	
   

  	
   

  
	
   

  	
  2.1.

  	
  Working Capital Credit.

  
	
   

  	
  2.2.

  	
  [Reserved].

  
	
   

  	
  2.3.

  	
  Swingline
  Credit.

  
	
   

  	
  2.4.

  	
  Letters of Credit.

  
	
   

  	
  2.5.

  	
  Application of Proceeds.

  
	
   

  	
  2.6.

  	
  Nature of Obligations of Lenders to Make
  Extensions of Credit

  
	
   

  	
  2.7.

  	
  Effect on Original Credit Agreement and
  Other Loan Documents

  
	
   

  	
   

  	
   

  
	
  3.

  	
  Interest; Eurodollar Pricing Options; Fees.

  
	
   

  	
   

  	
   

  
	
   

  	
  3.1.

  	
  Interest

  
	
   

  	
  3.2.

  	
  Eurodollar Pricing Options.

  
	
   

  	
  3.3.

  	
  Commitment
  Fees

  
	
   

  	
  3.4.

  	
  Letter of Credit Fees

  
	
   

  	
  3.5.

  	
  Reserve Requirements, etc

  
	
   

  	
  3.6.

  	
  Taxes

  
	
   

  	
  3.7.

  	
  Capital
  Adequacy

  
	
   

  	
  3.8.

  	
  Regulatory Changes

  
	
   

  	
  3.9.

  	
  Computations of Interest and Fees

  
	
   

  	
   

  	
   

  
	
  4.

  	
  Payment.

  
	
   

  	
   

  	
   

  
	
   

  	
  4.1.

  	
  Payment at Maturity

  
	
   

  	
  4.2.

  	
  Prepayments and Reductions.

  
	
   

  	
  4.3.

  	
  Letters
  of Credit

  
	
   

  	
  4.4.

  	
  Reborrowing; Application of Payments, etc.

  
	
   

  	
   

  	
   

  
	
  5.

  	
  Conditions to Effectiveness of this
  Agreement and to Extending Credit.

  
	
   

  	
   

  	
   

  
	
   

  	
  5.1.

  	
  Conditions on Amendment and Restatement
  Date

  
	
   

  	
  5.2.

  	
  Conditions to Each Extension of Credit

  
	
   

  	
   

  	
   

  
	
  6.

  	
  General Covenants

  
	
   

  	
   

  	
   

  
	
   

  	
  6.1.

  	
  Taxes and Other Charges; Accounts Payable.

  
	
   

  	
  6.2.

  	
  Conduct of Business, etc.

  



 


i

















 


	
   

  	
  6.3.

  	
  Insurance.

  
	
   

  	
  6.4.

  	
  Financial Statements and Reports

  
	
   

  	
  6.5.

  	
  Certain Financial Tests.

  
	
   

  	
  6.6.

  	
  Indebtedness

  
	
   

  	
  6.7.

  	
  Guarantees; Letters of Credit

  
	
   

  	
  6.8.

  	
  Liens

  
	
   

  	
  6.9.

  	
  Investments and Acquisitions

  
	
   

  	
  6.10.

  	
  Distributions

  
	
   

  	
  6.11.

  	
  Merger, Consolidation and Dispositions of
  Assets

  
	
   

  	
  6.12.

  	
  Lease
  Obligations

  
	
   

  	
  6.13.

  	
  Issuance of Stock by Subsidiaries;
  Subsidiary Distributions.

  
	
   

  	
  6.14.

  	
  Derivative Contracts

  
	
   

  	
  6.15.

  	
  Negative Pledge Clauses

  
	
   

  	
  6.16.

  	
  ERISA, etc.

  
	
   

  	
  6.17.

  	
  Transactions with Affiliates

  
	
   

  	
  6.18.

  	
  Open
  Positions

  
	
   

  	
  6.19.

  	
  Environmental Laws.

  
	
   

  	
  6.20.

  	
  Deposit
  of Funds

  
	
   

  	
   

  	
   

  
	
  7.

  	
  Representations and Warranties

  
	
   

  	
   

  	
   

  
	
   

  	
  7.1.

  	
  Organization and Business.

  
	
   

  	
  7.2.

  	
  Financial Statements and Other Information; Material Agreements.

  
	
   

  	
  7.3.

  	
  Agreements Relating to Financing Debt, Investments, etc

  
	
   

  	
  7.4.

  	
  Changes in Condition

  
	
   

  	
  7.5.

  	
  Title
  to Assets

  
	
   

  	
  7.6.

  	
  Operations in Conformity with Law, etc.

  
	
   

  	
  7.7.

  	
  Litigation

  
	
   

  	
  7.8.

  	
  Authorization and Enforceability

  
	
   

  	
  7.9.

  	
  No Legal Obstacle to Agreements

  
	
   

  	
  7.10.

  	
  Defaults

  
	
   

  	
  7.11.

  	
  Licenses, etc

  
	
   

  	
  7.12.

  	
  Tax
  Returns

  
	
   

  	
  7.13.

  	
  Certain Business Representations.

  
	
   

  	
  7.14.

  	
  Environmental Regulations.

  
	
   

  	
  7.15.

  	
  Pension
  Plans

  
	
   

  	
  7.16.

  	
  Foreign Trade Regulations; Government
  Regulation; Margin Stock.

  
	
   

  	
  7.17.

  	
  Minimum
  Petroleum Products Inventory Requirements

  
	
   

  	
  7.18.

  	
  Solvency

  
	
   

  	
  7.19.

  	
  Disclosure

  



 


ii

















 


	
  8.

  	
  Defaults.

  
	
   

  	
   

  	
   

  
	
   

  	
  8.1.

  	
  Events
  of Default

  
	
   

  	
  8.2.

  	
  Certain Actions Following an Event of
  Default

  
	
   

  	
  8.3.

  	
  Annulment of Defaults

  
	
   

  	
  8.4.

  	
  Waivers

  
	
   

  	
   

  	
   

  
	
  9.

  	
  Guarantees.

  
	
   

  	
   

  	
   

  
	
   

  	
  9.1.

  	
  Guarantees of Credit Obligations

  
	
   

  	
  9.2.

  	
  Continuing Obligation

  
	
   

  	
  9.3.

  	
  Waivers with Respect to Credit Obligations

  
	
   

  	
  9.4.

  	
  Lenders’ Power to Waive, etc

  
	
   

  	
  9.5.

  	
  Information Regarding the Company, etc.

  
	
   

  	
  9.6.

  	
  Certain Guarantor Representations

  
	
   

  	
  9.7.

  	
  Subrogation

  
	
   

  	
  9.8.

  	
  Subordination

  
	
   

  	
   

  	
   

  
	
  10.

  	
  [Reserved].

  
	
   

  	
   

  	
   

  
	
  11.

  	
  Expenses; Indemnity.

  
	
   

  	
   

  	
   

  
	
   

  	
  11.1.

  	
  Expenses

  
	
   

  	
  11.2.

  	
  General
  Indemnity

  
	
   

  	
  11.3.

  	
  Indemnity with Respect to Letters of Credit

  
	
   

  	
   

  	
   

  
	
  12.

  	
  Operations; Administrative Agent.

  
	
   

  	
   

  	
   

  
	
   

  	
  12.1.

  	
  Interests in Credits

  
	
   

  	
  12.2.

  	
  Administrative Agent’s Authority to Act,
  etc

  
	
   

  	
  12.3.

  	
  Company to Pay Administrative Agent, etc

  
	
   

  	
  12.4.

  	
  Lender Operations for Advances, Letters of
  Credit, etc.

  
	
   

  	
  12.5.

  	
  Sharing of Payments, etc.

  
	
   

  	
  12.6.

  	
  Amendments, Consents, Waivers, etc.

  
	
   

  	
  12.7.

  	
  Administrative Agent’s Resignation.

  
	
   

  	
  12.8.

  	
  Concerning the Administrative Agent.

  
	
   

  	
  12.9.

  	
  Rights as a Lender

  
	
   

  	
  12.10.

  	
  Independent Credit Decision

  
	
   

  	
  12.11.

  	
  Indemnification

  
	
   

  	
  12.12.

  	
  Regarding the Collateral Agent.

  
	
   

  	
   

  	
   

  
	
  13.

  	
  Successors and Assigns; Lender Assignments
  and Participations

  
	
   

  	
   

  	
   

  
	
   

  	
  13.1.

  	
  Assignments by Lenders.

  
	
   

  	
  13.2.

  	
  Credit Participants

  



 


iii

















 


	
   

  	
  13.3.

  	
  Replacement of Lender

  
	
   

  	
   

  
	
  14.

  	
  Confidentiality

  
	
   

  	
   

  
	
  15.

  	
  Foreign Lenders

  
	
   

  	
   

  
	
  16.

  	
  Notices

  
	
   

  	
   

  
	
  17.

  	
  Course of Dealing; Amendments and Waivers

  
	
   

  	
   

  
	
  18.

  	
  Defeasance

  
	
   

  	
   

  
	
  19.

  	
  No Strict Construction

  
	
   

  	
   

  
	
  20.

  	
  Certain Obligor Acknowledgments

  
	
   

  	
   

  
	
  21.

  	
  Venue;
  Service of Process; Certain Waivers

  
	
   

  	
   

  
	
  22.

  	
  WAIVER OF JURY TRIAL

  
	
   

  	
   

  
	
  23.

  	
  General

  



 


iv

















 


	
  EXHIBITS

  
	
   

  	
   

  
	
  2.1.4

  	
  — Form of Working Capital Note

  
	
   

  	
   

  
	
  2.3.3

  	
  — Form of Swingline Note

  
	
   

  	
   

  
	
  5.2.1

  	
  — Form of Officer’s Certificate

  
	
   

  	
   

  
	
  6.2.5

  	
  — Risk Management Policies Manual dated February 11, 2000 of TransMontaigne
  Inc.

  
	
   

  	
   

  
	
  6.4.1

  	
  — Form of Covenant Compliance Certificate

  
	
   

  	
   

  
	
  6.4.4

  	
  — Form of Borrowing Base Certificate

  
	
   

  	
   

  
	
  7

  	
  — Disclosure Schedule

  
	
   

  	
   

  
	
  7.1

  	
  — Company and Subsidiaries

  
	
   

  	
   

  
	
  7.2.2

  	
  — Other Material Agreements

  
	
   

  	
   

  
	
  7.3

  	
  — Financing Debt, Certain Investments, etc.

  
	
   

  	
   

  
	
  7.14

  	
  — Hazardous Material Sites

  
	
   

  	
   

  
	
  7.15

  	
  — Multiemployer and Defined Benefit Plans

  
	
   

  	
   

  
	
  13.1.1

  	
  — Form of Assignment and Acceptance

  
	
   

  	
   

  
	
  A

  	
  — Form of Security Agreement

  
	
   

  	
   

  
	
  SCHEDULES

  
	
   

  	
   

  
	
  1.1

  	
  —Working Capital Commitments

  
	
   

  	
   

  
	
  6.8.11

  	
  — Existing Liens

  



 


v

















 


TRANSMONTAIGNE INC.


 


FIRST AMENDED AND RESTATED CREDIT AGREEMENT


 


This Agreement (this “Agreement”) dated as of June 25, 2003, is
among TransMontaigne Inc., a Delaware corporation, the Subsidiaries of
TransMontaigne Inc. from time to time party hereto, the Lenders from time to
time party hereto, UBS AG, Cayman Islands Branch, in its capacity as a Lender,
UBS AG, Stamford Branch, in its capacities as Administrative Agent and Collateral
Agent for itself and the other Lenders.


 


RECITALS


 


WHEREAS, the Company, the Guarantors and UBS
AG, Stamford Branch, as Administrative Agent and Collateral Agent entered into
a credit agreement dated as of February 28, 2003 (the “Original Credit Agreement”).


 


WHEREAS, the Company and the Lenders desire
to amend and restate the Original Credit Agreement in the form of this
Agreement.


 


The parties hereby agree as follows:


 


1.                                       Definitions; Certain Rules of
Construction.  Certain
capitalized terms are used in this Agreement and in the other Credit Documents
with the specific meanings defined below in this Section 1.  Except
as otherwise explicitly specified to the contrary or unless the context clearly
requires otherwise, (a) the capitalized term “Section” refers to sections of
this Agreement, (b) the capitalized term “Exhibit” refers to exhibits to this
Agreement, (c) the capitalized term “Schedule” refers to schedules to this Agreement,
(d) references to a particular Section include all subsections thereof, (e) the
word “including” shall be construed as “including without limitation”, (f)
accounting terms not otherwise defined herein have the meaning provided under
GAAP, (g) terms defined in the UCC and not otherwise defined herein have the
meaning provided under the UCC, (h) references to a particular statute or regulation
include all rules and regulations thereunder and any successor statute,
regulation or rules, in each case as from time to time in effect, (i)
references to a particular Person include such Person’s successors and assigns
to the extent not prohibited by this Agreement and the other Credit Documents,
(j) references to “Dollars” or “$” mean United States Funds. References to “the
date hereof” mean the date first set forth above and (k) except as otherwise
expressly provided herein, all financial statements to be delivered pursuant to
this Agreement shall be prepared in accordance with GAAP as in effect from time
to time and all terms and covenants (including without limitation Section 6.5)
of an accounting or financial nature shall be construed in accordance with
GAAP, as in effect on the date hereof (except that discretionary inventory held
for immediate sale or exchange shall be deemed to be carried at fair value and
base inventory and minimum inventory shall be deemed to be carried at the lower
of cost


 

















 


or market as determined on a quarterly
basis), unless agreed to by the Company and the Required Lenders.


 


“Accumulated Benefit Obligations” means the actuarial
present value of the accumulated benefit obligations under any Plan, calculated
in accordance with Statement No. 87 of the Financial Accounting Standards
Board.


 


“Acquisition” means the acquisition of Coastal Fuels
Marketing, Inc. and Coastal Tug and Barge, Inc. consummated on the Initial
Closing Date pursuant to the Acquisition Documents.


 


“Acquisition Agreement” means the stock purchase
agreement dated as of January 13, 2003 by and between El Paso GCP Company,
as seller and TransMontaigne Product Services Inc., a Subsidiary of the
Company, as buyer.


 


“Acquisition Documents” means the Acquisition Agreement,
all schedules and exhibits thereto and all other agreements and instruments
entered into in connection therewith.


 


“Adjusted EBITDA” means, for any period, the total of:


 


(a)                                  total
operating income,


 


(b)                                 plus,
depreciation and amortization,


 


(c)                                  plus,
dividend income from and equity in earnings of petroleum related investments,


 


(d)                                 minus,
Inventory Adjustments – Gross for such period;


 


provided that Adjusted EBITDA shall be
increased by the following amounts with respect to any calculation thereof made
at any time during the following periods: (i) as of the Initial Closing Date
and for the fiscal quarter ending on March 31, 2003, by $27,500,000, (ii) for
the fiscal quarter ending June 30, 2003, by $20,625,000, (iii) for the fiscal
quarter ending September 30, 2003, by $13,750,000 and (iv) for the fiscal
quarter ending December 31, 2003, by $6,875,000.


 


“Administrative Agent” means UBS AG, Stamford Branch, in
its capacity as administrative agent for the Lenders hereunder, as well as its
successors and assigns in such capacity pursuant to Section 13.


 


“Affected Lender” is defined in Section 13.3.


 


“Affiliate” means, with respect to the Company (or any
other specified Person), any other Person directly or indirectly controlling,
controlled by or under direct or indirect


 


2

















 


common control with the Company (or with such
other specified Person), and shall include (a) any executive officer or
director or general partner of the Company (or of such other specified Person)
and (b) any Person of which the Company (or such other specified Person) or any
Affiliate (as defined in clause (a) above) of the Company (or of such other
specified Person) shall, directly or indirectly, beneficially own either (i) at
least 25% of the outstanding Equity Interests having the general power to vote
or (ii) at least 25% of all Equity Interests; provided, however,
that Lion Oil Company, an Arkansas corporation, shall not be deemed to be an Affiliate
of the Company or of any Subsidiary of the Company under clause (b) of this
definition, unless the Company or such Subsidiary shall, directly or
indirectly, beneficially own either (x) at least 30% of the outstanding Equity
Interests having the general power to vote of Lion Oil Company or (y) at least
30% of all Equity Interests in Lion Oil Company; and provided, further,
that with respect to any Lender, the term “Affiliate” shall include any fund or
other investment vehicle advised by such Lender or by an Affiliate of such
Lender, any fund or other investment vehicle advised by the same investment
vehicle as such Lender or the investment advisor of such Lender.


 


“Agreement” means this Agreement as from time to time
amended, modified and in effect.


 


“Amendment and Restatement Date” means the date on which
the Lenders shall have determined that all conditions precedent in
Section 5.1 shall have been satisfied.


 


“Applicable Margin” means, with respect to any Working
Capital Loan, (a) prior to the third Banking Day after the date of
delivery of financial statements pursuant to Section 6.4.2 for the first fiscal
quarter of the Company ending no earlier than 6 months after the Amendment and
Restatement Date, the applicable percentage rate per annum in the table below
assuming the Leverage Ratio is greater than 250% and (b) thereafter, the
applicable percentage rate per annum in the table immediately below set opposite
the Leverage Ratio as set forth on the most recent certificate referred to in
this definition:


 


	
  Leverage Ratio

  	
   

  	
  Base Rate Applicable Margin

  	
   

  	
  Eurodollar Applicable Margin

  	
   

  
	
  >250%

  	
   

  	
  0.75

  	
   %

  	
  2.75

  	
  %

  
	
  3200% and £250%

  	
   

  	
  0.50

  	
  %

  	
  2.50

  	
  %

  
	
  3150% and <200%

  	
   

  	
  0.25

  	
  %

  	
  2.25

  	
  %

  
	
  <150%

  	
   

  	
  0.00

  	
  %

  	
  2.00

  	
  %

  



 


The Applicable Margin with respect to the
Swingline Loan shall equal the Applicable Margin with respect to any Working
Capital Loan subject to a Eurodollar Pricing Option. Changes in the Applicable
Margin with respect to any Working Capital Loan shall occur on the third
Banking Day after financial statements and a certificate calculating the
Leverage Ratio have been furnished to the Administrative Agent in accordance
with Section 6.4.1 or 6.4.2 from time to time. In the event that the
information required to be delivered pursuant to


 


3

















 


Section 6.4.1 or 6.4.2, as applicable,
is not delivered when due, then during the period from the third Banking Day
following the date such information was due until the third Banking Day
following the date on which such information is actually delivered, the Applicable
Margin for such Working Capital Loan shall be the maximum applicable amount set
forth in the table above.


 


“Applicable Rate” means, at any date, the sum of


 


(a)                                  (i) with
respect to each Loan subject to a Eurodollar Pricing Option, the sum of the
Applicable Margin with respect thereto plus the Eurodollar Rate with respect to
such Eurodollar Pricing Option; or (ii) with respect to each Loan, the sum
of the Applicable Margin with respect thereto plus the Base Rate; plus


 


(b)                                 an
additional 2% effective on the day the Administrative Agent notifies the
Company that the interest rates hereunder are increasing as a result of the
occurrence and continuance of an Event of Default until the earlier of such
time as (i) such Event of Default is no longer continuing or (ii) such Event of
Default is deemed no longer to exist, in each case pursuant to Section 8.3.


 


“Approved Fund” means, with respect to any Lender that is
a fund or commingled investment vehicle that invests in loans, any other fund
that invests in loans and is managed or advised by the same investment advisor
as such Lender or by an Affiliate of such investment advisor.


 


“Approved NYMEX Futures Contracts” has the meaning
assigned to such term in the definition of Hedged Inventory Transaction.


 


“Asset Sale” means (a) any conveyance, sale, lease,
sublease, assignment, transfer or other disposition (including by way of merger
or consolidation and including any sale and leaseback transaction) of any
property (including stock of any Subsidiary of the Company by the holder
thereof) by the Company or any of its Subsidiaries to any Person other than the
Company or any Guarantor and (b) any issuance or sale by any Subsidiary of
the Company of its Equity Interests to any Person (other than to the Company or
any Guarantor).


 


“Assignee” is defined in Section 13.1.1.


 


“Assignment and Acceptance” is defined in Section 13.1.1.


 


“Audit L/C” is defined in Section 2.5.4.


 


“Banking Day” means any day other than Saturday, Sunday
or a day on which banks in New York, New York are authorized or required by law
or other governmental


 


4

















 


action to close and, if such term is used
with reference to a Eurodollar Pricing Option, any day on which dealings are
effected in the Eurodollars in question by first-class banks in the inter-bank
Eurodollar markets in New York, New York.


 


“Bankruptcy Code” means Title 11 of the United States
Code.


 


“Bankruptcy Default” means an Event of Default referred
to in Section 8.1.10.


 


“Base Inventory” means the physical amount of petroleum
products held for base operations, which was approximately 2.923 million
barrels as of the Amendment and Restatement Date.


 


“Base Rate” means, on any date, the higher of (a) the
Federal Funds Rate plus 1/2 of 1% and (b) the prime commercial
lending rate of UBS AG, Stamford Branch, as established from time to time.


 


“Base Rate Loans” means a Loan bearing interest by reference
to the Base Rate.


 


“Borrowing Base” means, on any date, the sum of the
following (without duplication),


 


(a)                                  100%
of Eligible Cash and Cash Equivalents,


 


(b)                                 plus 85%
of Eligible Receivables,


 


(c)                                  plus
85% of Eligible Margin Deposits,


 


(d)                                 plus 80%
of Eligible Exchange Contract Balances (if positive),


 


(e)                                  plus 80%
of Eligible Inventory,


 


(f)                                    plus
80% of Eligible Letters of Credit,


 


(g)                                 minus any
and all Indebtedness pari passu with respect to the Pledged Collateral,


 


(h)                                 minus any
and all Indebtedness in respect of margin loans permitted under Section 6.6.14;


 


provided, however,
that the Borrowing Base shall be reduced to $1.00 during any period when the
Company has failed to furnish the computation of the Borrowing Base required by
Section 6.4.4, commencing five days after such computation was originally due;
and, provided,
further,
that items eligible for inclusion in the Borrowing Base shall be determined by
the


 


5

















 


Administrative Agent in its
sole reasonable discretion from time to time; provided that no new
components of the Borrowing Base may be created without the Required Lenders’
consent.


 


“Borrowing Base Certificate” is defined in Section 6.4.4.


 


“By-laws” means all written by-laws, rules, regulations
and all other documents relating to the governance or internal regulation of
any Person other than an individual, or interpretive of the Charter of such
Person, all as from time to time in effect.


 


“Capital Expenditures” means, for any period, amounts
added or required to be added to the property, plant and equipment or other
fixed assets account on the Consolidated balance sheet of the Company and its
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, (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), (c) software
development costs to the extent not expensed and (d) the purchase price for the
acquisition of another Person (or substantially all the assets of another
Person) as a going concern or the acquisition of one or more assets that
constitute an operating business.


 


“Capitalized Lease” means any lease which is required to
be capitalized on the balance sheet of the lessee in accordance with GAAP,
including Statement Nos. 13 and 98 of the Financial Accounting Standards Board.


 


“Capitalized Lease Obligations” means the amount of the
liability reflecting the aggregate discounted amount of future payments under
all Capitalized Leases calculated in accordance with GAAP, including Statement
Nos. 13 and 98 of the Financial Accounting Standards Board.


 


“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


 


6

















 


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.


 


“Casualty Event” means, with respect to any property
(including Real Property) of any Person, any loss of title with respect to such
property or any loss of or damage to or destruction of, or any condemnation or
other taking (including by any Governmental Authority) of, such property for
which such Person or any of its Subsidiaries receives insurance proceeds or
proceeds of a condemnation award or other compensation.  “Casualty Event” shall include but not be
limited to any taking of all or any part of any Real Property of any Person or
any part thereof, in or by condemnation or other eminent domain proceedings pursuant
to any law, or by reason of the temporary requisition of the use or occupancy
of all or any part of any Real Property of any Person or any part thereof by any
Governmental Authority, civil or military.


 


“CERCLA” means the federal Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended.


 


“Charter” means the articles of organization, certificate
of incorporation, statute, constitution, joint venture agreement, partnership
agreement, trust indenture, limited liability company agreement or other
charter document of any Person other than an individual, each as from time to
time in effect.


 


“Code” means the federal Internal Revenue Code of 1986,
as amended.


 


“Collateral Agent” means UBS AG, Stamford Branch, in its
capacity as collateral agent for the Lenders hereunder, as well as its
successors and assigns in such capacity.


 


“Commitment Fee Rate” means (a) prior to the third
Banking Day after the date of delivery of financial statements pursuant to
Section 6.4.2 for the first fiscal quarter of the Company ending no earlier
than six months after the Amendment and Restatement Date, the applicable
percentage rate per annum in the table below assuming the Leverage Ratio is
greater than 200% and (b) thereafter, the percentage rate per annum in the
table below set opposite the Leverage Ratio:


 


7

















 




	
  Leverage Ratio

  	
   

  	
  Commitment
  Fee

  	
   

  
	
  3200%

  	
   

  	
  0.500

  	
  %

  
	
  <200%

  	
   

  	
  0.375

  	
  %

  






 


Changes in the
Commitment Fee Rate shall occur on the third Banking Day after financial
statements and a certificate calculating the Leverage Ratio have been furnished
to the Administrative Agent in accordance with Section 6.4.1 or 6.4.2 from time
to time.  In the event that the
information required to be delivered pursuant to Section 6.4.1 or 6.4.2, as
applicable, is not delivered when due, then during the period from the third
Banking Day following the date such information was due until the third Banking
Day following the date on which such information is actually delivered, the
Commitment Fee Rate shall be the maximum amount set forth in the table above.


 


“Commodity Account” has the meaning ascribed thereto in
the Security Agreement.


 


“Common Stock” means the common stock, par value $.01 per
share, of the Company.


 


“Company” means TransMontaigne Inc., a Delaware
corporation.


 


“Computation Covenants” means Sections 6.5, 6.6.7,
6.6.12, 6.6.14, 6.9.6, 6.11.1, 6.12.2 and 6.18.


 


“Consolidated” and “Consolidating”, when used with reference to any term,
mean that term as applied to the accounts of the Company (or other specified
Person) and all of its Subsidiaries (or other specified group of Persons), or
such of its Subsidiaries as may be specified, consolidated (or combined) or
consolidating (or combining), as the case may be, in accordance with GAAP and
with appropriate deductions for minority interests in Subsidiaries.


 


“Consolidated Current Assets” means, at any date, all
amounts that are or should be carried as current assets on the balance sheet of
the Company and its Subsidiaries determined in accordance with GAAP on a
Consolidated basis (except for inventory which shall be at fair value) and
(without duplication) all amounts that are carried as minimum petroleum
products inventory assets on the balance sheet of the Company and its
Subsidiaries at fair value on a Consolidated basis (whether or not using fair
value as a valuation method is then permitted by GAAP).


 


“Consolidated Current Liabilities” means, at any date,
all amounts that are or should be carried as current liabilities on the balance
sheet of the Company and its Subsidiaries determined in accordance with GAAP on
a Consolidated basis, including the current portion of all Funded Debt; provided that
Consolidated Current Liabilities shall not include any amounts under Working
Capital Loans.


 


8

















 


“Consolidated Fixed Charges” means, for any period, the
sum of


 


(a)                                  Consolidated
Interest Expense,


 


(b)                                 plus,
the aggregate amount of all mandatory scheduled payments, mandatory scheduled
prepayments and sinking fund payments, all with respect to Financing Debt of
the Company and its Subsidiaries in accordance with GAAP on a Consolidated
basis, including payments in the nature of principal under Capitalized Leases,
but in no event including contingent prepayments required by Section 4.2,


 


(c)                                  plus,
any Distributions declared by the Company or paid or payable in cash by the
Company or any of its Subsidiaries to third parties, including any Distributions
on the Series B Convertible Preferred Stock; provided, that any such
Distribution paid in cash in such period that was declared and included in
Consolidated Fixed Charges in a prior period shall not be included in
Consolidated Fixed Charges in such period,


 


(d)                                 plus,  any
taxes based upon or measured by net income paid or payable in cash for such
period by the Company or any of its Subsidiaries,


 


(e)                                  plus,
the aggregate fixed rental obligations (excluding payments required to be made
by the lessee in respect of taxes and insurance whether or not denominated as
rent) of the Company and its Subsidiaries in such period determined in
accordance with GAAP on a Consolidated basis as lessee under all leases of real
and/or personal property (other than Capitalized Leases).


 


“Consolidated Free Cash Flow” means, for any period, the
total of


 


(a)                                  Adjusted
EBITDA for such period,


 


(b)                                 minus,
Consolidated Interest Expense for such period,


 


(c)                                  minus,
any Distributions declared by the Company or paid or payable in cash by the
Company or any of its Subsidiaries to third parties during such period; provided
that any such Distribution paid in cash in such period that was declared and
subtracted from Consolidated Free Cash Flow in a prior period shall not be
subtracted from Consolidated Free Cash Flow in such period.


 


“Consolidated Interest Expense” means, for any period,
the total of


 


(a)                                  the
aggregate amount of interest, including without limitation commitment fees and
Letter of Credit fees, payments in the nature of interest under Capitalized
Leases and net payments under Interest Rate Protection Agreements, accrued by


 


9

















 


the Company
and its Subsidiaries (whether such interest is reflected as an item of expense
or capitalized) in accordance with GAAP on a Consolidated basis, minus


 


(b)                                 to
the extent otherwise included in clause (a) above, the amortization of deferred
financing fees and costs, original issue discount relating to Indebtedness and
accrued interest on Indebtedness not paid in cash to the extent permitted by
the terms, including subordination terms, of such Indebtedness (including PIK
Interest), plus


 


(c)                                  actual
cash payments with respect to accrued and unpaid interest (including PIK
Interest) that has previously reduced Consolidated Interest Expense pursuant to
clause (b) above.


 


“Consolidated Net Income” means, for any period, the net
earnings (or loss) before dividend requirements for preferred stock of the Company
and its Subsidiaries, determined in accordance with GAAP on a Consolidated
basis; provided,
however,
that Consolidated Net Income shall not include


 


(a)                                  the
earnings (or loss) of any Person accrued prior to the date such Person becomes
a Subsidiary or is merged into or consolidated with the Company or any of its
Subsidiaries;


 


(b)                                 the
earnings (or loss) of any Person (other than a Subsidiary) in which the Company
or any of its Subsidiaries has an ownership interest; provided, however,
that Consolidated Net Income shall include amounts in respect of the earnings
of such Person when actually received in cash by the Company or such Subsidiary
in the form of dividends or similar Distributions;


 


(c)                                  all
amounts included in computing such net earnings (or loss) in respect of the
write-up of any asset (other than any write-up as a result of “mark to market”
accounting in accordance with GAAP) or the retirement of any Indebtedness or
equity at less than face value after June 30, 2002;


 


(d)                                 extraordinary
and nonrecurring gains;


 


(e)                                  the
earnings of any Subsidiary to the extent the payment of such earnings in the
form of a Distribution or repayment of Indebtedness to the Company or a Wholly
Owned Subsidiary is not permitted, whether on account of any Charter or By-law
restriction, any agreement, instrument, deed or lease or any law, statute,
judgment, decree or governmental order, rule or regulation applicable to such
Subsidiary;


 


(f)                                    any
after-tax gains or losses attributable to returned surplus assets of any Plan;
or


 


10

















 


(g)                                 any
amounts (whether positive or negative) constituting Inventory Adjustments—Net.”


 


“Consolidated Net Tangible Assets” means, at any date,
the total of


 


(a)                                  the
total assets of the Company and its Subsidiaries determined in accordance with
GAAP on a Consolidated basis; minus


 


(b)                                 Consolidated
Current Liabilities; minus


 


(c)                                  all
other liabilities of the Company and its Subsidiaries determined in accordance
with GAAP on a Consolidated basis other than liabilities for Funded Debt; minus


 


(d)                                 the
amount of intangible assets carried on the balance sheet of the Company and its
Subsidiaries determined in accordance with GAAP on a Consolidated basis,
including goodwill, patents, patent applications, copyrights, trademarks, trade
names, research and development expense, organizational expense, annualized
debt discount and expense, deferred financing charges and debt acquisition
costs; minus


 


(e)                                  the
amount at which any minority interest in a Subsidiary appears as a liability on
the Consolidated balance sheet of the Company and its Subsidiaries.


 


“Consolidated Tangible Net Worth” means, at any date, the
total of


 


(a)                                  stockholders’
equity of the Company and its Subsidiaries determined in accordance with GAAP on
a Consolidated basis adjusted for the cumulative net amount of Inventory
Adjustments-Net since December 31, 2002, excluding the effect of any foreign
currency translation adjustments (but in any event including in such equity, on
a Consolidated basis, the Series A Convertible Preferred Stock, the Series B
Convertible Preferred Stock and any other convertible preferred stock of the
Company at the time outstanding); minus


 


(b)                                 the
amount by which such stockholders’ equity has been increased after December 31,
2002, 2002 by the items described in clause (a), (b), (c), (e) or (f) of the
definition of Consolidated Net Income; minus


 


(c)                                  to
the extent not already deducted from the amount in clause (a) above, (i)
treasury stock, (ii) receivables due from an employee stock ownership plan and
(iii) Guarantees of Indebtedness incurred by an employee stock ownership plan; minus


 


11

















 


(d)                                 the
amount of intangible assets carried on the balance sheet of the Company and its
Subsidiaries determined in accordance with GAAP on a Consolidated basis,
including goodwill, patents, patent applications, copyrights, trademarks, trade
names, research and development expense, organizational expense, unamortized
debt discount and expense, deferred financing charges and debt acquisition
costs.


 


“Consolidated Total Funded Debt” means, at any date, all
Funded Debt of the Company and its Subsidiaries on a Consolidated basis.


 


“Consolidated Total Senior Funded Debt” means, at any
date, all Funded Debt of the Company and its Subsidiaries that is not by its
terms subordinated in right of payment to the Credit Obligations on a
Consolidated basis.


 


“Contested Collateral Lien Conditions” shall mean, with
respect to any Permitted Lien of the type described in Section 6.8.2, 6.8.3 or
6.8.4, the following conditions:


 


(a)                                  the
Company shall cause any proceeding instituted contesting such Lien to stay the
sale or forfeiture of any portion of the Pledged Collateral on account of such
Lien;


 


(b)                                 to
the extent such Lien is probable of an unfavorable outcome and in an amount in
excess of $1,000,000, the appropriate Obligor shall maintain cash reserves or,
at the option and upon request of the Administrative Agent, obtain a bond in an
amount sufficient to pay and discharge such Lien and the Administrative Agent’s
reasonable estimate of all interest and penalties related thereto; and


 


(c)                                  such
Lien shall in all respects be subject and subordinate in priority to the Lien
and security interest created and evidenced by the Security Documents, except
if and to the extent that the law or regulation creating, permitting or
authorizing such Lien provides that such Lien is or must be superior to the
Lien and security interest created and evidenced by the Security Documents.


 


“Control Agreement” has the meaning ascribed thereto in
the Security Agreement.


 


“Credit Documents” means


 


(a)                                  this
Agreement, the Notes, each Letter of Credit, each draft presented or accepted under
a Letter of Credit, the Fee Letter, the Security Documents and each Hedging
Agreement provided by a Lender (or an Affiliate of a Lender) to the Company or
any of its Subsidiaries, each as from time to time in effect;


 


12

















 


(b)                                 all
financial statements, reports, notices, mortgages, assignments, UCC financing
statements or certificates delivered to the Administrative Agent or any of the
Lenders by the Company, any of its Subsidiaries or any other Obligor in
connection herewith or therewith; and


 


(c)                                  any
other present or future agreement or instrument from time to time entered into
among the Company, any of its Subsidiaries or any other Obligor, on one hand,
and the Administrative Agent, any Letter of Credit Issuer or all the Lenders,
on the other hand, relating to, amending or modifying this Agreement or any
other Credit Document referred to above or which is stated to be a Credit
Document, each as from time to time in effect.


 


“Credit Obligations” means all present and future
liabilities, obligations and Indebtedness of the Company, any of its
Subsidiaries or any other Obligor owing to the Administrative Agent, Collateral
Agent or any Lender (or any Affiliate of a Lender) under or in connection with
this Agreement or any other Credit Document, including without limitation
obligations in respect of principal, interest, reimbursement obligations under
Letters of Credit and Hedging Agreements provided by a Lender (or an Affiliate
of a Lender), commitment fees, facility fees, Letter of Credit fees, amounts
provided for in Sections 3.2.4, 3.5, 3.6, 3.7, 3.8 and 11, amounts payable
under the Fee Letter and other fees, charges, indemnities and expenses from
time to time owing hereunder or under any other Credit Document (all whether
accruing before or after a Bankruptcy Default and regardless of whether allowed
as a claim in bankruptcy or similar proceedings).


 


“Credit Participant” is defined in Section 13.2.


 


“Default” means any Event of Default and any event or
condition which with the passage of time or giving of notice, or both, would
become an Event of Default, including the filing against the Company, any of
its Subsidiaries or any other Obligor of a petition commencing an involuntary
case under the Bankruptcy Code.


 


“Delinquency Period” is defined in Section 12.4.4.


 


“Delinquent Lender” is defined in Section 12.4.4.


 


“Delinquent Payment” is defined in Section 12.4.4.


 


“Deposit Account” has the meaning ascribed thereto in the
Security Agreement.


 


“Distribution” means, with respect to the Company (or
other specified Person),


 


13

















 


(a)                                  the
declaration or payment of any dividend or distribution, including dividends
payable in shares of capital stock of or other Equity Interests in the Company
(or such specified Person), on or in respect of any shares of any class of
capital stock of or other Equity Interests in the Company (or such specified Person);


 


(b)                                 other
than the redemption and/or repurchase of the Series A Convertible Preferred
Stock at a purchase or redemption, as the case may be, price per share no
greater than the liquidation preference thereof as of the Initial Closing Date,
the purchase, redemption or other retirement of any shares of any class of
capital stock of or other Equity Interest in the Company (or such specified
Person) or any of its Subsidiaries, or of options, warrants or other rights for
the purchase of such shares, directly, indirectly through a Subsidiary or
corporate parent or otherwise;


 


(c)                                  any
other distribution on or in respect of any shares of any class of capital stock
of or equity or other beneficial interest in the Company (or such specified
Person);


 


(d)                                 any
payment of principal or interest with respect to, or any purchase, redemption
or defeasance of, any Financing Debt of the Company (or such specified Person)
or any of its Subsidiaries which by its terms or the terms of any agreement is
subordinated to the payment of the Credit Obligations;


 


(e)                                  any
payment of principal with respect to, or any purchase, redemption or defeasance
of, any Financing Debt of the Company (or such specified Person) or any of its
Subsidiaries (other than the Credit Obligations) prior to the stated maturity
thereof (excluding repayment of Financing Debt with the proceeds of asset sales
approved by the Required Lenders and scheduled amortization of principal of
Financing Debt); and


 


(f)                                    any
payment, loan or advance by the Company (or such specified Person) to, or any
other Investment by the Company (or such specified Person) in, the holder of
any shares of any class of Equity Interest in the Company (or such specified
Person) or any of its Subsidiaries, or any Affiliate of such holder;


 


provided, however,
that the term “Distribution” shall not include (i) the accrual of unpaid
dividends on the Series A Convertible Preferred Stock, dividends on the
Series A Convertible Preferred Stock paid solely in the form of additional
shares of the Series A Convertible Preferred Stock or shares of Common
Stock issued upon the redemption or conversion of the Series A Convertible
Preferred Stock, (ii) the accrual of unpaid dividends on the Series B
Convertible Preferred Stock, dividends on the Series B Convertible
Preferred Stock paid solely in the form of additional shares of the
Series B Convertible Preferred Stock in lieu of cash dividends or shares
of Common Stock issued upon the redemption or conversion of the Series B Convertible
Preferred Stock, (iii) dividends payable in perpetual common stock of or
other


 


14

















 


similar Equity
Interests in the Company (or such specified Person), (iv) payments in the
ordinary course of business in respect of (A) reasonable compensation paid
to employees, officers and directors or (B) advances to employees for
travel expenses, drawing accounts and similar expenditures, (v) any loan
or advance by the Company to any Guarantor, (vi) any other loan or advance
by the Company which constitutes an Investment permitted under
Section 6.9.5 or (vii) the payment of obligations in respect of the
Interest Rate Protection Agreement existing on the Initial Closing Date or
Interest Rate Protection Agreements permitted to be entered into after the
Initial Closing Date by Section 6.14.


 


“Documentation Agents” mean BNP Paribas and Société
Générale, New York Branch.


 


“Eligible Cash and Cash Equivalents” means, at any date,
cash and Cash Equivalents of the Company and its Subsidiaries that are held in
restricted accounts that are accounts “blocked” (through possession or through
a control agreement with the Administrative Agent) in favor of the Collateral
Agent for the benefit of the Lenders, or otherwise subject to a valid, first
priority, perfected Lien in favor of the Collateral Agent for its benefit or
the benefit of the Secured Parties and under the dominion of the Collateral
Agent.


 


“Eligible Exchange Contract Balances” means, at any date,
the amount of the balance, determined in accordance with prices set forth in
the applicable exchange contracts, based on current value on a mark to market
basis, of any rights of the Company and its Subsidiaries to receive petroleum
products, money or other value arising from the trading, lending, borrowing or
exchange of petroleum products with trading partners acceptable to the
Administrative Agent in its sole discretion, net of any offsets or
counterclaims, and subject to a valid, first priority, perfected Lien in favor
of the Collateral Agent for its benefit or the benefit of the Secured Parties.


 


“Eligible Inventory” means, at any date, the fair market
value (whether or not using the fair market value as a valuation method is then
permitted by GAAP) of all inventory of refined petroleum products owned by the
Company or any of its Subsidiaries (excluding minimum volumes representing
linefill and tank-bottom inventories that, in each case, are contained in any
facilities of the Company and its Subsidiaries), and which meets all of the
following requirements:


 


(a)                                  is
subject to a valid, first priority, perfected Lien in favor of the Collateral
Agent for its benefit and the benefit of the Secured Parties;


 


(b)                                 is
in good saleable condition, is not deteriorating in quality and is not
obsolete;


 


(c)                                  is
physically located within the United States of America;


 


15

















 


(d)                                 is
located at the places of business or the locations specified in the Security
Agreement or the Perfection Certificate, as the same may be modified or supplemented
from time to time pursuant to the Security Agreement or the Perfection
Certificate, or at other locations owned by third parties and approved in
advance by the Administrative Agent;


 


(e)                                  is
owned by the Company or any of its Subsidiaries free and clear of Liens, other
than Liens in favor of the Collateral Agent for the benefit of the Secured
Parties;


 


(f)                                    has
not been placed on consignment; and


 


(g)                                 is
otherwise satisfactory to the Administrative Agent in its sole discretion.


 


For the purposes of this definition, the fair
market value of all inventory of refined petroleum products contracted for by
the Company or any of its Subsidiaries as of any date of determination, solely
to the extent that (i) the suppliers of such inventory are the named
beneficiaries of Letters of Credit, (ii) such Letters of Credit were issued to
support such purchases of inventory, (iii) such inventory has not yet been
delivered to or received by the Company or any of its Subsidiaries and (iv)
such inventory is not otherwise included in Eligible Inventory, shall be
included in the calculation of the amount of Eligible Inventory.  For the purposes of this definition, (a) any
amount included in the calculation of Eligible Exchange Contract Balances shall
be excluded from the calculation of Eligible Inventory to the extent necessary
to avoid duplication and (b) the amount of Eligible Exchange Contract Balances
(if negative) shall be subtracted from the calculation of the amount of
Eligible Inventory.


 


“Eligible Letters of Credit” means, at any date, the
aggregate undrawn portion of the face amount of any Letters of Credit issued
hereunder for the account of the Company or a Guarantor solely for the purpose
of purchasing inventory, as to which: (a) the expiration date has not occurred
and (b) as of the date of inclusion of such Letters of Credit in the most
recently delivered Borrowing Base Certificate, by virtue of the terms of such
Letters of Credit it is not possible to have arisen any liability of the Letter
of Credit Issuer with respect to drawings under such Letters of Credit.


 


“Eligible Margin Deposits” means, at any date, the
initial margin deposits of the Company or any of its Subsidiaries in accounts
at commodity brokers pre-approved by the Administrative Agent and with whom the
Collateral Agent and the Company and/or its Subsidiaries have executed pledge
or other agreements in form and substance satisfactory to the Administrative
Agent.


 


16

















 


“Eligible Receivables” means, at any date, the aggregate
amount (without duplication) of (i) all accounts receivable carried on the
books of the Company and its Subsidiaries in accordance with GAAP on a
Consolidated basis arising in the ordinary course of business, less all
reserves with respect to such accounts receivable and less any and all offsets,
counterclaims or contras in respect thereof (including the amount of any
account payable (including any uninvoiced account payable) or other liability
owed by the Company or any of its Subsidiaries to the account debtor on such
account receivable, whether or not a specific netting agreement may exist,
excluding, however, any portion of any such account payable or other liability
which is at the date of determination covered by a Letter of Credit), and
(ii) uninvoiced accounts receivable arising from deliveries during the
30-day period ending on the last Banking Day for which calculations are
provided in the most recent Borrowing Base Certificate delivered in accordance
with Section 6.4.4, in each case which accounts receivable or uninvoiced
accounts receivable meet all of the following requirements:


 


(a)                                  are
not outstanding for more than 60 days past the applicable invoice date;


 


(b)                                 constitute
the valid, binding and legally enforceable obligation of the account debtor
thereon, and are not subordinate to any other claim against such account
debtor;


 


(c)                                  are
not evidenced by any instrument, unless such instrument has been pledged and delivered
to the Collateral Agent for the benefit of the Secured Parties;


 


(d)                                 are
owned by the Company or any of its Subsidiaries free and clear of all Liens,
other than Liens in favor of the Collateral Agent for the benefit of the Secured
Parties;


 


(e)                                  are
not the subject of a return, rejection, loss of or damage to the goods, the
sale of which gave rise to the account receivable, or any request for credit or
adjustment, or any other dispute with the account debtor on the account
receivable;


 


(f)                                    do
not arise out of transactions with a Subsidiary or an Affiliate;


 


(g)                                 are
not due from a Person located outside the United States of America;


 


(h)                                 are
with respect to an account debtor on the account receivable which is
creditworthy in the judgment of the Administrative Agent;


 


(i)                                     the
account debtor with respect to such account receivable has not filed a petition
for relief under any existing or future law relating to bankruptcy, insolvency,
reorganization or relief of debtors, made a general assignment for the benefit
of creditors, had filed against it any petition or other application for relief
under any existing


 


17

















 


or future law
relating to bankruptcy, insolvency, reorganization or relief of debtors,
failed, suspended business operations, become insolvent, called a meeting of
its creditors for the purpose of obtaining any financial concession or
accommodation, or had or suffered a receiver or a trustee to be appointed for
all or a significant portion of its assets or affairs;


 


(j)                                     are
subject to a valid, first priority, perfected Lien in favor of the Collateral
Agent for its benefit and the benefit of the Secured Parties;


 


(k)                                  are
not denominated in other than United States Funds or payable outside the United
States; and


 


(l)                                     are
otherwise satisfactory to the Administrative Agent in its sole discretion.


 


For the purposes of this definition,
(a) to the extent that the aggregate of all Eligible Receivables owing by
any single account debtor and its Affiliates exceeds 25% of the amount of all
Eligible Receivables (calculated excluding all accounts receivable owing by
such account debtor and its Affiliates), such excess shall not be included in
the calculation of the amount of Eligible Receivables, unless the Company has
received the prior written approval of the Administrative Agent, (b) to
the extent the Company or any of its Subsidiaries is contingently indebted for
any reason to any account debtor, the accounts receivable owing to the Company
or any of its Subsidiaries by such account debtor shall be deemed to be subject
to offset, counterclaim or contra in the amount of such indebtedness, and
(c) to the extent that the aggregate of all Eligible Receivables that are
31-60 days past the applicable invoice date exceeds 10% of the aggregate amount
of all Eligible Receivables (calculated excluding all accounts receivable that
are 31-60 days past the applicable invoice date), such excess shall not be
included in the calculation of the amount of Eligible Receivables.


 


“Environmental Laws” means all applicable federal, state
or local statutes, laws, ordinances, codes, rules, regulations and guidelines
(including consent decrees and administrative orders) and the common law
relating to public and occupational health and safety, and protection of the
environment, including, without limitation, OSHA.


 


“Equity Interest” means with respect to any Person, any
and all shares, interests, participations or other equivalents, including
membership interests (however designated, whether voting or non-voting), of
equity of such Person, including, if such Person is a partnership, partnership
interests (whether general or limited) and any other 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, such partnership, whether outstanding on the
date hereof or issued after the Initial Closing Date, but excluding debt
securities convertible or exchangeable into such equity.


 


18

















 


“ERISA” means the federal Employee Retirement Income
Security Act of 1974.


 


“ERISA Group Person” means the Company, any Subsidiary of
the Company and any Person which is a member of the controlled group or under
common control with the Company or any of its Subsidiaries within the meaning
of section 414 of the Code or section 4001(a)(14) of ERISA.


 


“Eurodollars” means, with respect to any Lender, deposits
of United States Funds in a non-United States office or an international
banking facility of such Lender.


 


“Eurodollar Basic Rate” means, for any Eurodollar
Interest Period, the sum of the Eurodollar Basic Reference Rates furnished by
the Reference Lenders to the Administrative Agent divided by the number of such
Reference Lenders.


 


“Eurodollar Basic Reference Rate” means, for any
Eurodollar Interest Period and any Reference Lender, the rate of interest at
which Eurodollar deposits in an amount comparable to the Percentage Interest of
such Reference Lender in the portion of the Loan as to which a Eurodollar
Pricing Option has been elected and which have a term corresponding to such
Eurodollar Interest Period are offered to such Reference Lender by first class
banks in the inter-bank Eurodollar market for delivery in immediately available
funds at a Eurodollar Office on the first day of such Eurodollar Interest
Period as determined by such Reference Lender at approximately 10:00 a.m. (New
York City time) two Banking Days prior to the date upon which such Eurodollar
Interest Period is to commence (which determination by such Reference Lender
shall, in the absence of demonstrable error, be conclusive) and as furnished
promptly thereafter by such Reference Lender to the Administrative Agent.


 


“Eurodollar Interest Period” means any period, selected
as provided in Section 3.2.1, of one, two, three or six months, commencing on
any Banking Day and ending on the corresponding date in the subsequent calendar
month so indicated (or, if such subsequent calendar month has no corresponding
date, on the last day of such subsequent calendar month); provided, however,
that subject to Section 3.2.3, if any Eurodollar Interest Period so selected
would otherwise begin or end on a date which is not a Banking Day, such
Eurodollar Interest Period shall instead begin or end, as the case may be, on
the immediately preceding or succeeding Banking Day as determined by the
Administrative Agent in accordance with the then current banking practice in
the inter-bank Eurodollar market with respect to Eurodollar deposits at the
applicable Eurodollar Office, which determination by the Administrative Agent
shall, in the absence of demonstrable error, be conclusive.


 


“Eurodollar Office” means such non-United States office or
international banking facility of any Lender as such Lender may from time to
time select.


 


19

















 


“Eurodollar Pricing Options” means the options granted
pursuant to Section 3.2.1 to have the interest on any portion of a Loan
computed on the basis of a Eurodollar Rate.


 


“Eurodollar Rate” for any Eurodollar Interest Period
means the rate, rounded upward to the nearest one thousandth of one percent,
obtained by dividing (a) the Eurodollar Basic Rate for such Eurodollar Interest
Period by (b) an amount equal to 1 plus the Eurodollar Reserve Rate; provided,
however,
that if at any time during such Eurodollar Interest Period the Eurodollar
Reserve Rate applicable to any outstanding Eurodollar Pricing Option changes, the
Eurodollar Rate for such Eurodollar Interest Period shall automatically be
adjusted to reflect such change.


 


“Eurodollar Rate Loan” means a Loan subject to a Eurodollar
Pricing Option.


 


“Eurodollar Reserve Rate” means the stated maximum rate
(expressed as a decimal) of all reserves (including any basic, supplemental,
marginal or emergency reserve or any reserve asset), if any, as from time to
time in effect, required by any Legal Requirement to be maintained by any
Lender against (a) “Eurocurrency liabilities” as specified in Regulation D of
the Board of Governors of the Federal Reserve System applicable to Eurodollar
Pricing Options, (b) any other category of liabilities that includes Eurodollar
deposits by reference to which the interest rate on portions of the Loan
subject to Eurodollar Pricing Options is determined, (c) the principal amount
of or interest on any portion of the Loan subject to a Eurodollar Pricing
Option or (d) any other category of extensions of credit, or other assets, that
includes loans subject to a Eurodollar Pricing Option by a non-United States
office of any of the Lenders to United States residents, in each case without
the benefits of credits for prorations, expenses or offsets that may be
available to a Lender.


 


“Event of Default” is defined in Section 8.1.


 


“Exchange Act” means the federal Securities Exchange Act
of 1934.


 


“Federal Funds Rate” means, for any day, the rate equal
to the weighted average (rounded upward to the nearest 1/8%) of (a) the rates
on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as such weighted average is published
for such day (or, if such day is not a Banking Day, for the immediately
preceding Banking Day) by the Federal Reserve Bank of New York, or (b) if such
rate is not so published for such Banking Day, as determined by the
Administrative Agent using any reasonable means of determination.  Each determination by the Administrative
Agent of the Federal Funds Rate shall, in the absence of demonstrable error, be
conclusive.


 


“Fee Letter” means that certain fee letter among the
Company, UBS AG, Cayman Islands Branch and UBS Securities LLC dated as of
February 20, 2003.


 


20

















 


“Financial Officer” of the Company (or other specified
Person) means its chief executive officer, chief financial officer, chief
operating officer, chairman, president, treasurer or any of its vice presidents
whose primary responsibility is for its financial affairs, in each case whose
incumbency and signatures have been certified to the Administrative Agent by
the secretary or other appropriate attesting officer of the Company (or such
specified Person).


 


“Financing Debt” means each of the items described in
clauses (a) through (f) of the definition of the term “Indebtedness” and,
without duplication, any Guarantees of such items.


 


“First Reserve Common Stock” means 4,130,473 shares of
Common Stock that were purchased by the Company for aggregate consideration of
$20,445,841 from First Reserve Fund VI, Limited Partnership.


 


“Fixed Charges
EBITDA”  means,
for any period, the sum of


 


(a)                                  Adjusted
EBITDA,


 


(b)                                 plus,
fixed rental obligations of the Company or any of its Subsidiaries as lessee
under leases of real and/or personal property (excluding (A) payments required
to be made by the Company or any of its Subsidiaries as lessee in respect of
taxes and insurance whether or not denominated as rent and (B) obligations
under Capitalized Leases).


 


“Foreign Subsidiary” shall mean a Subsidiary that is
organized under the laws of a jurisdiction other than the United States or any
state thereof or the District of Columbia.


 


“Foreign Trade Regulations” means (a) any act that
prohibits or restricts, or empowers the President or any executive agency of
the United States of America to prohibit or restrict, exports to or financial
transactions with any foreign country or foreign national, (b) the
regulations with respect to certain prohibited foreign trade transactions set
forth at 22 C.F.R. Parts 120-130 and 31 C.F.R. Part 500 and (c) any order,
regulation, ruling, interpretation, direction, instruction or notice relating
to any of the foregoing.


 


“Funded Debt” means all Indebtedness of the Company or
other specified Person which is payable more than one year from the date of
creation thereof and shall include (a) current maturities of such Indebtedness
and (b) all Indebtedness consisting of reimbursement obligations with respect
to letters of credit other than letters of credit issued to finance inventory
purchases or to secure other debt appearing on the balance sheet of the
obligor.


 


“Funding Liability” means (a) any Eurodollar deposit
which was used (or deemed by Section 3.2.6 to have been used) to fund any
portion of a Loan subject to a Eurodollar


 


21

















 


Pricing Option, and (b) any portion of a Loan
subject to a Eurodollar Pricing Option funded (or deemed by Section 3.2.6 to
have been funded) with the proceeds of any such Eurodollar deposit.


 


“GAAP” means generally accepted accounting principles as
from time to time in effect, including the statements and interpretations of
the United States Financial Accounting Standards Board and any predecessor or
successor entity.


 


“General Corporate Purposes” means (a) financing
acquisitions permitted by Section 6.9.6 (other than the Acquisition), (b)
making or incurring Capital Expenditures or (c) repurchasing and/or redeeming
Series A Convertible Preferred Stock and warrants to purchase Common Stock held
by the holders of such Series A Convertible Preferred Stock to the extent
permitted by Section 6.10.4.


 


“Governmental Authority” shall mean any federal, state,
local or foreign court, central bank or governmental agency, authority,
instrumentality, board or regulatory body.


 


“Guarantee” means, with respect to the Company (or other
specified Person),


 


(a)                                  any
guarantee by the Company (or such specified Person) of the payment or
performance of, or any contingent obligation by the Company (or such specified Person)
in respect of, any Indebtedness or other obligation of any primary obligor;


 


(b)                                 any
other arrangement whereby credit is extended to a primary obligor on the basis
of any promise or undertaking of the Company (or such specified Person)
including any binding “comfort letter” or “keep well agreement” written by the
Company (or such specified Person), to a creditor or prospective creditor of
such primary obligor, to (i) pay the Indebtedness of such primary obligor, (ii)
purchase an obligation owed by such primary obligor, (iii) pay for the purchase
or lease of assets or services regardless of the actual delivery thereof or
(iv) maintain the capital, working capital, solvency or general financial
condition of such primary obligor;


 


(c)                                  any
liability of the Company (or such specified Person) as a general partner of a
partnership in respect of Indebtedness or other obligations of such partnership;


 


(d)                                 any
liability of the Company (or such specified Person) as a joint venturer of a
joint venture in respect of Indebtedness or other obligations of such joint
venture;


 


(e)                                  any
liability of the Company (or such specified Person) with respect to the tax
liability of others as a member of a group (other than a group consisting
solely of the Company and its Subsidiaries) that is consolidated for tax
purposes; and


 


22

















 


(f)                                    reimbursement
obligations, whether contingent or matured, of the Company (or such specified
Person) with respect to letters of credit, bankers acceptances, surety bonds,
other financial guarantees and Interest Rate Protection Agreements,


 


in each case
whether or not any of the foregoing are reflected on the balance sheet of the
Company (or such specified Person) or in a footnote thereto; provided,
however,
that the term “Guarantee” shall not include endorsements for collection or
deposit in the ordinary course of business. 
The amount of any Guarantee and the amount of Indebtedness resulting
from such Guarantee shall be the maximum amount that the guarantor may become
obligated to pay in respect of the obligations (whether or not such obligations
are outstanding at the time of computation).


 


“Guarantor” means each Subsidiary listed on the signature
page hereto or which subsequently becomes party to this Agreement as a
Guarantor.


 


“Hazardous Material” means any pollutant, toxic or
hazardous material or waste, including any “hazardous substance” or “pollutant”
or “contaminant” as defined in section 101(14) of CERCLA or any other
Environmental Law or regulated as toxic or hazardous under RCRA or any other
Environmental Law.


 


“Hedged Inventory Borrowings” means Indebtedness under
any Working Capital Loan or Working Capital Loans incurred for the purpose of
financing the acquisition and maintenance by the Company or a Guarantor of
refined petroleum product inventory subject to Hedged Inventory Transactions; provided
that for the period commencing on the date the Company or the Guarantor, as
applicable, is obligated to take delivery of such petroleum inventory so
purchased by it, and until and including the date on which delivery to the purchaser
is fulfilled, the Company or the Guarantor, as applicable, has the right and
ability to store such quantity and quality of petroleum inventory in storage
facilities and pipelines owned, leased, operated or otherwise used by the
Company or the Guarantor, as applicable, and approved by the Administrative
Agent.


 


“Hedged Inventory Transaction” means a transaction in
which the Company or any Guarantor either (i) possesses refined petroleum
product inventory or (ii) establishes one or more positions using New York
Mercantile Exchange futures contracts arranged through brokers approved by the
Administrative Agent and with whom control agreements among the Company or
Guarantor, as applicable, the Administrative Agent and such brokers have been
entered into in form and substance satisfactory to the Administrative Agent (“Approved NYMEX Futures Contracts”)
to purchase (at a purchase price not to exceed the price at which the applicable
refined petroleum product inventory is to be sold pursuant to clause (a) or (b)
of this definition) refined petroleum product inventory for future delivery to
the Company or Guarantor, as applicable, within 45 days of the establishment of
any such position, and either (a) establishes one or more positions using
Approved NYMEX Futures


 


23

















 


Contracts to sell for future delivery within
370 days after delivery to the Company or Guarantor, as applicable, a similar
aggregate quantity and quality of refined petroleum product inventory, (b) enters
into a contract with a Qualified Person to sell for future delivery within 370
days after delivery to the Company or Guarantor, as applicable, a similar
aggregate quantity and quality of refined petroleum product inventory, or (c)
otherwise hedges any such position in a manner satisfactory to the Administrative
Agent.


 


“Hedging Agreement” means any Interest Rate Protection
Agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price
hedging arrangement.


 


“Indebtedness” means all obligations, contingent or
otherwise, which in accordance with GAAP are required to be classified upon the
balance sheet of the Company (or other specified Person) as liabilities, but in
any event including (without duplication)


 


(a)                                  borrowed
money;


 


(b)                                 indebtedness
evidenced by notes, debentures or similar instruments;


 


(c)                                  Capitalized
Lease Obligations;


 


(d)                                 the
deferred purchase price of assets, services or securities, including related
noncompetition, consulting and stock repurchase obligations (other than ordinary
trade accounts payable within six months after the incurrence thereof in the
ordinary course of business);


 


(e)                                  mandatory
redemption or dividend obligations on capital stock (or other equity)
(excluding, however, any such obligation in respect of the Series A Convertible
Preferred Stock or Series B Convertible Preferred Stock), including provisions
that require the exchange of such capital stock (or other equity) for
Indebtedness from the issuer;


 


(f)                                    reimbursement
obligations, whether contingent or matured, with respect to letters of credit,
bankers acceptances, surety bonds, other financial guarantees and Interest Rate
Protection Agreements;


 


(g)                                 unfunded
pension liabilities;


 


(h)                                 obligations
that are immediately and directly due and payable out of the proceeds of or
production from property;


 


24

















 


(i)                                     liabilities
secured by any Lien existing on property owned or acquired by the Company (or
such specified Person), whether or not the liability secured thereby shall have
been assumed; and


 


(j)                                     all
Guarantees in respect of Indebtedness of others.


 


“Indemnified Party” is defined in Section 11.2.


 


“Initial Closing Date” means February 28, 2003.


 


“Interest Rate Protection Agreement” means any interest
rate swap, interest rate cap, interest rate hedge or other contractual
arrangement that converts variable interest rates into fixed interest rates,
fixed interest rates into variable interest rates or other similar
arrangements.


 


“Inventory Adjustments – Gross”  means the sum of (i) any
gain recognized on beginning inventory-held for immediate sale or exchange,
(ii) plus,
any net margin recognized on sale of inventories-minimum volumes, (iii) minus,
any gain deferred on ending inventory-held for immediate sale or exchange, (iv)
minus,
any lower of cost or market write-downs on discretionary inventories-base
operating volumes or plus the reversal of any such write-downs,
as the case may be, (v) minus, any lower of cost or market
write-downs on inventories-minimum volumes.


 


“Inventory Adjustments – Net”  means the Company’s Inventory Adjustments –
Gross minus
the Company’s Inventory Adjustments – Tax Effect.


 


“Inventory Adjustments – Tax Effect”
means the product of  the Company’s
combined federal and state income tax rate and its Inventory Adjustments –
Gross.


 


“Investment” means, with respect to the Company (or other
specified Person),


 


(a)                                  any
share of capital stock, partnership or other equity interest, evidence of
Indebtedness or other security issued by any other Person to the Company (or
such other specified Person);


 


(b)                                 any
loan, advance or extension of credit to, or contribution to the capital of, any
other Person;


 


(c)                                  any
Guarantee of the obligations of any other Person;


 


(d)                                 any
acquisition of all or any part of the business of any other Person or the
assets comprising such business or part thereof; and


 


(e)                                  any
other similar investment.


 


25

















 


The investments described in the foregoing
clauses (a) through (e) shall be included in the term “Investment” whether they
are made or acquired by purchase, exchange, issuance of stock or other
securities, merger, reorganization or any other method; provided, however,
that the term “Investment” shall not include (i) current trade and customer
accounts receivable for property leased, goods furnished or services rendered
in the ordinary course of business and payable in accordance with customary
trade terms, (ii) advances and prepayments to suppliers for property leased,
goods furnished and services rendered in the ordinary course of business, (iii)
advances to employees for travel expenses, drawing accounts and similar expenditures,
(iv) stock or other securities acquired in connection with the satisfaction or
enforcement of Indebtedness or claims due to the Company (or such specified
Person) or as security for any such Indebtedness or claim, (v) demand deposits
in banks or similar financial institutions or (vi) joint operating agreements
conducted by Wholly Owned Subsidiaries of the Company with each other or with
third parties.


 


In determining the amount of outstanding
Investments,


 


(a)                                  the
amount of any Investment shall be the cost thereof (excluding any amounts paid
in respect of inventory or other working capital items) minus any returns of capital
in cash on such Investment (determined in accordance with GAAP without regard to
amounts realized as income on such Investment);


 


(b)                                 the
amount of any Investment in respect of a purchase described in clause (d) above
shall be increased by the amount of any Financing Debt assumed in connection
with such purchase or secured by any asset acquired in such purchase (whether
or not any Financing Debt is assumed) or for which any Person that becomes a
Subsidiary is liable on the date on which the securities of such Person are
acquired; and


 


(c)                                  no
Investment shall be increased as the result of an increase in the undistributed
retained earnings of the Person in which the Investment was made or decreased
as a result of an equity interest in the losses of such Person.


 


“Investment Property” is defined in the Security
Agreement.


 


“ISP” is defined in Section 2.4.7.


 


“LC Disbursement” shall mean a payment or disbursement
made by UBS AG, Cayman Islands Branch pursuant to a Letter of Credit.


 


“LC Sub-Account” is defined in Section 10.1(d).


 


“Legal Requirement” means any present or future
requirement imposed upon any of the Lenders or the Company and its Subsidiaries
by any law, statute, rule, regulation,


 


26

















 


directive, order, decree or guideline (or any
interpretation thereof by courts or of administrative bodies) of the United
States of America, or any jurisdiction in which any Eurodollar Office is located
or any state or political subdivision of any of the foregoing, or by any board,
governmental or administrative agency, central bank or monetary authority of
the United States of America, any jurisdiction in which any Eurodollar Office
is located or where the Company or any of its Subsidiaries owns property or
conducts its business, or any political subdivision of any of the foregoing
and, without limitation of the foregoing, shall include with respect to the
Obligors ERISA and all Environmental Laws. 
Any such requirement imposed on any of the Lenders not having the force
of law shall be deemed to be a Legal Requirement if such Lender reasonably
believes that compliance therewith is in the best interest of such Lender.


 


“Lender”
means each of the Persons listed as lenders on the
signature page hereto, in its capacity as a Lender and such other Persons who
may from time to time own a Percentage Interest in the Credit Obligations
pursuant to Section 13.1.1, but the term “Lender” shall not include any Credit
Participant in such capacity.


 


“Lending Officer” means such individuals whom the
Administrative Agent may designate by notice to the Company from time to time
as an officer or employee who may receive telephone requests for extensions of
credit under Sections 2.1.3 and 2.3.2.


 


“Letter of Credit” is defined in Section 2.4.1.


 


“Letter of Credit Exposure” means, at any date, the sum
of (a) the aggregate face amount of all drafts that may then or thereafter be
presented by beneficiaries under all Letters of Credit then outstanding, plus
(b) the aggregate face amount of all drafts that the Letter of Credit Issuer
has previously accepted under Letters of Credit but has not paid.


 


“Letter of Credit Fee Rate” means on any date an amount
equal to the Applicable Margin applicable to any portion of the Working Capital
Loans subject to a Eurodollar Pricing Option.


 


“Letter of Credit Issuer” means, for any Letter of Credit,
UBS AG, Stamford Branch or another Lender designated by the Company (and
approved by the Administrative Agent) to issue such Letter of Credit in
accordance with Section 2.4.


 


“Leverage Ratio” means, on the last day of each fiscal
quarter of the Company, the ratio (expressed as a percentage) of the
Consolidated Total Funded Debt of the Company and its Subsidiaries to the
consolidated Adjusted EBITDA of the Company and its Subsidiaries for the period
of four consecutive fiscal quarters then ended; provided, however,
that Hedged Inventory Borrowings of up to $100,000,000 shall be excluded from
the calculation of Consolidated Total Funded Debt and all other Indebtedness
under the Credit Obligations (regardless of maturity) shall be included in the
calculation of Consolidated Total


 


27

















 


Funded Debt; and, provided, further,
however,
that in the event during such period the Company or any of its Subsidiaries (a)
(i) makes an acquisition permitted by Section 6.9.6 or (ii) makes or incurs a
Capital Expenditure to acquire an asset with a prior operating history or (b)
makes a disposition of all or substantially all of an operating business or of
an asset with a prior operating history permitted by Section 6.11.1, for
purposes of the Leverage Ratio, Adjusted EBITDA shall be calculated on a pro
forma basis in a manner acceptable to the Administrative Agent as if such
acquisition, Capital Expenditure or disposition had occurred on the first day
of such period (except that the Acquisition shall, for the purposes of this
definition, be in all cases deemed to have occurred on April 1, 2003) and
using the historical audited financial statements (to the extent such audited
financial statements are available) of any business so acquired or sold and
other financial information reasonably acceptable to the Administrative
Agent.  In making the computations
contemplated by the immediately preceding proviso, the Company may make
appropriate adjustments to reflect immediate cost savings and other
transaction-related items so long as all such adjustments are acceptable to the
Administrative Agent.


 


“Lien” means, with respect to the Company (or any other
specified Person),


 


(a)                                  any
lien, encumbrance, mortgage, pledge, charge or security interest of any kind
upon any property or assets of the Company (or such specified Person), whether
now owned or hereafter acquired, or upon the income or profits therefrom;


 


(b)                                 the
acquisition of, or the agreement to acquire, any property or asset upon
conditional sale or subject to any other title retention agreement, device or arrangement
(including a Capitalized Lease);


 


(c)                                  the
sale, assignment, pledge or transfer for security of any accounts, general
intangibles or chattel paper of the Company (or such specified Person), with or
without recourse;


 


(d)                                 in
the case of securities, any purchase option, call or similar purchase right of
a third party;


 


(e)                                  the
transfer of any tangible property or assets for the purpose of subjecting such
items to the payment of previously outstanding Indebtedness in priority to
payment of the general creditors of the Company (or such specified Person); and


 


(f)                                    the
existence for a period of more than 120 consecutive days of any Indebtedness
against the Company (or such specified Person) which if unpaid would by law or
upon a Bankruptcy Default be given any priority over general creditors.


 


“Loan Account” means each Working Capital Loan Facility
and Swingline Loan Facility, as applicable.


 


28

















 


“Loans” means the collective reference to the Working Capital
Loans and Swingline Loans, whether being carried as Base Rate Loans or
Eurodollar Rate Loans.


 


“Mandatory Borrowing” is defined in Section 2.3.4.


 


“Margin Stock” means “margin stock” within the meaning of
Regulation T, U or X of the Board of Governors of the Federal Reserve System.


 


“Material Adverse Change” means, since any specified date
or from the circumstances existing immediately prior to the happening of any
specified event, a material adverse change in the business, assets, financial
condition or income of the Company and its Subsidiaries on a Consolidated
basis, whether as a result of (a) general economic conditions affecting
the petroleum industry, (b) difficulties in obtaining supplies and raw
materials, (c) fire, flood or other natural calamities,
(d) environmental pollution, (e) regulatory changes, judicial
decisions, war or other governmental action or (f) any other event or
development, whether or not related to those enumerated above.


 


“Material Adverse Effect” means (i) a materially adverse
effect on the business, assets, operations, prospects, income or condition,
financial or otherwise, of the Company and its Subsidiaries on a Consolidated
basis, (ii) material impairment of the ability of the Company or any of its
Subsidiaries to perform any of its obligations under this Agreement or any of
the other Credit Documents, or (iii) material impairment of the rights of or
benefits available to the Lenders under this Agreement or any of the other
Credit Documents.


 


“Minimum Petroleum Products Inventory Requirements”
means, on any date, the physical amount of petroleum products, consisting of
pipeline fill and tank bottoms, which must be maintained by the Company and its
Subsidiaries within their pipelines and terminals.


 


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


 


“Multiemployer Plan” means any Plan that is a
“multiemployer plan” as defined in section 4001(a)(3) of ERISA.


 


“Net Cash Proceeds” means:


 


(a)                                  with
respect to any Asset Sale, the cash proceeds received by any Obligor (including
cash proceeds subsequently received (as and when received by any Obligor) in
respect of noncash consideration initially received) net of (i) selling
expenses (including customary brokers’ fees or commissions, legal, accounting
and other professional and transactional fees, transfer and similar taxes and
the Company’s good faith estimate of income taxes paid or payable in connection
with such sale); (ii) amounts provided as a reserve, in accordance with
GAAP, against any liabilities


 


29

















 


under any
indemnification obligations associated with such Asset Sale (provided
that to the extent and at the time any such amounts are released from such
reserve, such amounts shall constitute Net Cash Proceeds); (iii) the
Company’s good faith estimate of payments required to be made with respect to
unassumed liabilities relating to the assets sold within 90 days of such Asset
Sale (provided
that to the extent such cash proceeds are not used to make payments in respect
of such unassumed liabilities within 90 days of such Asset Sale, such cash
proceeds shall constitute Net Cash Proceeds); and (iv) the principal
amount, premium or penalty, if any, interest and other amounts on any
Indebtedness for borrowed money which is secured by a senior Lien on the asset
sold in such Asset Sale and which is repaid with such proceeds (other than any
such Indebtedness assumed by the purchaser of such asset); and


 


(b)                                 with
respect to any Casualty Event, the cash insurance proceeds, condemnation awards
and other compensation received in respect thereof, net of all reasonable costs
and expenses incurred in connection with the collection of such proceeds,
awards or other compensation in respect of such Casualty Event.


 


“Non-Guarantor Subsidiary” means any Subsidiary of the
Company that is not a Guarantor.


 


“Nonperforming Lender” is defined in Section 12.4.4.


 


“Notes” means the Working Capital Notes and the Swingline
Notes, as applicable.


 


“Obligor” means the Company, each Guarantor and each
Person guaranteeing, providing collateral for, or subordinating obligations to,
the Credit Obligations.


 


“Officers’ Certificate” shall mean a certificate executed
or authenticated by any two Financial Officers, each in his or her official
(and not individual) capacity.


 


“Open Position” means any difference (whether positive or
negative) between (a) the number of barrels of petroleum product the Company
and its Subsidiaries hold in inventory (other than the Minimum Petroleum
Products Inventory Requirements and Base Inventory) or have contracted to buy
and (b) the number of barrels of petroleum product the Company and its
Subsidiaries have contracted to sell.


 


“Original Credit Agreement” has the meaning assigned to
such term in the recitals hereto.


 


“OSHA” means the federal Occupational Safety and Health
Act.


 


“Other Material Agreements” is defined in Section 7.2.2.


 


30

















 


“Overdue Rate” is defined in Section 3.1.


 


“Payment Date” means (a) the last Banking Day of each
calendar quarter occurring after the Initial Closing Date and (b) the Working
Capital Commitment Termination Date.


 


“PBGC” means the Pension Benefit Guaranty Corporation or
any successor entity.


 


“Percentage Interest” means (a) at all times when no
Event of Default under Section 8.1.1 and no Bankruptcy Defaults exists,
the ratio that the Working Capital Commitment of each Lender bears to the total
Working Capital Commitments of all Lenders as from time to time in effect and
reflected in the Register and the Percentage Interest of each Lender in the
Working Capital Commitments shall be the ratio of such Lender’s Working Capital
Commitment to the total Working Capital Commitments of all Lenders and
(b) at all other times, the ratio that the respective amounts of the
outstanding Credit Obligations owing to the Lenders in respect of extensions of
credit under Section 2 bear to the total outstanding Credit Obligations owing
to all Lenders.


 


“Perfection Certificate” means the perfection certificate
delivered on the Original Closing Date relating to the Original Credit
Agreement.


 


“Performing Lender” is defined in Section 12.4.4.


 


“Permitted Liens” is defined in Section 6.8.


 


“Person” means any present or future natural Person or
any corporation, association, partnership, joint venture, limited liability,
joint stock or other company, business trust, trust, organization, business or
government or any Governmental Authority or political subdivision thereof.


 


“PIK Interest” means any accrued interest payments on
Financing Debt that are postponed or made through the issuance of
“payment-in-kind” notes or other similar securities (including book-entry
accrual with respect to such postponed interest payments), all in accordance
with the terms of such Financing Debt; provided, however, that in no event
shall PIK Interest include payments made with cash or Cash Equivalents.


 


“Plan” means, at any date, any pension benefit plan
subject to Title IV of ERISA maintained, or to which contributions have been
made or are required to be made, by any ERISA Group Person within six years
prior to such date.


 


“Pledged Collateral” has the meaning assigned to such
term in the Security Agreement.


 


31

















 


“Pledged Securities” is defined in the Security Agreement.


 


“Preferred Stock Recapitalization Agreement” means the
preferred stock recapitalization agreement dated as of June 28, 2002 between
the Company and holders of Series A Convertible Preferred Stock.


 


“Prior Credit Agreement” means the Fifth Amended and
Restated Credit Agreement dated as of June 27, 2002 among the Company and Fleet
National Bank, as administrative agent and collateral agent, Fleet Securities,
Inc., as co-arranger and joint book manager, Wachovia Securities, as
co-arranger and joint book manager, Wachovia Bank, National Association, as
syndication agent, BNP Paribas, as documentation agent and certain other
financial institutions.


 


“Prior Lien” shall have the meaning ascribed thereto in
the appropriate Security Document.


 


“Qualified Person” means (a) a Person which has a Senior
Debt Rating equal to or higher than BBB from S&P and a Senior Debt Rating
equal to or higher than Baa2 from Moody’s, (b) a Person all of whose
obligations to the Company or any Subsidiary described in clause (a)(x)(ii) of
the definition of Hedged Inventory Transaction herein are irrevocably and
unconditionally guaranteed by a Person having the Senior Debt Ratings required
by the preceding clause (a) and/or are secured by an irrevocable letter of
credit issued by one or more commercial banks having Senior Debt Ratings equal
to or higher than A- from S&P and equal to or higher than A3 from Moody’s
or (c) a Person who has been approved by the Required Lenders.


 


“RCRA” means the federal Resource Conservation and
Recovery Act, as amended.


 


“Real Property” means, collectively, all right, title and
interest (including any leasehold estate) in and to any and all parcels of or
interests in Real Property owned, leased or operated by any Person and in which
the Company or any Guarantor holds any easement, servitude or other similar
right in the case of any pipeline assets, whether by lease, license or other
means, together with, in each case, all easements, hereditaments and
appurtenances relating thereto, all improvements and appurtenant fixtures and
equipment, all general intangibles and contract rights and other property and
rights incidental to the ownership, lease or operation thereof.


 


“Reference Lender” means UBS AG, Stamford Branch.


 


“Register” is defined in Section 13.1.4.


 


32

















 


“Reimbursement Obligations” shall mean the Company’s
obligations under Section 2.4 to reimburse LC Disbursements.


 


“Replacement Lender” is defined in Section 13.3.


 


“Required Lenders” means, with respect to any approval,
consent, modification, waiver or other action to be taken by the Administrative
Agent or the Lenders under the Credit Documents which require action by the
Required Lenders, such Lenders as own at least a majority of the Percentage
Interests (other than Delinquent Lenders during the existence of a Delinquency
Period so long as such Delinquent Lender is treated the same as the other Lenders
with respect to any actions being taken by the Required Lenders); provided,
however,
that with respect to any matters referred to in paragraph (b) of the proviso to
Section 12.6, Required Lenders means such Lenders as own at least the portion
of the Percentage Interests required by such paragraph (b).  This definition of “Required Lenders” may be
amended or modified only in accordance with Section 12.6(b)(vi).


 


“Risk Management Policies Manual” means that certain Risk
Management Policies Manual dated February 11, 2000 of TransMontaigne Inc., a
copy of which is attached hereto as Exhibit 6.2.5.


 


“Secured Obligations” has the meaning ascribed thereto in
the Security Agreement.


 


“Secured Parties” has the meaning assigned to such term
in the Security Agreement.


 


“Securities Account” has the meaning assigned to such
term in the Security Agreement.


 


“Securities Act” means the federal Securities Act of
1933.


 


“Security Agreement” means the first amended and restated
inventory and accounts security agreement in the form of Exhibit A
hereto dated as of the date hereof by and among the Company, the Guarantors and
the Collateral Agent, as in effect from time to time.


 


“Security Documents” means the Security Agreement, the
Perfection Certificate and each other security document or pledge agreement
delivered in accordance with applicable local or foreign law to grant a valid,
perfected security interest in any property, and all UCC or other financing
statements or instruments of perfection required by this Agreement, the
Security Agreement to be filed with respect to the security interests in
property created pursuant to the Security Agreement and any other document or
instrument utilized to pledge as collateral for the obligations any property of
whatever kind or nature.


 


33

















 


“Senior Debt Rating” means a senior unsecured long-term
debt rating issued and maintained by S&P or Moody’s.


 


“Senior Leverage Ratio” means, on the last day of each
fiscal quarter of the Company, the ratio (expressed as a percentage) of the
Consolidated Total Senior Funded Debt of the Company and its Subsidiaries to
the consolidated Adjusted EBITDA of the Company and its Subsidiaries for the
period of four consecutive fiscal quarters then ended; provided, however,
that Hedged Inventory Borrowings of up to $100,000,000 shall be excluded from
the calculation of Consolidated Total Senior Funded Debt and all other
Indebtedness under the Credit Obligations (regardless of maturity) shall be
included in the calculation of Consolidated Total Senior Funded Debt; and, provided,
further,
however,
that in the event during such period the Company or any of its Subsidiaries (a)
(i) makes an acquisition permitted by Section 6.9.6 or (ii) makes or incurs a
Capital Expenditure to acquire an asset with a prior operating history or (b)
makes a disposition of all or substantially all of an operating business or of
an asset with a prior operating history permitted by Section 6.11.1, for
purposes of the Leverage Ratio, Adjusted EBITDA shall be calculated on a pro
forma basis in a manner acceptable to the Administrative Agent as if such
acquisition, Capital Expenditure or disposition had occurred on the first day
of such period (except that the Acquisition shall, for the purposes of this
definition, be in all cases deemed to have occurred on April 1, 2003) and
using the historical audited financial statements (to the extent such audited
financial statements are available) of any business so acquired or sold and
other financial information reasonably acceptable to the Administrative
Agent.  In making the computations
contemplated by the immediately preceding proviso, the Company may make
appropriate adjustments to reflect immediate cost savings and other
transaction-related items so long as all such adjustments are acceptable to the
Administrative Agent.


 


“Senior Subordinated Notes” means the Company’s 9-1/8%
senior subordinated notes due 2010.


 


“Series A Convertible Preferred Stock” means the Series A
Convertible Preferred Stock, par value $.01 per share, issued by the Company on
or after March 25, 1999 in the aggregate initial amount of up to 200,000 shares
having an initial liquidation value of $1,000 per share and any additional
shares of such series of convertible preferred stock issued as or in lieu of dividends
thereon.


 


“Series B Convertible Preferred Stock” means the Series B
Convertible Preferred Stock, par value $.01 per share, issued by the Company on
or after June 27, 2002 in the aggregate initial amount of up to 100,000 shares
having an initial liquidation value of $1,000 per share and any additional
shares of such series of convertible preferred stock issued as or in lieu of
dividends thereon.


 


“Sole Lead Arranger” means UBS Securities LLC, in its
capacity as sole lead arranger and sole book-runner for this Agreement.


 


34

















 


“Solvent” means, with respect to any Person, that as of
the date of determination both (a) (i) the sum of such Person’s debt (including
contingent liabilities) does not exceed all of its property, at a fair
valuation; (ii) the present fair saleable value of the property of such Person
is not less than the amount that will be required to pay the probable
liabilities on such Person’s then existing debts as they become absolute and matured;
(iii) such Person’s capital is not unreasonably small in relation to its
business or any contemplated or undertaken transaction; and (iv) such Person
does not intend to incur, or believe (nor should it reasonably believe) that it
will incur, debts beyond its ability to pay such debts as they become due; and
(b) such Person is “solvent” within the meaning given that term and similar
terms under applicable laws relating to fraudulent transfers and
conveyances.  For purposes of this
definition, the amount of any contingent liability at any time shall be
computed as the amount that, in light of all of the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability (irrespective of whether such contingent
liabilities meet the criteria for accrual under Statement of Financial
Accounting Standard No. 5).


 


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


 


“Stamford Office” means the principal banking office of
UBS AG, Stamford Branch in New York City.


 


“Subsequent Closing Date” means the date on which any
extension of credit other than the initial extension is made pursuant to
Section 2.1, 2.3 or 2.4.


 


“Subsidiary” means any Person of which the Company (or
other specified Person) shall at the time, directly or indirectly through one
or more of its Subsidiaries, (a) own more than 50% of the outstanding capital
stock (or other shares of beneficial interest) entitled to vote generally or
(b) hold more than 50% of the partnership, joint venture or similar interests.


 


“Swingline Lender” means UBS AG, Cayman Islands Branch,
in its capacity as swingline lender hereunder.


 


“Swingline Loan” is defined in Section 2.3.1.


 


“Swingline Loan Facility” is defined in Section 2.3.3.


 


“Swingline Note” is defined in Section 2.3.3.


 


“Swingline Rate” means the rate equal to the sum of (a)
the Federal Funds Rate plus the Applicable Margin, plus
(b) an additional 2% per annum effective on the day the Administrative Agent
notifies the Company that the interest rates hereunder are increasing as


 


35

















 


a result of the occurrence and continuance of
an Event of Default until the earlier of such time as (i) such Event of Default
is no longer continuing or (ii) such Event of Default is deemed no longer to
exist, in each case pursuant to Section 8.3.


 


“Syndication Agent” means Wachovia Bank, National
Association.


 


“Tax” means any present or future tax, levy, duty,
impost, deduction, withholding or other charges of whatever nature at any time
required by any Legal Requirement (a) to be paid by any Lender or
(b) to be withheld or deducted from any payment otherwise required hereby
to be made to any Lender, in each case on or with respect to its obligations
hereunder, the Loan, any payment in respect of the Credit Obligations or any
Funding Liability not included in the foregoing; provided, however,
that the term “Tax” shall not include any franchise tax or taxes imposed upon
or measured by the net income of such Lender (or withholding taxes with respect
to such taxes) at the time such Lender became a party to this Agreement, except
in the case of an Assignee, to the extent the applicable assignor was entitled
to receive additional amounts in respect of any such tax or taxes.


 


“Transactions” means the consummation of the Acquisition,
repayment of all amounts under, and the termination of, the Prior Credit
Agreement, and the making of initial extensions of credit under the Original
Credit Agreement on the Initial Closing Date.


 


“UCC” means the Uniform Commercial Code as in effect in
the State of New York on the date hereof; provided, however, that with respect
to the perfection of the Administrative Agent’s Lien in the Pledged Collateral
and the effect of nonperfection thereof, the term “UCC” means the Uniform
Commercial Code as in effect in any jurisdiction the laws of which are made
applicable by Section 9-301 of the Uniform Commercial Code as in effect in the
State of New York.


 


“UCP” is defined in Section 2.4.7.


 


“United States Funds” means such coin or currency of the
United States of America as at the time shall be legal tender therein for the
payment of public and private debts.


 


“Wholly Owned Subsidiary” means any Subsidiary of which
all of the outstanding capital stock (or other shares of beneficial interest)
entitled to vote generally (other than directors’ qualifying shares) is owned
by the Company (or other specified Person) directly, or indirectly through one
or more Wholly Owned Subsidiaries.


 


“Working Capital Borrowings” means Indebtedness under the
Working Capital Loans incurred for working capital and other lawful corporate
purposes of the Company and its Subsidiaries, including for the purpose of
financing the acquisition of inventory in the ordinary course of business by
the Company or a Guarantor, but excluding the purposes


 


36

















 


described in the definition of “General
Corporate Purposes.” Working Capital Borrowings shall include Hedged Inventory
Borrowings.


 


“Working Capital Commitments” means with respect to each
Lender, such Lender’s obligations (if any) to extend the credit in respect of
the Working Capital Loans up to the amount set forth opposite such Lender’s
name on Schedule 1.1, and as the same may be (a) reduced pursuant to
Section 4.2 or (b) reduced or increased from time to time pursuant to Section
13 by assignment by or to such Lender. 
The aggregate amount of the Lenders’ Working Capital Commitments on the
Amendment and Restatement Date is $275,000,000.


 


“Working Capital Commitment Termination Date” means the
earlier of (a) the third anniversary of the Initial Closing Date, or if such
date is not a Banking Day, the immediately preceding Banking Day and (b) such
other date as the commitments to make extensions of credit have been terminated
pursuant to Section 8.2.1


 


“Working Capital Lender” means each Lender with a Working
Capital Commitment.


 


“Working Capital Loan” is defined in Section 2.1.1.


 


“Working Capital Loan Facility” is defined in Section
2.1.4.


 


“Working Capital Notes” is defined in Section 2.1.4.


 


2.                                       The Credits.


 


2.1.                              Working Capital Credit.


 


2.1.1                        Working
Capital Loans.  Subject to
all the terms and conditions of this Agreement and so long as no Default
exists, from time to time on and after the Amendment and Restatement Date and
prior to the Working Capital Commitment Termination Date, each Working Capital
Lender will, severally and not jointly, in an aggregate principal amount not exceeding
its Working Capital Commitment, make a loan (each, a “Working Capital Loan” and, collectively, the
“Working Capital Loans”)
to the Company in such amounts as may be requested by the Company in accordance
with Section 2.1.3. The sum of the aggregate principal amount of Working
Capital Loans made under this Section 2.1.1 at any one time outstanding plus
the Swingline Loan plus the Letter of Credit Exposure shall
in no event exceed the lesser of (a) the Borrowing Base and (b) the aggregate
Working Capital Commitment in effect from time to time.  In no event will the principal amount of
Working Capital Loans at any one time outstanding made by any Working Capital
Lender pursuant to this Section 2.1 exceed such Working Capital Lender’s
Working Capital Commitment.


 


2.1.2                        [Reserved.]


 


37

















 


2.1.3                        Working
Capital Borrowing Requests. 
The Company may from time to time request a Working Capital Loan under
Section 2.1.1 by providing to the Administrative Agent a notice (which may be
given by a telephone call received by a Lending Officer if promptly confirmed
in writing).  Such notice must be
received by the Administrative Agent not later than 1:00 p.m. (New York City
time) on the same Banking Day as the Amendment and Restatement Date or
requested Subsequent Closing Date for such Working Capital Loan (third Banking
Day prior to the Amendment and Restatement Date or the requested Subsequent
Closing Date, as the case may be, of such Working Capital Loan if any portion
of such Working Capital Loan will be subject to a Eurodollar Pricing Option on
the Amendment and Restatement Date or the requested Subsequent Closing Date, as
the case may be).  The notice must
specify (a) the amount of the requested Working Capital Loan (which shall
be not less than $500,000 and an integral multiple of $100,000) and
(b) the Amendment and Restatement Date or requested Subsequent Closing
Date therefor (which shall be a Banking Day). 
Upon receipt of such notice, the Administrative Agent will promptly
inform each other Working Capital Lender (by telephone or otherwise).  Each such Working Capital Loan will be made
at the Stamford Office by depositing the amount thereof to an account
designated by the Company in such notice that is subject to a Control
Agreement.  In connection with each such
Working Capital Loan, the Company shall furnish to the Administrative Agent a
certificate in substantially the form of Exhibit 5.2.1.


 


2.1.4                        Working
Capital Loan Facility; Working Capital Notes.  The Administrative Agent has established on
its books a loan account for the Company (the “Working Capital Loan Facility”) which the
Administrative Agent shall administer as follows: (a) the Administrative Agent
shall add to the Working Capital Loan Facility, and the Working Capital Loan
Facility shall evidence, the principal amount of all Working Capital Loans from
time to time made by the Working Capital Lenders to the Company pursuant to
Section 2.1.1 and (b) the Administrative Agent shall reduce the Working Capital
Loan Facility by the amount of all payments made on account of the Indebtedness
evidenced by the Working Capital Loan Facility.  The Working Capital Loans shall be deemed owed to each Working
Capital Lender severally in accordance with such Working Capital Lender’s
Percentage Interest, and all payments credited to the Working Capital Loan Facility
shall be for the account of each Working Capital Lender in accordance with its
Percentage Interest.  The Company’s
obligations to pay each Working Capital Lender’s Percentage Interest in the
Working Capital Loans shall be evidenced by a separate note of the Company in
substantially the form of Exhibit 2.1.4 (the “Working Capital Notes”), payable to each
Working Capital Lender in maximum principal amount equal to such Working
Capital Lender’s Percentage Interest in the Working Capital Loans.


 


2.2.                              [Reserved].


 


38

















 


2.3.                              Swingline Credit.


 


2.3.1                        Swingline
Loan.  Subject to all the
terms and conditions of this Agreement and so long as no Default exists, from
time to time on and after the Amendment and Restatement Date and prior to the
Working Capital Commitment Termination Date, the Swingline Lender will make
loans (“Swingline Loans”)
to the Company in such amounts as may be requested by the Company in accordance
with Section 2.3.2. The sum of the aggregate principal amount of Swingline
Loans made under this Section 2.3 at any one time outstanding plus
the aggregate principal amount of Working Capital Loans plus the Letter of Credit
Exposure shall in no event exceed the lesser of (a) the Borrowing Base and (b)
the aggregate amount of the Working Capital Commitments (whether drawn or
undrawn).  In no event will the
principal amount of Swingline Loans made pursuant to this Section 2.3 at any
one time outstanding exceed $35,000,000.


 


2.3.2                        Borrowing
Requests.  The Company may
from time to time request a Swingline Loan under Section 2.3.1 by providing to
the Swingline Lender a notice (which may be given by a telephone call received
by a Lending Officer).  Such a notice
must be not later than 2:00 p.m. (New York City time) on the requested
Subsequent Closing Date (which must be a Banking Day) for such Swingline
Loan.  Each such Swingline Loan will be
made at the Stamford Office by depositing the amount thereof to an account,
designated by the Company in such notice that is subject to a Control
Agreement, of the Company with the Swingline Lender.  In connection with each such Swingline Loan, if the Swingline
Lender shall so request, the Company shall furnish to the Swingline Lender a
certificate in substantially the form of Exhibit 5.2.1.


 


2.3.3                        Swingline
Loan Facility; Swingline Notes. 
The Swingline Lender will establish on its books a loan account for the
Company (the “Swingline Loan
Facility”) which the Swingline Lender shall administer as
follows:  (a) the Swingline Lender shall
add to the Swingline Loan Facility, and the Swingline Loan Facility shall
evidence, the principal amount of all loans from time to time made by the
Swingline Lender to the Company pursuant to Section 2.3.1 and (b) the Swingline
Lender shall reduce the Swingline Loan Facility by the amount of all payments
made on account of the Indebtedness evidenced by the Swingline Loan
Facility.  The aggregate principal
amount of the Indebtedness evidenced by the Swingline Loan Facility is referred
to as the “Swingline Loan”.  The Company’s obligation to pay the
Swingline Loan shall be evidenced by a note of the Company in substantially the
form of Exhibit 2.3.3 (the “Swingline Note”), payable to the Swingline Lender in
maximum principal amount equal to the Swingline Loan.


 


2.3.4                        Conversion
of Swingline Loan into Working Capital Loan.  Whether or not the Working Capital
Commitment Termination Date has already occurred, on any Banking Day after the
occurrence and during the continuance of an Event of Default, the Swingline
Lender may, in its sole discretion, give notice to the other Working Capital
Lenders


 


39

















 


and the Company that the Swingline Loan shall
be paid in full with a mandatory borrowing under the Working Capital
Commitments (the “Mandatory Borrowing”).  Such a notice of a Mandatory Borrowing shall
be deemed to have been automatically given upon a Bankruptcy Default or upon
the exercise of any of the remedies provided in Section 8.2.  Upon the giving of any such notice or deemed
notice, a Mandatory Borrowing under the Working Capital Commitments in the
amount of the Swingline Loan shall be made on the next Banking Day from all
Working Capital Lenders in accordance with their respective Percentage
Interests in the Working Capital Commitments, and the proceeds thereof shall be
applied to the Swingline Lender as a repayment of the Swingline Loan.  Each Working Capital Lender irrevocably
agrees to make such Working Capital Loan pursuant to each such Mandatory
Borrowing notice in the amount and in the manner specified above in this
Section 2.3.4, notwithstanding (a) whether any conditions specified in Section
5 have been satisfied, (b) that a Default or an Event of Default has occurred
and is continuing or (c) the date of such Mandatory Borrowing.  In the event that any Mandatory Borrowing
cannot for any reason be made on the date required above (including as a result
of the commencement of a proceeding under the Bankruptcy Code), each Working
Capital Lender shall promptly purchase from the Swingline Lender as of the date
the Mandatory Borrowing otherwise would have occurred such participation in the
Swingline Loan as shall be necessary to cause the Working Capital Lenders to
share in the Swingline Loan ratably based upon their respective Percentage
Interests in the Working Capital Commitments. 
In the event of such participations, all interest payable on the
Swingline Loan shall be for the account of the Swingline Lender until the date
on which the participations are required to be purchased and, to the extent
attributable to the purchased participations, shall be payable to the
participants from and after such date. 
At the time any such purchase of participations is actually made, the
purchasing Working Capital Lenders shall pay the Swingline Lender interest on
the principal amount of the participation purchased at the overnight Federal
Funds Rate for each day, commencing with the date the Mandatory Borrowing otherwise
would have occurred, to the date of payment for such participation.


 


2.4.                              Letters of Credit.


 


2.4.1                        Issuance of
Letters of Credit.  Subject
to all the terms and conditions of this Agreement and so long as no Default
exists, from time to time on and after the Amendment and Restatement Date and
prior to the date 90 Banking Days preceding the Working Capital Commitment
Termination Date, the Letter of Credit Issuer will issue for the account of the
Company or, if the Company shall so direct, for the account of any Guarantor
one or more irrevocable documentary or standby letters of credit (the “Letters of Credit”); provided,
that after giving effect to such issuance (i) the Letter of Credit Exposure
(not including Letter of Credit Exposure in respect of the Audit L/C) shall not
be greater than $50,000,000 and (ii) the sum of the Letter of Credit Exposure plus
the Working Capital Loans plus the Swingline Loan shall in no event
exceed the lesser of (a) the Borrowing Base and (b) the aggregate Working
Capital Commitments (whether drawn or undrawn).


 


40

















 


2.4.2                        Requests for
Letters of Credit.  The
Company may from time to time request a Letter of Credit to be issued by
providing to the Letter of Credit Issuer (and the Administrative Agent if the
Letter of Credit Issuer is not the Administrative Agent) a notice which is
actually received not less than two Banking Days prior to the Amendment and Restatement
Date or requested Subsequent Closing Date, as the case may be, for such Letter
of Credit specifying (a) the amount of the requested Letter of Credit, (b) the
beneficiary thereof, (c) the Amendment and Restatement Date or requested
Subsequent Closing Date, as the case may be, and (d) the principal terms of the
text for such Letter of Credit.  Each
Letter of Credit will be issued by forwarding it to the Company or to such
other Person as directed in writing by the Company, with a copy to the Company.  In connection with the issuance of any
Letter of Credit, the Company shall furnish to the Letter of Credit Issuer (and
the Administrative Agent if the Letter of Credit Issuer is not the
Administrative Agent) a certificate in substantially the form of Exhibit
5.2.1 and any customary application forms required by the Letter of Credit
Issuer.  In the event of an
inconsistency between such application form and this Agreement, this Agreement
shall govern.


 


2.4.3                        Form and
Expiration of Letters of Credit. 
Each Letter of Credit issued under this Section 2.4 and each draft
accepted or paid under such a Letter of Credit shall be issued, accepted or
paid, as the case may be, by the Letter of Credit Issuer at its principal office.  No Letter of Credit shall provide for the
payment of drafts drawn thereunder, and no draft shall be payable, at a date
which is later than the earlier of (a) the date 12 months after the date of
issuance and (b) five Banking Days prior to the Working Capital Commitment
Termination Date.  Each Letter of Credit
and each draft accepted under a Letter of Credit shall be in such form as is
generally acceptable in the petroleum industry and to the Administrative Agent
and the Letter of Credit Issuer, shall be in such amount as the Letter of
Credit Issuer and the Company may agree upon at the time such Letter of Credit
is issued and shall include a requirement of not less than three Banking Days
after presentation of a draft before payment must be made thereunder.


 


2.4.4                        Lenders’
Participation in Letters of Credit. 
Upon the issuance of any Letter of Credit, a participation therein, in
an amount equal to each Working Capital Lender’s Percentage Interest, shall
automatically be deemed granted by the Letter of Credit Issuer to each such
Working Capital Lender on the date of such issuance and such Working Capital
Lender shall automatically be obligated, as set forth in Section 12.4, to reimburse
the Letter of Credit Issuer to the extent of their respective Percentage
Interests for all obligations incurred by the Letter of Credit Issuer to third
parties in respect of such Letter of Credit not reimbursed by the Company.  The Letter of Credit Issuer will send to
each Working Capital Lender (and the Administrative Agent if the Letter of
Credit Issuer is not the Administrative Agent) a confirmation regarding the
participations in Letters of Credit outstanding during such month.


 


2.4.5                        Presentation.  The Letter of Credit Issuer may accept or
pay any draft presented to it, regardless of when drawn and whether or not
negotiated, if such draft, the


 


41

















 


other required documents and any transmittal
advice are presented to the Letter of Credit Issuer and dated on or before the
expiration date of the Letter of Credit under which such draft is drawn.  Except insofar as instructions actually
received may be given by the Company in writing expressly to the contrary with
regard to, and prior to, the Letter of Credit Issuer’s issuance of any Letter
of Credit for the account of the Company and such contrary instructions are
reflected in such Letter of Credit, the Letter of Credit Issuer may honor as
complying with the terms of the Letter of Credit and with this Agreement any
drafts or other documents otherwise in order signed, authenticated or issued by
an administrator, executor, conservator, trustee in bankruptcy, debtor in
possession, assignee for benefit of creditors, liquidator, receiver or other
legal representative of the party authorized under such Letter of Credit to
draw or issue such drafts or other documents. 
Within two Banking Days following the presentation of a draft under any
Letter of Credit, the Letter of Credit Issuer shall give notice thereof to the
Company, which notice shall be accompanied by copies of the draft and all
documents presented therewith.


 


2.4.6                        Payment of
Drafts.  At such time as a
Letter of Credit Issuer makes any payment on a draft presented or accepted
under a Letter of Credit, the Company will on demand pay to such Letter of
Credit Issuer in immediately available funds the amount of such payment.  Unless the Company shall otherwise pay to
the Letter of Credit Issuer the amount required by the foregoing sentence, any
such amount paid prior to the Working Capital Commitment Termination Date shall
be considered a loan under Section 2.1.1 and part of the Working Capital
Loans.  So long as no Default shall
exist or be created thereby, the addition of such amount to the Working Capital
Loans pursuant to the preceding sentence shall constitute payment for the
purposes of this Section 2.4.6.


 


2.4.7                        UCP; ISP.  As to any Letter of Credit that is a
documentary letter of credit, the most recent Uniform Customs and Practice for
Documentary Credits adopted by a Congress of the International Chamber of
Commerce and adhered to by the Letter of Credit Issuer (the “UCP”), shall be
binding on the Company and the Letter of Credit Issuer except to the extent
otherwise provided herein, in any Letter of Credit or in any other Credit
Document.  As to any Letter of Credit
that is a standby letter of credit, the most recent International Standby
Practices adopted by a Congress of the International Chamber of Commerce, and
any subsequent revisions thereof approved by a Congress of the International
Chamber of Commerce and adhered to by the Letter of Credit Issuer (the “ISP”), shall be binding
on the Company and the Letter of Credit Issuer except to the extent otherwise
provided herein, in any Letter of Credit or in any other Credit Document.  Without limiting the foregoing, in the event
of an unexpected closure of the Letter of Credit Issuer, Letter of Credit draws
may be made up to only two Banking Days after the reopening of the Letter of
Credit Issuer rather than the 30 day period provided in Rule 3.14(a) of the
ISP.  Anything in the UCP or the ISP to
the contrary notwithstanding, the following shall apply:


 


42

















 


(a)                                  Neither
the Company nor any beneficiary of any Letter of Credit shall be deemed an
agent of any Letter of Credit Issuer.


 


(b)                                 With
respect to each Letter of Credit, neither the Letter of Credit Issuer nor its
correspondents shall be responsible for or shall have any duty to ascertain:


 


(i)                           the
genuineness of any signature;


 


(ii)                        the
validity, form, sufficiency, accuracy, genuineness or legal effect of any
endorsements;


 


(iii)                     delay
in giving, or failure to give, notice of arrival, notice of refusal of
documents or of discrepancies in respect of which any Letter of Credit Issuer
refuses the documents or any other notice, demand or protest;


 


(iv)                    the
performance by any beneficiary under any Letter of Credit of such beneficiary’s
obligations to the Company;


 


(v)                       inaccuracy
in any notice received by the Letter of Credit Issuer;


 


(vi)                    the
validity, form, sufficiency, accuracy, genuineness or legal effect of any
instrument, draft, certificate or other document required by such Letter of
Credit to be presented before payment of a draft, or the office held by or the
authority of any Person signing any of the same; or


 


(vii)                 failure
of any instrument to bear any reference or adequate reference to such Letter of
Credit, or failure of any Person to note the amount of any instrument on the
reverse of such Letter of Credit or to surrender such Letter of Credit on to
forward documents in the manner required by such Letter of Credit.


 


Except insofar as a particular Letter of
Credit contains express, contrary instructions, the Letter of Credit Issuer may
honor as complying with the terms of any Letter of Credit and with this
Agreement any drafts or other documents otherwise in order signed, authenticated
or issued by an administrator, executor, conservator, trustee in bankruptcy,
debtor in possession, assignee for benefit of creditors, liquidator, receiver
or other legal representative of the party authorized under such Letter of
Credit to draw or issue such drafts or other documents.


 


The occurrence of any of the events referred
to in the UCP or the ISP or in the preceding clauses of this Section 2.4.7
shall not affect or prevent the vesting of any of the Letter of Credit Issuer’s
rights or powers hereunder or the Company’s obligation to make


 


43

















 


reimbursement (whether by cash payment or
refinancing with proceeds of the Working Capital Loans) of amounts paid under
any Letter of Credit or any draft accepted thereunder.


 


Upon receipt, the Company will promptly
examine (i) each Letter of Credit (and any amendments thereof) sent to it by
the Letter of Credit Issuer and (ii) all instruments and documents delivered to
it from time to time by the Letter of Credit Issuer.  The Company will notify the Letter of Credit Issuer of any claim
of noncompliance by notice actually received within 36 hours (excluding hours
included in non-Banking Days) after receipt of any of the foregoing documents,
the Company being conclusively deemed to have waived any such claim against
such Letter of Credit Issuer and its correspondents unless such notice is
given.


 


In the event of any conflict between the
provisions of this Agreement and either the UCP or the ISP, the provisions of
this Agreement shall govern.


 


2.4.8                        Subrogation.  Upon any payment by a Letter of Credit
Issuer under any Letter of Credit and until the reimbursement of such Letter of
Credit Issuer by the Company with respect to such payment as provided in
Section 2.4.6, the Letter of Credit Issuer shall be entitled to be subrogated
to, and to acquire and retain, the rights which the Person to whom such payment
is made may have against the Company, all for the benefit of the Lenders.  The Company will take such action as the
Letter of Credit Issuer may reasonably request, including requesting the
beneficiary of any Letter of Credit to execute such documents as the Letter of
Credit Issuer may reasonably request, to assure and confirm to the Letter of
Credit Issuer such subrogation and such rights, including the rights, if any,
of the beneficiary to whom such payment is made in accounts receivable,
inventory and other properties and assets of any Obligor.


 


2.4.9                        Modification,
Consent, etc.  If the Company
requests or consents in writing to any modification or extension of any Letter
of Credit, or waives in writing any failure of any draft, certificate or other
document to comply with the terms of such Letter of Credit, and if the Letter
of Credit Issuer consents thereto, the Letter of Credit Issuer shall be
entitled to rely on such request, consent or waiver.  This Agreement shall be binding upon the Company with respect to
such Letter of Credit as so modified or extended, and with respect to any
action taken or omitted by such Letter of Credit Issuer pursuant to any such
request, consent or waiver.


 


2.5.                              Application of Proceeds.


 


2.5.1                        Working
Capital Loans.  Subject to
Section 2.5.5 and the other provisions of this Agreement, the Company on the
Initial Closing Date has applied no more than $120,000,000 in the proceeds of
Working Capital Loans for the purpose of consummating a portion of the
Transactions, and from and after the Amendment and Restatement Date Working


 


44

















 


Capital Loans shall be used for the purposes
described in the definitions of General Corporate Purposes and Working Capital
Borrowings in Section 1.


 


2.5.2                        [Reserved].


 


2.5.3                        Swingline
Loan.  Subject to Section
2.5.5 and the other provisions of this Agreement, the Company will apply the
proceeds of the Swingline Loan for General Corporate Purposes and Working
Capital Borrowings of the Company and its Subsidiaries.


 


2.5.4                        Letters of
Credit.  Subject to Section
2.5.5 and the other provisions of this Agreement, Letters of Credit shall be
issued only to support purchases of inventory in the ordinary course of
business and such other obligations incurred in the ordinary course of business
as the Company has requested in writing (excluding purposes described in the
definition of General Corporate Purposes); provided that the Letter of Credit issued
on the Initial Closing Date at the request of the Company (the “Audit L/C”) in an
amount equal to $25,000,000 to support the obligations of TransMontaigne
Product Services Inc. under Section 5.11 of the Acquisition Agreement shall not
be deemed to have violated this Section 2.5.4.


 


2.5.5                        Specifically
Prohibited Applications.  The
Company will not, directly or indirectly, apply any part of the proceeds of any
extension of credit made pursuant to the Credit Documents to purchase or to
carry Margin Stock (except the First Reserve Common Stock) or to any
transaction prohibited by the Foreign Trade Regulations, by other Legal Requirements
applicable to the Lenders or by the Credit Documents.


 


2.6.                              Nature of Obligations of Lenders to Make Extensions
of Credit.  The Lenders’
obligations to extend credit under this Agreement are several and are not joint
or joint and several.  Notwithstanding
the foregoing, the obligation to make a Swingline Loan shall be an obligation
solely of the Swingline Lender.  If on
the Amendment and Restatement Date or any Subsequent Closing Date any Lender
shall fail to perform its obligations under this Agreement, the aggregate
amount of Working Capital Commitments to make the extensions of credit under
this Agreement shall be reduced by the amount of unborrowed Working Capital
Commitment of the Lender so failing to perform and the Percentage Interests
shall be appropriately adjusted. 
Lenders that have not failed to perform their obligations to make the
extensions of credit contemplated by Section 2 may, if any such Lender so
desires, assume, in such proportions as such Lenders may agree, the obligations
of any Lender who has so failed and the Percentage Interests shall be
appropriately adjusted.  The provisions
of this Section 2.6 shall not affect the rights of the Company against any
Lender failing to perform its obligations hereunder.


 


2.7.                              Effect
on Original Credit Agreement and
Other Loan Documents.  Upon
the execution and delivery by the parties hereto of this Agreement and the satisfaction
(or waiver) of the conditions set forth in Section 5, (i) this
Agreement shall be deemed to


 


45

















 


amend, restate and supersede the Original
Credit Agreement, except that the grants of security interests and Liens (other
than those security interests and Liens that may be terminated by the operation
of this Agreement) under and pursuant to the Credit Documents shall continue
unaltered and each other Credit Document shall continue in full force and
effect in accordance with its terms and the parties hereto hereby ratify and confirm
the terms thereof as being in full force and effect and unaltered by this
Agreement, (ii) all Credit Obligations under the Original Credit Agreement
and the other Credit Documents shall continue to be outstanding except as
expressly modified by this Agreement and shall be governed in all respects by
this Agreement and the other Credit Documents, it being agreed and understood
that this Agreement does not constitute a novation, satisfaction, payment or
reborrowing of any Credit Obligation under the Original Credit Agreement or any
other Credit Document except as expressly modified by the Agreement, nor does
it operate as a waiver of any right, power or remedy of any Lender under any
Credit Document (other than the Original Credit Agreement) and (iii) all
references to the Original Credit Agreement in any Credit Document or other document
or instrument delivered in connection therewith shall be deemed to refer to
this Agreement and the provisions hereof.


 


3.                                       Interest; Eurodollar Pricing Options; Fees.


 


3.1.                              Interest.  The
Loans shall accrue and bear interest at a rate per annum which shall at all
times equal the Applicable Rate.  Prior
to any stated or accelerated maturity of the Loans, the Company will, on each
Payment Date, pay the accrued and unpaid interest on each Loan which was not
subject to a Eurodollar Pricing Option. 
On the last day of each Eurodollar Interest Period or on any earlier
termination of any Eurodollar Pricing Option, the Company will pay the accrued
and unpaid interest on each Loan which was subject to the Eurodollar Pricing
Option which expired or terminated on such date.  In the case of any Eurodollar Interest Period longer than three
months, the Company will also pay the accrued and unpaid interest on the
portion of the Loans subject to the Eurodollar Pricing Option having such
Eurodollar Interest Period at three-month intervals, the first such payment to
be made on the last Banking Day of the three-month period which begins on the
first day of such Eurodollar Interest Period. 
On the stated or any accelerated maturity of any Loan, the Company will
pay all accrued and unpaid interest on the such Loan, including any accrued and
unpaid interest on any Loan which is subject to a Eurodollar Pricing
Option.  The Swingline Loan shall accrue
and bear interest at a rate per annum which shall at all times equal the
Swingline Rate.  Interest on the Swingline
Loan shall be calculated on a daily basis and on the basis of a year of 360
days.  Prior to any stated or accelerated
maturity of the Swingline Loan, the Company will on each Wednesday, beginning
on the first Wednesday after the Amendment and Restatement Date, pay the
accrued and unpaid interest, if any, on such Indebtedness.  On any stated or accelerated maturity of the
Swingline Loan all accrued and unpaid interest thereon shall be forthwith due
and payable.  All payments of interest
hereunder in respect of the Swingline Loan shall be made by the Company to the
Administrative Agent for the account of the Swingline Lender.  In addition, the Company will on demand pay
interest on any overdue


 


46

















 


installments of principal and, to the extent
not prohibited by applicable law, on any overdue installments of interest, fees
and any other overdue amounts owed under any Credit Document at a rate per
annum equal to the sum of 2% plus the highest Applicable Rate then in effect
or at a rate per annum equal to the sum of 2% plus the Swingline Rate then
in effect in the case of overdue installments of principal and interest with
respect to a Swingline Loan (the “Overdue Rate”). 
Upon the occurrence and during the continuance of an Event of Default,
the Required Lenders may require accrued interest to be payable on demand or at
regular intervals more frequent than each Payment Date.  All payments of interest hereunder shall be
made to the Administrative Agent for the account of each Lender in accordance
with such Lender’s Percentage Interest.


 


3.2.                              Eurodollar Pricing Options.


 


3.2.1                        Election of
Eurodollar Pricing Options. 
Subject to all of the terms and conditions hereof and so long as no
Default exists, the Company may from time to time, by irrevocable notice to the
Administrative Agent actually received by noon (New York City time) not less
than three Banking Days prior to the commencement of the Eurodollar Interest
Period selected in such notice, elect to have any Loan (excluding the Swingline
Loan) specified by the Company in such notice accrue and bear interest during
the Eurodollar Interest Period so selected at the Applicable Rate computed on
the basis of the Eurodollar Rate.  In
the event the Company at any time does not elect a Eurodollar Pricing Option
under this Section 3.2.1 for any Loan (upon termination of a Eurodollar Pricing
Option or otherwise), then such Loan will accrue and bear interest at the
Applicable Rate based on the Base Rate. 
No such election shall become effective


 


(a)                                  if,
prior to the commencement of any such Eurodollar Interest Period, the
Administrative Agent determines that (i) the electing or granting of the
Eurodollar Pricing Option in question would violate a Legal Requirement, (ii)
Eurodollar deposits in an amount comparable to the principal amount of the Loan
as to which such Eurodollar Pricing Option has been elected and which have a
term corresponding to the proposed Eurodollar Interest Period are not readily
available in the inter–bank Eurodollar market, or (iii) by reason of
circumstances affecting the inter-bank Eurodollar market, adequate and
reasonable methods do not exist for ascertaining the interest rate applicable
to such deposits for the proposed Eurodollar Interest Period; or


 


(b)                                 if
any Lender shall have advised the Administrative Agent by telephone or
otherwise at or prior to noon (New York City time) on the second Banking Day
prior to the commencement of such proposed Eurodollar Interest Period (and
shall have subsequently confirmed in writing) that, after reasonable efforts to
determine the availability of such Eurodollar deposits, such Lender reasonably
anticipates that Eurodollar deposits in an amount equal to the Percentage
Interest of such Lender’s Loan as to which such Eurodollar Pricing Option has
been elected and which have a term


 


47

















 


corresponding
to the Eurodollar Interest Period in question will not be offered in the
Eurodollar market to such Lender.


 


3.2.2                        Notice to
Lenders and Company.  The
Administrative Agent will promptly inform each Lender (by telephone or
otherwise) of each notice received by it from the Company pursuant to Section
3.2.1 and of the Eurodollar Interest Period specified in such notice.  Upon determination by the Administrative
Agent of the Eurodollar Rate for such Eurodollar Interest Period or in the
event such election shall not become effective, the Administrative Agent will
promptly notify the Company and each Lender (by telephone or otherwise) of the
Eurodollar Rate so determined or why such election did not become effective, as
the case may be.


 


3.2.3                        Election of
Eurodollar Interest Periods. 
Eurodollar Interest Periods shall be selected so that


 


(a)                                  the
minimum principal amount of any Loan subject to any Eurodollar Pricing Option
shall be $1,000,000 and an integral multiple of $500,000;


 


(b)                                 no
more than eight Eurodollar Pricing Options shall be outstanding at any one
time; and


 


(c)                                  no
Eurodollar Interest Period with respect to any Loan subject to a Eurodollar
Pricing Option shall expire later than the Working Capital Commitment
Termination Date.


 


3.2.4                        Additional
Interest.  If any Loan
subject to a Eurodollar Pricing Option is repaid, or any Eurodollar Pricing
Option is terminated for any reason (including without limitation any
requirement hereunder that such Loan be prepaid or any acceleration of the
maturity of such Loan), on a date which is prior to the last Banking Day of the
Eurodollar Interest Period applicable to such Eurodollar Pricing Option, the
Company will pay to the Administrative Agent for the account of each Lender in
accordance with such Lender’s Percentage Interest in addition to any amounts of
interest otherwise payable hereunder, an amount equal to the present value
(calculated in accordance with this Section 3.2.4) of interest for the
unexpired portion of such Eurodollar Interest Period on the portion of such
Loan so repaid, or as to which a Eurodollar Pricing Option was so terminated,
at a per annum rate equal to the excess, if any, of (a) the rate applicable to
such Eurodollar Pricing Option minus (b) the lowest rate of interest
obtainable by the Administrative Agent upon the purchase of debt securities
customarily issued by the Treasury of the United States of America which have a
maturity date approximating the last Banking Day of such Eurodollar Interest
Period.  The present value of such
additional interest shall be calculated by discounting the amount of such
interest for each day in the unexpired portion of such Eurodollar Interest Period
from such day to the date of such repayment or termination at a per annum
interest rate equal to the interest rate determined pursuant to clause (b) of
the preceding sentence, and by adding all such amounts


 


48

















 


for all such days during such period.  The determination by the Administrative
Agent of such amount of interest shall, in the absence of demonstrable error,
be conclusive.  For purposes of this Section
3.2.4, if any portion of the Loan which was to have been subject to a
Eurodollar Pricing Option is not outstanding on the first day of the Eurodollar
Interest Period applicable to such Eurodollar Pricing Option other than for
reasons described in Section 3.2.1, the Company shall be deemed to have
terminated such Eurodollar Pricing Option with respect to such Loan.


 


3.2.5                        Violation of
Legal Requirements.  If any
Legal Requirement shall prevent any Lender from funding or maintaining through
the purchase of deposits in the interbank Eurodollar market any Loan subject to
a Eurodollar Pricing Option or otherwise from giving effect to such Lender’s
obligations as contemplated by Section 3.2, (a) the Administrative Agent may by
notice to the Company describing such Legal Requirement terminate all of the
affected Eurodollar Pricing Options, (b) such Loan so subject to such
terminated Eurodollar Pricing Options shall immediately bear interest
thereafter at the Applicable Rate computed on the basis of the Base Rate and
(c) the Company shall make any payment required by Section 3.2.4.


 


3.2.6                        Funding
Procedure.  The Lenders may
fund any Loan subject to a Eurodollar Pricing Option out of any funds available
to the Lenders.  Regardless of the
source of the funds actually used by any of the Lenders to fund any Loan
subject to a Eurodollar Pricing Option, however, all amounts payable hereunder,
including the interest rate applicable to such Loan and the amounts payable
under Sections 3.2.4, 3.5, 3.6, 3.7 and 3.8, shall be computed as if each
Lender had actually funded such Loan through the purchase of deposits in such
amount of the type by which the Eurodollar Basic Rate was determined with a
maturity the same as the applicable Eurodollar Interest Period relating thereto
and through the transfer of such deposits from an office of the Lender having
the same location as the applicable Eurodollar Office to one of such Lender’s
offices in the United States of America.


 


3.3.                              Commitment Fees. 
In consideration of the Working Capital Lenders’ commitments to make the
extensions of credit provided for in Section 2.1, while such commitments are
outstanding, the Company will pay to the Administrative Agent for the account
of the Working Capital Lenders in accordance with the Working Capital Lenders’
respective Percentage Interests, on each Payment Date and on the Working
Capital Commitment Termination Date, an amount equal to interest computed at
the Commitment Fee Rate on the amount by which (a) the average aggregate
Working Capital Commitments (whether drawn or undrawn) during the quarter or
portion thereof ending on such Payment Date or, as the case may be, the Working
Capital Commitment Termination Date, exceeded (b) the sum of (i) the average
principal amount of the Working Capital Loans during such period or portion
thereof plus
(ii) the daily Letter of Credit Exposure during such period or portion thereof plus
(iii) the daily Swingline Loan during such period or portion thereof; provided,
however, that the first


 


49

















 


such payment shall be for the period
beginning on the Amendment and Restatement Date and ending on the first Payment
Date..


 


3.4.                              Letter of Credit Fees.  The
Company will pay to the Administrative Agent for the account of each of the
Working Capital Lenders, in accordance with the Working Capital Lenders’
respective Percentage Interests in the Working Capital Commitments, on each
Payment Date and on the Working Capital Commitment Termination Date, a Letter
of Credit fee equal to interest at a rate per annum equal to the Letter of
Credit Fee Rate on the average daily Letter of Credit Exposure during the
quarter or portion thereof ending on such Payment Date or, as the case may be,
the Working Capital Commitment Termination Date; provided, that if any Letter
of Credit or any extension of a Letter of Credit would produce a fee hereunder
that is less than $250 during the term of such Letter of Credit or extension,
the fee owing to the Lenders hereunder with respect to such Letter of Credit or
extension shall be $250.  The Company
also will pay to the Letter of Credit Issuer (i) on the date of issuance of
each Letter of Credit an issuance fee of $150 with respect to such Letter of
Credit, (ii) on each Payment Date and on the Working Capital Commitment
Termination Date, an additional Letter of Credit fee equal to interest at the
rate of one-eighth of one percent (1/8%) per annum on the average daily Letter
of Credit Exposure during the quarter or portion thereof ending on such Payment
Date or, as the case may be, the Working Capital Commitment Termination Date
and (iii) as invoiced, other customary service charges and expenses for the
services of the Letter of Credit Issuer in connection with the Letters of
Credit at the times and in the amounts from time to time in effect in
accordance with its general rate structure, including fees and expenses
relating to issuance, amendment, negotiation, cancellation and similar operations.


 


3.5.                              Reserve Requirements, etc.  If any Legal Requirement shall (a) impose,
modify, increase or deem applicable any insurance assessment, reserve, special
deposit or similar requirement against any Funding Liability or the Letters of
Credit, (b) impose, modify, increase or deem applicable any other requirement
or condition with respect to any Funding Liability or the Letters of Credit, or
(c) change the basis of taxation of Funding Liabilities or payments in respect
of any Letter of Credit (other than changes in the rate of taxes measured by
the overall net income of such Lender) and the effect of any of the foregoing
shall be to increase the cost to any Lender of issuing, making, funding or
maintaining its respective Percentage Interest in the Loans or Working Capital
Commitments subject to a Eurodollar Pricing Option or any Letter of Credit, to
reduce the amounts received or receivable by such Lender under this Agreement
or to require such Lender to make any payment or forego any amounts otherwise
payable to such Lender under this Agreement, then, within 15 days after the
receipt by the Company of a certificate from such Lender setting forth why it
is claiming compensation under this Section 3.5 and computations (in reasonable
detail) of the amount thereof, the Company shall pay to the Administrative
Agent for the account of such Lender such additional amounts as are specified
by such Lender in such certificate as sufficient to compensate such Lender for
such increased cost or such reduction, together with interest at


 


50

















 


the Overdue Rate on such amount from the 15th
day after receipt of such certificate until payment in full thereof; provided,
however,
that the foregoing provisions shall not apply to any Tax or to any reserves
which are included in computing the Eurodollar Reserve Rate.  The determination by such Lender of the
amount of such costs shall, in the absence of demonstrable error, be
conclusive.  The Company shall be
entitled to replace any such Lender in accordance with Section 13.3.


 


3.6.                              Taxes.  All payments of the Credit Obligations shall
be made without set-off or counterclaim and free and clear of any deductions,
including deductions for Taxes, unless the Company is required by law to make
such deductions.  If (a) any Lender
shall be subject to any Tax with respect to any payment of the Credit
Obligations or its obligations hereunder or (b) the Company shall be required
to withhold or deduct any Tax on any payment on the Credit Obligations, within
15 days after the receipt by the Company of a certificate from such Lender
setting forth why it is claiming compensation under this Section 3.6 and
computations (in reasonable detail) of the amount thereof, the Company shall
pay to the Administrative Agent for such Lender’s account such additional
amount as is necessary to enable such Lender to receive the amount of Tax so
imposed on the Lender’s obligations hereunder or the full amount of all
payments which it would have received on the Credit Obligations (including
amounts required to be paid under Sections 3.5, 3.7, 3.8 and this Section 3.6)
in the absence of such Tax, as the case may be, together with interest at the
Overdue Rate on such amount from the 15th day after receipt of such certificate
until payment in full thereof.  Whenever
Taxes must be withheld by the Company with respect to any payments of the
Credit Obligations, the Company shall promptly furnish to the Administrative
Agent for the account of the applicable Lender official receipts (to the extent
that the relevant governmental authority delivers such receipts) evidencing payment
of any such Taxes so withheld.  If the
Company fails to pay any such Taxes when due or fails to remit to the
Administrative Agent for the account of the applicable Lender the required
receipts evidencing payment of any such Taxes so withheld or deducted, the
Company shall indemnify the affected Lender for any incremental Taxes and
interest or penalties that may become payable by such Lender as a result of any
such failure.  The determination by such
Lender of the amount of such Tax and the basis therefor shall, in the absence
of demonstrable error, be conclusive. 
The Company shall be entitled to replace any such Lender in accordance
with Section 13.3.


 


3.7.                              Capital Adequacy.  If any Lender shall determine that
compliance by such Lender with any Legal Requirement regarding capital adequacy
of banks or bank holding companies has or would have the effect of reducing the
rate of return on such Lender’s capital as a consequence of such Lender’s
commitment to make the extensions of credit contemplated hereby, or such
Lender’s maintenance of the extensions of credit contemplated hereby, to a
level below that which such Lender could have achieved but for such compliance
(taking into consideration such Lender’s policies with respect to capital
adequacy immediately before such compliance and assuming that such Lender’s
capital was fully utilized prior to such compliance) by an amount deemed by
such Lender to be material, then, within 15


 


51

















 


days after the
receipt by the Company of a certificate from such Lender setting forth why it
is claiming compensation under this Section 3.7 and computations (in reasonable
detail) of the amount thereof, the Company shall pay to the Administrative
Agent for the account of such Lender such additional amounts as shall be
sufficient to compensate such Lender for such reduced return, together with
interest at the Overdue Rate on each such amount from the 15th day after
receipt of such certificate until payment in full thereof.  The determination by such Lender of the
amount to be paid to it and the basis for computation thereof shall, in the
absence of demonstrable error, be conclusive. 
In determining such amount, such Lender may use any reasonable
averaging, allocation and attribution methods. 
The Company shall be entitled to replace any such Lender in accordance
with Section 13.3.


 


3.8.                              Regulatory Changes.  If any Lender shall determine that (a) any
change in any Legal Requirement (including any new Legal Requirement) after the
date hereof shall directly or indirectly (i) reduce the amount of any sum
received or receivable by such Lender with respect to the Loan or the Letters
of Credit or the return to be earned by such Lender on the Loan or the Letters
of Credit, (ii) impose a cost on such Lender or any Affiliate of such Lender
that is attributable to the making or maintaining of, or such Lender’s
commitment to make, its portion of the Loan or the Letters of Credit, or (iii)
require such Lender or any Affiliate of such Lender to make any payment on, or
calculated by reference to, the gross amount of any amount received by such
Lender under any Credit Document, and (b) such reduction, increased cost or payment
shall not be fully compensated for by an adjustment in the Applicable Rate or
the Letter of Credit fees, then, within 15 days after the receipt by the
Company of a certificate from such Lender setting forth why it is claiming
compensation under this Section 3.8 and computations (in reasonable detail) of
the amount thereof, the Company shall pay to such Lender such additional
amounts as such Lender determines will, together with any adjustment in the Applicable
Rate, fully compensate for such reduction, increased cost or payment, together
with interest on such amount from the 15th day after receipt of such certificate
until payment in full thereof at the Overdue Rate.  The determination by such Lender of the amount to be paid to it
and the basis for computation thereof hereunder shall, in the absence of
demonstrable error, be conclusive.  In
determining such amount, such Lender may use any reasonable averaging and
attribution methods.  The Company shall
be entitled to replace any such Lender in accordance with Section 13.3.


 


3.9.                              Computations of Interest and Fees.  For purposes of this Agreement, interest,
commitment fees and Letter of Credit fees (and any other amount expressed as
interest or such fees) shall be computed on the basis of a 360–day year for
actual days elapsed; provided, however, that interest with
respect to each portion of the Loans that are not subject to a Eurodollar
Pricing Option shall be calculated on the basis of a 365-day year for actual
days elapsed.  If any payment required
by this Agreement becomes due on any day that is not a Banking Day, such
payment shall, except as otherwise provided in the definition of “Eurodollar
Interest Period”, be made on the next succeeding Banking Day.  If the due date for any payment of principal
is extended as a result of the immediately preceding sentence, interest


 


52

















 


shall be payable for the time during which
payment is extended at the Applicable Rate or, in the case of principal of the
Swingline Loan, at the Swingline Rate.


 


4.                                       Payment.


 


4.1.                              Payment at Maturity.  On the Working Capital Commitment
Termination Date and on any accelerated maturity of any Loan, the Company will
pay to the Administrative Agent for the account of the Lenders an amount equal
to such Loan then due, together with all accrued and unpaid interest thereon
and all other Credit Obligations then outstanding.


 


4.2.                              Prepayments and Reductions.


 


4.2.1                        Excess
Credit Exposure.  If at any
time the sum of the aggregate principal amount of the Working Capital Loans plus
the aggregate principal amount of the Swingline Loans plus the Letter of Credit
Exposure exceeds the lesser of (a) the Borrowing Base and (b) the
aggregate of Working Capital Commitments (whether drawn or undrawn) of all the
Lenders, the Company will within three Banking Days pay the amount of such excess
to the Swingline Lender as a prepayment of the Swingline Loan.  If after prepayment of the Swingline Loan
there is any such excess amount remaining, the Company will immediately pay the
amount of such excess to the Administrative Agent as a prepayment of the
Working Capital Loans.  If after
prepayment of the Working Capital Loans there is any such excess amount still
remaining, the Company will deposit with the Administrative Agent an amount of
cash equal to such excess to collateralize outstanding Letters of Credit.  If at any time the Swingline Loans exceed
$35,000,000, the Company will within three Banking Days pay the amount of such
excess to the Swingline Lender.


 


4.2.2                        [Reserved].


 


4.2.3                        Letter of
Credit Exposure.  If at any
time the Letter of Credit Exposure exceeds the limits set forth in Section 2.4,
the Company will promptly pay the amount of such excess to the Administrative
Agent for the account of the Working Capital Lenders to be applied as provided
in Section 4.4.


 


4.2.4                        Asset Sales.  Not later than five Banking Days following
the receipt of any Net Cash Proceeds in excess of $500,000 from any Asset Sale,
the Company shall apply 100% of the Net Cash Proceeds received with respect
thereto to prepay the Swingline Loan and Working Capital Loans in accordance
with Section 4.4.2; provided that no such prepayment shall be
required with respect to (a) any Asset Sale permitted by Section 6.11.1(a), (b)
the disposition of assets subject to a condemnation or eminent domain
proceeding or insurance settlement to the extent it does not constitute a
Casualty Event or (c) any Net Cash Proceeds from Asset Sales permitted under
clause (b) or (c) of Section 6.11.1, in each case so long as
(1) no Default or Event of Default shall then exist or would arise therefrom
and (2) the Net Cash Proceeds therefrom are used within 180 days following the
date of such Asset Sale


 


53

















 


to purchase replacement assets
and the Company shall have delivered an Officers’ Certificate to the
Administrative Agent on or prior to such fifth Banking Day confirming that such
Net Cash Proceeds shall be so used; provided that if the property that was the
subject of such Asset Sale constituted Pledged Collateral, then all property
purchased with the Net Cash Proceeds thereof pursuant to this paragraph shall
be made subject to the Lien of the applicable Security Document(s) in favor of
the Collateral Agent, for its benefit and the benefit of the Secured Parties; provided
further that if such purchase is not consummated within such 180-day
period, 100% of such Net Cash Proceeds shall immediately be applied to prepay
the Swingline Loan and Working Capital Loans in accordance with Section
4.4.2.  In the event the amount of Net
Cash Proceeds to be applied to the prepayment of the Swingline Loan and the
Working Capital Loans exceeds the sum of the then outstanding Swingline Loan
plus the Working Capital Loans, the Company may use such excess in any manner
not prohibited by the Credit Documents.


 


4.2.5                        Casualty
Events.  Not later
than five Banking Days following the receipt of any Net Cash Proceeds from a
Casualty Event, the Company shall apply an amount equal to 100% of such Net
Cash Proceeds to prepay the Swingline Loan and Working Capital Loans in accordance with
Section 4.4.2; provided that so long as no Default shall
then exist or arise therefrom, such Net Cash Proceeds shall not be required to
be so applied on such date to the extent that the Company shall have delivered
an Officers’ Certificate to the Administrative Agent on or prior to such date
confirming that such Net Cash Proceeds shall be used to repair, replace or
restore any property in respect of which such Net Cash Proceeds were paid no
later than 180 days following the date of receipt of such proceeds (which
Officers’ Certificate shall set forth the estimates of the proceeds to be so
expended); provided
that if the property subject to such Casualty Event constituted Pledged
Collateral under any Security Document, then all property purchased with the
Net Cash Proceeds thereof pursuant to this subsection shall be made subject to
the Lien of the applicable Security Document in favor of the Collateral Agent,
for its benefit and for the benefit of the Secured Parties thereunder; provided,
further that if such Net Cash Proceeds are not used to so repair,
restore or replace such property within such 180-day period, 100% of such Net
Cash Proceeds shall immediately be applied to prepay the Swingline Loan and Working
Capital Loans in accordance with Section 4.4.2.  In the event the amount of Net Cash Proceeds
to be applied to the prepayment of the Swingline Loan and the Working Capital
Loans exceeds the sum of the then outstanding Swingline Loan plus the Working
Capital Loans, the Company may use such excess in any manner not prohibited by
the Credit Documents.


 


4.2.6                        Voluntary
Prepayments.  In addition to
the prepayments required by Section 4.2, the Company may from time to time
prepay all or any portion of any Loan or permanently terminate all or any
portion of a Working Capital Commitment (in each case in a minimum amount of
$1,000,000 and an integral multiple of $500,000).  Any such prepayments of Loans or reductions in commitments shall
be without premium or penalty of any type (except as provided in Section 3.2.4
with respect to the early termination of Eurodollar


 


54

















 


Pricing Options).  The Company shall give the Administrative
Agent at least three Banking Days prior notice of its intention to prepay or
terminate, as the case may be, specifying the date of payment or commitment
termination, as the case may be, the total amount of the Loans to be paid or
Working Capital Commitments to be terminated, as the case may be, on such date
and, in the case of a prepayment of a Loan, the amount of interest to be paid
with such prepayment.  At any time or
from time to time upon telephone notice to the Swingline Lender, given not
later than 3:00 p.m. (New York City time) on any Banking Day, the Company shall
have the right to prepay, without premium or penalty of any type, all or any
part of the outstanding principal amount of its Swingline Loan in such amounts
as are not less than $100,000 and in integral multiples of $50,000, unless such
payment is equal to the entire outstanding principal amount of the Swingline
Loan.


 


4.3.                              Letters of Credit.  If on the stated or any accelerated maturity
of the Credit Obligations the Lenders shall be obligated to honor a drawing in
respect of a Letter of Credit or a draft accepted under a Letter of Credit, the
Company will either


 


(a)                                  prepay
such obligation by depositing with the Administrative Agent an amount of cash,
or


 


(b)                                 deliver
to the Administrative Agent a standby letter of credit (designating the
Administrative Agent as beneficiary and issued by a bank and on terms reasonably
acceptable to the Administrative Agent),


 


in each case
in an amount equal to the portion of the then Letter of Credit Exposure issued
for the account of the Company.  Any
such cash so deposited and the cash proceeds of any draw under any standby
letter of credit so furnished, including any interest thereon, shall be returned
by the Administrative Agent to the Company only when, and to the extent that,
the amount of such cash held by the Administrative Agent exceeds the Letter of
Credit Exposure at a time when no Default exists; provided, however,
that if an Event of Default occurs and the Credit Obligations become or are
declared immediately due and payable, the Administrative Agent may apply such
cash, including any interest thereon, to the payment of any of the Credit
Obligations.


 


4.4.                              Reborrowing; Application of Payments, etc.


 


4.4.1                        Reborrowing.  The amounts of the Working Capital Loans
prepaid pursuant to Section 4.2 or 4.3 may be reborrowed from time to time
prior to the Working Capital Commitment Termination Date in accordance with
Section 2.1, subject to the limits set forth therein.  The amounts of the Swingline Loan prepaid pursuant to Section
4.2.1 or 4.3 may be reborrowed from time to time prior to the Working Capital
Commitment Termination Date in accordance with Section 2.3, subject to the
limits set forth therein.  For the
avoidance of doubt, it is agreed that any prepayments of the Swingline Loan or
any Working Capital Loan required by Section 4.2.4 or Section 4.2.5 shall not
constitute a reduction in the Working


 


55

















 


Capital Commitments and that
any amount so prepaid or collateralized may, subject to compliance with the
other terms hereof (including, without limitation, Section 5.2), be reborrowed.


 


4.4.2                        Order of
Application.  Any prepayment
of the Loans shall be applied first to the portion thereof not then subject to
Eurodollar Pricing Options, then the balance of any such prepayment shall be
applied to the portion thereof then subject to Eurodollar Pricing Options, in
the chronological order of the respective maturities thereof, together with any
payments required by Section 3.2.4.  Net
Cash Proceeds that are required by Section 4.2.4 or Section 4.2.5 to be used
for prepayment of the Loans shall be applied first as a prepayment of the
Swingline Loan.  If after prepayment of
the Swingline Loan there is any such Net Cash Proceeds remaining, the Company
will immediately pay the amount of such excess to the Administrative Agent as a
prepayment of the Working Capital Loans. 
If any prepayment of the Swingline Loan or Working Capital Loans would
result in the Company being liable for payment under Section 3.2.4, then, so
long as the Net Cash Proceeds that are to be applied to such prepayment held in
an account subject to a Control Agreement, 
such prepayment may be deferred until the first time that such
prepayment would not result in the Company becoming so liable,


 


4.4.3                        Payments for
Lenders.  All payments of
principal hereunder shall be made to the Administrative Agent for the account
of the Lenders in accordance with the Lenders’ respective Percentage Interests.


 


5.                                       Conditions to Effectiveness of this Agreement and to
Extending Credit.


 


5.1.                              Conditions on Amendment and Restatement Date.  The effectiveness of this First Amended and
Restated Credit Agreement (and the occurrence of the Amendment and Restatement
Date) shall be subject to the satisfaction of the following conditions:


 


5.1.1                        Payment of
Fees.  The Company shall have
paid to the Administrative Agent the fees and disbursements of Cahill Gordon
& Reindel llp, the
Administrative Agent’s special counsel and other costs and expenses of the
Administrative Agent for which statements have been rendered on or prior to the
Amendment and Restatement Date.


 


5.1.2                        Order,
Injunction or Litigation. 
There has been no order, injunction or other pending litigation, which
in the sole judgment of the Administrative Agent, causes a reasonable
possibility of a decision which could materially adversely affect the ability
of the Company or its Subsidiaries to perform under the Credit Documents or
affect the Administrative Agent’s rights under the Credit Documents or its
ability to exercise such rights.


 


5.1.3                        Consent of
Lenders.  The Administrative
Agent shall have received executed signatures pages to this Agreement from UBS
AG, Cayman Islands Branch and


 


56

















 


from at least that number of
Lenders which comprise the Required Lenders under the Original Credit
Agreement.


 


5.1.4                        Collateral
Filings.  The Administrative
Agent shall have received financing statements (or amendments thereof) and
other instruments necessary to perfect the Liens created by the Security Documents.


 


5.1.5                        Company
Representations and Warranties; No Default; No Material Adverse Change.  The representations and warranties contained
in Section 7 shall be true and correct on and as of the Amendment and
Restatement Date, with the same force and effect as though made on and as of
such date (except as to any representation or warranty which refers to a
specific earlier date); provided, that the information contained
in Exhibits 7.1, 7.3 and 7.15 shall be correct as most
recently supplemented, including any supplements thereto noted in the
certificate provided under this Section 5.1.5; no Default shall exist on the
Amendment and Restatement Date prior to or immediately after giving effect to
any extension of credit made on the Amendment and Restatement Date; and no
Material Adverse Change shall have occurred since June 30, 2002 and be continuing
on the Amendment and Restatement Date.


 


5.1.6                        Proper
Proceedings.  This Agreement,
each other Credit Document and the transactions contemplated hereby and thereby
shall have been authorized by all necessary corporate or other
proceedings.  All necessary consents,
approvals and authorizations of any governmental or administrative agency or
any other Person of any of the transactions contemplated hereby or by any other
Credit Document shall have been obtained and shall be in full force and effect.


 


5.1.7                        General.  All legal and corporate proceedings in
connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to the Administrative Agent; and the
Administrative Agent shall have received copies of all documents, including
certified copies of the Charter and By-Laws of the Company and the other Obligors,
records of corporate proceedings and certificates as to signatures and incumbency
of officers, which the Administrative Agent may have reasonably requested in
connection therewith, such documents where appropriate to be certified by
proper corporate or governmental authorities.


 


5.2.                              Conditions to Each Extension of Credit.  The obligations of the Lenders to make any
extension of credit pursuant to Section 2 (which, for the avoidance of any
doubt, shall not include any pricing election under Section 3.2.1 with respect
to any portion of the Loan that is already outstanding) shall be subject to the
satisfaction, on or before the Amendment and Restatement Date or Subsequent
Closing Date, as the case may be, for such extension of credit, of the following
conditions:


 


5.2.1                        Company
Representations and Warranties; No Default; No Material Adverse Change.  The representations and warranties contained
in Section 7 shall be true and


 


57

















 


correct on and as of the
Amendment and Restatement Date or Subsequent Closing Date, as the case may be,
with the same force and effect as though made on and as of such date (except as
to any representation or warranty which refers to a specific earlier date); provided,
that the information contained in Exhibits 7.1, 7.3 and 7.15
shall be correct as most recently supplemented, including any supplements
thereto noted in the certificate provided under this Section 5.2.1; no Default
shall exist on the Amendment and Restatement Date or Subsequent Closing Date,
as the case may be, prior to or immediately after giving effect to the
requested extension of credit; no Material Adverse Change shall have occurred
since June 30, 2002 and be continuing on the Amendment and Restatement Date or
the Subsequent Closing Date, as the case may be; and the Company shall have
furnished to the Administrative Agent in connection with the requested extension
of credit a certificate to these effects, in substantially the form of Exhibit
5.2.1, signed or authenticated by a Financial Officer.


 


5.2.2                        Proper
Proceedings.  This Agreement,
each other Credit Document and the transactions contemplated hereby and thereby
shall have been authorized by all necessary corporate or other
proceedings.  All necessary consents,
approvals and authorizations of any governmental or administrative agency or any
other Person of any of the transactions contemplated hereby or by any other
Credit Document shall have been obtained and shall be in full force and effect.


 


5.2.3                        Legality,
etc.  The making of the
requested extension of credit shall not (a) subject any Lender to any penalty
or special tax (other than a Tax for which the Company is required to reimburse
the Lenders under Section 3.6), (b) be prohibited by any Legal Requirement or
(c) violate any credit restraint program of the executive branch of the government
of the United States of America, the Board of Governors of the Federal Reserve
System or any other governmental or administrative agency so long as any Lender
reasonably believes that compliance therewith is in the best interests of such
Lender.


 


5.2.4                        General.  All legal and corporate proceedings in
connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to the Administrative Agent; and the
Administrative Agent shall have received copies of all documents, including
certified copies of the Charter and By-Laws of the Company and the other Obligors,
records of corporate proceedings, certificates as to signatures and incumbency
of officers and opinions of counsel, which the Administrative Agent may have reasonably
requested in connection therewith, such documents where appropriate to be
certified by proper corporate or governmental authorities.


 


6.                                       General  Covenants.  Each of the Company and the Guarantors
covenants that, until, unless specified otherwise, all of the Credit Obligations
shall have been paid in full and until the Lenders’ commitments to extend
credit under this Agreement and any other Credit Document shall have been
irrevocably terminated, the Company and its Subsidiaries will comply with the
following provisions:


 


58

















 


6.1.                              Taxes and Other Charges; Accounts Payable.


 


6.1.1                        Taxes and
Other Charges.  Each of the
Company and its Subsidiaries shall duly pay and discharge, or cause to be paid
and discharged, before the same becomes in arrears, all material taxes,
assessments and other governmental charges imposed upon such Person and its
properties, sales or activities, or upon the income or profits therefrom, as
well as all claims for labor, materials or supplies which if unpaid might by
law become a Lien upon any of its property; provided, however, that any such tax,
assessment, charge or claim need not be paid if the validity or amount thereof
shall at the time be contested in good faith by appropriate proceedings and if
such Person shall have set aside on its books adequate reserves with respect
thereto to the extent required by GAAP; and provided, further, that each of the
Company and its Subsidiaries shall pay or bond, or cause to be paid or bonded,
all such taxes, assessments, charges or other governmental claims immediately
upon the commencement of proceedings to foreclose any Lien which may have
attached as security therefor (except to the extent such proceedings have been
dismissed or stayed).


 


6.1.2                        Accounts
Payable.  Each of the Company
and its Subsidiaries shall promptly pay when due, or in conformity with
customary trade terms, all accounts payable incident to the operations of such
Person not referred to in Section 6.1.1; provided, however, that any such
accounts payable need not be paid if the validity or amount thereof shall at
the time be contested in good faith and if such Person shall have set aside on
its books adequate reserves with respect thereto to the extent required by
GAAP.


 


6.2.                              Conduct of Business, etc.


 


6.2.1                        Types of
Business.  The Company and
its Subsidiaries shall engage principally in the business of (a) providing
transportation, terminaling and storage services for petroleum products and the
distribution, purchase and/or sale of petroleum products, chemicals and other
bulk liquids, (b) natural gas gathering, processing, transmission and
marketing, (c) crude oil gathering, processing, transportation and marketing,
and (d) other activities related thereto. 
The Company and its Subsidiaries may engage in businesses other than
those described in the preceding sentence, provided that the gross revenues of such
other businesses in any fiscal year of the Company shall not exceed 10% of the
Consolidated gross revenues of the Company and its Subsidiaries.


 


6.2.2                        Maintenance
of Properties.  Each of the
Company and its Subsidiaries


 


(a)                                  shall
keep its properties in such repair, working order and condition, and shall from
time to time make such repairs, replacements, additions and improvements
thereto as are necessary for the efficient operation of its businesses and
shall comply at all times in all material respects with all material
franchises, licenses and leases to which it is party so as to prevent any loss
or forfeiture thereof or thereunder, except where (i) compliance is at the time
being contested in good faith by appropriate


 


59

















 


proceedings
and (ii) failure to comply with such provisions has not resulted, and does not
create a material risk of resulting, in the aggregate in any Material Adverse
Change; and


 


(b)                                 shall
do all things necessary to preserve, renew and keep in full force and effect
and in good standing its legal existence and authority necessary to continue
its business; provided, however, that this Section 6.2.2(b) shall
not prevent the merger, consolidation or liquidation of Subsidiaries permitted
by Section 6.11.


 


6.2.3                        Statutory
Compliance.  Each of the
Company and its Subsidiaries shall comply in all material respects with all
valid Legal Requirements applicable to it, except where (a) compliance
therewith shall at the time be contested in good faith by appropriate
proceedings and (b) failure so to comply with the provisions being contested
has not resulted, and does not create a material risk of resulting, in the
aggregate in any Material Adverse Change.


 


6.2.4                        Limitation
on Modification and Prepayments of Indebtedness; Modifications of Certificate
of Incorporation, or Other Constitutive Documents, By-laws and Certain Other
Agreements, etc.


 


(a)                                  The
Company shall not, and shall not permit any Subsidiary of the Company to
(i) amend or modify, or permit the amendment or modification of, any provision
of Indebtedness of the Company or any such Subsidiary or of any agreement
(including any purchase agreement, indenture, loan agreement or security
agreement) relating thereto other than any amendments or modifications to
Indebtedness of the Company or any such Subsidiary which do not, and would not
reasonably be expected to, in any way materially adversely affect the interests
of the Lenders and are otherwise permitted under Section 6.6;
(ii) make (or give any notice in respect thereof) any voluntary or
optional payment or prepayment on or redemption or acquisition for value of, or
any prepayment or redemption as a result of any asset sale, change of control
or similar event of, any Indebtedness of the Company or any such Subsidiary;
(iii) without the prior written consent of the Administrative Agent, amend
or modify, or permit the amendment or modification of, any provision of any
agreement or instrument governing Financing Debt (other than the Credit
Documents) other than amendments or modifications which do not, and would not
reasonably be expected to, in any way materially adversely affect the interests
of the Lenders; (iv) without the prior consent of the Administrative Agent,
designate any Indebtedness of the Company or any such Subsidiary (other than
Indebtedness under the Credit Documents) as senior indebtedness under any
indenture or similar agreement; (v) amend or modify, or permit the amendment or
modification of, any Acquisition Document, in each case except for amendments
or modifications which are not, and would not reasonably be expected to, in any
way adverse in any material respect to the interests of the Lenders; or
(vi) amend, modify or change its articles of incorporation or other
constitutive documents (including by the filing or modification of any
certificate of designation


 


60

















 


(including but not limited to the certificates of designation (or other
similar designating documents) relating to the Series A Convertible Preferred
Stock and the Series B Convertible Preferred Stock) or by-laws, or any
agreement entered into by it, with respect to its capital stock (including any
shareholders’ agreement), or enter into any new agreement with respect to its
capital stock, other than any amendments, modifications, agreements or changes
pursuant to this clause (vi) or any such new agreements pursuant to this clause
(vi) which do not, and would not reasonably be expected to, in any way materially
adversely affect in any material respect the interests of the Lenders.


 


(b)                                 Further,
each of the Company and its Subsidiaries shall comply in all material respects
with the Other Material Agreements (to the extent not in violation of the other
provisions of this Agreement or any other Credit Document).  Without the prior written consent of the
Required Lenders, no Other Material Agreement shall be amended, modified,
waived or terminated in any manner that would have in any material respect an adverse
effect on the interests of the Lenders.


 


6.2.5                        Trading
Policy.  The Company and its
Subsidiaries will maintain and follow a policy of managing petroleum inventory
risk with the objective of minimizing potentially adverse impacts on earnings
arising from volatility in refined petroleum product prices.  The Lenders acknowledge that the policy
described in the Risk Management Policies Manual dated February 11, 2000 of the
Company, a full copy of which is attached to this Agreement as Exhibit 6.2.5,
represents such a policy.


 


6.2.6                        [Reserved].


 


6.2.7                        Inactive
Subsidiaries. 
Notwithstanding anything to the contrary in this Agreement, neither the
Company nor any of its Subsidiaries shall make an Investment in or sell, lease,
sublease, exchange, transfer or dispose of any assets to any of K123 Corporation,
a Colorado corporation, Republic Natural Gas Company, a Kansas corporation,
GOIN Inc.  and TransMontaigne Canada
Ltd., each of which is a Wholly Owned Subsidiary of the Company, and Refined
Solutions Inc., a Delaware corporation, which is a 97%-owned Subsidiary of the
Company, without the prior written consent of the Administrative Agent.


 


6.3.                              Insurance.


 


6.3.1                        Business
Interruption Insurance.  Each
of the Company and its Subsidiaries shall maintain with financially sound and
reputable insurers insurance related to interruption of business, either for
loss of revenues or for extra expense, in the manner customary for businesses
of similar size engaged in similar activities.


 


6.3.2                        Property
Insurance.  Each of the
Company and its Subsidiaries shall keep its assets which are of an insurable
character insured on an “all risk” basis by financially sound and reputable
insurers against theft and fraud and against loss or damage by fire and


 


61

















 


extended coverage, explosion
(with respect to boilers, machinery and similar apparatus), lightning, hail,
riot, water damage, sprinkler leakage, collapse and hazards insured against by
extended coverage to the extent, in amounts and with deductibles as the
Collateral Agent may from time to time require and at least as favorable as
those generally maintained by businesses of similar size engaged in similar activities.


 


6.3.3                        Liability
Insurance.  Each of the
Company and its Subsidiaries shall maintain with financially sound and
reputable insurers insurance against liability for hazards, risks and liability
to Persons and property to the extent, in amounts and with deductibles at least
as favorable as those generally maintained by businesses of similar size
engaged in similar activities including worker’s compensation insurance as
required by the laws of the states where all material properties of the Company
or any Subsidiary of the Company are located to protect the Company (or
applicable Guarantor) and the Collateral Agent against claims for injuries sustained
in the course of employment at such material properties; provided, however,
that it may effect workers’ compensation insurance or similar coverage with
respect to operations in any particular state or other jurisdiction through an
insurance fund operated by such state or jurisdiction.


 


6.3.4                        Flood
Insurance.  Each of the
Company and its Subsidiaries shall at all times keep each parcel of Real
Property owned or leased by it which is included in the Pledged Collateral and
which is (i) in an area determined by the Director of the Federal Emergency
Management Agency to be subject to special flood hazard and (ii) in a community
participating in the National Flood Insurance Program, insured against such
special flood hazards in an amount necessary to ensure compliance with the
federal National Flood Insurance Act of 1968.


 


6.3.5                        Other
Insurance.  Each of the
Company and its Subsidiaries shall obtain such other insurance, against risks
and with such policy limits and deductibles in such amounts as the Collateral
Agent may from time to time reasonably require, and, if no such requirements
shall have been imposed, in such amounts as would be generally maintained by
businesses of similar size engaged in similar activities.


 


6.4.                              Financial Statements and Reports.  Each of the Company and its Subsidiaries
shall maintain a system of accounting in which correct entries shall be made of
all transactions in relation to their business and affairs in accordance with
generally accepted accounting practice on no less than a quarterly basis.  The fiscal year of the Company and its Subsidiaries
shall end on June 30 in each year and the fiscal quarters of the Company and
its Subsidiaries shall end on September 30, December 31, March 31 and June 30
in each year.


 


6.4.1                        Annual
Reports.  The Company shall
furnish to the Lenders as soon as available, and in any event on or before the
earlier of (x) the 95th day after the end of each fiscal year of the Company
and (y) the fifth day after the date on which the Company is required to file a
Form 10-K under the Exchange Act for such fiscal year, the Consolidated balance


 


62

















 


sheet of the Company and its
Subsidiaries as at the end of such fiscal year, the Consolidated statements of
income, changes in shareholders’ equity and cash flows of the Company and its
Subsidiaries for such fiscal year (all in reasonable detail) and, in the case
of Consolidated financial statements, comparative figures for the immediately
preceding fiscal year, all accompanied by the following:


 


(a)                                  Unqualified
reports of KPMG LLP (or, if they cease to be auditors of the Company and its
Subsidiaries, other independent certified public accountants of recognized
national standing reasonably satisfactory to the Required Lenders), containing
no material qualification, to the effect that they have audited the foregoing
Consolidated financial statements in accordance with generally accepted
auditing standards and that such Consolidated financial statements present
fairly, in all material respects, the financial position of the Company and its
Subsidiaries covered thereby at the dates thereof and the results of their operations
for the periods covered thereby in conformity with GAAP.


 


(b)                                 The
statement of such accountants that they have audited the foregoing Consolidated
financial statements and that in the course of their audit of the Company and
its Subsidiaries, nothing came to their attention that caused them to believe
that the Company or any of its Subsidiaries failed to comply with the terms,
covenants, provisions or conditions set forth in Sections 6.5 through 6.19
insofar as they relate to accounting matters or, if such is not the case,
specifying the noncompliance and the nature thereof.  This statement is furnished by such accountants with the
understanding that the audit was not directed primarily towards obtaining
knowledge of such noncompliance.


 


(c)                                  A
certificate of the Company signed or authenticated by a Financial Officer to
the effect that such officer has caused this Agreement to be reviewed and has
no knowledge of any Default, or if such officer has such knowledge, specifying
such Default and the nature thereof, and what action the Company has taken, is
taking or proposes to take with respect thereto.


 


(d)                                 Computations
by the Company in the form set forth in Exhibit 6.4.1 hereto
demonstrating, as of the end of such fiscal year, compliance with the
Computation Covenants, certified by a Financial Officer.  In the event of an inconsistency between Exhibit
6.4.1 and this Agreement, this Agreement shall govern.


 


(e)                                  Calculations,
as at the end of such fiscal year, of (i) the Accumulated Benefit Obligations
for each Plan covered by Title IV of ERISA (other than Multiemployer Plans), if
any, and (ii) the fair market value of the assets of any such Plan allocable to
such benefits.


 


63

















 


(f)                                    Supplements
to Exhibits 7.1, 7.3 and 7.15 showing any changes in the
information set forth in such Exhibits not previously furnished to the Lenders
in writing, as well as any changes in the Charter, By-laws or incumbency of officers
of the Company or its Subsidiaries from those previously certified to the Administrative
Agent.


 


6.4.2                        Quarterly
Reports.  The Company shall
furnish to the Lenders as soon as available and, in any event, on or before the
earlier of (x) the 50th day after the end of each of the first three fiscal
quarters of the Company and (y) the fifth day after the date on which the
Company is required to file a Form 10-Q under the Exchange Act for such fiscal
quarter, the internally prepared Consolidated balance sheet of the Company and
its Subsidiaries as of the end of such fiscal quarter, the Consolidated
statements of income, of changes in shareholders’ equity and of cash flows of
the Company and its Subsidiaries for such fiscal quarter and for the portion of
the fiscal year then ended (all in reasonable detail) and, in the case of
Consolidated statements, comparative figures for the same period in the
preceding fiscal year, all accompanied by the following:


 


(a)                                  A
certificate of the Company signed or authenticated by a Financial Officer to
the effect that such financial statements have been prepared in accordance with
GAAP and present fairly, in all material respects, the financial position of
the Company and its Subsidiaries covered thereby at the dates thereof and the
results of their operations for the periods covered thereby, subject only to
normal year-end audit adjustments and the addition of footnotes.


 


(b)                                 A
certificate of the Company signed or authenticated by a Financial Officer to
the effect that such officer has caused this Agreement to be reviewed and has
no knowledge of any Default, or if such officer has such knowledge, specifying
such Default and the nature thereof and what action the Company has taken, is
taking or proposes to take with respect thereto.


 


(c)                                  Computations
by the Company in the form set forth in Exhibit 6.4.1 hereto
demonstrating, as of the end of such quarter, compliance with the Computation
Covenants, certified by a Financial Officer. 
In the event of an inconsistency between Exhibit 6.4.1 and this
Agreement, this Agreement shall govern.


 


(d)                                 Supplements
to Exhibits 7.1, 7.3 and 7.15 showing any changes in the
information set forth in such Exhibits not previously furnished to the Lenders
in writing, as well as any changes in the Charter, By-laws or incumbency of officers
of the Company and its Subsidiaries from those previously certified to the
Administrative Agent.


 


6.4.3                        Monthly
Reports.  The Company shall
furnish to the Lenders as soon as available and, in any event, within 45 days
after the end of each of the first two months of


 


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each fiscal quarter, the
internally prepared Consolidated balance sheet of the Company and its
Subsidiaries as at the end of such month and the Consolidated statements of
income and of cash flows of the Company and its Subsidiaries for such month
(all in reasonable detail), all accompanied by a certificate of the Company
signed or authenticated by a Financial Officer to the effect that such
financial statements were prepared in accordance with GAAP (except that discretionary
inventory held for immediate sale or exchange shall be deemed to be carried at
fair value and base inventory and minimum inventory shall be deemed to be
carried at the lower of cost or market as determined on a quarterly basis) and
present fairly, in all material respects, on a summary basis the financial
position of the Company and its Subsidiaries at the dates thereof and the results
of their operations for the periods covered thereby, subject only to normal
year-end audit adjustments and the addition of footnotes.  The Company shall also furnish to the Lenders
as soon as available and, in any event, within 45 days after the end of the
first two months of each fiscal quarter, a summary accounts receivable aging
report in form and substance satisfactory to the Administrative Agent.


 


6.4.4                        Other
Reports.  The Company shall
promptly furnish to the Lenders the following:


 


(a)                                  As
soon as prepared and in any event within 105 days after the beginning of each
fiscal year, an annual budget and operating projections for such fiscal year of
the Company and its Subsidiaries, prepared in a manner consistent with the
manner in which the financial projections described in Section 7.2.1 were
prepared and shall include a capital expenditure plan for such fiscal year.


 


(b)                                 Any
material updates of such budget and projections.


 


(c)                                  Any
management letters furnished to the Company or any of its Subsidiaries by the
Company’s auditors.


 


(d)                                 All
budgets, projections, statements of operations and other reports furnished
generally to the shareholders of the Company.


 


(e)                                  Such
registration statements, proxy statements and reports, including Forms S-1,
S-2, S-3, S-4, 10-K, 10-Q and 8-K, as may be filed by the Company or any of its
Subsidiaries with the Securities and Exchange Commission.


 


(f)                                    Any
90-day or 30-day letter from the federal Internal Revenue Service asserting
material tax deficiencies against the Company or any of its Subsidiaries; and
any similar notice from a state or other taxing authority asserting material
tax deficiencies against the Company or any of its Subsidiaries that are not
fully resolved without the assessment of a material tax deficiency (and any tax
paid) within 90 days following the date of such notice.


 


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(g)                                 Any
revised versions of the Risk Management Policies Manual referred to in Section
6.2.5.


 


(h)                                 As
soon as available and, in any event within two (2) Banking Days after the end
of every second week, or within two (2) Banking Days following any request by
the Administrative Agent, a certificate in substantially the form of Exhibit
6.4.4 hereto (the “Borrowing Base Certificate”) signed or authenticated by
a Financial Officer of the Company supplying computations of the Borrowing Base
as of the last Banking Day of such week. 
In the event of an inconsistency between Exhibit 6.4.4 and this
Agreement, this Agreement shall govern. 
Such Borrowing Base Certificate shall be accompanied by such supporting
documentation as the Administrative Agent may reasonably request, including but
not limited to (i) a summary of all Loans and Letters of Credit issued and
outstanding and (ii) a summary of accounts receivable of the Company and its
Subsidiaries.


 


(i)                                     As
soon as available and, in any event within two (2) Banking Days after the end
of every second week, or within two (2) Banking Days following any request by
the Administrative Agent, a certificate signed or authenticated by a Financial
Officer of the Company summarizing Open Positions of the Company and its
Subsidiaries as of the last Banking Day of such week, in form and substance
satisfactory to the Administrative Agent.


 


6.4.5                        Notice of
Litigation.  The Company
shall promptly furnish to the Lenders notice of any litigation or any
administrative or arbitration proceeding (a) to which the Company or any of its
Subsidiaries may hereafter become a party if the damages claimed in such
proceeding exceed $2,000,000 or (b) which creates a material risk of resulting,
after giving effect to any applicable insurance, in the payment by the Company
and its Subsidiaries of more than $1,000,000 or (c) which results, or creates a
material risk of resulting, in a Material Adverse Change.


 


6.4.6                        Notice of
Defaults.  Promptly upon
acquiring knowledge thereof, the Company shall notify the Lenders of the
existence of any Default or Material Adverse Change, specifying the nature
thereof and what action the Company or any of its Subsidiaries has taken, is
taking or proposes to take with respect thereto.


 


6.4.7                        ERISA
Reports.  The Company shall
furnish to the Working Capital Lenders as soon as available the following items
with respect to any Plan:


 


(a)                                  any
request for a waiver of the funding standards or an extension of the
amortization period,


 


(b)                                 notice
of any reportable event (as defined in section 4043 of ERISA), unless the
notice requirement with respect thereto has been waived by regulation,


 


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(c)                                  any
notice received by any ERISA Group Person that the PBGC has instituted or
intends to institute proceedings to terminate any Plan, or that any Multiemployer
Plan is insolvent or in reorganization,


 


(d)                                 notice
of the possibility of the termination of any Plan by its administrator pursuant
to section 4041 of ERISA, and


 


(e)                                  notice
of the intention of any ERISA Group Person to withdraw, in whole or in part,
from any Multiemployer Plan.


 


6.4.8                        Other
Information; Audit.  From
time to time at reasonable intervals upon request of the Administrative Agent
or the Required Lenders, each of the Company and its Subsidiaries shall furnish
to the Lenders such other information regarding the business, assets, financial
condition, income or prospects of the Company and its Subsidiaries as the Administrative
Agent or the Required Lenders may reasonably request, including copies of all
tax returns, licenses, agreements, leases and instruments to which any of the
Company or its Subsidiaries is party. 
The authorized officers and representatives of the Administrative Agent
shall have the right during normal business hours upon reasonable notice and at
reasonable intervals to examine the books and records of the Company and its
Subsidiaries, to make copies and notes therefrom for the purpose of
ascertaining compliance with or obtaining enforcement of this Agreement or any
other Credit Document.  The
Administrative Agent, upon reasonable advance notice, may at the expense of the
Company undertake to have the Company and its Subsidiaries reviewed by the
Administrative Agent’s commercial financial examiners and fixed asset
appraisers.


 


6.4.9                        Notice of
Material Impairment to Accounts Receivable.  The Company shall immediately notify the
Administrative Agent if any account receivable that is included in Eligible
Receivables that individually is equal to or greater than $5,000,000 in value
becomes uncollectible or if the account debtor with respect to any such account
receivable files a petition for relief under any existing or future law
relating to bankruptcy, insolvency, reorganization or relief of debtors, makes
a general assignment for the benefit of creditors, has had filed against it any
petition or other application for relief under any existing or future law
relating to bankruptcy, insolvency, reorganization or relief of debtors, fails,
suspends business operations, becomes insolvent, calls a meeting of its
creditors for the purpose of obtaining any financial concession or
accommodation, or has or suffers a receiver or a trustee to be appointed for
all or a significant portion of its assets or affairs.


 


6.4.10                  Security
Interests; Further Assurances. 
Promptly, upon the reasonable request of the Administrative Agent, the
Collateral Agent or any Lender, at the Company’s expense, the Company shall
execute, acknowledge and deliver, or cause the execution, acknowledgment and
delivery of, and thereafter register, file or record, or cause to be registered,
filed or recorded, in an appropriate governmental office, any document or instrument
supplemental to or confirmatory of the Security Documents or otherwise deemed
by the


 


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Administrative Agent or the
Collateral Agent reasonably nec­essary for the continued validity, perfection
and priority of the Liens on the Pledged Collateral covered thereby superior to
and prior to the rights of all third Persons other than the holders of Prior
Liens and Permitted Liens and subject to no other Liens except as permitted by
the applicable Security Document, or obtain any consents, including, without
limitation, landlord or similar lien waivers and consents, as may be necessary
or appropriate in connection therewith. 
The Company shall deliver or cause to be delivered to the Administrative
Agent and the Collateral Agent from time to time such other documentation,
consents, authorizations, approvals and orders in form and substance reasonably
satisfactory to the Administrative Agent and the Collateral Agent as the Administrative
Agent and the Collateral Agent shall reasonably deem necessary to perfect or
maintain the Liens on the Pledged Collateral pursuant to the Security
Documents.  Upon the exercise by the
Administrative Agent, the Collateral Agent or the Lenders of any power, right,
privilege or remedy pursuant to any Credit Document which requires any consent,
approval, registration, qualification or authorization of any Governmental
Authority execute and deliver all applications, certifications, instruments and
other documents and papers that the Administrative Agent, the Collateral Agent
or the Lenders may be so required to obtain.


 


6.4.11                  Additional
Collateral.


 


(a)                                  Subject
to this Section 6.4.11, with respect to any property acquired after the Initial
Closing Date by the Company or any other Obligor that is intended to be subject
to the Lien created by any of the Security Documents but is not so subject
(but, in any event, excluding any property described in paragraph (b) or
(c) of this subsection) promptly (and in any event within 30 days after
the acquisition thereof): 
(i) execute and deliver to the Administrative Agent and the
Collateral Agent such amendments or supplements to the relevant Security
Documents or such other documents as the Administrative Agent or the Collateral
Agent shall deem necessary or advisable to grant to the Collateral Agent, for
its benefit and for the benefit of the other Secured Parties, having the
relevant priorities as set forth in the Security Documents, a Lien on such property
subject to no Liens other than Liens permitted under this Agreement, and (ii)
take all actions necessary to cause such Lien to be duly perfected to the
extent required by such Security Document in accordance with all applicable Legal
Requirements, including, without limitation, the filing of financing statements
in such jurisdictions as may be reasonably requested by the Administrative
Agent.


 


(b)                                 With
respect to any Person that is or becomes a Wholly Owned Subsidiary (other than
any Foreign Subsidiary that is not a direct Subsidiary of an Obligor or a
Non-Guarantor Subsidiary) the Company shall promptly (and in any event within
30 days after such Person becomes a Subsidiary) (i) deliver to the Collateral
Agent the certificates, if any, representing the Equity Interests of such
Subsidiary (provided
that with respect to any Foreign Subsidiary of the Company, in no event shall
more than 66% of the Equity Interests of such Foreign Subsidiary be subject to
any Lien or pledged under any Security Document), together with undated stock
powers or other appropriate instruments of transfer executed and


 


68

















 


delivered in blank by a duly authorized officer of such Subsidiary’s
parent, as the case may be, and all intercompany notes owing from such
Subsidiary to any Obligor together with instruments of transfer executed and
delivered in blank by a duly authorized officer of such Subsidiary, and (ii)
cause such new Subsidiary (other than any Foreign Subsidiary or a Non-Guarantor
Subsidiary) (A) to execute a joinder agreement to this Agreement and a
joinder agreement to the Security Agreement in the form annexed thereto which
is in form and substance reasonably satisfactory to the Administrative Agent; provided,
however, that in the event such Subsidiary is prohibited by any
valid law, statute, rule or regulation from entering into this Agreement or
such a joinder agreement, the obligations of such Subsidiary under this
Agreement or such joinder agreement will be limited to the extent necessary to
comply with such prohibition or, if such limitation is not sufficient to avoid
such prohibition, the Company will cause the Equity Interests of such Subsidiary
(or as much of such Equity Interests as may be pledged considering such prohibition)
to the Collateral Agent for its benefit and the benefit of the other Secured
Parties to secure the Secured Obligations pursuant to a pledge agreement in
form and substance satisfactory to the Collateral Agent; and (B) to take
all actions necessary or advisable in the opinion of the Administrative Agent
or the Collateral Agent to cause the Lien created by the Security Agreement to
be duly perfected to the extent required by such agreement in accordance with
all applicable Legal Requirements, including, without limitation, the filing of
financing statements in such jurisdictions as may be reasonably requested by
the Administrative Agent or the Collateral Agent.


 


(c)                                  If
at any time any two or more Wholly Owned Subsidiaries in the aggregate (other
than any Foreign Subsidiary of the Company that is not a “first-tier” Foreign
Subsidiary) not otherwise subject to Section 6.4.11(b) have assets having either
a book value or fair market value in excess of $10,000,000, then the Company
shall, and shall cause one or more of such Subsidiaries to, comply with Section 6.4.11(b)
within the time frames set forth in such subsection so that no two or more such
Subsidiaries hold assets having either a book value or fair market value in excess
of $10,000,000.


 


(d)                                 [Reserved].


 


(e)                                  The
Company shall furnish to the Administrative Agent and the Collateral Agent
prompt written notice of any change (i) in any Obligor’s corporate name or
in any trade name used to identify it in the conduct of its business or in the
ownership of its properties, (ii) with respect to any Obligor which does
not constitute a “registered organization” (as defined in Section 9-102 of the
UCC) in the location of any Obligor’s chief executive office, its principal
place of business, any office in which it maintains books or records relating
to Pledged Collateral owned by it or any office or facility at which Pledged
Collateral owned by it is located (including the establishment of any such new
office or facility), (iii) in any Obligor’s legal form of organization,
(iv) in any Obligor’s Federal Taxpayer Identification Number or
(v) in any Obligor’s jurisdiction of organization.  The Company agrees not to effect or permit
any change referred to in the preceding sentence unless all filings have been
made under


 


69

















 


the UCC or otherwise that are required in order for the Collateral
Agent to continue at all times following such change to have a valid, legal and
perfected security interest in all the Pledged Collateral.  The Company also agrees promptly to notify
the Administrative Agent and the Collateral Agent if any material portion of
the Pledged Collateral is subject to a Casualty Event.


 


(f)                                    Each
year, at the time of delivery of annual financial statements with respect to
the preceding fiscal year pursuant to Section 6.4.1, deliver to the Administrative
Agent and the Collateral Agent a certificate of a Financial Officer and the
chief legal officer (if any) of the Company setting forth the information
required pursuant to Sections 1 through 14, inclusive, of the Perfection
Certificate or confirming that there has been no change in such information
since the date of the Perfection Certificate delivered on the Initial Closing
Date or the date of the most recent certificate delivered pursuant to this
Section 6.4.11(f).


 


6.4.12                  Post
Amendment and Restatement Date Collateral Matters.   The Company shall, and shall cause each of
its Subsidiaries to, as expeditiously as possible, but in no event later than
the 45th day following the Amendment and Restatement Date (or such later date
designated by the Administrative Agent in its sole discretion), to the extent
required under the Security Documents, endorse, execute and deliver, or cause
to be endorsed, executed and delivered, as applicable, all other certificates,
agreements (including Control Agreements), or instruments necessary to perfect
the Collateral Agent’s security interest in all Deposit Accounts, all
Securities Accounts, all Commodity Accounts and all Investment Property of each
Pledgor together with all applicable  consents from all applicable banks,
depositaries, securities intermediaries, and others pursuant to Control
Agreements.


 


6.5.                              Certain Financial Tests.


 


6.5.1                        Fixed
Charges Coverage.  For each
fiscal quarter of the Company, the ratio (expressed as a percentage) of the
Fixed Charges EBITDA of the Company and its Subsidiaries for the period of four
consecutive fiscal quarters then ended to the Consolidated Fixed Charges of the
Company and its Subsidiaries for such period shall equal or exceed 150%.


 


6.5.2                        Consolidated
Tangible Net Worth.  The
Consolidated Tangible Net Worth of the Company and its Subsidiaries shall
exceed at all times an amount equal to the Consolidated Tangible Net Worth as
at December 31, 2002 minus $20,000,000; provided, however,
that on the last day of each fiscal quarter of the Company commencing with the
fiscal quarter ending March 31, 2003, the then effective dollar amount of the
Consolidated Tangible Net Worth (including any prior increases of such amount
as provided in clauses (a) and (b) below) shall be increased by the sum of (a)
50% of the net proceeds of Equity Interests issued during the fiscal quarter
then ended by the Company and its Subsidiaries, calculated on a Consolidated
basis in accordance with GAAP, plus (b) 50% of Consolidated Net Income
(if positive) for the fiscal quarter then ended.


 


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6.5.3                        Maximum
Senior Leverage Ratio.  On
the last day of each fiscal quarter of the Company, the Senior Leverage Ratio
(expressed as a percentage) for the period of four consecutive fiscal quarters
then ended shall not exceed 450%.


 


6.5.4                        Minimum
Current Ratio.  The ratio
(expressed as a percentage) of the Consolidated Current Assets of the Company
and its Subsidiaries to the Consolidated Current Liabilities of the Company and
its Subsidiaries shall not at any time be less than 120%.


 


6.5.5                        General
Corporate Purposes Expenditures. 
Other than in respect of the Acquisition, expenditures made or incurred
by the Company or any of its Subsidiaries in respect of General Corporate
Purposes shall not exceed $80,000,000 in the aggregate since the Initial
Closing Date; provided that such amount shall be increased by the
aggregate Consolidated Free Cash Flow generated on and after the Initial
Closing Date.


 


6.6.                              Indebtedness. 
Neither the Company nor any of its Subsidiaries shall create, incur,
assume or otherwise become or remain liable with respect to any Indebtedness,
including Guarantees of Indebtedness of others and reimbursement obligations,
whether contingent or matured, under letters of credit or other financial
guarantees by third parties (or become contractually committed to do so),
except the following:


 


6.6.1                        Indebtedness
in respect of the Credit Obligations.


 


6.6.2                        Guarantees
permitted by Section 6.7.


 


6.6.3                        Current
liabilities, other than Financing Debt, incurred in the ordinary course of
business.


 


6.6.4                        To the
extent that payment thereof shall not at the time be required by Section 6.1,
Indebtedness in respect of taxes, assessments, governmental charges and claims
for labor, materials and supplies.


 


6.6.5                        Indebtedness
secured by Liens of carriers, warehouses, mechanics and landlords permitted by
Sections 6.8.5 and 6.8.6.


 


6.6.6                        Indebtedness
in respect of judgments or awards (a) which have been in force for less than
the applicable appeal period or (b) in respect of which the Company or any
Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings
for review and, in the case of each of clauses (a) and (b), the Company or such
Subsidiary shall have taken appropriate reserves therefor in accordance with
GAAP and execution of such judgment or award shall not be levied.


 


6.6.7                        To the
extent permitted by Section 6.8.9, Indebtedness in respect of Capitalized Lease
Obligations or secured by purchase money security interests; provided,


 


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however, that (a)
the aggregate principal amount of all Indebtedness permitted by this Section
6.6.7 which consists of Indebtedness in respect of Capital Lease Obligations
and other Indebtedness incurred for the acquisition of equipment shall not
exceed 2% of Consolidated Net Tangible Assets at any one time outstanding and
(b) that the aggregate principal amount of all Indebtedness permitted by this
Section 6.6.7 which consists of Indebtedness issued to sellers of any business
or part thereof or operating assets in consideration for the acquisition
thereof by the Company or a Subsidiary shall not exceed 4% of Consolidated Net
Tangible Assets at any one time outstanding.


 


6.6.8                        Indebtedness
in respect of deferred taxes arising in the ordinary course of business.


 


6.6.9                        Indebtedness
in respect of inter-company loans and advances among the Company and its
Subsidiaries which are not prohibited by Section 6.9.


 


6.6.10                  Unfunded pension
liabilities and obligations with respect to Plans so long as the Company is in
compliance with Section 6.16.


 


6.6.11                  Indebtedness
outstanding on the date hereof and described in Exhibit 7.3.


 


6.6.12                  Unsecured Funded
Debt of the Company; provided, that after giving effect to the
issuance of such unsecured Funded Debt and the application of any of the proceeds
thereof on the issuance date no Default shall exist, and the Company shall have
delivered to the Administrative Agent a certificate of a Financial Officer of
the Company in reasonable detail demonstrating compliance with these conditions
after giving effect to such issuance and application; and, provided, further,
that the terms and conditions of such unsecured Funded Debt exceeding
$20,000,000 at any time outstanding, including without limitation, financial
covenants, defaults, amortization and rate of interest shall have been
consented to by the Required Lenders.


 


6.6.13                  Unsecured Funded
Debt of the Company which is expressly subordinated to the Credit Obligations
on terms satisfactory to the Administrative Agent with the prior written
consent of the Required Lenders.


 


6.6.14                  Commodities
margin loans extended by commodities brokers; provided, that such brokers
shall have executed and delivered to the Collateral Agent for its benefit and
for the benefit of the Secured Parties, having the relevant priorities as set
forth in the Security Documents, blocked account or similar agreements
reasonably satisfactory to the Administrative Agent; and provided  further,
that the outstanding principal amount of such margin loans at no time shall exceed
$20,000,000.


 


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6.6.15                  Indebtedness
under the Senior Subordinated Notes (and Guarantees by the Guarantors thereof)
in an aggregate principal amount not to exceed $300,000,000.


 


6.6.16                  Additional
Indebtedness under the Senior Subordinated Notes (and Guarantees by the
Guarantors thereof); provided that upon incurrence thereof, the
Company shall provide the Administrative Agent a certificate, signed or
authenticated by a Financial Officer of the Company, demonstrating compliance
with the Computation Covenants using the Consolidated financial statements of
the Company and its Subsidiaries as of the most recently ended fiscal quarter
of the Company and calculated on a pro forma basis as if such incurrence had
occurred on the first day of such fiscal quarter.


 


6.7.                              Guarantees; Letters of Credit.  Neither the Company nor any of its Subsidiaries
shall become or remain liable with respect to any Guarantee, including
reimbursement obligations under letters of credit or other financial guarantees
by third parties (or become contractually committed to do so), except the
following:


 


6.7.1                        Letters of
Credit and Guarantees of the Credit Obligations.


 


6.7.2                        Guarantees
by the Company or its Subsidiaries of Indebtedness incurred by any of its
Subsidiaries and permitted by Section 6.6.


 


6.7.3                        Unsecured
Guarantees by Wholly Owned Subsidiaries of the Credit Obligations, so long as
such Wholly Owned Subsidiaries are Guarantors.


 


6.7.4                        Unsecured
Guarantees by any Guarantor of the Senior Subordinated Notes.


 


6.7.5                        The
Guarantee by the Company of the obligations of TransMontaigne Product Services
Inc. delivered pursuant to Section 2.8 of the Acquisition Agreement.


 


6.8.                              Liens.  Neither the Company nor any of its
Subsidiaries shall create, incur or enter into, or suffer to be created or
incurred or to exist, any Lien (or become contractually committed to do so),
except the following (the “Permitted Liens”):


 


6.8.1                        Liens on
the Pledged Collateral that secure the Credit Obligations.


 


6.8.2                        Liens to
secure taxes, assessments and other governmental charges, to the extent that
payment thereof shall not at the time be required by Section 6.1; provided
that in the case of any such charge or claim which has or may become a Lien
against any of the Pledged Collateral, such Lien and the contest thereof shall
satisfy the Contested Collateral Lien Conditions.


 


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6.8.3                        Deposits
or pledges made (a) in connection with, or to secure payment of, workers’
compensation, unemployment insurance, old age pensions or other social
security, (b) in connection with casualty insurance maintained in accordance
with Section 6.3, (c) to secure the performance of bids, tenders, contracts
(other than contracts relating to Financing Debt) or leases, (d) to secure
statutory obligations or surety or appeal bonds, (e) to secure indemnity,
performance or other similar bonds in the ordinary course of business or (f) in
connection with contested amounts to the extent that payment thereof shall not
at that time be required by Section 6.1; provided that in the case of any such Lien
which has or may become a Lien against the Pledged Collateral, such Lien and
the contest thereof shall satisfy the Contested Collateral Lien Conditions.


 


6.8.4                        Liens in
respect of judgments or awards, to the extent that such judgments or awards are
permitted by Section 6.6.6 but only to the extent that such Liens are junior to
the Liens on the Pledged Collateral granted to secure the Credit Obligations; provided
that in the case of any such Lien which has or may have become a Lien against
Pledged Collateral, such Lien and the contest thereof shall satisfy the
Contested Collateral Lien Conditions.


 


6.8.5                        Liens of
carriers, warehouses, mechanics and similar Liens, in each case (a) in
existence less than 90 days from the date of creation thereof or (b) being
contested in good faith by the Company or any Subsidiary in appropriate
proceedings (so long as the Company or such Subsidiary shall have set aside on
its books adequate reserves with respect thereto to the extent required by
GAAP).


 


6.8.6                        Encumbrances
in the nature of (a) zoning restrictions, (b) easements, covenants, conditions
and other like exceptions, (c) restrictions of record on the use of Real
Property, (d) landlords’ and lessors’ Liens on rented premises and (e) restrictions
on transfers or assignment of leases, which in each case do not materially
detract from the value of the encumbered property or materially impair the use
thereof in the business of the Company or any Subsidiary.


 


6.8.7                        Restrictions
under federal and state securities laws on the transfer of securities.


 


6.8.8                        Restrictions
under Foreign Trade Regulations on the transfer or licensing of assets of the
Company and its Subsidiaries.


 


6.8.9                        Liens
constituting (a) purchase money security interests (including mortgages,
conditional sales, Capitalized Leases and any other title retention or deferred
purchase devices) in Real Property, interests in leases or tangible personal
property (other than inventory) existing or created on the date on which such
property is acquired, and (b) the renewal, extension or refunding of any
security interest referred to in the foregoing clause (a) in an amount not to
exceed the amount thereof remaining unpaid immediately prior to such


 


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renewal, extension or
refunding; provided,
however,
that (i) each such security interest shall attach solely to the particular item
of property so acquired, and the principal amount of Indebtedness (including
Indebtedness in respect of Capitalized Lease Obligations) secured thereby shall
not exceed the cost (including all such Indebtedness secured thereby, whether
or not assumed) of such item of property; and (ii) the aggregate principal
amount of all Indebtedness secured by Liens permitted by this Section 6.8.9
shall not exceed the amount permitted by Section 6.6.7.


 


6.8.10                  Liens securing
Indebtedness in respect of margin loans permitted under Section 6.6.14.


 


6.8.11                  Liens in
existence on the Initial Closing Date and set forth on Schedule 6.8.11;
provided
that (i) the aggregate principal amount of the Indebtedness, if any, secured
by such Liens does not increase and (ii) such Liens do not encumber any
property other than the property subject thereto on the Initial Closing Date;


 


provided, however,
that no Liens shall be permitted to exist, directly or indirectly, on any
Pledged Securities.


 


6.9.                              Investments and Acquisitions.  Neither the Company nor any of its
Subsidiaries shall have outstanding, acquire, commit itself to acquire or hold
any Investment (including any Investment consisting of the acquisition of any
business) (or become contractually committed to do so), except for the
following:


 


6.9.1                        Investments
of the Company and its Subsidiaries in Wholly Owned Subsidiaries existing on
the Initial Closing Date who are Guarantors and Investments of the Company and
its Subsidiaries in other Wholly Owned Subsidiaries as long as such other
Wholly Owned Subsidiaries become Subsidiaries in compliance with Section 6.9.6
and become Guarantors.


 


6.9.2                        Intercompany
loans and advances from any Wholly Owned Subsidiary to the Company or other
Wholly Owned Subsidiaries but in each case only to the extent reasonably
necessary for Consolidated tax planning and working capital management.


 


6.9.3                        Investments
in Cash Equivalents.


 


6.9.4                        Guarantees
permitted by Section 6.7.


 


6.9.5                        Investments
outstanding on the Initial Closing Date and identified in Exhibit 7.3.


 


6.9.6                        Investments
consisting of the acquisition of all or substantially all of an operating
business (whether through a merger, a consolidation, an acquisition of assets
or


 


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an acquisition of stock or
other equity) to the extent that, after giving effect to the consummation
thereof, Section 6.5.5 shall not have been contravened thereby.


 


6.10.                        Distributions.  Neither the Company nor any of its
Subsidiaries shall make any Distribution (or become contractually committed to
do so), except for the following:


 


6.10.1                  Subsidiaries of
the Company may make Distributions to the Company or any Wholly Owned Subsidiary
of the Company.


 


6.10.2                  [Reserved.]


 


6.10.3                  [Reserved.]


 


6.10.4                  So long as
immediately before and after giving effect thereto no Default exists, the
Company may make cash Distributions on the Series A Convertible Preferred Stock
at a rate per share not exceeding 5% of the initial liquidation value of such
shares.


 


6.10.5                  So long as
immediately before and after giving effect thereto no Default exists, the
Company may make cash Distributions on the Series B Convertible Preferred Stock
at a rate per share not exceeding 6% of the initial liquidation value of such
shares.


 


Notwithstanding
any of the foregoing, cash Distributions are not permitted unless, after giving
effect to any such Distribution, the ratio (expressed as a percentage) of the
Fixed Charge EBITDA of the Company and its Subsidiaries for the period of four
consecutive fiscal quarters most recently ended to the Consolidated Fixed
Charges of the Company and its Subsidiaries for such period, equals or exceeds
150%.


 


6.11.                        Merger, Consolidation and Dispositions of Assets.  Neither the Company nor any of its
Subsidiaries shall merge or enter into a consolidation or engage in an Asset
Sale (or become contractually committed to do so), except the following:


 


6.11.1                  The Company and
any of its Subsidiaries may sell or otherwise dispose of (a) inventory sold to
customers in the ordinary course of business, (b) tangible assets to be
replaced in the ordinary course of business within six months by other tangible
assets used or useful in the business of the Company and its Subsidiaries of
equal or greater value and (c) assets that are no longer used or useful in the
business of the Company or such Subsidiary, the fair market value (or book
value if greater) of which shall not (in the case of this clause (c) only)
exceed in any fiscal year 10% of Consolidated Net Tangible Assets of the
Company and its Subsidiaries as of the last day of the next preceding fiscal
year; provided,
that in the event of the sale or other disposition of any of the assets
described in the definition of Minimum Petroleum Products Inventory
Requirements, such assets shall be deemed to be inventory sold to customers in
the ordinary course of business under clause (a).


 


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6.11.2                  Any Wholly Owned
Subsidiary of the Company may merge or be liquidated into the Company or any
other Wholly Owned Subsidiary of the Company so long as after giving effect to
any such merger to which the Company is a party the Company shall be the
surviving or resulting Person; provided that the Lien on and security
interest in such property granted or to be granted in favor of the Collateral
Agent under the Security Documents shall be maintained in accordance with the
provisions of Section 6.4.11.


 


6.11.3                  The Company and
its Subsidiaries may enter into leases (other than Capitalized Leases) as
lessor of real and tangible personal property and rights associated therewith
in the ordinary course of business.


 


6.11.4                  Any inactive
Subsidiary other than a Guarantor may be liquidated.


 


6.12.                        Lease Obligations.  Neither the Company nor any of its
Subsidiaries will enter into any arrangement, directly or indirectly, whereby
the Company or such Subsidiary shall sell or transfer any property owned by it
in order then or thereafter to lease such property or to lease other property
which the Company or such Subsidiary intends to use for substantially the same
purpose as the property being sold or transferred.  Neither the Company nor any of its Subsidiaries shall be or
become obligated as lessee under any lease except the following:


 


6.12.1                  Capitalized
Leases permitted by Sections 6.6.7 and 6.8.9.


 


6.12.2                  Leases other
than Capitalized Leases; provided, however, that the aggregate
fixed rental obligations for any fiscal year (excluding payments required to be
made by the lessee in respect of taxes and insurance whether or not denominated
as rent) shall not exceed in any fiscal year 5% of Consolidated Net Tangible
Assets as of the last day of the next preceding fiscal year.


 


6.13.                        Issuance of Stock by Subsidiaries; Subsidiary
Distributions.


 


6.13.1                  Issuance of
Stock by Subsidiaries.  No
Subsidiary shall issue or sell any shares of its capital stock or other
evidence of beneficial ownership to any Person other than the Company or any
Wholly Owned Subsidiary of the Company, which shares shall have been pledged to
the Collateral Agent as part of the Pledged Collateral.


 


6.13.2                  No
Restrictions on Subsidiary Distributions.  Except for this Agreement and the Credit Documents and the Senior
Subordinated Notes, neither the Company nor any Subsidiary shall enter into or
be bound by any agreement (including covenants requiring the maintenance of
specified amounts of net worth or working capital) restricting the right of any
Subsidiary to make Distributions or extensions of credit to the Company
(directly or indirectly through another Subsidiary).


 


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6.14.                        Derivative Contracts.  Neither the Company nor any of its
Subsidiaries shall enter into any Interest Rate Protection Agreement, foreign
currency exchange contract or other financial or commodity derivative contracts
except to provide hedge protection for an underlying economic transaction in
the ordinary course of business or in accordance with the Company’s Risk Management
Policies Manual.


 


6.15.                        Negative Pledge Clauses.  Neither the Company nor any of its
Subsidiaries shall enter into any agreement, instrument, deed or lease which
prohibits or limits the ability of the Company or any of its Subsidiaries to
create, incur, assume or suffer to exist any Lien upon any of their respective
properties, assets or revenues, whether now owned or hereafter acquired, or
which requires the grant of any security for an obligation if security is
granted for another obligation, except the following:


 


6.15.1                  This Agreement
and the other Credit Documents.


 


6.15.2                  Covenants in
documents creating Liens permitted by Section 6.8 prohibiting further Liens on
the assets encumbered thereby.


 


6.15.3                  The Senior
Subordinated Notes.


 


6.15.4                  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 the Company
or any of its Subsidiaries (whether now owned or hereafter acquired) securing
the Loans or any Interest Rate Agreement and does not require the direct or
indirect granting of any Lien securing any Indebtedness or other obligation by
virtue of the granting of Liens on or pledge of property of  the Company or any of its Subsidiaries to
secure the Loans or any Hedging Agreement.


 


6.16.                        ERISA, etc.  Each of the Company and its Subsidiaries
shall comply, and shall cause all ERISA Group Persons to comply, in all
material respects, with the provisions of ERISA and the Code applicable to each
Plan.  Each of the Company and its
Subsidiaries shall meet, and shall cause all ERISA Group Persons to meet, all
minimum funding requirements applicable to them with respect to any Plan
pursuant to section 302 of ERISA or section 412 of the Code, without giving
effect to any waivers of such requirements or extensions of the related
amortization periods which may be granted. 
At no time shall the Accumulated Benefit Obligations under any Plan that
is not a Multiemployer Plan exceed the fair market value of the assets of such
Plan allocable to such benefits by more than $1,000,000.  The Company and its Subsidiaries shall not
withdraw, and shall cause all other ERISA Group Persons not to withdraw, in
whole or in part, from any Multiemployer Plan so as to give rise to withdrawal
liability exceeding $1,000,000 in the aggregate.  At no time shall the actuarial present value of unfunded
liabilities for post-employment health care benefits, whether or not provided
under a Plan, calculated in a manner consistent with Statement No. 106 of the
Financial Accounting Standards Board, exceed $1,000,000.


 


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6.17.                        Transactions with Affiliates.  Neither the Company nor any of its
Subsidiaries shall effect any transaction with any of their respective
Affiliates (except for the Company and its Subsidiaries) on a basis less
favorable to the Company and its Subsidiaries than would be the case if such
transaction had been effected with a non-Affiliate.


 


6.18.                        Open Positions.  The Company and its Subsidiaries may
maintain Open Positions relating to product inventory requirements that do not
exceed 1,000,000 barrels.


 


6.19.                        Environmental Laws.


 


6.19.1                  Compliance
with Law and Permits.  Each
of the Company and its Subsidiaries shall use and operate all of its facilities
and properties in material compliance with all Environmental Laws, keep in
effect all necessary permits, approvals, certificates, licenses and other
authorizations relating to environmental matters and remain in material
compliance therewith, and handle all Hazardous Materials in material compliance
with all applicable Environmental Laws, except where any failure to so act
could not, individually or in the aggregate, have a Material Adverse Effect.


 


6.19.2                  Notice of
Claims, etc.  Each of the
Company and its Subsidiaries shall immediately notify the Administrative Agent,
and provide copies upon receipt, of all written claims, complaints, notices or
inquiries from Governmental Authorities or other Persons relating to the
condition of its facilities and properties or compliance with or liability
under Environmental Laws which could have, individually or in the aggregate, a
Material Adverse Effect, and shall use best efforts to promptly cure and have
dismissed with prejudice to the satisfaction of the Administrative Agent any
actions and proceedings relating to compliance with or liability under Environmental
Laws.


 


6.20.                        Deposit of Funds.  From and after the time that Control
Accounts have been established in accordance with the requirements of Section
6.4.12, the Company shall, and shall cause each of its Subsidiaries to, deposit
any funds, investments, money, cash, instruments, securities, rights, proceeds
and other property and amounts received or held by the Company or any such
Subsidiary into a Deposit Account, Securities Account or Commodity Account, as
applicable, over which the Collateral Agent has a Control Agreement; provided
that, in any event, if such Control Agreements have not been so established by
on or before the 75th day following the Amendment and Restatement Date, the
Company shall use its commercially reasonable efforts to, and shall use its
commercially reasonable efforts to cause each of its Subsidiaries to, deposit
any funds, investments, money, cash, instruments, securities, rights, proceeds
and other property and amounts received or held by the Company or any such
Subsidiary into a Deposit Account, Securities Account or Commodity Account, as
applicable, over which the Collateral Agent has a Control Agreement.


 


7.                                       Representations and Warranties.  In order to induce the Lenders to extend
credit to the Company hereunder, each of the Company and such of its
Subsidiaries as


 


79

















 


are party hereto from time to time jointly and severally represents and
warrants as follows, except as disclosed in the Disclosure Schedule attached
hereto as Exhibit 7:


 


7.1.                              Organization and Business.


 


7.1.1                        The Company.  The Company is a duly organized and validly
existing corporation, in good standing under the laws of Delaware, with all
power and authority, corporate or otherwise, necessary to (a) enter into and
perform this Agreement and each other Credit Document to which it is party, (b)
grant the Collateral Agent for its benefit and for the benefit of the Secured
Parties, having the relevant priorities as set forth in the Security Documents,
the security interests in the Pledged Collateral owned by it to secure the
Credit Obligations and (c) own its properties and carry on the business now
conducted or proposed to be conducted by it. 
Certified copies of the Charter and By-laws of the Company have been
previously delivered to the Administrative Agent and are correct and
complete.  Exhibit 7.1, as from
time to time hereafter supplemented in accordance with Sections 6.4.1 and
6.4.2, sets forth, as of the later of the date hereof or as of the end of the
most recent fiscal quarter for which financial statements are required to be furnished
in accordance with such Sections, (i) the jurisdiction of incorporation of the
Company, (ii) the address of the Company’s principal executive office and chief
place of business, (iii) each name, including any trade name, under which the
Company conducts its business and (iv) the jurisdictions in which the Company
owns real or tangible personal property.


 


7.1.2                        Subsidiaries.  Other than Republic Natural Gas Company,
each Subsidiary of the Company is duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it is organized, with all
power and authority, corporate or otherwise, necessary to (a) enter into and
perform this Agreement and each other Credit Document to which it is party, (b)
guarantee the Credit Obligations, (c) grant the Collateral Agent for its
benefit and for the benefit of the Secured Parties, having the relevant
priorities as set forth in the Security Documents, the security interest in the
Pledged Collateral owned by such Subsidiary to secure the Credit Obligations
and (d) own its properties and carry on the business now conducted or proposed
to be conducted by it.  Certified copies
of the Charter and By-laws of each Subsidiary of the Company have been
previously delivered to the Administrative Agent and are correct and
complete.  Exhibit 7.1, as from
time to time hereafter supplemented in accordance with Sections 6.4.1 and
6.4.2, sets forth, as of the later of the Initial Closing Date or the end of
the most recent fiscal quarter for which financial statements are required to
be furnished in accordance with such Sections, (i) the name and jurisdiction of
organization of such Subsidiary of the Company, (ii) the address of the chief
executive office and principal place of business of each such Subsidiary, (iii)
each name under which each such Subsidiary conducts its business, (iv) each
jurisdiction in which each such Subsidiary owns real or tangible personal
property, and (v) the number of authorized and issued shares and ownership of
each such Subsidiary; provided, however, that there may be
omitted from


 


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Exhibit 7.1 one or
more Subsidiaries which have no business operations and no assets or liabilities.


 


7.1.3                        Qualification.  Each of the Company and its Subsidiaries is
duly and legally qualified to do business as a foreign corporation or other
entity and is in good standing in each state or jurisdiction in which such
qualification is required and is duly authorized, qualified and licensed under
all laws, regulations, ordinances or orders of public authorities, or otherwise,
to carry on its business in the places and in the manner in which it is
conducted, except for failures to be so qualified, authorized or licensed which
would not in the aggregate result, or create a material risk of resulting, in
any Material Adverse Change.


 


7.1.4                        Capitalization.  No options, warrants, conversion rights,
preemptive rights or other statutory or contractual rights to purchase shares
of capital stock or other securities of any Subsidiary now exist, nor has any
Subsidiary authorized any such right, nor is any Subsidiary obligated in any
other manner to issue shares of its capital stock or other securities.


 


7.2.                              Financial Statements and Other
Information; Material Agreements.


 


7.2.1                        Financial
Statements and Other Information. 
The Company has previously furnished to the Lenders copies of the
following:


 


(a)                                  The
audited Consolidated balance sheets of the Company and its Subsidiaries as at
June 30, 2001 and 2002 and the audited Consolidated statements of operations,
of stockholders’ equity and of cash flows of the Company and its Subsidiaries
for each of the years in the three year period ended June 30, 2002.


 


(b)                                 The
unaudited Consolidated balance sheet of the Company and its Subsidiaries as at
December 31, 2002 and the unaudited Consolidated statements of operations, of
stockholders’ equity and of cash flows of the Company and its Subsidiaries for
the portion of the fiscal year then ended.


 


(c)                                  The
financial and operational projections and current capital expenditures plan of
the Company and its Subsidiaries for the years ending June 30, 2003, June 30,
2004 and June 30, 2005.


 


(d)                                 Calculations
demonstrating pro forma compliance with the Computation Covenants as of
the end of the most recent quarter preceding the Initial Closing Date.


 


The audited Consolidated
financial statements (including the notes thereto) referred to in clause (a)
above were prepared in accordance with GAAP and fairly present the financial position
of the Company and its Subsidiaries on a Consolidated basis at the respective
dates


 


81

















 


thereof and
the results of their operations for the periods covered thereby.  The unaudited Consolidated financial
statements referred to in clause (b) above were prepared in accordance with
GAAP and fairly present the financial position of the Company and its Subsidiaries
at the respective dates thereof and the results of their operations for the
periods covered thereby, subject to normal year-end audit adjustments and the
addition of footnotes in the case of interim financial statements.  Neither the Company nor any of its
Subsidiaries has any known contingent liability material to the Company and its
Subsidiaries on a Consolidated basis which is not reflected in the balance
sheets referred to in clauses (a) or (b) above (or delivered pursuant to
Sections 6.4.1 or 6.4.2) or in the notes thereto.


 


In the Company’s judgment, the financial and
operational projections referred to in clause (c) above constitute a reasonable
basis as of the Initial Closing Date for the assessment of the future
performance of the Company and its Subsidiaries during the periods indicated
therein, it being understood that any projected financial information
represents an estimate, based on various assumptions, of future results of
operations, which assumptions may prove to have been incorrect and which
results may not in fact occur.


 


7.2.2                        Other
Material Agreements.  The
Company has previously furnished to the Lenders correct and complete copies,
including all exhibits, schedules and amendments thereto, of the Preferred
Stock Recapitalization Agreements and the agreements and instruments, each as
in effect on the Initial Closing Date, listed in Exhibit 7.2.2 (the “Other Material Agreements”).


 


7.3.                              Agreements Relating to Financing
Debt, Investments, etc.  Exhibit
7.3, as of the Initial Closing Date and as from time to time hereafter
supplemented in accordance with Sections 6.4.1 and 6.4.2, sets forth (a) the
amounts (as of the dates indicated in Exhibit 7.3, as so supplemented)
of all Financing Debt of the Company and its Subsidiaries and all agreements
which relate to such Financing Debt, (b) all Liens and Guarantees with respect
to such Financing Debt, (c) all agreements which directly or indirectly require
the Company or any Subsidiary to make any Investment and (d) all Investments
permitted under Section 6.9.5.  The
Company has furnished the Lenders with correct and complete copies of any
agreements described in clauses (a), (b), (c) and (d) above requested by the
Required Lenders.


 


7.4.                              Changes in Condition.  Except as disclosed in the Company’s Form
10-K for the year then ended June 30, 2002 or the Company’s Form 10-Q for
the quarters ended September 30, 2002 and December 31, 2002, since
June 30, 2002 no Material Adverse Change has occurred and between
June 30, 2002 and the date hereof, neither the Company nor any Subsidiary
of the Company has entered into any material transaction outside the ordinary
course of business except for the transactions contemplated by this Agreement and
the Material Agreements.


 


7.5.                              Title to Assets.  The Company and its Subsidiaries have
defensible title to or the right to use all material assets necessary for or
used in the operations of their business


 


82

















 


as now conducted by them and reflected in the most recent balance sheet
referred to in Section 7.2.1 (or the balance sheet most recently furnished to
the Lenders pursuant to Sections 6.4.1 or 6.4.2), and to all assets acquired
subsequent to the date of such balance sheet, subject to no Liens except for
Liens permitted by Section 6.8 and except for assets disposed of as permitted
by Section 6.11.


 


7.6.                              Operations in Conformity with Law, etc.  To the best knowledge of the Company and the
Guarantors, the operations of the Company and its Subsidiaries as now conducted
or proposed to be conducted are not in violation of, nor is the Company or its
Subsidiaries in default under, any Legal Requirement presently in effect,
except for such violations and defaults as do not and will not, in the
aggregate, result, or create a material risk of resulting, in any Material
Adverse Change.  The Company has received
no notice of any such violation or default and has no knowledge of any basis on
which the operations of the Company or its Subsidiaries, as now conducted and
as currently proposed to be conducted after the date hereof, would be held so
as to violate or to give rise to any such violation or default.


 


7.7.                              Litigation.  No
litigation, at law or in equity, or any proceeding before any court, board or
other governmental or administrative agency or any arbitrator is pending or, to
the knowledge of the Company or any Guarantor, threatened which may involve any
material risk of any final judgment, order or liability which, after giving
effect to any applicable insurance, has resulted, or creates a material risk of
resulting, in any Material Adverse Change or which seeks to enjoin the
consummation, or which questions the validity, of any of the transactions
contemplated by this Agreement or any other Credit Document.  No judgment, decree or order of any court,
board or other governmental or administrative agency or any arbitrator has been
issued against or binds the Company or any of its Subsidiaries which has
resulted, or creates a material risk of resulting, in any Material Adverse
Change.


 


7.8.                              Authorization and Enforceability.  Each of the Company and each other Obligor
has taken all corporate action required to execute, deliver and perform this
Agreement and each other Credit Document to which it is party.  No consent of stockholders of the Company is
necessary in order to authorize the execution, delivery or performance of this
Agreement or any other Credit Document to which the Company is party.  Each of this Agreement and each other Credit
Document constitutes or will constitute upon execution and delivery thereof the
legal, valid and binding obligation of each Obligor party thereto and is
enforceable against such Obligor in accordance with its terms.


 


7.9.                              No Legal Obstacle to Agreements.  Neither the execution and delivery of this
Agreement or any other Credit Document, nor the making of any Working Capital
Loans hereunder, nor the guaranteeing of the Credit Obligations, nor the
securing of the Secured Obligations with the Pledged Collateral, nor the
consummation of any transaction referred to in or contemplated by this
Agreement or any other Credit Document, nor the fulfillment of the terms hereof
or thereof or of any other agreement, instrument, deed or lease


 


83

















 


contemplated by this Agreement or any other Credit Document, has
constituted or resulted in or will constitute or result in


 


(a)                                  any
breach or termination of the provisions of any material agreement, instrument,
deed or lease to which the Company, any of its Subsidiaries or any other
Obligor is a party or by which it is bound, or of the Charter or By-laws of the
Company, any of its Subsidiaries or any other Obligor;


 


(b)                                 the
violation of any law, statute, judgment, decree or governmental order, rule or
regulation applicable to the Company, any of its Subsidiaries or any other
Obligor;


 


(c)                                  the
creation under any agreement, instrument, deed or lease of any Lien (other than
Liens on the Pledged Collateral which secure the Credit Obligations) upon any
of the assets of the Company, any of its Subsidiaries or any other Obligor; or


 


(d)                                 any
redemption, retirement or other repurchase obligation of the Company, any of
its Subsidiaries or any other Obligor under any Charter, By-law, agreement, instrument,
deed or lease.


 


No approval,
authorization or other action by, or declaration to or filing with, any
governmental or administrative authority or any other Person is required to be
obtained or made (which has not been so obtained or made) by the Company, any
of its Subsidiaries or any other Obligor in connection with the execution,
delivery and performance of this Agreement, the Notes or any other Credit Document,
the transactions contemplated hereby or thereby, the making of any Loan
hereunder, the guaranteeing of the Credit Obligations or the securing of the
Credit Obligations with the Pledged Collateral (other than filings necessary to
perfect Administrative Agent’s security interest in the Pledged Collateral).


 


7.10.                        Defaults. 
Neither the Company nor any of its Subsidiaries is in default under any
provision of its Charter or By-laws or of this Agreement or any other Credit
Document.  Neither the Company nor any
of its Subsidiaries is in default under any provision of any agreement,
instrument, deed or lease to which it is party or by which it or its property
is bound or has violated any law, judgment, decree or governmental order, rule
or regulation, in each case so as to result, or create a material risk of
resulting, in any Material Adverse Effect.


 


7.11.                        Licenses, etc. 
To the best knowledge of the Company and the Guarantors, the Company and
its Subsidiaries have all material patents, patent applications, patent
licenses, patent rights, trademarks, trademark rights, trade names, trade name
fights, copyrights, licenses, franchises, permits, authorizations and other
fights as are necessary for the conduct of the business of the Company and its
Subsidiaries as now conducted by them. 
All of the foregoing are in full force and effect in all material
respects, and each of the Company and its Subsidiaries is in substantial
compliance with the foregoing without any known conflict


 


84

















 


with the valid rights of others which has resulted, or creates a
material risk of resulting, in any Material Adverse Effect.  No event has occurred which permits, or
after notice or lapse of time or both would permit, the revocation or
termination of any such license, franchise or other right or which affects the
rights of any of the Company and its Subsidiaries thereunder so as to result,
or to create a material risk of resulting, in any Material Adverse Effect.  No litigation or other proceeding or dispute
exists with respect to the validity or, where applicable, the extension or
renewal, of any of the foregoing which has resulted, or creates a material risk
of resulting, in any Material Adverse Effect.


 


7.12.                        Tax Returns. 
Each of the Company and its Subsidiaries has filed all material tax and
information returns or permitted extensions which are required to be filed by
it and has paid, or made adequate provision for the payment of, all taxes which
have or may become due pursuant to such returns or to any assessment received
by it.  Neither the Company nor any of
its Subsidiaries knows of any material additional assessments or any basis
therefor.  The Company reasonably believes
that the charges, accruals and reserves on the books of the Company and its
Subsidiaries in respect of taxes or other governmental charges are adequate.


 


7.13.                        Certain Business Representations.


 


7.13.1                  Labor
Relations.  No dispute or
controversy between the Company or any of its Subsidiaries and any of their
respective employees has resulted, or is reasonably likely to result, in any
Material Adverse Effect, and neither the Company nor any of its Subsidiaries
anticipates that its relationships with its unions or employees will result, or
are reasonably likely to result, in any Material Adverse Effect.  The Company and each of its Subsidiaries is
in compliance in all material respects with all federal and state laws with
respect to (a) nondiscrimination in employment with which the failure to
comply, in the aggregate, has resulted, or creates a material risk of
resulting, in a Material Adverse Effect and (b) the payment of wages.


 


7.13.2                  Antitrust.  Each of the Company and its Subsidiaries is
in compliance in all material respects with all federal and state antitrust
laws relating to its business and the geographic concentration of its business.


 


7.13.3                  Consumer
Protection.  Neither the
Company nor any of its Subsidiaries is in violation of any rule, regulation,
order, or interpretation of any rule, regulation or order of the Federal Trade
Commission (including truth-in-lending), with which the failure to comply, in
the aggregate, has resulted, or creates a material risk of resulting, in a
Material Adverse Effect.


 


7.13.4                  Burdensome
Obligations.  Neither the
Company nor any of its Subsidiaries is party to or bound by any agreement, instrument,
deed or lease or is subject to any Charter, By-law or other restriction,
commitment or requirement which, in the opinion of the


 


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management of such Person, is so unusual or
burdensome as in the foreseeable future to result, or create a material risk of
resulting, in a Material Adverse Effect.


 


7.13.5                  Future
Expenditures.  Neither the
Company nor any of its Subsidiaries anticipate that the future expenditures, if
any, by the Company and its Subsidiaries needed to meet the provisions of any
federal, state or foreign governmental statutes, orders, rules or regulations
will be so burdensome as to result, or create a material risk of resulting, in
any Material Adverse Effect.


 


7.14.                        Environmental Regulations.


 


7.14.1                  Environmental
Compliance.  To the best
knowledge of the Company and the Guarantors, each of the Company and its
Subsidiaries is in compliance in all material respects with and has no
liability under the Clean Air Act, the Federal Water Pollution Control Act, the
Marine Protection Research and Sanctuaries Act, RCRA, CERCLA, each as amended,
and any other Environmental Law in effect in any jurisdiction in which any
properties of the Company or any of its Subsidiaries are located or where any
of them conducts its business, and with all applicable published rules and
regulations (and applicable standards and requirements) of the federal
Environmental Protection Agency and of any similar agencies in states or
foreign countries in which the Company or any of its Subsidiaries conducts its
business, in each case other than those which in the aggregate have not
resulted, and do not create a material risk of resulting, in a Material Adverse
Effect.


 


7.14.2                  Environmental
Litigation.  Except in
instances in which such event has not resulted, and does not create a material
risk of resulting, individually or in the aggregate, in a Material Adverse
Effect, no suit, claim, action or proceeding of which the Company or any of its
Subsidiaries has been given notice or otherwise has knowledge is now pending
before any court, Governmental Authority or other forum, or to the Company’s or
any of its Subsidiaries’ knowledge, threatened by any Person (nor to the
Company’s or any of its Subsidiaries’ knowledge, does any factual basis exist
therefor) for, and neither the Company nor any of its Subsidiaries has received
written correspondence from any federal, state or local Governmental Authority
with respect to


 


(a)                                  noncompliance
by the Company or any of its Subsidiaries with any Environmental Law;


 


(b)                                 personal
injury, wrongful death or other tortious conduct relating to materials,
commodities or products used, generated, sold, transferred or manufactured by
the Company or any of its Subsidiaries (including products made of, containing
or incorporating asbestos, lead or other hazardous materials, commodities or
toxic substances); or


 


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(c)                                  the
release into the environment by the Company or any of its Subsidiaries of any
Hazardous Material generated by the Company or any of its Subsidiaries whether
or not occurring at or on a site owned, leased or operated by the Company or
any of its Subsidiaries.


 


7.14.3                  Hazardous
Material.  Exhibit 7.14
contains a list as of the Initial Closing Date of all waste disposal or dump
sites (except sites as to which the involvement of the Company or any
Subsidiary has not resulted, and does not present a material risk of resulting,
individually or in the aggregate, in a Material Adverse Effect) at which
Hazardous Material generated by either the Company or any of its Subsidiaries
has been disposed of directly by the Company or any of its Subsidiaries and all
independent contractors to whom the Company and its Subsidiaries have delivered
Hazardous Material or, to the Company’s or any of its Subsidiaries’ knowledge,
where Hazardous Material finally came to be located, and indicates all such
sites which are or have been included (including as a potential or suspect
site) in any published federal, state or local “superfund” or other list of
hazardous or toxic waste sites.  Any
waste disposal or dump sites at which Hazardous Material generated by either
the Company or any of its Subsidiaries has been disposed of directly by the
Company or any of its Subsidiaries and all independent contractors to whom the
Company or any of its Subsidiaries have delivered Hazardous Material or, to the
Company’s or any of its Subsidiaries’ knowledge, where Hazardous Material
finally came to be located, has not resulted, and does not present a material
risk of resulting, individually or in the aggregate, in a Material Adverse Effect.


 


7.14.4                  Environmental
Condition of Properties. 
None of the properties owned or leased by the Company or any of its
Subsidiaries has been used as a treatment, storage or disposal site, other than
as disclosed in Exhibit 7.14, except sites as to which the involvement
of the Company or any Subsidiary has not resulted, and does not present a
material risk of resulting, individually or in the aggregate, in a Material
Adverse Effect.  No Hazardous Material
is present in any Real Property currently or formerly owned or operated by the
Company or any of its Subsidiaries except that which has not resulted, and does
not present a material risk of resulting, individually or in the aggregate, in
a Material Adverse Effect.


 


7.15.                        Pension Plans. 
Each Plan (other than a Multiemployer Plan) and, to the knowledge of the
Company and its Subsidiaries, each Multiemployer Plan is in material compliance
with the applicable provisions of ERISA and the Code.  Each Multiemployer Plan and each Plan that constitutes a “defined
benefit plan” (as defined in ERISA) are set forth in Exhibit 7.15 as of
the Initial Closing Date and as from time to time supplemented thereafter in
accordance with Sections 6.4.1 and 6.4.2.. 
Each ERISA Group Person has met all of the funding standards applicable
to all Plans that are not Multiemployer Plans, and no condition exists which
would permit the institution of proceedings to terminate any Plan that is not a
Multiemployer Plan under section 4042 of ERISA.  To the best knowledge of the Company and each Subsidiary, no Plan
that is a Multiemployer Plan is currently insolvent or in


 


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reorganization or has been terminated within the meaning of ERISA.  Neither the Company nor any of its
Subsidiaries nor any ERISA Group Person has incurred any material liability
under Title IV of ERISA in the past six years.  Neither the Company nor any of its Subsidiaries nor any ERISA
Group Person has had a complete or partial withdrawal from any Multiemployer
Plan, nor would they become subject to any liability under ERISA if they were
to withdraw completely from all Multiemployer Plans, in either case that would
result in a material liability to the Company or any of its Subsidiaries.


 


7.16.                        Foreign Trade Regulations; Government Regulation;
Margin Stock.


 


7.16.1                  Foreign
Trade Regulations.  Neither
the execution and delivery of this Agreement or any other Credit Document, nor
the making by the Company of any Loans hereunder, nor the guaranteeing of the
Credit Obligations by any Guarantor, nor the securing of the Credit Obligations
with the Pledged Collateral, has constituted or resulted in or will constitute
or result in the violation of any Foreign Trade Regulation.


 


7.16.2                  Government
Regulation.  Neither the
Company nor any of its Subsidiaries, nor any Person controlling the Company or
any of its Subsidiaries or under common control with the Company or any of its
Subsidiaries, is subject to regulation under the Public Utility Holding Company
Act of 1935, the Federal Power Act, the Investment Company Act, the Interstate
Commerce Act or any other statute or regulation that regulates the incurring by
the Company or any of its Subsidiaries of Financing Debt as contemplated by
this Agreement and the other Credit Documents.


 


7.16.3                  Margin Stock.  Neither the Company nor any of its
Subsidiaries owns any Margin Stock (other than the First Reserve Common Stock
purchased or to be purchased by the Company, and the value of the First Reserve
Common Stock does not exceed 25% of the aggregate book value of the Pledged
Collateral determined in accordance with GAAP.


 


7.17.                        Minimum Petroleum Products Inventory Requirements.  The Minimum Petroleum Products Inventory Requirements
of the Company and its Subsidiaries on a Consolidated basis is approximately
900,000 barrels as of the date hereof.


 


7.18.                        Solvency.  Each
of the Company and the Guarantors is and, upon the incurrence of any Credit
Obligation by such Obligor will be, Solvent.


 


7.19.                        Disclosure.  To
the best knowledge of the Company and the Guarantors, neither this Agreement
nor any other Credit Document to be furnished to the Lenders by or on behalf of
the Company or any of its Subsidiaries in connection with the transactions
contemplated hereby or by such Credit Document contains any untrue statement of
material fact or omits to state a material fact necessary in order to make the
statements contained herein or therein, considered as a whole, not misleading
in light of the circumstances under which they were made.  No fact is actually known to the Company or
any Guarantor which,


 


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so far as the Company or any Guarantor is aware, has resulted, or in
the future (so far as the Company or any Guarantor can reasonably foresee) will
result, or presents a material risk of resulting, in any Material Adverse
Change, except to the extent that present or future general economic conditions
may result in a Material Adverse Change.


 


8.                                       Defaults.


 


8.1.                              Events of Default.  The following events are referred to as “Events of Default”:


 


8.1.1                        Payment.  The Company shall fail to make any payment
in respect of (a) interest or any fee on or in respect of any of the Credit
Obligations owed by it as the same shall become due and payable, and such
failure shall continue for a period of three Banking Days, or (b) any Credit
Obligation with respect to payments made by any Letter of Credit Issuer under
any Letter of Credit or any draft drawn thereunder within three Banking Days
after demand therefor by such Letter of Credit Issuer or (c) principal of any
of the Credit Obligations owed by it as the same shall become due, whether at
maturity or by acceleration or otherwise.


 


8.1.2                        Specified
Covenants.  The Company or
any of its Subsidiaries shall fail to perform or observe any of the provisions
of Section 6.2.5, 6.4.6, 6.5, 6.6, 6.7, 6.8, 6.9, 6.10, 6.11, 6.12, 6.15 or
6.18.


 


8.1.3                        Other
Covenants.  The Company, any
of its Subsidiaries or any other Obligor shall fail to perform or observe any
other covenant, agreement or provision to be performed or observed by it under
this Agreement or any other Credit Document, and such failure shall not be
rectified or cured to the written satisfaction of the Required Lenders within
30 days after the earlier of (a) notice thereof by the Administrative Agent to
the Company and (b) a Financial Officer shall have actual knowledge thereof.


 


8.1.4                        Representations
and Warranties.  Any
representation or warranty of or with respect to the Company, any of its
Subsidiaries or any other Obligor made to the Lenders or the Administrative
Agent in, pursuant to or in connection with this Agreement or any other Credit
Document shall be materially false on the date as of which it was made.


 


8.1.5                        Cross-Default,
etc.


 


(a)                                  The
Company or any of its Subsidiaries shall fail to make any payment when due
(after giving effect to any applicable grace periods) in respect of any Financing
Debt (other than the Credit Obligations) outstanding in an aggregate amount of
principal (whether or not due) and accrued interest exceeding $5,000,000, and
such failure shall continue, without having been duly cured, waived or
consented to, beyond the period of grace, if any, specified in the agreement or
instrument governing such Financing Debt;


 


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(b)                                 The
Company or any of its Subsidiaries shall fail to perform or observe the terms
of any agreement or instrument relating to such Financing Debt, and such
failure shall continue, without having been duly cured, waived or consented to,
beyond the period of grace, if any, specified in such agreement or instrument,
and such failure shall permit the acceleration of such Financing Debt;


 


(c)                                  All
or any part of such Financing Debt of the Company or any of its Subsidiaries
shall be accelerated or shall become due or payable prior to its stated
maturity (except with respect to voluntary prepayments thereof) for any reason
whatsoever;


 


(d)                                 Any
Lien on any property of the Company or any of its Subsidiaries securing any
such Financing Debt shall be enforced by foreclosure or similar action; or


 


(e)                                  Any
holder of any such Financing Debt shall exercise any right of rescission with
respect to the issuance thereof or put or repurchase rights against any obligor
with respect to such Financing Debt.


 


8.1.6                        Ownership;
Liquidation; etc.  Except as
permitted by Section 6.11,


 


(a)                                  the
Company shall cease to own, directly or indirectly, all the capital stock of
any Subsidiary which is a Wholly Owned Subsidiary on the date hereof or subsequently
becomes a Wholly Owned Subsidiary;


 


(b)                                 any
Person, together with “affiliates” and “associates” of such Person within the
meaning of Rule 12b-2 of the Exchange Act, shall acquire after the date hereof
beneficial ownership within the meaning of Rule 13d-3 of the Exchange Act of
50% or more of either the voting power of the voting stock or total equity
capital of the Company;


 


(c)                                  a
majority of the board of directors shall consist of individuals who were not on
the date hereof members of such board, except to the extent that the new members
were nominated by a majority of the directors serving on the date hereof (or
who themselves were nominated by those so nominated); and


 


(d)                                 the
Company or any of its Subsidiaries (other that inactive Subsidiaries which do
not, directly or indirectly, own material assets) or any other Obligor shall
initiate any action to dissolve, liquidate or otherwise terminate its
existence.


 


8.1.7                        Enforceability,
etc.  Any Credit Document
shall cease for any reason (other than the scheduled termination thereof in
accordance with its terms) to be enforceable in accordance with its terms or in
full force and effect and such enforceability shall not be restored, or other
provision therefor made, to the satisfaction of the Required Lenders within 30
days following such cessation; or any party to any Credit Document shall so
assert in a judicial


 


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or similar proceeding; or the security
interests created by this Agreement or any other Credit Documents shall cease
to be enforceable and of the same effect and priority purported to be created
hereby.


 


8.1.8                        Judgments.  A final judgment (a) which, with other
outstanding final judgments against the Company and its Subsidiaries, exceeds
an aggregate of $1,000,000 in excess of applicable insurance coverage shall be
rendered against the Company or any of its Subsidiaries, or (b) which grants
injunctive relief that results, or creates a material risk of resulting, in a
Material Adverse Change and in either case if, (i) within 60 days after entry
thereof, such judgment shall not have been discharged or execution thereof
stayed pending appeal or (ii) within 60 days after the expiration of any such
stay, such judgment shall not have been discharged.


 


8.1.9                        ERISA.  Any “reportable event” (as defined in
section 4043 of ERISA) shall have occurred that reasonably could be expected to
result in termination of a Plan or the appointment by the appropriate United
States District Court of a trustee to administer any Plan or the imposition of
a Lien in favor of a Plan; or any ERISA Group Person shall fail to pay when due
amounts aggregating in excess of $1,000,000 which it shall have become liable
to pay to the PBGC or to a Plan under Title IV of ERISA; or notice of intent to
terminate a Plan shall be filed under Title IV of ERISA by any ERISA Group
Person or administrator; or the PBGC shall institute proceedings under Title IV
of ERISA to terminate or to cause a trustee to be appointed to administer any
Plan or a proceeding shall be instituted by a fiduciary of any Plan against any
ERISA Group Person to enforce section 515 or 4219(c)(5) of ERISA and such
proceeding shall not have been dismissed within 60 days thereafter; or a
condition shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any Plan must be terminated.


 


8.1.10                  Bankruptcy,
etc.  The Company, any of its
Subsidiaries or any other Obligor shall


 


(a)                                  commence
a voluntary case under the Bankruptcy Code or authorize, by appropriate
proceedings of its board of directors or other governing body, the commencement
of such a voluntary case;


 


(b)                                 
(i) have filed against it a petition commencing an involuntary case under the
Bankruptcy Code that shall not have been dismissed within 90 days after the
date on which such petition is filed, or (ii) file an answer or other pleading
within such 90-day period admitting or failing to deny the material allegations
of such a petition or seeking, consenting to or acquiescing in the relief
therein provided, or (iii) have entered against it an order for relief in any
involuntary case commenced under the Bankruptcy Code;


 


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(c)                                  seek
relief as a debtor under any applicable law, other than the Bankruptcy Code, of
any jurisdiction relating to the liquidation or reorganization of debtors or to
the modification or alteration of the rights of creditors, or consent to or
acquiesce in such relief;


 


(d)                                 have
entered against it an order by a court of competent jurisdiction (i) finding it
to be bankrupt or insolvent, (ii) ordering or approving its liquidation or
reorganization as a debtor or any modification or alteration of the rights of
its creditors or (iii) assuming custody of, or appointing a receiver or other
custodian for, all or a substantial portion of its property; or


 


(e)                                  make
an assignment for the benefit of, or enter into a composition with, its creditors,
or appoint, or consent to the appointment of, or suffer to exist a receiver or
other custodian for, all or a substantial portion of its property.


 


8.1.11                  Series A
Convertible Preferred Stock. 
There shall occur any “Fundamental Change” as defined in the provisions
of the Charter of the Company which relates to the Series A Convertible
Preferred Stock.


 


8.1.12                  Series B
Convertible Preferred Stock. 
There shall occur any “Fundamental Change” as defined in the provisions
of the Charter of the Company which relates to the Series B Convertible
Preferred Stock.


 


8.2.                              Certain Actions Following an Event of Default.  If any one or more Events of Default shall
occur, then in each and every such case the following shall apply:


 


8.2.1                        Terminate
Obligation to Extend Credit. 
The Administrative Agent on behalf of the Lenders may (and upon written
request of the Required Lenders the Administrative Agent shall) terminate the
obligations of the Lenders to make any further extensions of credit under the
Credit Documents by furnishing notice of such termination to the Company.


 


8.2.2                        Specific
Performance; Exercise of Rights. 
The Administrative Agent on behalf of the Lenders may (and upon written
request of the Required Lenders the Administrative Agent shall) proceed to protect
and enforce the Lenders’ rights by suit in equity, action at law and/or other
appropriate proceeding, either for specific performance of any covenant or
condition contained in this Agreement or any other Credit Document or in any
instrument or assignment delivered to the Lenders pursuant to this Agreement or
any other Credit Document, or in aid of the exercise of any power granted in
this Agreement or any other Credit Document or any such instrument or assignment.


 


8.2.3                        Acceleration.  The Administrative Agent on behalf of the
Lenders may (and upon written request of the Required Lenders the
Administrative Agent shall) by notice in writing to the Company (a) declare all
or any part of the unpaid balance of the Credit


 


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Obligations then outstanding to be
immediately due and payable, and (b) require the Company immediately to deposit
with the Administrative Agent in cash an amount equal to the then Letter of
Credit Exposure (which cash shall be held and applied as provided in Section
4.3), and thereupon such unpaid balance or part thereof and such amount equal
to the Letter of Credit Exposure shall become so due and payable without
presentation, protest or further demand or notice of any kind, all of which are
hereby expressly waived; provided, however, that if a
Bankruptcy Default shall have occurred, the unpaid balance of the Credit
Obligations shall automatically become immediately due and payable.


 


8.2.4                        Enforcement
of Payment; Collateral; Setoff. 
The Administrative Agent on behalf of the Lenders may (and upon written
request of the Required Lenders the Administrative Agent shall) proceed to
enforce payment of the Credit Obligations in such manner as it may elect, to
cancel, or instruct other Letter of Credit Issuers to cancel, any outstanding
Letters of Credit which permit the cancellation thereof and to realize upon any
and all rights in the Pledged Collateral. 
The Lenders may offset and apply toward the payment of the Credit
Obligations (and/or toward the curing of any Event of Default) any Indebtedness
from the Lenders to the respective Obligors, including any Indebtedness
represented by deposits in any account maintained with the Lenders, regardless
of the adequacy of any security for the Credit Obligations.  The Lenders shall have no duty to determine
the adequacy of any such security in connection with any such offset.


 


8.2.5                        Cumulative
Remedies.  To the extent not
prohibited by applicable law which cannot be waived, all of the Lenders’ rights
hereunder and under each other Credit Document shall be cumulative.


 


8.3.                              Annulment of Defaults.  Once an Event of Default has occurred, such
Event of Default shall be deemed to exist and be continuing for all purposes of
the Credit Documents until the Required Lenders (and, if required by Section
12.6(b)(ii), each Lender) or the Administrative Agent (with the consent of the
Required Lenders (and, if required by Section 12.6(b)(ii), each Lender)) shall
have waived such Event of Default in writing, stated in writing that the same
has been cured to such Lenders’ reasonable satisfaction or entered into an
amendment to this Agreement which by its express terms cures such Event of
Default, at which time such Event of Default shall no longer be deemed to exist
or to have continued.  No such action by
the Lenders or the Administrative Agent shall extend to or affect any subsequent
Event of Default or impair any rights of the Lenders upon the occurrence
thereof.  The making of any extension of
credit during the existence of any Default or Event of Default shall not
constitute a waiver thereof.  Other than
with respect to a Default or an Event of Default arising from a breach of
Section 6.5 or arising under Section 8.1.10, once a Default or Event of Default
shall have been cured, such Default or Event of Default (but no future or
related Default or Event of Default, whether or not arising under the same
provision as the cured Default or Event of Default) shall be deemed to not have
occurred or be continuing.


 


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8.4.                              Waivers.  To the
extent that such waiver is not prohibited by the provisions of applicable law
that cannot be waived, each of the Company and the other Obligors waives


 


(a)                                  all
presentments, demands for performance, notices of nonperformance (except to the
extent required by this Agreement or any other Credit Document), protests, notices
of protest and notices of dishonor;


 


(b)                                 any
requirement of diligence or promptness on the part of the Administrative Agent
or any Lender in the enforcement of its rights under this Agreement, the Notes
or any other Credit Document;


 


(c)                                  any
and all notices of every kind and description which may be required to be given
by any statute or rule of law; and


 


(d)                                 any
defense (other than indefeasible payment in full) which it may now or hereafter
have with respect to its liability under this Agreement, the Notes or any other
Credit Document or with respect to the Credit Obligations.


 


9.                                       Guarantees.


 


9.1.                              Guarantees of Credit Obligations.  Each Guarantor unconditionally jointly and
severally guarantees that the Credit Obligations will be performed and will be
paid in full in cash when due and payable, whether at the stated or accelerated
maturity thereof or otherwise, this guarantee being a guarantee of payment and
not of collectability and being absolute and in no way conditional or
contingent.  In the event any part of
the Credit Obligations shall not have been so paid in full when due and
payable, each Guarantor will, immediately upon notice by the Administrative
Agent or, without notice, immediately upon the occurrence of a Bankruptcy
Default, pay or cause to be paid to the Administrative Agent for the account of
each Lender in accordance with the Lenders’ respective Percentage Interests the
amount of such Credit Obligations which are then due and payable and
unpaid.  The obligations of each
Guarantor hereunder shall not be affected by the invalidity, unenforceability
or irrecoverability of any of the Credit Obligations as against any other
Obligor, any other guarantor thereof or any other Person.  For purposes hereof, the Credit Obligations
shall be due and payable when and as the same shall be due and payable under
the terms of this Agreement or any other Credit Document notwithstanding the
fact that the collection or enforcement thereof may be stayed or enjoined under
the Bankruptcy Code or other applicable law.


 


9.2.                              Continuing Obligation.  Each Guarantor acknowledges that the Lenders
and the Administrative Agent have entered into this Agreement (and, to the
extent that the Lenders or the Administrative Agent may enter into any future
Credit Document, will have entered into such agreement) in reliance on this
Section 9 being a continuing irrevocable agreement, and such Guarantor agrees
that its guarantee may not be revoked in whole or in


 


94

















 


part.  The obligations of the
Guarantors hereunder shall terminate when the commitment of the Lenders to
extend credit under this Agreement shall have terminated and all of the Credit
Obligations have been indefeasibly paid in full in cash and discharged; provided,
however,
that


 


(a)                                  if
a claim is made upon the Lenders at any time for repayment or recovery of any
amounts or any property received by the Lenders from any source on account of
any of the Credit Obligations and the Lenders repay or return any amounts or
property so received (including interest thereon to the extent required to be
paid by the Lenders) or


 


(b)                                 if
the Lenders become liable for any part of such claim by reason of (i) any
judgment or order of any court or administrative authority having competent
jurisdiction, or (ii) any settlement or compromise of any such claim of which
the Company has notice and an opportunity to comment,


 


then the
Guarantors shall remain liable under this Agreement for the amounts so repaid
or property so returned or the amounts for which the Lenders become liable
(such amounts being deemed part of the Credit Obligations) to the same extent
as if such amounts or property had never been received by the Lenders,
notwithstanding any termination hereof or the cancellation of any instrument or
agreement evidencing any of the Credit Obligations.  Not later than five days after receipt of notice from the
Administrative Agent, the Guarantors shall jointly and severally pay to the
Administrative Agent an amount equal to the amount of such repayment or return
for which the Lenders have so become liable. 
Payments hereunder by a Guarantor may be required by the Administrative
Agent on any number of occasions.


 


9.3.                              Waivers with Respect to Credit Obligations.  Except to the extent expressly required by
this Agreement or any other Credit Document, each Guarantor waives, to the
fullest extent permitted by the provisions of applicable law, all of the following
(including all defenses, counterclaims and other rights of any nature based
upon any of the following):


 


(a)                                  presentment,
demand for payment and protest of nonpayment of any of the Credit Obligations,
and notice of protest, dishonor or nonperformance;


 


(b)                                 notice
of acceptance of this guarantee and notice that credit has been extended in
reliance on the Guarantor’s guarantee of the Credit Obligations;


 


(c)                                  notice
of any Default or of any inability to enforce performance of the obligations of
the Company or any other Person with respect to any Credit Document, or notice
of any acceleration of maturity of any Credit Obligations;


 


(d)                                 demand
for performance or observance of, and any enforcement of any provision of, the
Credit Obligations, this Agreement or any other Credit Document or


 


95

















 


any pursuit or
exhaustion of rights or remedies with respect to any Pledged Collateral or
against the Company or any other Person in respect of the Credit Obligations or
any requirement of diligence or promptness on the part of the Administrative
Agent or the Lenders in connection with any of the foregoing;


 


(e)                                  any
act or omission on the part of the Administrative Agent or the Lenders which
may impair or prejudice the rights of the Guarantor, including rights to obtain
subrogation, exoneration, contribution, indemnification or any other reimbursement
from the Company or any other Person, or otherwise operate as a deemed release
or discharge;


 


(f)                                    failure
or delay to perfect or continue the perfection of any security interest in any
Pledged Collateral or any other action which harms or impairs the value of, or
any failure to preserve or protect the value of, any Pledged Collateral;


 


(g)                                 any
statute of limitations or any statute or rule of law which provides that the
obligation of a surety must be neither larger in amount nor in other respects
more burdensome than the obligation of the principal;


 


(h)                                 any
“single action” or “anti-deficiency” law which would otherwise prevent the
Lenders from bringing any action, including any claim for a deficiency, against
the Guarantor before or after the Administrative Agent’s or the Lenders’
commencement or completion of any foreclosure action, whether judicially, by
exercise of power of sale or otherwise, or any other law which would otherwise
require any election of remedies by the Administrative Agent or the Lenders;


 


(i)                                     all
demands and notices of every kind with respect to the foregoing; and


 


(j)                                     to
the extent not referred to above, all defenses (other than payment) which the
Company may now or hereafter have to the payment of the Credit Obligations, together
with all suretyship defenses, which could otherwise be asserted by such
Guarantor.


 


Each Guarantor
represents that it has obtained the advice of counsel as to the extent to which
suretyship and other defenses may be available to it with respect to its
obligations hereunder in the absence of the waivers contained in this Section
9.3.


 


No delay or omission on the part of the
Administrative Agent or the Lenders in exercising any right under this
Agreement or any other Credit Document or under any guarantee of the Credit
Obligations or with respect to the Pledged Collateral shall operate as a waiver
or relinquishment of such right.  No
action which the Administrative Agent or the Lenders or the Company may take or
refrain from taking with respect to the Credit Obligations,


 


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including any amendments thereto or modifications
thereof or waivers with respect thereto, shall affect the provisions of this
Agreement or the obligations of the Guarantor hereunder.  None of the Lenders’ or the Administrative
Agent’s rights shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of any Obligor, or by any noncompliance by
the Company with the terms, provisions and covenants of this Agreement,
regardless of any knowledge thereof which the Administrative Agent or the
Lenders may have or otherwise be charged with.


 


9.4.                              Lenders’ Power to Waive, etc.  Each Guarantor grants to the Lenders full
power in their discretion, without notice to or consent of such Guarantor, such
notice and consent being expressly waived to the fullest extent permitted by
applicable law and, without in any way affecting the liability of the Guarantor
under its guarantee hereunder,


 


(a)                                  to
waive compliance with, and any Default under, and to consent to any amendment
to or modification or termination of any terms or provisions of, or to give any
waiver in respect of, this Agreement, any other Credit Document, the Pledged
Collateral, the Credit Obligations or any guarantee thereof (each as from time
to time in effect);


 


(b)                                 to
grant any extensions of the Credit Obligations (for any duration), and any
other indulgence with respect thereto, and to effect any total or partial
release (by operation of law or otherwise), discharge, compromise or settlement
with respect to the obligations of the Obligors or any other Person in respect
of the Credit Obligations, whether or not rights against the Guarantor under
this Agreement are reserved in connection therewith;


 


(c)                                  to
take security in any form for the Credit Obligations, and to consent to the
addition to or the substitution, exchange, release or other disposition of, or
to deal in any other manner with, any part of any property contained in the
Pledged Collateral whether or not the property, if any, received upon the
exercise of such power shall be of a character or value the same as or
different from the character or value of any property disposed of, and to
obtain, modify or release any present or future guarantees of the Credit
Obligations and to proceed against any of the Pledged Collateral or such guarantees
in any order;


 


(d)                                 to
collect or liquidate or realize upon any of the Credit Obligations or the
Pledged Collateral in any manner or to refrain from collecting or liquidating
or realizing upon any of the Credit Obligations or the Pledged Collateral; and


 


(e)                                  to
extend credit under this Agreement, any other Credit Document or otherwise in
such amount as the Lenders may determine, including increasing the amount of
credit and the interest rate and fees with respect thereto, even though the


 


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condition of
the Obligors (financial or otherwise on an individual or Consolidated basis)
may have deteriorated since the date hereof.


 


9.5.                              Information Regarding the Company, etc.  Each Guarantor has made such investigation
as it deems desirable of the risks undertaken by it in entering into this
Agreement and is fully satisfied that it understands all such risks.  Each Guarantor waives any obligation which
may now or hereafter exist on the part of the Administrative Agent or the
Lenders to inform it of the risks being undertaken by entering into this
Agreement or of any changes in such risks and, from and after the date hereof,
each Guarantor undertakes to keep itself informed of such risks and any changes
therein.  Each Guarantor expressly
waives any duty which may now or hereafter exist on the part of the
Administrative Agent or the Lenders to disclose to the Guarantor any matter
related to the business, operations, character, collateral, credit, condition
(financial or otherwise), income or prospects of the Company or its Affiliates
or their properties or management, whether now or hereafter known by the
Administrative Agent or the Lenders. 
Each Guarantor represents, warrants and agrees that it assumes sole
responsibility for obtaining from the Company all information concerning this
Agreement and all other Credit Documents and all other information as to the
Company and its Affiliates or their properties or management as such Guarantor
deems necessary or desirable.


 


9.6.                              Certain Guarantor Representations.  Each Guarantor represents that


 


(a)                                  it
is in its best interest and in pursuit of the purposes for which it was
organized as an integral part of the business conducted and proposed to be
conducted by the Company and its Subsidiaries, and reasonably necessary and convenient
in connection with the conduct of the business conducted and proposed to be
conducted by them, to induce the Lenders to enter into this Agreement and to
extend credit to the Company by making the Guarantees contemplated by this
Section 9,


 


(b)                                 the
credit available hereunder will directly or indirectly inure to its benefit,


 


(c)                                  by
virtue of the foregoing it is receiving at least reasonably equivalent value
from the Lenders for its Guarantee,


 


(d)                                 it
will not be rendered insolvent as a result of entering into this Agreement,


 


(e)                                  after
giving effect to the transactions contemplated by this Agreement, it will have
assets having a fair saleable value in excess of the amount required to pay its
probable liability on its existing debts as they become absolute and matured,


 


(f)                                    it
has, and will have, access to adequate capital for the conduct of its business,


 


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(g)                                 it
has the ability to pay its debts from time to time incurred in connection
therewith as such debts mature, and


 


(h)                                 it
has been advised by the Administrative Agent that the Lenders are unwilling to
enter into this Agreement unless the Guarantees contemplated by this Section 9
are given by it.


 


9.7.                              Subrogation. 
Each Guarantor agrees that, until the Credit Obligations are paid in
full, it will not exercise any right of reimbursement, subrogation,
contribution, offset or other claims against the other Obligors arising by
contract or operation of law in connection with any payment made or required to
be made by such Guarantor under this Agreement.  After the payment in full of the Credit Obligations, each
Guarantor shall be entitled to exercise against the Company and the other
Obligors all such rights of reimbursement, subrogation, contribution and
offset, and all such other claims, to the fullest extent permitted by law.


 


9.8.                              Subordination.  Each Guarantor covenants and agrees that,
after the occurrence of an Event of Default, all Indebtedness, claims and
liabilities then or thereafter owing by the Company or any other Obligor to
such Guarantor whether arising hereunder or otherwise are subordinated to the
prior payment in full of the Credit Obligations and are so subordinated as a
claim against such Obligor or any of its assets, whether such claim be in the
ordinary course of business or in the event of voluntary or involuntary
liquidation, dissolution, insolvency or bankruptcy, so that no payment with
respect to any such Indebtedness, claim or liability will be made or received
while any Event of Default exists.


 


10.                                 [Reserved].


 


11.                                 Expenses; Indemnity.


 


11.1.                        Expenses. 
Whether or not the transactions contemplated hereby shall be
consummated, the Company will pay


 


(a)                                  all
reasonable expenses of the Administrative Agent, the Sole Lead Arranger and the
Syndication Agent (including the out-of-pocket expenses related to forming the
group of Lenders and reasonable fees and disbursements of counsel to the
Administrative Agent) incurred on or prior to the Initial Closing Date in connection
with the negotiation, preparation and duplication of this Agreement and each
other Credit Document or in connection with any environmental audit or review
reports or examinations by and reports of the Administrative Agent’s commercial
financial examiners and fixed asset appraisers;


 


(b)                                 all
reasonable expenses of (i) the Administrative Agent (including the reasonable
fees and disbursements of Cahill Gordon & Reindel llp, New York counsel


 


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to the
Administrative Agent and of Liskow & Lewis, special counsel to the
Administrative Agent) in connection with amendments, waivers, consents and
other operations under this Agreement or the Credit Documents and (ii) all
reasonable expenses of the Secured Parties, payable to the Collateral Agent
(including the reasonable fees and disbursements of counsel to the Secured
Parties and special counsel, if any, in connection with enforcement of their
respective rights, interests or remedies under and pursuant to the Security Documents);


 


(c)                                  all
recording and filing fees and transfer and documentary stamp and similar taxes
at any time payable in respect of this Agreement, any other Credit Document,
any Pledged Collateral or the incurrence of the Credit Obligations;


 


(d)                                 all
other reasonable expenses incurred by the Administrative Agent, the Lenders or
the holder of any Credit Obligation following the occurrence and continuance of
an Event of Default or in connection with the enforcement of any rights
hereunder or under any other Credit Document or any work-out negotiation
relating to the Credit Obligations, including costs of collection and
reasonable attorneys’ fees (including a reasonable allowance for the hourly
cost of attorneys employed by the Lenders on a salaried basis) and expenses;
and


 


(e)                                  all
reasonable expenses of the Administrative Agent incurred after the Initial
Closing Date in connection with reports of the Administrative Agent’s
commercial financial examiners, provided that the Company shall be responsible
for paying the cost of only one commercial finance exam in any fiscal year of
the Company, unless an Event of Default has occurred and is continuing, in
which case the Company shall be responsible for paying for such number of
commercial finance exams as the Administrative Agent may reasonably require.


 


11.2.                        General Indemnity.  The Company shall indemnify the Secured
Parties and the Administrative Agent and hold them harmless from any liability,
loss or damage resulting from the violation by the Company of Section 2.5.  In addition, the Company shall indemnify
each Lender, the Administrative Agent, the Collateral Agent, each of the
Lenders’, the Administrative Agent’s or the Collateral Agent’s directors,
officers, employees, agents, attorneys, accountants and consultants, and each
Person, if any, who controls any Lender or the Administrative Agent (each
Secured Party, the Administrative Agent and each of such directors, officers,
employees, agents, attorneys, accountants, consultants and control Persons is
referred to as an “Indemnified Party”)
and hold each of them harmless from and against any and all claims, damages,
liabilities, losses and reasonable expenses (including reasonable fees and
disbursements of counsel with whom any Indemnified Party may consult in
connection therewith and all reasonable expenses of litigation or preparation
therefor) which any Indemnified Party may incur or which may be asserted
against any Indemnified Party in connection with (a) the Indemnified Party’s
compliance with or contest of any subpoena or other process


 


100

















 


issued against it in any proceeding involving the Company or any of its
Subsidiaries or their Affiliates, (b) any litigation or investigation involving
the Company, any of its Subsidiaries or their Affiliates, or any officer, director
or employee thereof, (c) the existence or exercise of any security rights with
respect to the Pledged Collateral in accordance with the Credit Documents, or
(d) this Agreement, any other Credit Document or any transaction contemplated
hereby or thereby; provided, however, that the foregoing
indemnity shall not apply to litigation commenced by the Company against the
Lenders or the Administrative Agent which seeks enforcement of any of the
rights of the Company hereunder or under any other Credit Document and is
determined adversely to the Lenders or the Administrative Agent in a final
nonappealable judgment or to the extent such claims, damages, liabilities and
expenses result from a Lender’s or the Administrative Agent’s gross negligence
or willful misconduct.  THE COMPANY
EXPRESSLY ACKNOWLEDGES THAT IT MAY BE REQUIRED TO INDEMNIFY PERSONS AGAINST
THEIR OWN NEGLIGENCE.


 


11.3.                        Indemnity with Respect to Letters of Credit.  The Company shall indemnify each Letter of
Credit Issuer and its correspondents and hold each of them harmless from and
against any and all claims, losses, liabilities, damages and reasonable
expenses (including reasonable attorneys’ fees) arising from or in connection
with any Letter of Credit, including any such claim, loss, liability, damage or
expense arising out of any transfer, sale, delivery, surrender or endorsement
of any invoice, bill of lading, warehouse receipt or other document at any time
held by the Administrative Agent, such Letter of Credit Issuer or held for
their respective accounts by any of their correspondents, in connection with
any Letter of Credit, except to the extent such claims, losses, liabilities,
damages and expenses result from gross negligence or willful misconduct on the
part of the Administrative Agent or any other Letter of Credit Issuer.


 


12.                                 Operations; Administrative Agent.


 


12.1.                        Interests in Credits.  The Percentage Interest of each Lender in
the Working Capital Commitments shall be computed based on the maximum
principal amount for each Lender as set forth in the Register, as from time to
time in effect.  The current Percentage
Interests for the Working Capital Commitments are set forth on Schedule 1.1,
which Schedule 1.1 may be updated by the Administrative Agent from time to time
to conform to the Register.


 


12.2.                        Administrative Agent’s Authority to Act, etc.  Each of the Lenders appoints and authorizes
UBS AG, Stamford Branch to act for the Lenders as the Lenders’ Administrative
Agent in connection with the transactions contemplated by this Agreement and
the other Credit Documents on the terms set forth herein.  In acting hereunder, the Administrative
Agent is acting for the account of UBS AG, Stamford Branch to the extent of its
Percentage Interest and for the account of each other Lender to the extent of
the Lenders’ respective Percentage Interests, and all action in connection with
the enforcement of, or the exercise


 


101

















 


of any remedies (other than the Lenders’ rights of set-off as provided
in Section 8.2.4 or in any Credit Document) in respect of the Credit
Obligations and Credit Documents shall be taken by the Administrative
Agent.  The Administrative Agent, when
acting as Collateral Agent under this Agreement and the other Credit Documents,
shall have the same rights and duties as provided for in this Agreement and the
other Credit Documents when acting as the Administrative Agent.  The Lenders hereby approve the terms of the
Credit Documents as in effect on the Amendment and Restatement Date relating to
the Collateral Agent, and ratify the execution and delivery of such Credit
Documents by the Administrative Agent and the Collateral Agent.


 


12.3.                        Company to Pay Administrative Agent, etc.  The Company and each Guarantor shall be
fully protected in making all payments in respect of the Credit Obligations to
the Administrative Agent, in relying upon consents, modifications and
amendments executed by the Administrative Agent purportedly on the Lenders’
behalf, and in dealing with the Administrative Agent as herein provided.  The Administrative Agent may charge the
accounts of the Company, on the dates when the amounts thereof become due and
payable, with the amounts of the principal of and interest on the Loans, any
amounts paid by the Letter of Credit Issuers to third parties under Letters of
Credit or drafts presented thereunder, commitment fees, Letter of Credit fees
and all other fees and amounts owing under any Credit Document.


 


12.4.                        Lender Operations for Advances, Letters of Credit, etc.


 


12.4.1                  Advances.  On the Amendment and Restatement Date or any
Subsequent Closing Date, as the case may be, each Lender shall advance to the
Administrative Agent in immediately available funds such Lender’s Percentage
Interest in any Loan or Loans advanced on the Amendment and Restatement Date or
such Subsequent Closing Date, as the case may be, prior to 2:00 p.m. (New York
City time).  If such funds are not
received at such time, but all applicable conditions set forth in Section 5
have been satisfied, each Lender authorizes and requests the Administrative
Agent to advance for such Lender’s account, pursuant to the terms hereof, such
Lender’s respective Percentage Interest in such Loan or Loans and agrees to
reimburse the Administrative Agent in immediately available funds for the
amount thereof prior to 4:30 p.m. (New York City time) on the day any Loan or
Loans are advanced hereunder; provided that the Administrative Agent is
not authorized to make any such advance for the account of any Lender who has
previously notified the Administrative Agent in writing that such Lender will
not be performing its obligations to make further advances hereunder; and provided,
further,
that the Administrative Agent shall be under no obligation to make any such advance.


 


12.4.2                  Letters of
Credit.  Each of the Working
Capital Lenders authorizes and requests each Letter of Credit Issuer to issue
the Letters of Credit provided for in Section 2.4 and to grant each Working
Capital Lender a participation in each of such Letters of Credit


 


102

















 


in an amount equal to its Percentage Interest
in the amount of each such Letter of Credit. 
Promptly upon the request of the Letter of Credit Issuer, each Working
Capital Lender shall reimburse the Letter of Credit Issuer in immediately
available funds for such Working Capital Lender’s Percentage Interest in the
amount of all obligations to third parties incurred by the Letter of Credit
Issuer in respect of each Letter of Credit and each draft accepted under a
Letter of Credit to the extent not reimbursed by the Company.  The Letter of Credit Issuer will notify each
Working Capital Lender of the issuance of any Letter of Credit, the amount and
date of payment of any draft drawn or accepted under a Letter of Credit and
whether in connection with the payment of any such draft the amount thereof was
added to the Working Capital Loans or was reimbursed by the Company.


 


12.4.3                  Administrative
Agent to Allocate Payments, etc. 
All payments of principal and interest in respect of the extensions of
credit made pursuant to this Agreement, reimbursement of amounts paid by any
Letter of Credit Issuer to third parties under Letters of Credit or drafts
presented thereunder, commitment fees, Letter of Credit fees and other fees under
this Agreement shall, as a matter of convenience, be made by the Company and
the Guarantors to the Administrative Agent in immediately available funds.  The share of each Lender shall be credited
to such Lender by the Administrative Agent in immediately available funds in
such manner that the principal amount of the Credit Obligations to be paid
shall be paid proportionately in accordance with the Lenders’ respective Percentage
Interests in such Credit Obligations, except as otherwise provided in this
Agreement.  Under no circumstances shall
any Lender be required to produce or present its Notes as evidence of its
interests in the Credit Obligations in any action or proceeding relating to the
Credit Obligations.


 


12.4.4                  Delinquent
Lenders; Nonperforming Lenders. 
In the event that any Lender fails to reimburse the Administrative Agent
pursuant to Section 12.4.1 for the Percentage Interest of such Lender (a “Delinquent Lender”)
in any credit advanced by the Administrative Agent pursuant hereto, overdue
amounts (the “Delinquent Payment”)
due from the Delinquent Lender to the Administrative Agent shall bear interest,
payable by the Delinquent Lender on demand, at a per annum rate equal to (a)
the Federal Funds Rate for the first three days overdue and (b) the sum of 2% plus
the Federal Funds Rate for any longer period. 
Such interest shall be payable to the Administrative Agent for its own
account for the period commencing on the date of the Delinquent Payment and
ending on the date the Delinquent Lender reimburses the Administrative Agent on
account of the Delinquent Payment (to the extent not paid by any Obligor as
provided below) and the accrued interest thereon (the “Delinquency  Period”), whether pursuant to
the assignments referred to below or otherwise.  Upon notice by the Administrative Agent, the Company will pay to
the Administrative Agent the principal (but not the interest) portion of the
Delinquent Payment.  During the Delinquency
Period, in order to make reimbursements for the Delinquent Payment and accrued
interest thereon, the Delinquent Lender shall be deemed to have assigned to the
Administrative Agent all interest, commitment fees and other payments made by
the Company under Section 3 that would have thereafter otherwise been payable
under the Credit Documents to the Delinquent Lender.


 


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During any other period in which any Lender
is not performing its obligations to extend credit under Section 2 (a “Nonperforming Lender”),
the Nonperforming Lender shall be deemed to have assigned to each Lender that
is not a Nonperforming Lender (a “Performing Lender”) all principal and other payments
made by the Company under Section 4 that would have thereafter otherwise been
payable under the Credit Documents to the Nonperforming Lender.  The Administrative Agent shall credit a
portion of such payments to each Performing Lender in an amount equal to the
Percentage Interest of such Performing Lender in an amount equal to the Percentage
Interest of such Performing Lender divided by one minus the Percentage
Interest of the Nonperforming Lender until the respective portions of the
Working Capital Loans owed to all the Lenders are the same as the Percentage
Interest of the Lenders immediately prior to the failure of the Nonperforming
Lender to perform its obligations under Section 2.  The foregoing provisions shall be in addition to any other remedies
the Administrative Agent, the Performing Lenders or the Company may have under
law or equity against the Delinquent Lender as a result of the Delinquent
Payment or against the Nonperforming Lender as a result of its failure to
perform its obligations under Section 2.


 


12.5.                        Sharing of Payments, etc.  Each Lender agrees that (a) if by exercising
any right of set-off or counterclaim or otherwise, it shall receive payment of
(i) a proportion of the aggregate amount due with respect to its Percentage
Interest in the Credit Exposure which is greater than (ii) the proportion
received by any other Lender in respect of the aggregate amount due with
respect to such other Lender’s Percentage Interest in the Loan and Letter of
Credit Exposure and (b) if such inequality shall continue for more than 10
days, the Lender receiving such proportionately greater payment shall purchase
participations in the Percentage Interests in the Loans, Working Capital
Commitments and Letter of Credit Exposure held by the other Lenders, and such
other adjustments shall be made from time to time (including rescission of such
purchases of participations in the event the unequal payment originally
received is recovered from such Lender through bankruptcy proceedings or
otherwise), as may be required so that all such payments of principal and
interest with respect to the Loan and Letter of Credit Exposure held by the
Lenders shall be shared by the Lenders pro rata in accordance with their
respective Percentage Interests; provided, however, that this Section
12.5 shall not impair the right of any Lender to exercise any right of set-off
or counterclaim it may have and to apply the amount subject to such exercise to
the payment of Indebtedness of any Obligor other than such Obligor’s
Indebtedness with respect to its Loan and Letter of Credit Exposure.  Each Lender that grants a participation in
the Credit Obligations to a Credit Participant shall require as a condition to
the granting of such participation that such Credit Participant agree to share
payments received in respect of the Credit Obligations as provided in this
Section 12.5.  The provisions of this
Section 12.5 are for the sole and exclusive benefit of the Lenders and no
failure of any Lender to comply with the terms hereof shall be available to any
Obligor as defense to the payment of the Credit Obligations.


 


12.6.                        Amendments, Consents, Waivers, etc.  Except as otherwise set forth herein, the
Administrative Agent may (and upon the written request of the Required Lenders


 


104

















 


the Administrative Agent shall) take or refrain from taking any action
under this Agreement or any other Credit Document, including giving its written
consent to any modification of or amendment to and waiving in writing
compliance with any covenant or condition in this Agreement or any other Credit
Document (other than an Interest Rate Protection Agreement) or any Default or
Event of Default, all of which actions shall be binding upon all of the Lenders;
provided,
however,
that the following shall apply:


 


(a)                                  Except
as provided below, without the written consent of the Required Lenders, no
written modification of, amendment to, consent with respect to, waiver of compliance
with or waiver of a Default under, any of the Credit Documents (other than an Interest
Rate Protection Agreement) shall be made.


 


(b)                                 Without
the written consent of such Lenders as own 100% of the Percentage Interests
(other than any Delinquent Lender during the existence of a Delinquency Period
so long as such Delinquent Lender is treated the same as the other Lenders with
respect to any actions enumerated below),


 


(i)                  no
reduction shall be made in (A) the amount of principal of the Loan or
reimbursement obligations for payments made under Letters of Credit, (B) the interest
rate on the Loan or (C) the Letter of Credit fees (except those owed solely to
the Letter of Credit Issuer, which may be reduced by agreement solely between
the Company and the Letter of Credit Issuer) or commitment fees;


 


(ii)               no
change shall be made in the stated time of payment (or any required prepayment,
including any contingent mandatory prepayment) of all or any portion of the
Loan or interest thereon or reimbursement of payments made under Letters of
Credit or fees relating to any of the foregoing or in the allocation of such
payments provided pursuant to Section 12.4.3 of this Agreement, and no
waiver shall be made of any Default under Section 8.1.1;


 


(iii)            no
alteration shall be made of the Lenders’ rights of set-off contained in Section
8.2.4;


 


(iv)           no
release of any Pledged Collateral or of any Guarantor shall be made (except
that the Administrative Agent and/or the Collateral Agent, without the consent
of any other party, may release particular items of Pledged Collateral or
particular Guarantors in dispositions permitted by Section 6.11 and may release
all Pledged Collateral pursuant to Section 18 upon payment in full of the
Credit Obligations or release any collateral pursuant to any term of any
Security Document which permits such release and termination of the Working
Capital Commitments without the written consent of the Lenders);


 


105

















 


(v)              no
amendment to or modification of this Section 12.6(b) or of Section 12.6(c)
shall be made; and


 


(vi)           no
amendment to or modification of the definition of “Required Lenders” shall be
made.


 


(c)                                  No
increase shall be made in the amount of any Working Capital Commitment of any
Lender (provided
that the termination or reduction of the Working Capital Commitment of any Lender
will not be deemed to be an increase in the amount of any Working Capital
Commitment of any other Lender), and no extension shall be made of the term of
any Working Capital Commitment of any Lender, unless such increase or
extension, respectively, shall have received the prior written consent of such
Lender.


 


(d)                                 Without
the consent of any other Person, the Obligors and the Administrative Agent
and/or Collateral Agent may (in their respective sole discretion, or shall, to
the extent required by any Credit Document) enter into any amendment,
modification or waiver of any Credit Document, or enter into any new agreement
or instrument, to effect the granting, perfection, protection, expansion or
enhancement of any security interest in any Pledged Collateral or additional
property to become Pledged Collateral for the benefit of the Secured Parties,
or as required by local law to give effect to, or protect any security interest
for the benefit of the Secured Parties, in any property or so that the security
interests therein comply with applicable law.


 


12.7.                        Administrative Agent’s Resignation.  The Administrative Agent may resign at any
time by giving at least 60 days’ prior written notice of its intention to do so
to each of the Lenders and the Company and upon the appointment by the Required
Lenders of a successor Administrative Agent satisfactory to the Company.  If no successor Administrative Agent shall
have been so appointed and shall have accepted such appointment within 45 days
after the retiring Administrative Agent’s giving of such notice of resignation,
then the retiring Administrative Agent may with the consent of the Company,
which shall not be unreasonably withheld, appoint a successor Administrative
Agent which shall be a bank or a trust company organized under the laws of the
United States of America or any state thereof and having a combined capital,
surplus and undivided profit of at least $100,000,000;  provided, however, that any successor
Administrative Agent appointed under this sentence may be removed upon the
written request of the Required Lenders, which request shall also appoint a
successor Administrative Agent satisfactory to the Company.  Upon the appointment of a new Administrative
Agent hereunder, the term “Administrative Agent” shall for all purposes of this
Agreement thereafter mean such successor. 
After any retiring Administrative Agent’s resignation hereunder as
Administrative Agent, or the removal hereunder of any successor Administrative
Agent, the provisions of this Agreement shall continue to inure to the benefit
of such Administrative


 


106

















 


Agent as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.


 


12.8.                        Concerning the Administrative Agent.


 


12.8.1                  Action in
Good Faith, etc.  The
Administrative Agent and its officers, directors, employees and agents shall be
under no liability to any of the Lenders or to any future holder of any
interest in the Credit Obligations for any action or failure to act taken or
suffered in good faith, and any action or failure to act in accordance with an
opinion of its counsel shall conclusively be deemed to be in good faith.  The Administrative Agent shall in all cases
be entitled to rely, and shall be fully protected in relying, on instructions
given to the Administrative Agent by the required holders of Credit Obligations
as provided in this Agreement.


 


12.8.2                  No Implied
Duties, etc.  The
Administrative Agent shall have and may exercise such powers as are specifically
delegated to the Administrative Agent under this Agreement or any other Credit
Document together with all other powers incidental thereto.  The Administrative Agent shall have no
implied duties to any Person or any obligation to take any action under this
Agreement or any other Credit Document except for action specifically provided
for in this Agreement or any other Credit Document to be taken by the
Administrative Agent.  Before taking any
action under this Agreement or any other Credit Document, the Administrative
Agent may request an appropriate specific indemnity satisfactory to it from
each Lender in addition to the general indemnity provided for in Section
12.11.  Until the Administrative Agent
has received such specific indemnity, the Administrative Agent shall not be
obligated to take (although it may in its sole discretion take) any such action
under this Agreement or any other Credit Document.  Each Lender confirms that the Administrative Agent does not have
a fiduciary relationship to it under the Credit Documents.  Each of the Company and its Subsidiaries
party hereto confirms that neither the Administrative Agent nor any other
Lender has a fiduciary relationship to it under the Credit Documents.


 


12.8.3                  Validity,
etc.  The Administrative
Agent shall not be responsible to any Lender or any future holder of any
interest in the Credit Obligations (a) for the legality, validity,
enforceability or effectiveness of this Agreement or any other Credit Document,
(b) for any recitals, reports, representations, warranties or statements
contained in or made in connection with this Agreement or any other Credit
Document, (c) for the existence or value of any assets included in any
security for the Credit Obligations, (d) for the effectiveness of any Lien
purported to be included in the Pledged Collateral, (e) for the
specification or failure to specify any particular assets to be included in the
Pledged Collateral, or (f) unless the Administrative Agent shall have
failed to comply with Section 12.8.1, for the perfection of the security interests
in the Pledged Collateral.


 


12.8.4                  Compliance.  The Administrative Agent shall not be
obligated to ascertain or inquire as to the performance or observance of any of
the terms of this Agreement


 


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or any other Credit Document; and in
connection with any extension of credit under this Agreement or any other
Credit Document, the Administrative Agent shall be fully protected in relying
on a certificate of the Company as to the fulfillment by the Company of any
conditions to such extension of credit.


 


12.8.5                  Employment
of Administrative Agents and Counsel.  The Administrative Agent may execute any of its duties as
Administrative Agent under this Agreement or any other Credit Document by or
through employees, agents and attorneys-in-fact and shall not be responsible to
any of the Lenders, the Company or any other Obligor for the default or misconduct
of any such agents or attorneys-in-fact selected by the Administrative Agent
acting in good faith.  The
Administrative Agent shall be entitled to advice of counsel concerning all
matters pertaining to the agency hereby created and its duties hereunder or under
any other Credit Document.


 


12.8.6                  Reliance on
Documents and Counsel.  The
Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any affidavit, certificate, cablegram, consent, instrument,
letter, notice, order, document, statement, telecopy, telegram, telex or teletype
message or writing reasonably believed in good faith by the Administrative
Agent to be genuine and correct and to have been signed, sent or made by the
Person in question, including any telephonic or oral statement made by such Person,
and, with respect to legal matters, upon an opinion or the advice of counsel
selected by the Administrative Agent.


 


12.8.7                  Administrative
Agent’s Reimbursement.  Each
of the Lenders severally agrees to reimburse the Administrative Agent, pro rata
in accordance with such Lender’s Percentage Interest, for any reasonable
expenses not reimbursed by the Company or the Guarantors (without limiting the
obligation of the Company or the Guarantors to make such reimbursement) (a) for
which the Administrative Agent is entitled to reimbursement by the Company or
the Guarantors under this Agreement or any other Credit Document, and (b) after
the occurrence of a Default, for any other reasonable expenses incurred by the
Administrative Agent on the Lenders’ behalf in connection with the enforcement
of the Lenders’ rights under this Agreement or any other Credit Document.


 


12.8.8                  Administrative
Agent’s Fees.  The Company
shall pay to the Administrative Agent for its own account an agent’s fee in the
amounts separately agreed to from time to time by the Company and the
Administrative Agent.


 


12.8.9                  Agents.  None of the Lenders identified in this
Agreement as a “Documentation Agent” 
and/or a “Syndication Agent” shall have any right, power, obligation,
liability, responsibility or duty under this Agreement other than those
applicable to all Lenders as such. 
Without limiting the foregoing, none of such Documentation Agents or
Syndication Agents shall have or be deemed to have a fiduciary relationship with
any Lender.  Each Lender hereby makes
the same acknowledgments with respect to such Documentation


 


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Agents and Syndication Agents as it makes
with respect to Administrative Agent in Section 12.8.


 


12.9.                        Rights as a Lender.  With respect to any credit extended by it
hereunder, UBS AG, Cayman Islands Branch shall have the same rights,
obligations and powers hereunder as any other Lender and may exercise such
rights and powers as though UBS AG, Stamford Branch were not the Administrative
Agent, and unless the context otherwise specifies, UBS AG, Cayman Islands
Branch shall be treated in its individual capacity as though it were not the
Administrative Agent hereunder.  Without
limiting the generality of the foregoing, the Percentage Interest of UBS AG,
Cayman Islands Branch shall be included in any computations of Percentage
Interests.  UBS AG, Cayman Islands
Branch and its Affiliates may accept deposits from, lend money to, act as
trustee for and generally engage in any kind of banking or trust business with
the Company, any of its Subsidiaries or any Affiliate of any of them and any
Person who may do business with or own an Equity Interest in the Company, any
of its Subsidiaries or any Affiliate of any of them, all as if UBS AG, Stamford
Branch were not the Administrative Agent and without any duty to account
therefor to the other Lenders.


 


12.10.                  Independent Credit Decision.  Each of the Lenders acknowledges that it has
independently and without reliance upon the Administrative Agent, based on the
financial statements and other documents referred to in Section 7.2, on the
other representations and warranties contained herein and on such other
information with respect to the Company and its Subsidiaries as such Lender
deemed appropriate, made such Lender’s own credit analysis and decision to
enter into this Agreement and to make the extensions of credit provided for
hereunder.  Each Lender represents to
the Administrative Agent that such Lender will continue to make its own
independent credit and other decisions in taking or not taking action under
this Agreement or any other Credit Document. 
Each Lender expressly acknowledges that neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates has made any representations or warranties to such Lender, and no
act by the Administrative Agent taken under this Agreement or any other Credit
Document, including any review of the affairs of the Company and its
Subsidiaries, shall be deemed to constitute any representation or warranty by
the Administrative Agent.  Except for
notices, reports and other documents expressly required to be furnished to each
Lender by the Administrative Agent under this Agreement or any other Credit
Document, the Administrative Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the
business, operations, property, condition, financial or otherwise, or
creditworthiness of the Company or any Subsidiary which may come into the
possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.


 


12.11.                  Indemnification.  The holders of the Credit Obligations shall
indemnify the Administrative Agent and its officers, directors, employees,
agents, attorneys, accountants,


 


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consultants and controlling Persons (to the extent not reimbursed by
the Obligors and without limiting the obligation of any of the Obligors to do
so), pro
rata in accordance with their respective Percentage Interests, from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time be imposed on, incurred by or asserted against
the Administrative Agent or such Persons relating to or arising out of this
Agreement, any other Credit Document, the transactions contemplated hereby or
thereby, or any action taken or omitted by the Administrative Agent in
connection with any of the foregoing; provided, however, that the foregoing
shall not extend to actions or omissions which are taken by the Administrative
Agent with gross negligence or willful misconduct.  The obligations under this Section 12.11 shall survive the
termination of this Agreement and the discharge of the Credit Obligations.


 


12.12.                  Regarding the Collateral Agent.


 


(i)                                     UBS
AG, Stamford Branch shall serve as collateral agent and representative of each
Secured Party under each of the Security Documents (in such capacity, together
with its successors in such capacity, the “Collateral Agent”) and each
such Secured Party irrevocably and unconditionally authorizes the Collateral
Agent to act as agent for the Secured Parties for the purpose of executing and
delivering, on behalf of all such Secured Parties, the Security Documents and
any other documents or instruments related thereto or necessary or, as
determined by the Collateral Agent, desirable to perfect the Liens granted to
the Collateral Agent thereunder and for the purpose of enforcing the Secured
Parties’ rights in respect of the Pledged Collateral and the obligations of the
Pledgors under the Security Documents, and for the purpose of, or in connection
with, releasing the obligations of the Pledgors under the Security Documents.


 


Without
limiting the generality of the foregoing, the Collateral Agent shall act as
agent for each of the Secured Parties to hold the Liens on the Pledged
Collateral granted pursuant to the Security Documents with sole authority to
exercise remedies under the Security Documents .  The Collateral Agent is authorized to act as a Secured Party
under the Security Agreement and each other Security Document and to follow the
instructions provided to it under this Agreement.


 


(ii)                                  The
Collateral Agent shall not be the trustee of any Secured Party.  The Collateral Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement, the
Security Documents, and the Collateral Agent shall not by reason of this Agreement
or the any of the Security Documents be a trustee for any Secured Party or have
any other fiduciary obligation to any Secured Party (including any obligation
under the Trust Indenture Act of 1939, as amended).  The Collateral Agent shall not be responsible to any Secured
Party for any recitals, statements,


 


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representations
or warranties contained in this Agreement or any Security Document or in any
certificate or other document referred to or provided for in, or received by
any of them under, any of the Security Documents, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of any of the
Security Documents or any other document referred to or provided for therein or
any Lien under the Security Documents or for any failure by any other party to
perform any of its respective obligations under any of the Security
Documents.  The Collateral Agent may
employ agents and attorneys-in-fact and shall not be responsible, except as to
money or securities received by it or its authorized agents, for the negligence
or misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care.  Neither the Collateral
Agent nor any of its directors, officers, employees or agents shall be liable
or responsible for any action taken or omitted to be taken by it or them
hereunder or in connection herewith, except for actions that are finally
judicially determined to have resulted from its or their own gross negligence
or willful misconduct.


 


(iii)                               The
Collateral Agent shall be entitled to rely upon any certification, notice or
other communication (including any thereof by telex, telecopy, telegram or
cable) believed by it to be genuine and correct and to have been signed or sent
by or on behalf of the proper person or persons, and upon advice and statements
of legal counsel, independent accountants and other experts selected by the
Collateral Agent.  The Collateral Agent
shall in all cases be fully protected in acting, or in refraining from acting,
hereunder, and any action taken or failure to act pursuant thereto, shall be
binding on all of the Secured Parties.


 


(iv)                              Except
for action expressly required of the Collateral Agent hereunder, the Collateral
Agent shall, notwithstanding anything to the contrary in Section 11 hereof, in
all cases be fully justified in failing or refusing to act hereunder unless it
shall be further indemnified to its satisfaction by the Secured Parties against
any and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action.


 


(v)                                 Except
as expressly provided herein and in the Security Documents, the Collateral
Agent shall have no duty to take any affirmative steps with respect to the
collection of amounts payable in respect of the Pledged Collateral.  The Collateral Agent shall incur no
liability to any Secured Party as a result of any sale of any Pledged
Collateral at any private sale, so long as such sale is made in compliance with
the applicable provisions of the UCC relating to the disposition of collateral.


 


(vi)                              The
Collateral Agent may resign at any time by giving at least 5 days’ notice
thereof to the Secured Parties (such resignation to take effect as hereinafter
provided).   Any successor Collateral
Agent appointed pursuant to this clause shall be a


 


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commercial
bank organized under the laws of the United States of America or any state
thereof and having a combined capital and surplus of at least $500,000,000.


 


Upon the acceptance of any appointment as
Collateral Agent hereunder by a successor Collateral Agent, such successor
Collateral Agent shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring or removed Collateral Agent, and
the retiring or removed Collateral Agent shall thereupon be discharged from its
duties and obligations hereunder.  After
any retiring or removed Collateral Agent’s resignation or removal hereunder as
Collateral Agent, the provisions of this Section 12.8 shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as the Collateral Agent.


 


13.                                 Successors and Assigns; Lender Assignments and
Participations.  Any
reference in this Agreement or any other Credit Document to any of the parties
hereto shall be deemed to include the successors and assigns of such party, and
all covenants and agreements by or on behalf of the Company, the other
Obligors, the Administrative Agent or the Lenders that are contained in this
Agreement or any other Credit Documents shall bind and inure to the benefit of
their respective successors and assigns; provided, however, that (a) the
Company and its Subsidiaries may not assign their rights or obligations under
this Agreement or any other Credit Document except for mergers or liquidations
permitted by Section 6.11, and (b) the Lenders shall be not entitled
to assign their respective Percentage Interests in the credits extended
hereunder or their Working Capital Commitments except as set forth below in
this Section 13.


 


13.1.                        Assignments by Lenders.


 


13.1.1                  Assignees
and Assignment Procedures. 
Each Lender may, with the consent of (a) the Administrative Agent
and (b) so long as (i) no Event of Default exists and (ii) the
proposed assignee is not already a Lender hereunder or an Affiliate or Approved
Fund of any Lender hereunder, the Company (which consents will not be
unreasonably withheld), in compliance with applicable laws in connection with
such assignment, assign to one or more banks, mutual funds or other financial
institutions (each, an “Assignee”) all or a portion of its interests, rights and
obligations under this Agreement and the other Credit Documents, including all
or a portion, which need not be pro rata between the Working Capital Loans
and the Letter of Credit Exposure, of its Loans or Working Capital Commitments,
any Loan and Letter of Credit Exposure at the time owing to it and the Notes
held by it, but excluding its rights and obligations as a Letter of Credit
Issuer; provided,
however,
that


 


(i)                                     the
aggregate amount of the Working Capital Commitments and Loans of the assigning
Lender subject to each such assignment (A) to any Assignee other than another
Lender or (B) to any group of Assignees the members of which are Affiliates of
one another and which does not include an existing Lender (determined in each
case as of the date the Assignment and Acceptance with respect to such assignment


 


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is delivered
to the Administrative Agent) shall be not less than $5,000,000; provided,
however,
that in the case of an assignment to an Affiliate or Approved Fund of the
assigning Lender the amount assigned may be less than the minimum dollar
amounts set forth in this clause (i); and


 


(ii)                                  the
parties to each such assignment shall execute and deliver to the Administrative
Agent an Assignment and Acceptance (the “Assignment and Acceptance”) substantially in the form of
Exhibit 13.1.1, together with the Note subject to such assignment and a
processing and recordation fee of $3,500 payable to the Administrative Agent by
the assigning Lender.


 


Upon
acceptance and recording pursuant to Section 13.1.4, from and after the
effective date specified in each Assignment and Acceptance (which effective
date shall be at least five Banking Days after the execution thereof unless
waived by the Administrative Agent),


 


(1)                                  the
Assignee shall be a party hereto and, to the extent provided in such Assignment
and Acceptance, have the rights and obligations of a Lender under this
Agreement and


 


(2)                                  the
assigning Lender shall, to the extent provided in such assignment, be released
from its obligations under this 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 Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of
Sections 3.2.4, 3.5, 3.6, 3.7, 3.8 and 11, as well as to any fees accrued
for its account hereunder and not yet paid).


 


13.1.2                  [Reserved]


 


13.1.3                  Terms of
Assignment and Acceptance. 
By executing and delivering an Assignment and Acceptance, the assigning
Lender and the Assignee shall be deemed to confirm to and agree with each other
and the other parties hereto as follows:


 


(a)                                  other
than the representation and warranty that it is the legal and beneficial owner
of the interest being assigned thereby free and clear of any adverse claim,
such 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 Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement, any other
Credit Document or any other instrument or document furnished pursuant hereto;


 


(b)                                 such
assigning Lender makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Company and its


 


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Subsidiaries
or the performance or observance by the Company or any of its Subsidiaries of
any of its obligations under this Agreement, any other Credit Document or any
other instrument or document furnished pursuant hereto;


 


(c)                                  such
Assignee confirms that it has received a copy of this Agreement, together with
copies of the most recent financial statements delivered pursuant to Section
7.2 or Section 6.4 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;


 


(d)                                 such
Assignee will independently and without reliance upon the Administrative 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 Agreement;


 


(e)                                  such
Assignee appoints and authorizes the Administrative Agent to take such action
as agent on its behalf and to exercise such powers under this Agreement as are
delegated to the Administrative Agent by the terms hereof, together with such
powers as are reasonably incidental thereto; and


 


(f)                                    such
Assignee agrees that it will perform in accordance with the terms of this
Agreement all the obligations which are required to be performed by it as a
Lender.


 


13.1.4                  Register.  The Administrative Agent shall maintain at
the Stamford Office a register (the “Register”) for the recordation of (a) the names and
addresses of the Lenders and the Assignees which assume rights and obligations
pursuant to an assignment under Section 13.1.1, (b) the Percentage
Interest of each such Lender as set forth in Section 12.1 and (c) the
amount of the Loan and Letter of Credit Exposure owing to each Lender from time
to time.  The entries in the Register
shall be conclusive, in the absence of demonstrable error, and the Company, the
Administrative Agent and the Lenders may treat each Person whose name is
registered therein for all purposes as a party to this Agreement.  The Register shall be available for inspection
by the Company or any Lender at any reasonable time and from time to time upon
reasonable prior notice.  In maintaining
the Register as provided in this Section 13.1.4, and for no other purpose of
this Agreement, the Administrative Agent shall be acting solely as agent of the
Company and not of the Lenders.


 


13.1.5                  Acceptance
of Assignment and Assumption. 
Upon its receipt of a completed Assignment and Acceptance executed by an
assigning Lender and an Assignee together with the Note subject to such
assignment, and the processing and recordation fee referred to in
Section 13.1.1, the Administrative Agent shall (a) accept such Assignment
and Acceptance, (b) record the information contained therein in the Register
and (c) give prompt notice thereof to the Company.  Within five Banking Days after receipt of notice, the


 


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Company, at its own expense, shall execute
and deliver to the Administrative Agent, in exchange for the surrendered Note,
a new Note to the order of such Assignee in a principal amount equal to the
applicable Working Capital Commitment and Loan assumed by it pursuant to such
Assignment and Acceptance and, if the assigning Lender has retained a Working
Capital Commitment and Loan, a new Note to the order of such assigning Lender
in a principal amount equal to the applicable Working Capital Commitment and
Loan retained by it.  Such new Note
shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note, and shall be dated the date of the surrendered
Note which it replaces.


 


13.1.6                  Federal
Reserve Bank. 
Notwithstanding the foregoing provisions of this Section 13, any Lender
may at any time pledge or assign all or any portion of such Lender’s rights
under this Agreement and the other Credit Documents to a Federal Reserve Bank; provided,
however,
that no such pledge or assignment shall release such Lender from such Lender’s
obligations hereunder or under any other Credit Document.


 


13.1.7                  Further
Assurances.  The Company and
its Subsidiaries shall sign such documents and take such other actions from
time to time reasonably requested by an Assignee to enable it to share in the
benefits of the rights created by the Credit Documents.


 


13.2.                        Credit Participants.  Each Lender may, in compliance with
applicable laws in connection with such participation, sell to one or more
commercial banks or other financial institutions (each a “Credit Participant”) participations in all or
a portion of its interests, rights and obligations under this Agreement and the
other Credit Documents (including all or a portion of its Working Capital
Commitment, the Loan and Letter of Credit Exposure owing to it and the Note
held by it); provided, however, that


 


(a)                                  such
Lender’s obligations under this Agreement shall remain unchanged;


 


(b)                                 such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations;


 


(c)                                  the
Credit Participant shall be entitled to the benefit of the cost protection
provisions contained in Sections 3.2.4, 3.5, 3.6, 3.7, 3.8 and 11, but
shall not be entitled to receive any greater payment thereunder than the selling
Lender would have been entitled to receive with respect to the interest so sold
if such interest had not been sold; and


 


(d)                                 the
Company, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights
and obligations under this Agreement, and such Lender shall retain the sole
right as one of the Lenders to vote with respect to the enforcement of the
obligations of the Company relating to the Loan and Letter of Credit Exposure
and the approval of


 


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any amendment,
modification or waiver of any provision of this Agreement (other than
amendments, modifications, consents or waivers described in clause (b) of the
proviso to Section 12.6).


 


Each Obligor
agrees, to the fullest extent permitted by applicable law, that any Credit
Participant and any Lender purchasing a participation from another Lender
pursuant to Section 12.5 may exercise all rights of payment (including the
right of set-off), with respect to its participation as fully as if such Credit
Participant or such Lender were the direct creditor of the Obligors and a
Lender hereunder in the amount of such participation.


 


13.3.                        Replacement of Lender.  In the event that any Lender or, to the
extent applicable, any Credit Participant (the “Affected Lender”),


 


(a)                                  fails
to perform its obligations to fund any portion of the Loan or to issue any
Letter of Credit on the Amendment and Restatement Date or Subsequent Closing
Date, as the case may be, when required to do so by the terms of the Credit Documents;


 


(b)                                 demands
payment under the reserve provisions of Section 3.5, the Tax provisions of
Section 3.6, the capital adequacy provisions of Section 3.7 or the regulatory
change provisions in Section 3.8 in an amount the Company 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 Percentage Interests under Section
12.6(b) that is consented to by the Required Lenders;


 


then, so long
as no Event of Default exists, the Company shall have the right to seek one or
more replacement lenders which is reasonably satisfactory to the Administrative
Agent (the “Replacement Lender”).  The Replacement Lender shall purchase the
interests of the Affected Lender in the Loans, Letters of Credit and its
Working Capital 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
Affected Lender’s Percentage Interest in the Loan and Letter of Credit Exposure,
or appropriate credit support for contingent amounts included therein, and all
other outstanding Credit Obligations then owed to the Affected Lender).  Such assignment by the Affected Lender shall
be deemed an early termination of any Eurodollar Pricing Option to the extent
of the Affected Lender’s portion thereof, and the Company will pay to the Affected
Lender any resulting amounts due under Section 3.2.4.  Upon consummation of such assignment, the Replacement Lender
shall become party to this Agreement as a signatory hereto and shall have all
the rights and obligations of the Affected Lender under this Agreement and the
other Credit Documents with a


 


116

















 


Percentage
Interest equal to the Percentage Interest of 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 Company, the Administrative Agent and the Affected Lender shall
make appropriate arrangements so that a new Working Capital Note is issued to
the Replacement Lender if it has acquired a portion of the Working Capital
Loans.  The Company and the Guarantors
shall 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 13.3, the Company shall continue to pay to the Affected Lender
any Credit Obligations as they become due and payable.


 


14.                                 Confidentiality.  No Lender will make any disclosure of
confidential information furnished to it directly or indirectly by the Company
or any of its Subsidiaries unless such information shall have become public,
except


 


(a)                                  in
connection with operations under or the enforcement of this Agreement or any
other Credit Document;


 


(b)                                 pursuant
to any statutory or regulatory requirement or any mandatory court order,
subpoena or other legal process;


 


(c)                                  to
any parent or corporate Affiliate of such Lender or to any Credit Participant,
proposed Credit Participant or proposed Assignee; provided, however,
that any such Person shall agree to comply with the restrictions set forth in
this Section 14 with respect to such information;


 


(d)                                 to
its independent counsel, auditors and other professional advisors with an
instruction to such Person to keep such information confidential;


 


(e)                                  to
the National Association of Insurance Commissioners or any similar
organization, or any nationally recognized rating agency that requires access
to information about the investment portfolio of such Lender; and


 


(f)                                    with
the prior written consent of the Company, to any other Person.


 


15.                                 Foreign Lenders.  If any Lender is not incorporated or
organized under the laws of the United States of America or a state thereof,
such Lender shall deliver to the Company and the Administrative Agent the
following:


 


(a)                                  two
duly completed copies of United States Internal Revenue Service
Form W-8BEN or Form W-8ECI, W-8IMY or successor form, as the case may be,
certifying in each case that such Person (or the beneficial owner) is entitled
to receive


 


117

















 


payments under
this Agreement, the Notes and reimbursement obligations under Letters of Credit
payable to it, without deduction or withholding of any United States federal
income taxes, provided, however, that in the case of such a Lender
claiming exemption from United States withholding tax under section 871(h)
or 881(c) of the Code with respect to payments of “portfolio interest”, a
Form W-8BEN or form W-8IMY, as the case may be, or any subsequent version
thereof or successor thereto (and, if such Lender delivers a Form W-8BEN
or Form W-8IMY, as the case may be, a certificate representing that such Lender
(or the beneficial owner) is not a bank for purposes of section 881(c) of
the Code, is not a 10-percent shareholder (within the meaning of
section 871(h)(3)(B) of the Code) of the Company and is not a controlled
foreign corporation related to the Company (within the meaning of section 864(d)(4)
of the Code)), properly completed and duly executed by such Lender (or
beneficial owner) claiming complete exemption from United States withholding
tax on payments of interest by the Company under this Agreement; and


 


(b)                                 a
duly completed Internal Revenue Service Form W-8BEN or W-9 or successor form,
as the case may be, to establish an exemption from United States backup withholding
tax.


 


Each such Lender that delivers to the Company
and the Administrative Agent a Form W-8BEN, W-8ECI, W-8IMY and/or W-9 pursuant
to this Section 15 further undertakes to deliver to the Company and the
Administrative Agent two further copies of such Form, or successor applicable
form, or other manner of certification, as the case may be, on or before the
date that any such form expires or becomes obsolete or after the occurrence of
any event requiring a change in the most recent form previously delivered by it
to the Company and the Administrative Agent. 
Such Forms W-8BEN or W-8ECI shall certify that such Lender is entitled
to receive payments under this Agreement without deduction or withholding of
any United States federal income taxes. 
The foregoing documents need not be delivered in the event any change in
treaty, law or regulation or official interpretation thereof has occurred which
renders all such forms inapplicable or which would prevent such Lender from
delivering any such form with respect to it, or such Lender advises the Company
that it is not capable of receiving payments without any deduction or
withholding of United States federal income tax and, in the case of a Form
W-8BEN or W-9, establishing an exemption from United States backup withholding
tax.  Until such time as the Company and
the Administrative Agent have received such forms indicating that payments
hereunder are not subject to United States withholding tax or are subject to
such tax at a rate reduced by an applicable tax treaty, the Company shall withhold
taxes from such payments at the applicable statutory rate without regard to
Section 3.6.


 


16.                                 Notices.  Except
as otherwise specified in this Agreement, any notice required to be given
pursuant to this Agreement or any other Credit Document shall be given in
writing.  Any notice, consent, approval,
demand or other communication in connection


 


118

















 


with this Agreement or any other Credit Document shall be deemed to be
given if given in writing (including by telecopy) addressed as provided below
(or to the addressee at such other address as the addressee shall have
specified by notice actually received by the addressor) and, if either
(a) actually delivered in fully legible form to such address or
(b) in the case of a letter, unless actual receipt of the notice is
required by any Credit Document, five days shall have elapsed after the same
shall have been deposited in the United States mails, with first-class postage
prepaid and registered or certified.


 


If to the Company or any of its Subsidiaries,
to it at its address set forth in Exhibit 7.1 (as supplemented pursuant
to Sections 6.4.1 and 6.4.2), to the attention of the chief financial
officer, with a copy to Hogan & Hartson L.L.P., One Tabor Center, Suite
1500, 1200 Seventeenth Street, Denver, CO 80202, Attention:  Whitney Holmes.


 


If to any Lender or the Administrative Agent,
to it at its address set forth on the signature pages of this Agreement or in
the Register, with a copy to the Administrative Agent, with a copy to Cahill
Gordon & Reindel llp, 80 Pine
Street, New York, NY 10005, Attn: Michael E. Michetti.


 


17.                                 Course of Dealing; Amendments and Waivers.  No course of dealing between any Lender or
the Administrative Agent, on one hand, and the Company or any other Obligor, on
the other hand, shall operate as a waiver of any of the Lenders’ or the
Administrative Agent’s rights under this Agreement or any other Credit Document
or with respect to the Credit Obligations. 
Each of the Company and the Guarantors acknowledges that if the Lenders
or the Administrative Agent, without being required to do so by this Agreement
or any other Credit Document, gives any notice or information to, or obtains
any consent from, the Company or any other Obligor, the Lenders and the
Administrative Agent shall not by implication have amended, waived or modified
any provision of this Agreement or any other Credit Document, or created any
duty to give any such notice or information or to obtain any such consent on
any future occasion.  No delay or
omission on the part of any Lender or the Administrative Agent in exercising
any right under this Agreement or any other Credit Document or with respect to
the Credit Obligations shall operate as a waiver of such right or any other right
hereunder or thereunder.  A waiver on
any one occasion shall not be construed as a bar to or waiver of any right or
remedy on any future occasion.  No
waiver, consent or amendment with respect to this Agreement or any other Credit
Document shall be binding unless it is in writing and signed by the
Administrative Agent or the Required Lenders.


 


18.                                 Defeasance.  When
all Credit Obligations have been paid and all Letters of Credit terminated and
returned to the Letter of Credit Issuer or cash collateralized in a manner
satisfactory to the Lenders, and if at the time no Lender continues to be
committed to extend any credit to the Company hereunder or under any other
Credit Document, this Agreement shall terminate and, at the Company’s written
request, accompanied by such certificates and other items as the Administrative
Agent shall reasonably deem necessary, the


 


119

















 


Pledged Collateral shall revert to the Obligors and the right, title
and interest of the Lenders therein shall terminate.  Thereupon, on the Obligors’ demand and at their cost and expense,
the Administrative Agent shall execute proper instruments acknowledging satisfaction
of and discharging this Agreement and shall redeliver to the Obligors any Pledged
Collateral then in its possession; provided, however, that Sections
3.2.4, 3.5, 3.6, 3.7, 3.8, 11, 12.8.7, 12.11, 14, 21 and 22 shall survive the
termination of this Agreement.


 


19.                                 No Strict Construction.  The parties have participated jointly in the
negotiation and drafting of this Agreement and the other Credit Documents with
counsel sophisticated in financing transactions.  In the event an ambiguity or question of intent or interpretation
arises, this Agreement and the other Credit Documents shall be construed as if
drafted jointly by the parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any
provisions of this Agreement and the other Credit Documents.


 


20.                                 Certain Obligor Acknowledgments.  Each of the Company and the other Obligors
acknowledges that


 


(a)                                  it
has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Credit Documents;


 


(b)                                 neither
the Administrative Agent nor any Lender has any fiduciary relationship with or
duty to the Obligors arising out of or in connection with this Agreement or any
other Credit Document, and the relationship between the Administrative Agent
and Lenders, on one hand, and the Obligors, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor; and


 


(c)                                  no
joint venture is created hereby or by the other Credit Documents or otherwise
exists by virtue of the transactions contemplated hereby or thereby among the
Obligors and the Lenders.


 


21.                                 Venue; Service of
Process; Certain Waivers. 
Each of the Company and the other Obligors


 


(a)                                  irrevocably
submits to the nonexclusive jurisdiction of the state courts of the State of
New York and to the nonexclusive jurisdiction of the United States District
Court for the Southern District of New York for the purpose of any suit, action
or other proceeding arising out of or based upon this Agreement or any other
Credit Document or the subject matter hereof or thereof;


 


(b)                                 waives
to the extent not prohibited by applicable law that cannot be waived, and
agrees not to assert, by way of motion, as a defense or otherwise, in any such
proceeding brought in any of the above-named courts, any claim that it is not


 


120

















 


subject
personally to the jurisdiction of such court, that its property is exempt or
immune from attachment or execution, that such proceeding is brought in an
inconvenient forum, that the venue of such proceeding is improper, or that this
Agreement or any other Credit Document, or the subject matter hereof or
thereof, may not be enforced in or by such court;


 


(c)                                  each
of the Company and the other Obligors consents to service of process in any
such proceeding in any manner at the time permitted by applicable New York
State law and agrees that service of process by registered or certified mail,
return receipt requested, at its address specified in or pursuant to
Section 16 is reasonably calculated to give actual notice; and


 


(d)                                 Waives
to the extent not prohibited by applicable law that cannot be waived any right
if may have to claim or recover in any such proceeding any special, exemplary,
punitive or consequential damages.


 


22.                                 WAIVER OF JURY TRIAL.  TO THE EXTENT NOT PROHIBITED BY APPLICABLE
LAW THAT CANNOT BE WAIVED, EACH OF THE COMPANY, THE OTHER OBLIGORS, THE
ADMINISTRATIVE AGENT, THE COLLATERAL AGENT AND THE LENDERS WAIVES, AND
COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR
OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE,
CLAIM OR PROCEEDING ARISING OUT OF THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT
OR THE SUBJECT MATTER HEREOF OR THEREOF OR ANY CREDIT OBLIGATION OR IN ANY WAY
CONNECTED WITH THE DEALINGS OF THE LENDERS, THE ADMINISTRATIVE, THE COLLATERAL
AGENT, THE COMPANY OR ANY OTHER OBLIGOR IN CONNECTION WITH ANY OF THE ABOVE, IN
EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER IN CONTRACT,
TORT OR OTHERWISE.  Each of the Company
and the other Obligors acknowledges that it has been informed by the
Administrative Agent that the provisions of this Section 22 constitute a
material inducement upon which each of the Lenders has relied and will rely in
entering into this Agreement and any other Credit Document, and that it has reviewed
the provisions of this Section 22 with its counsel.  Any Lender, the Administrative Agent, the Company or any other
Obligor may file an original counterpart or a copy of this Section 22 with any
court as written evidence of the consent of the Company, the other Obligors,
the Administrative Agent and the Lenders to the waiver of their rights to trial
by jury.


 


23.                                 General.  Time is
(and shall be) of the essence in this Agreement and the other Credit
Documents.  All covenants, agreements,
representations and warranties made in this Agreement or any other Credit
Document or in certificates delivered pursuant hereto or thereto shall be
deemed to have been relied on by each Lender, notwithstanding any investigation
made by any Lender on its behalf, and shall survive the execution and delivery
to the


 


121

















 


Lenders hereof and thereof.  The
invalidity or unenforceability of any provision hereof shall not affect the
validity or enforceability of any other provision hereof, and any invalid or
unenforceable position shall be modified so as to be enforced to the maximum
extent of its validity or enforceability. 
The headings in this Agreement are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.  This Agreement and the other Credit
Documents constitute the entire understanding of the parties with respect to
the subject matter hereof and thereof and supersede all prior and contemporaneous
understandings and agreements, whether written or oral.  This Agreement may be executed in any number
of counterparts which together shall constitute one instrument.  This Agreement shall be governed by and
construed in accordance with the laws (other than the conflict of laws rules)
of the State of New York, except as may be required by the UCC with respect to
matters involving the perfection of the Collateral Agent’s Lien on the Pledged
Collateral.


 


122

















 


Each of the undersigned has caused this
Agreement to be executed and delivered by its duly authorized officer as an
agreement under seal as of the date first above written.


 


 


	
   

  	
  TRANSMONTAIGNE
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Donald
  H. Anderson

  
	
   

  	
   

  	
  Name: Donald
  H. Anderson

  
	
   

  	
   

  	
  Title:
  President

  



 


S-1

















 


	
   

  	
  TRANSMONTAIGNE
  PRODUCT SERVICES INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Randall
  J. Larson

  
	
   

  	
   

  	
  Name:
  Randall J. Larson

  
	
   

  	
   

  	
  Title:
  Executive Vice President

  



 


S-2

















 


	
   

  	
  TRANSMONTAIGNE
  TRANSPORT INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Donald
  H. Anderson

  
	
   

  	
   

  	
  Name: Donald
  H. Anderson

  
	
   

  	
   

  	
  Title:
  President

  



 


S-3

















 


	
   

  	
  COASTAL
  FUELS MARKETING, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Randall
  J. Larson

  
	
   

  	
   

  	
  Name:
  Randall J. Larson

  
	
   

  	
   

  	
  Title:
  Executive Vice President

  



 


S-4

















 


	
   

  	
  COASTAL TUG
  AND BARGE, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Randall
  J. Larson

  
	
   

  	
   

  	
  Name:
  Randall J. Larson

  
	
   

  	
   

  	
  Title:
  Executive Vice President

  



 


S-5

















 


	
   

  	
  UBS AG,
  Stamford Branch

  As Administrative Agent and Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Wilfred
  V. Saint

  
	
   

  	
   

  	
  Name:
  Wilfred V. Saint

  
	
   

  	
   

  	
  Title:
  Associate Director, Banking Products Services, US

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas
  R. Salzano

  
	
   

  	
   

  	
  Name: Thomas
  R. Salzano

  
	
   

  	
   

  	
  Title:
  Director, Banking Products Services, US

  



 


S-6

















 


	
   

  	
  UBS AG,
  Cayman Islands Branch

  as Working Capital Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Wilfred
  V. Saint

  
	
   

  	
   

  	
  Name:
  Wilfred V. Saint

  
	
   

  	
   

  	
  Title:
  Associate Director, Banking Products Services, US

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas
  R. Salzano

  
	
   

  	
   

  	
  Name: Thomas
  R. Salzano

  
	
   

  	
   

  	
  Title:
  Director, Banking Products Services, US

  



 


S-7

















 


	
   

  	
  Wachovia
  Bank, National Association as Syndication Agent and Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Philip
  Trinder

  
	
   

  	
   

  	
  Name: Philip
  Trinder

  
	
   

  	
   

  	
  Title: Vice
  President

  



 


	
   

  	
  Société
  Générale, New York Branch

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jordan
  Neroff

  
	
   

  	
   

  	
  Name: Jordan
  Neroff

  
	
   

  	
   

  	
  Title: Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Emmanuel
  Chesneau

  
	
   

  	
   

  	
  Name: Emmanuel
  Chesneau

  
	
   

  	
   

  	
  Title:
  Director

  



 


	
   

  	
  BNP Paribas

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Zali Win

  
	
   

  	
   

  	
  Name: Zali
  Win

  
	
   

  	
   

  	
  Title:
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sally
  Haswell

  
	
   

  	
   

  	
  Name: Sally
  Haswell

  
	
   

  	
   

  	
  Title:
  Director

  



 


S-8

















 


	
   

  	
  Wells Fargo
  Bank, N.A.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Laura
  Bumgarner

  
	
   

  	
   

  	
  Name: Laura
  Bumgarner

  
	
   

  	
   

  	
  Title:
  Relationship Manager

  



 


S-9

















 


	
   

  	
  Hibernia
  National Bank

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daria
  Mahoney

  
	
   

  	
   

  	
  Name: Daria
  Mahoney

  
	
   

  	
   

  	
  Title: Vice
  President

  



 


S-10

















 


	
   

  	
  U.S. Bank
  National Association

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Monte E.
  Deckerd

  
	
   

  	
   

  	
  Name: Monte
  E. Deckerd

  
	
   

  	
   

  	
  Title: Vice
  President

  



 


 


S-11

















 


	
   

  	
  BANK OF
  SCOTLAND

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Susan E.
  Hay

  
	
   

  	
   

  	
  Name: Susan
  E. Hay

  
	
   

  	
   

  	
  Title:
  Director, Business Services

  



 


 


S-12

















 


	
   

  	
  BANK OF
  OKLAHOMA, N.A.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael
  M. Logan

  
	
   

  	
   

  	
  Name:
  Michael M. Logan

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  



 


 


S-13

















 


	
   

  	
  Natexis
  Banques Popalaires

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David
  Pershad

  
	
   

  	
   

  	
  Name: David
  Pershad

  
	
   

  	
   

  	
  Title: Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Guillaume de Parscau

  
	
   

  	
   

  	
  Name:
  Guillaume de Parscau

  
	
   

  	
   

  	
  Title: First
  Vice President & Group Manager

  



 


 


S-14