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Exhibit 10.22  


Conformed Copy  


        $400,000,000  


 SENIOR SECURED WORKING CAPITAL CREDIT FACILITY  


 Dated as of September 13, 2004  


 among  


 TRANSMONTAIGNE INC.,  


 as Borrower,  


 EACH OF THE FINANCIAL INSTITUTIONS

INITIALLY A SIGNATORY HERETO,

TOGETHER WITH THOSE ASSIGNEES

PURSUANT HERETO,  


 as Lenders,  


 JPMORGAN CHASE BANK and UBS AG, STAMFORD BRANCH, as Syndication Agents,  


 SOCIÉTÉ GÉNÉRALE, NEW YORK BRANCH and WELLS FARGO FOOTHILL, LLC, as

the Documentation Agents  


 and  


 WACHOVIA BANK, NATIONAL ASSOCIATION,  


 as Agent  




 WACHOVIA CAPITAL MARKETS, LLC,

As Sole Lead Arranger, Manager and Book Runner  










  



 
 

TABLE OF CONTENTS    
    



	 
	 	 
	 	PAGE

	ARTICLE I    DEFINITIONS	 	1
	 	1.1	 	General Definitions	 	1
	 	1.2	 	Accounting Terms and Determinations	 	28
	 	1.3	 	Other Definitional Terms	 	29
	ARTICLE II    LOANS	 	29
	 	2.1	 	Revolving Loans and Swing Loans	 	29
	 	2.2	 	Optional and Mandatory Prepayments; Reduction of Revolving Credit Committed Amount	 	32
	 	2.3	 	Payments and Computations	 	34
	 	2.4	 	Maintenance of Account	 	35
	 	2.5	 	Statement of Account	 	35
	 	2.6	 	Taxes	 	36
	 	2.7	 	Sharing of Payments	 	38
	 	2.8	 	Allocation of Payments; Pro Rata Treatment	 	38
	 	2.9	 	Extensions and Conversions	 	39
	 	2.10	 	Replacement of Lender	 	40
	ARTICLE III    LETTERS OF CREDIT	 	41
	 	3.1	 	Issuance	 	41
	 	3.2	 	Notice and Reports	 	41
	 	3.3	 	Participation	 	41
	 	3.4	 	Reimbursement	 	42
	 	3.5	 	Repayment with Revolving Loans	 	43
	 	3.6	 	Renewal, Extension	 	43
	 	3.7	 	Uniform Customs and Practices	 	43
	 	3.8	 	Indemnification; Nature of Issuing Bank's Duties	 	43
	 	3.9	 	Responsibility of Issuing Bank	 	44
	 	3.10	 	Conflict with Letter of Credit Documents	 	45
	ARTICLE IV    INTEREST AND FEES	 	45
	 	4.1	 	Interest on Loans	 	45
	 	4.2	 	Interest After Event of Default	 	45
	 	4.3	 	Commitment Fee	 	45
	 	4.4	 	Lenders' Fees/Agent's Fees	 	45
	 	4.5	 	Letter of Credit Fees	 	45
	 	4.6	 	Authorization to Charge Account	 	46
	 	4.7	 	Indemnification in Certain Events	 	46
	 	4.8	 	Inability To Determine Interest Rate	 	46
	 	4.9	 	Illegality	 	47
	 	4.10	 	Funding Indemnity	 	47
	ARTICLE V    CONDITIONS PRECEDENT	 	48
	 	5.1	 	Closing Conditions	 	48
	 	5.2	 	Condition to all Loans and Letters of Credit	 	51
	ARTICLE VI    REPRESENTATIONS AND WARRANTIES	 	52
	 	6.1	 	Organization and Qualification	 	52
	 	6.2	 	Solvency	 	52
	 	6.3	 	Liens; Inventory	 	52
	 	6.4	 	No Conflict	 	53
	 	6.5	 	Enforceability	 	53
	 	 	 	 	 





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	 	6.6	 	Financial Data; Material Adverse Change	 	53
	 	6.7	 	Locations of Offices and Records	 	54
	 	6.8	 	Fictitious Business Names	 	54
	 	6.9	 	Subsidiaries	 	54
	 	6.10	 	No Judgments or Litigation	 	54
	 	6.11	 	No Defaults	 	54
	 	6.12	 	No Employee Disputes	 	55
	 	6.13	 	Compliance with Law	 	55
	 	6.14	 	ERISA	 	55
	 	6.15	 	Compliance with Environmental Laws	 	55
	 	6.16	 	Use of Proceeds	 	56
	 	6.17	 	Intellectual Property	 	56
	 	6.18	 	Licenses and Permits	 	57
	 	6.19	 	Title to Property	 	57
	 	6.20	 	Labor Matters	 	58
	 	6.21	 	Investment Company, Etc	 	58
	 	6.22	 	Margin Security	 	58
	 	6.23	 	No Event of Default	 	58
	 	6.24	 	Taxes and Tax Returns	 	58
	 	6.25	 	No Other Indebtedness	 	58
	 	6.26	 	Status of Accounts	 	59
	 	6.27	 	Material Contracts	 	59
	 	6.28	 	Survival of Representations	 	59
	 	6.29	 	Affiliate Transactions	 	59
	 	6.30	 	Accuracy and Completeness of Information	 	59
	 	6.31	 	Anti-Terrorism Laws	 	59
	 	6.32	 	Deposit Accounts and Commodities Accounts	 	60
	 	6.33	 	Force Majeure	 	60
	ARTICLE VII    AFFIRMATIVE COVENANTS	 	60
	 	7.1	 	Financial Information	 	60
	 	7.2	 	Mortgaged Real Estate	 	63
	 	7.3	 	Corporate Existence	 	63
	 	7.4	 	ERISA	 	63
	 	7.5	 	Proceedings or Adverse Changes	 	65
	 	7.6	 	Environmental Matters	 	65
	 	7.7	 	Books and Records; Inspection	 	65
	 	7.8	 	Collateral Records	 	66
	 	7.9	 	Security Interests	 	66
	 	7.10	 	Insurance; Casualty Loss	 	67
	 	7.11	 	Taxes	 	67
	 	7.12	 	Compliance With Laws	 	68
	 	7.13	 	Use of Proceeds	 	68
	 	7.14	 	Fiscal Year; Accounting Policies; Risk Management Policy	 	68
	 	7.15	 	Notification of Certain Events	 	68
	 	7.16	 	Additional Guarantors	 	69
	 	7.17	 	Revisions or Updates to Schedules	 	69
	 	7.18	 	Collection of Accounts	 	69
	 	7.19	 	Notice of Matters Affecting Accounts	 	69
	 	7.20	 	Maintenance of Property	 	69
	 	7.21	 	Trademarks	 	70
	 	 	 	 	 



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	 	7.22	 	Anti-Terrorism Laws	 	70
	ARTICLE VIII    FINANCIAL COVENANTS	 	70
	 	8.1	 	Fixed Charge Coverage Ratio	 	70
	ARTICLE IX    NEGATIVE COVENANTS	 	70
	 	9.1	 	Restrictions on Liens	 	70
	 	9.2	 	Restrictions on Additional Indebtedness	 	71
	 	9.3	 	Restrictions on Sale of Assets	 	71
	 	9.4	 	No Corporate Changes	 	71
	 	9.5	 	No Guarantees	 	71
	 	9.6	 	No Restricted Payments	 	71
	 	9.7	 	No Investments	 	72
	 	9.8	 	No Affiliate Transactions	 	72
	 	9.9	 	No Prohibited Transactions Under ERISA	 	72
	 	9.10	 	Additional Bank or Commodities Accounts	 	72
	 	9.11	 	Restrictions on the Borrower	 	73
	 	9.12	 	Additional Negative Pledges	 	73
	 	9.13	 	Subordinated Debt	 	73
	 	9.14	 	Sale and Leaseback	 	73
	 	9.15	 	Limitations	 	74
	 	9.16	 	Operating Lease Obligations	 	74
	ARTICLE X    POWERS	 	74
	 	10.1	 	Appointment as Attorney-in-Fact	 	74
	ARTICLE XI    EVENTS OF DEFAULT AND REMEDIES	 	74
	 	11.1	 	Events of Default	 	74
	 	11.2	 	Acceleration	 	76
	ARTICLE XII    TERMINATION	 	77
	ARTICLE XIII    THE AGENT	 	77
	 	13.1	 	Appointment of Agent	 	77
	 	13.2	 	Nature of Duties of Agent	 	78
	 	13.3	 	Lack of Reliance on Agent	 	78
	 	13.4	 	Certain Rights of the Agent	 	78
	 	13.5	 	Reliance by Agent	 	79
	 	13.6	 	Indemnification of Agent	 	79
	 	13.7	 	The Agent in its Individual Capacity	 	79
	 	13.8	 	Holders of Notes	 	79
	 	13.9	 	Resignation of Agent	 	80
	 	13.10	 	Collateral Matters	 	80
	 	13.11	 	Actions with Respect to Defaults	 	82
	 	13.12	 	Delivery of Information	 	82
	 	13.13	 	Reliance on Administrative Agent's Customer Identification Program	 	83
	 	13.14	 	Patriot Act	 	83
	ARTICLE XIV    MISCELLANEOUS	 	83
	 	14.1	 	Waivers	 	83
	 	14.2	 	JURY TRIAL	 	83
	 	14.3	 	GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE	 	83
	 	14.4	 	Notices	 	84
	 	14.5	 	Assignability	 	84
	 	14.6	 	Information	 	87
	 	14.7	 	Payment of Expenses; Indemnification	 	87
	 	14.8	 	Entire Agreement, Successors and Assigns	 	88
	 	 	 	 	 





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	 	14.9	 	Amendments, Etc	 	88
	 	14.10	 	Nonliability of Agent and Lenders	 	89
	 	14.11	 	Independent Nature of Lenders' Rights	 	89
	 	14.12	 	Counterparts	 	89
	 	14.13	 	Effectiveness	 	89
	 	14.14	 	Severability	 	89
	 	14.15	 	Headings Descriptive	 	90
	 	14.16	 	Maximum Rate	 	90
	 	14.17	 	Right of Setoff	 	90
	 	14.18	 	Delegation of Authority	 	90




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EXHIBITS AND SCHEDULES    
    


EXHIBITS  



	Exhibit A	 	Form of Assignment and Acceptance
	Exhibit B	 	Form of Guaranty Agreement
	Exhibit C	 	Form of Landlord Agreement
	Exhibit D	 	Form of Pledge Agreement
	Exhibit E	 	Form of Security Agreement
	Exhibit F-1	 	Form of Revolving Note
	Exhibit F-2	 	Form of Swing Note
	Exhibit G	 	Form of Notice of Borrowing and Payment
	Exhibit H	 	Form of Deposit Account Control Agreement
	Exhibit I	 	Form of Notice of Extension/Conversion
	Exhibit J	 	Form of Compliance Certificate
	Exhibit K	 	Form of Borrowing Base Certificate
	Exhibit L	 	Form of Joinder Agreement
	Exhibit M	 	Form of Solvency Certificate
	Exhibit N	 	Form of Contribution Agreement
	Exhibit O	 	Form of Notice of Letter of Credit




SCHEDULES  



	Schedule 1.1A	 	Lenders and Revolving Credit Commitments
	Schedule 1.1B	 	Liens
	Schedule 1.1C	 	Indebtedness
	Schedule 1.1D	 	Investments
	Schedule 3.1	 	Existing Letters of Credit
	Schedule 6.1	 	Jurisdictions of Organization
	Schedule 6.7	 	Location of Offices and Records
	Schedule 6.8	 	Fictitious Business Names
	Schedule 6.9	 	Subsidiaries
	Schedule 6.10	 	Litigation
	Schedule 6.14	 	ERISA
	Schedule 6.15	 	Environmental Disclosures
	Schedule 6.17	 	Intellectual Property
	Schedule 6.19	 	Real Estate
	Schedule 6.27	 	Material Contracts
	Schedule 6.29	 	Affiliate Transactions
	Schedule 6.32	 	Bank Accounts and Commodities Accounts
	Schedule 7.2	 	Initially Selected Real Estate
	Schedule 14.4	 	Addresses for Notices




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SENIOR SECURED WORKING CAPITAL CREDIT FACILITY    
    


        THIS SENIOR SECURED WORKING CAPITAL CREDIT FACILITY is entered into as of September 13, 2004, among
TransMontaigne Inc., a Delaware corporation (the "Borrower"), each of the financial institutions identified as Lenders on the signature pages
hereto (together with each of their successors and assigns, referred to individually as a "Lender" and, collectively, as the
"Lenders"), JPMorgan Chase Bank and UBS AG, Stamford Branch, as Syndication Agents, Société
Générale, New York Branch and Wells Fargo Foothill, LLC, as the Documentation Agents, and Wachovia Bank, National Association
("Wachovia"), acting in the manner and to the extent described in Article XIII (in such capacity,
the "Agent"). 


 
 

W I T N E S S E T H:    
    


        WHEREAS, the Borrower wishes to obtain a revolving credit facility refinancing of indebtedness, to finance the ongoing capital expenditures and working capital,
letter of credit and general corporate needs of the Borrower; and 


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


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


 
 

ARTICLE I    
    
    DEFINITIONS    
    



 1.1    General Definitions.  




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



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


        "Accepted Real Estate" means any Initially Selected Real Estate and any Additionally Selected Real Estate as to which the Agent is
satisfied in its reasonable discretion with all of the Real Property Documentation and the information contained therein. 


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


        "Acquisition" means the purchase of (i) the capital stock of an entity, (ii) the assets of such entity through merger or
consolidation with such entity or (iii) the plant, property and equipment of such entity comprising a sub-division, market segment or subsidiary, or a significant portion thereof,
together with the related current assets and intangible assets of such entity; provided, that to the extent such assets consist of Accounts, Inventory
or other assets of the type that normally 








 




would
be included in the calculation of the Borrowing Base, they shall not be so included until the Agent has completed and is reasonably satisfied with the results of a field examination as to such
assets. 


        "Additionally Selected Real Estate" means any portion of the Real Estate that is not described on  Schedule 7.2, but is selected subsequently by the Agent pursuant
to Section 7.2,
comprising terminals and related real estate assets having Net Orderly Liquidation Value of not less than the excess of Minimum Real Estate Liquidation Value over the Net Orderly Liquidation Value of
the Initially Selected Real Estate. 


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


        "Affiliate" means, with respect to any Person, any entity which directly or indirectly controls, is controlled by, or is under common
control with, such Person. For purposes of this definition, "control" means the possession, directly or indirectly, of the power to (i) vote thirty-five percent (35%) or more of the
securities having ordinary voting power for the election of directors of such Person, or (ii) direct or cause the direction of management and policies of a business, whether through the
ownership of voting securities, by contract or otherwise and either alone or in conjunction with others or any group. 



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


        "Agent's Fees" means the fees payable by the Borrower to the Agent as described in the Fee Letter. 


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


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


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


        "Applicable Percentage" means, as to each Loan, the percentage per annum for such Loan determined from the following table and
corresponding to the Average Excess Borrowing Base Availability as determined by reference to Borrowing Base Certificates and updates thereof as set forth below: 



	 
	 	Average Excess

Borrowing Base

Availability
	 	Applicable Margin

for Base Rate Loans
	 	Applicable Margin for

Eurodollar Loans and

LIBOR Index Loans
	 	Commitment Fee

	Level I	 	>70%	 	0.00%	 	1.50%	 	0.50%
	Level II	 	< 70% and > 45%	 	0.25%	 	1.75%	 	0.50%
	Level III	 	< 45% and > 20%	 	0.50%	 	2.00%	 	0.375%
	Level IV	 	< 20%	 	0.75%	 	2.25%	 	0.25%





        The
Applicable Percentages shall be determined and adjusted monthly as of the first day of the month, based on the Borrowing Base Certificate or Borrowing Base Certificates, as
applicable, and updates thereof, delivered pursuant to Section 7.1(e) for the previous month; provided,  



2







 

 however, that (a) the initial Applicable Percentages shall be based on Level III (as shown above) and shall not be less than Level III until the furnishing of the first
Borrowing Base Certificate delivered six (6) months following the Closing Date, and, thereafter, the Level shall be determined by the then current Average Excess Borrowing Base Availability,
and (b) if the Borrower fails to provide any Borrowing Base Certificate or update for any month as required by and within the time limits set forth in  Section 7.1(e), the Applicable
Percentages from the applicable date of such failure shall be based on Level IV until the next Business Day after
a Borrowing Base Certificate is provided, whereupon the Level shall be determined by the then current Average Excess Borrowing Base Availability. Except as set forth above, each Applicable Percentage
shall be effective as of the first day of each month. 


        "Approved Appraisal" means, for each parcel or tract of the Initially Selected Real Estate, any Additionally Selected Real Estate, or any
Mortgaged Real Estate that is substituted pursuant to Section 7.2, an appraisal report prepared by an appraiser reasonably satisfactory to the
Agent and the Borrower and engaged by and on behalf of the Agent and the Lenders, and using appraisal assumptions and methodology customary in the industry and reasonably satisfactory to the Agent,
showing the Net Orderly Liquidation Value of such property. 


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


        "Approved Banks" has the meaning given such term in the definition of "Cash Equivalents" herein. 



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


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



        "Average Excess Availability" means the average daily amount of Excess Availability for the month just ended prior to the date of the most
recent Compliance Certificate. 


        "Average Excess Borrowing Base Availability" means the average daily amount of Excess Borrowing Base Availability for the month just
ended, as determined by reference to the Borrowing Base Certificates and updates thereof delivered pursuant to Section 7.1(e) for the previous
month. 


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


        "Base Rate" means, for any day, the rate per annum (rounded upwards, if necessary, to the nearest whole multiple of 1/100
of 1%) equal to the greater of (a) the Federal Funds Rate in effect on such day plus 1/2 of 1% or (b) the Prime Rate in
effect on such day. If for any reason the Agent shall have determined (which determination shall be conclusive absent manifest error) that it is unable after due inquiry to ascertain the Federal Funds
Rate for any reason, including the inability or failure of the Agent to obtain sufficient quotations in accordance with the terms hereof, the Base Rate shall be determined without regard to
clause (a) of the first sentence of this definition until the circumstances giving rise to such inability no longer exist. Any change in the Base Rate due to a change in the Prime Rate or the
Federal Funds Rate shall be effective on the effective date of such change in the Prime Rate or the Federal Funds Rate, respectively. 


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



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



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


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


        "Borrowing Base" means the following amount (the "Borrowing Base") calculated as of the
date of determination as follows: 



        (a)   up
to one hundred percent (100%) of balances in each deposit account of any Credit Party which is subject to a Deposit Account Control Agreement in favor of the Agent,
plus; 


        (b)   an
amount equal to ninety percent (90%) of the aggregate dollar amount of all Eligible Accounts Receivable that are High Quality Oil Company Receivables;  plus


        (c)   an
amount equal to eighty-five percent (85%) of the aggregate dollar amount of all other Eligible Accounts Receivable  plus



        (d)   an
amount equal to seventy percent (70%) of the aggregate dollar amount of all Eligible Petroleum Inventory consisting of tank bottoms and line fill, valued at Market
Value; plus


        (e)   an
amount equal to eighty percent (80%) of the aggregate dollar amount of all Eligible Petroleum Inventory comprised of Titled In-Transit Inventory, valued
at Market Value, plus


        (f)    an
amount equal to one hundred percent (100%) of the aggregate face amount of the related Letters of Credit backing Eligible Petroleum Inventory comprised of Paid LC
Backed Inventory; provided, that the amount available under this clause (f) shall not at any time exceed $20,000,000; plus


        (g)   an
amount equal to eighty percent (80%) of the aggregate dollar amount of all Eligible Petroleum Inventory other than tank bottoms and line fill and Titled
In-Transit Inventory, valued at Market Value, plus


        (h)   an
amount equal to eighty percent (80%) of any Eligible Positive Exchange Contract Balances; minus



        (i)    a
reserve for un-collateralized state excise tax liabilities that are subject to a Lien or claim (including a right of subrogation) that has legal priority
over the Lien and claim of the Agent, as determined by the Agent from time to time in its reasonable discretion, minus


        (j)    a
reserve for payments, rents, storage charges or tariffs due by any Credit party to third parties holding or controlling Eligible Petroleum Inventory, where the Agent
has not obtained reasonably acceptable landlord waivers, warehousemen, terminal owner or operator and bailee letters, third party consents, and other agreements as requested by the Agent, as
determined by the Agent from time to time in its reasonable discretion; minus


        (k)   a
reserve in the amount of $50,000,000 (or such lesser amount as the Agent may determine in its reasonable discretion, taking into account Mortgages already received)
until the Agent has received Mortgages on all of the Mortgaged Real Estate; minus


        (l)    a
reserve in the amount of the Current Derivative Exposure; minus


        (m)  any
other reserves established by the Agent from time to time in its reasonable discretion. 




4







 






Subject
to the relevant terms and provisions set forth in this Credit Agreement, the Agent at all times shall be entitled to modify the standards of eligibility, reduce the advance rates, or (subject
to clause (h) of Section 14.9) increase the advance rates under this Credit Agreement, in each case in its reasonable discretion. 


        "Borrowing Base Certificate" means a borrowing base certificate substantially in the form of  Exhibit K. 


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


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


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


        "Cash Concentration Account" means a deposit account established and maintained by the Borrower, for itself and as agent for the other
Credit Parties, over which the Agent, for itself and for the benefit of the Lenders, has "control" (as such term is used in Article 9 of the UCC), whether by virtue of such deposit account's
being maintained at the Agent or, if required by the Agent, pursuant to the terms of a Deposit Account Control Agreement in form and substance satisfactory to the Agent in its reasonable discretion. 



        "Cash Equivalents" means 



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


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



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


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




        "Cash Management Products" means any one or more of the following types of services or facilities extended to any of the Credit Parties by
any Lender or any Affiliate of a Lender in 



5







 

reliance
on such Lender's agreement to indemnify such Affiliate: (a) Automated Clearing House (ACH) transactions; (b) cash management, including controlled disbursement and lockbox
services; and (c) establishing and maintaining deposit accounts. 


        "Casualty Loss" has the meaning given to such term in Section 7.10. 


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


        "Closing" means the consummation of the first to occur under this Credit Agreement of (a) the making of the initial Loan by the
Lenders to the Borrower under this Credit Agreement and (b) the issuance of any Letter of Credit by the Issuing Bank. 


        "Closing Date" means the date on which the Closing occurs. 


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


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


        "Commodities Account Control Agreement" means an agreement among a Credit Party, a commodities intermediary, and the Agent, which
agreement (a) is substantially in the form of the Control Agreement-Assignment of Hedging Account with Citigroup Global Markets Inc. and TransMontaigne Product Services Inc. use
in connection with the existing Credit Agreement with UBS AG described in Section 5.1(y) or (b) is in such other form as is reasonably
acceptable to the Agent and its counsel and which provides for the Agent's having "control" (as such term is used in Article 9 of the UCC) over the commodity accounts described therein, in each
case as the same may be amended, restated, supplemented, or otherwise modified from time to time. 



        "Compliance Certificate" means a certificate, executed by the chief financial officer, controller or treasurer of the Borrower,
substantially in the form of Exhibit J. 


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



        "Consolidated Adjusted EBITDA" means, for any period, on a consolidated basis for the Borrower and its consolidated Subsidiaries, the
total of: 



        (a)   total
Operating Income, 


        (b)   plus, depreciation and amortization, 




6







 





        (c)   plus, dividend income from and equity in earnings of petroleum related investments to the extent it has been received in
cash during such period, excluding from such calculation, from and after the Lion Oil Company Disposition Transaction, dividend income from Lion Oil, 


        (d)   minus, GAAP Inventory Adjustments—Gross for such period, 


        (e)   plus, up to $10,475,000 of net operating losses incurred in May, 2004 in the Supply Distribution and Marketing segment of
the Borrower's business; provided that such net operating losses shall be added back only for purposes of calculation of the financial covenant set
forth in Section 8.1, and not for purposes of determining whether the condition pertaining to the Fixed Charge Coverage Ratio has been satisfied
in connection with a Permitted Acquisition or a Permitted Restricted Payment), 


        (f)    plus, to the extent deducted from Operating Income, non-recurring charges recorded in such period payable in
cash in future periods agreed to by the Agent in its reasonable discretion minus the amount of any such charges excluded in any previous period and paid
in cash during such period, 


        (g)   plus, to the extent deducted from Operating Income, non-cash impairment charges relating to fixed assets. 




        "Consolidated Capital Expenditures" means, for any period, for the Borrower and its consolidated Subsidiaries, amounts added or required
to be added to the property, plant and equipment or other fixed assets account on the Consolidated balance sheet of the Borrower 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 (other than
an Acquisition), (b) to the extent not included in clause (a) above, materials, contract labor and direct labor relating thereto (excluding amounts properly expensed as repairs and
maintenance in accordance with GAAP) and (c) software development costs to the extent not expensed. 


        "Consolidated Cash Income Taxes" means, for any applicable period of computation, the sum of all income taxes actually paid in cash (net
of cash refunds) by the Borrower and its consolidated Subsidiaries during such period, determined on a consolidated basis in accordance with applicable law and GAAP. 


        "Consolidated Cash Interest Expense" means, for any applicable period of computation, all cash interest expense, net of cash interest
income, of the Borrower and its consolidated Subsidiaries during such period, determined on a consolidated basis in accordance with GAAP. 


        "Consolidated Fixed Charges" means, for any applicable period of computation, without duplication, the sum of (a) all Consolidated
Cash Interest Expense for such period plus (b) Consolidated Scheduled Funded Indebtedness Payments made during such period. 



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


        "Consolidated Scheduled Funded Indebtedness Payments" means, for any applicable period of calculation, the sum of all scheduled payments
of principal on Consolidated Funded Indebtedness for the applicable period ending on such date (including the principal component of payments due on Capital Leases or under any synthetic lease, tax
retention operating lease, off-balance sheet loan or similar off-balance sheet financing product, other than operating leases that do not constitute any of the foregoing,
during the applicable period ending on such date), determined on a consolidated basis in accordance with GAAP; it being understood that Consolidated Scheduled 



7







 




Funded
Indebtedness Payments shall not include (i) voluntary prepayments or the mandatory prepayments required pursuant to Section 2.2,
(ii) repayments of the Senior Subordinated Notes that are permitted under Section 9.13, (iii) repayments of margin loans made by
commodities brokers or (iv) cash redemptions of preferred stock (a) in existence on the Closing Date or (b) issued in satisfaction of dividend obligations thereon. 


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


        "Contribution Agreement" means the Contribution Agreement of even date herewith in substantially the form of  Exhibit N to be executed by each of the Credit Parties
or any Person who becomes party hereto or to the Guaranty Agreement pursuant to a joinder
agreement in form and substance reasonably satisfactory to the Agent, including, without limitation, and any Subsidiaries of the Borrower which may become Guarantors pursuant to  Section 7.16.



        "Credit Agreement" means this credit agreement, dated as of the date hereof, as the same may be amended, restated, supplemented, or
otherwise modified from time to time. 


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



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


        "Credit Parties" means the Borrower, the Guarantors and any affiliate of the Borrower or a Guarantor or any of their respective
Subsidiaries which has pledged Collateral or executed or joined in the Guaranty Agreement or otherwise furnished a guaranty to secure or guarantee the Obligations. 


        "Current Derivative Exposure" means, as of any date of determination, 100% of the aggregate mark-to-market
exposure, then owing by any Credit Party under Lender Hedging Agreements, determined by the Lender that is counterparty to each Lender Hedging Agreement, based on termination value after netting,
using a mutually satisfactory method, and furnished to the Agent on a monthly basis (or more frequently, in the reasonable discretion of the Agent). 



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


        "Default Rate" means a rate equal to the Base Rate, plus the highest Applicable Percentage
for Base Rate Loans, plus two percent (2%). 


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



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



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



8







 




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



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


        "Domestic Subsidiaries" means, with respect to any Person, any Subsidiary of such Person which is incorporated or organized under the laws
of any state of the United States or the District of Columbia. 


        "Eligible Accounts Receivable" means the Accounts of each of the Credit Parties; provided,
however, that, unless otherwise approved in writing by the Agent in its reasonable discretion, an Account will not constitute an Eligible Account Receivable if: 



        (a)   such
Account arises out of a sale or lease made by any Credit Party to an Affiliate or employee; 


        (b)   an
Account the invoice for which provides that payment is due in more than thirty (30) days from the date of such invoice, and any Account that is unpaid more
than sixty (60) days after the due date thereof; 


        (c)   any
Account is from the same account debtor (or any affiliate thereof) and fifty percent (50%) or more, in face amount, of all Accounts from such account debtor (or any
affiliate thereof) are ineligible under clause (b) above; 


        (d)   the
amount of the Account, when aggregated with all other Accounts of such account debtor, exceeds twenty percent (20%) in face value of all Accounts of the Credit
Parties then outstanding, to the extent of such excess; 


        (e)   the
account debtor is also a creditor of any Credit Party, but only to the extent of the amount owed by such Credit Party to the account debtor; 



        (f)    the
account debtor has disputed its liability on, or such account debtor has made any claim with respect to, such Account or any other Account due from such account
debtor to such Credit Party, which has not been resolved, but only to the extent of such dispute; 


        (g)   the
Account is subject to any right of setoff by the related account debtor, but only to the extent of the amount of such setoff; 


        (h)   the
Account is owing by an account debtor that has commenced a voluntary case under the Bankruptcy Code or made an assignment for the benefit of creditors; a decree or
order for relief has been entered by a court having jurisdiction in the premises in respect to such account debtor in an involuntary case under the Bankruptcy Code; any petition or other application
for relief under the
Bankruptcy Code has been filed by or against the account debtor; or such account debtor is generally not paying its debts as they become due (unless such debts are the subject of a bona fide dispute),
or has suspended business, ceased to be solvent, or consented to or suffered a receiver, trustee, liquidator or custodian to be appointed for it or for all or a significant portion of its assets or
affairs; 


        (i)    such
Account arises from a sale or lease to an account debtor outside the United States and Canada, unless the sale is (i) on letter of credit, guaranty or
acceptance terms, or subject to credit insurance, in each case reasonably acceptable to the Agent in its reasonable discretion, or (ii) otherwise approved by and reasonably acceptable to the
Agent in its reasonable discretion; 


        (j)    such
Account arises from a sale pursuant to any written agreement providing for repurchase or return, or has not been billed by the Credit Party; provided, that Accounts
that otherwise are eligible shall not be excluded notwithstanding that they have not been billed by the Credit Party if they arise from the sale of goods that are shown on the Borrower's books 




9







 





and
records as "released but not invoiced" for no more than thirty (30) days prior to the date of calculation of the Borrowing Base, all in accordance with historical practices; 


        (k)   the
Agent believes, in its reasonable discretion, that collection of such Account is insecure or that such Account is reasonably likely not to be paid by reason of the
related account debtor's financial inability to pay; 


        (l)    the
related account debtor is the United States of America or any department, agency, or instrumentality thereof, unless the applicable Credit Party duly assigns its
rights to payment of such Account to the Agent pursuant to the Assignment of Claims Act of 1940, as amended from time to time (31 U.S.C. § 3727 et seq.); 


        (m)  in
the case of Accounts arising from the sale of petroleum products, title to such petroleum products has not transferred to the purchaser; 


        (n)   the
Agent does not have a first priority (subject to Permitted Liens), perfected security interest in such Account; 



        (o)   such
Account does not comport in all material respects with all warranties contained in this Agreement and the other Credit Documents; or 


        (p)   the
Agent, at any time and in the exercise of its reasonable discretion, determines such Account to be ineligible. 




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


        "Eligible Petroleum Inventory" means all of the Inventory of each of the Credit Parties; provided,
however, that, unless otherwise approved in writing by the Agent in its reasonable discretion, no Inventory shall constitute Eligible Petroleum Inventory if: 



        (a)   such
Inventory is owned in whole or in part by any Person other than a Credit Party; 


        (b)   such
Inventory is subject to delivery under a contract with Negative Exchange Contract Balances; 


        (c)   a
Credit Party does not have good, valid, and marketable title to such Inventory; 


        (d)   the
Agent does not have a first (except for Permitted Liens) priority perfected security interest in such Inventory; 


        (e)   except
for Titled In-Transit Inventory and Paid LC Backed Inventory, such Inventory is not located in the United States or Canada; 


        (f)    such
Inventory is obsolete or slow moving and for which a markdown reserve has not been made; 



        (g)   such
Inventory constitutes goods returned or rejected by a Credit Party's customer for which a credit has not yet been issued; 


        (h)   such
Inventory constitutes goods in transit, unless (i), in transit with a Reputable Carrier, or (ii) it consists of Titled In-Transit Inventory or
Paid LC Backed Inventory; 




10







 





        (i)    such
Inventory is held by a Credit Party pursuant to consignment, sale or return, sale on approval or any similar arrangement; 


        (j)    such
Inventory does not conform in all material respects to the warranties contained in this Agreement and in the other Credit Documents; 


        (k)   the
Agent has, in its reasonable discretion, designated such Inventory to be ineligible. 




        "Eligible Positive Exchange Contract Balances" means, at any date, the amount of the balance, based on current value on a mark to market
basis, of any rights of the Credit Parties to receive petroleum products or money arising from the exchange of petroleum products with trading partners (other than trading partners determined by the
Agent to be unacceptable in the Agent's reasonable discretion), net of any offsets or counterclaims, and subject to a valid, first priority (subject to Permitted Liens), perfected Lien in favor of the
Agent for the benefit of the Agent and the benefit of the Lenders. 



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


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


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


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



	Eurodollar Rate =	 	London Interbank Offered Rate
 1 - Eurodollar Reserve Percentage






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


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



        "Excess Availability" means, at any time, the amount (if any) by which (a) the lesser of (i) the Revolving Credit Committed
Amount and (ii) the Borrowing Base exceeds (b) the aggregate amount of the Working Capital Obligations, as determined by reference to the most recent Borrowing Base Certificate. 



11









  



        "Excess Borrowing Base Availability" means the amount, if any, by which the Borrowing Base exceeds the aggregate amount of the Working
Capital Obligations (regardless of the amount of unused Revolving Credit Commitments), as determined by reference to the most recent Borrowing Base Certificate. 



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


        "Executive Officer" means the Chief Executive Officer, the Chief Financial Officer, the Treasurer and the General Counsel of the Borrower. 


        "Existing Letters of Credit" means those letters of credit listed in Schedule 3.1. 



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



        "Fee Letter" means the letter agreement, dated August 6, 2004, by and between the Agent and the Borrower regarding the fees to be
paid by the Borrower to the Agent. 


        "Fees" means, collectively, the Agent's Fees, the Lenders' Fees, the Commitment Fee, the Letter of Credit Fee and the Issuing Bank Fees
payable hereunder. 


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



        "Fixed Charge Coverage Ratio" means the ratio of: 



        (a)   the
sum of (w) Consolidated Adjusted EBITDA, minus (x) Consolidated Capital Expenditures;  provided, that for fiscal quarters ended on or before
September 30, 2004, only Maintenance Capital Expenditures shall be deducted,  minus (y) Consolidated Cash Income Taxes, minus (z) dividends
and distributions paid in
cash (excluding cash distributions derived from the Lion Oil Company Disposition Transaction) on common and preferred Capital Stock (but accounted for as of the fiscal quarter for which declared); to 


        (b)   Consolidated
Fixed Charges, 




in
each case computed as of the last day of each of the Borrower's fiscal quarters, for such fiscal quarter and the three immediately preceding fiscal quarters combined. 


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


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


        "Foreign Subsidiary" means, with respect to any Person, any Subsidiary of such Person which is not a Domestic Subsidiary. 


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



        "Funded Indebtedness" means, with respect to any Person, without duplication, (a) all Indebtedness, other than Indebtedness of the
types described in clauses (e), (f), (h) and (l) of the definition of "Indebtedness"), (b) all Indebtedness of another Person of the type referred to in clause (a) above
secured by (or for which the holder of such Funded Indebtedness has an existing 



12







 




right,
contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of production from, property owned or acquired by such Person, whether or not the obligations secured
thereby have been assumed, (c) all guaranties of such Person with respect to Indebtedness of the type referred to in clause (a) above of another Person and (d) Indebtedness of the
type referred to in clause (a) above of any partnership or unincorporated joint venture in which such Person is legally obligated, in each case excluding Indebtedness of such Person not
required to be paid within one (1) year after the date of creation, but including current installments of all Funded Indebtedness. 


        "Funding Bank" means Wachovia or any other banking or financial institution from whom any of the Lenders borrow funds or obtain credit. 



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


        "GAAP Inventory Adjustments—Gross" means the sum of: 



        (a)   any
gain recognized on beginning inventories-discretionary volumes held for immediate sale or exchange, minus, 



        (b)   any
gain deferred on ending inventories—discretionary volumes held for immediate sale or exchange, plus


        (c)   any
increase and minus any decrease in the FIFO cost basis of base operating inventory volumes, minus, 


        (d)   any
lower of cost or market write-downs on base operating inventory volumes, plus


        (e)   any
gains recognized on sales of minimum inventory, minus


        (f)    any
lower of cost or market write-downs on product line fill and tank bottom volumes; 




each
as calculated and shown on the Borrower's Quarterly Report on Form 10-Q's filed with the SEC in accordance with historical practices. 


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


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


        "Guarantor" means (a) TransMontaigne Product Services Inc., a Delaware corporation, TransMontaigne Transport Inc., a
Delaware corporation, Coastal Fuels Marketing, Inc., a Florida corporation, and Coastal Tug and Barge, Inc., a Florida corporation, and (b) each other Person who enters into the
Guaranty Agreement or who becomes party to the Guaranty Agreement pursuant to a joinder agreement in form and substance reasonably satisfactory to the Agent, including, without limitation, and any
Subsidiaries of the Borrower which may become Guarantors hereunder pursuant to Section 7.16. 


        "Guaranty Agreement" means the Guaranty Agreement substantially in the form of  Exhibit B, executed (directly or by joinder agreement) in accordance with the terms
of this Credit Agreement, as the same may be amended,
restated, supplemented, or otherwise modified from time to time. 


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



13







 




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



        "High Quality Oil Company Receivables" means, unless and until the Agent gives written notice to the Borrower to the contrary all Eligible
Accounts Receivable of any Credit Party, as to which the account debtor (a) is rated at least A-or the equivalent thereof by S&P or A3 by Moody's, (b) has a stable outlook or
better from S&P and Moody's, and (c) has been a customer of a Credit Party for at least six (6) months. 


        "Indebtedness" means, with respect to any Person, without duplication, (a) all obligations of such Person for borrowed money,
(b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, or upon which interest payments are customarily made, (c) all obligations of such Person
under conditional sale or other title retention agreements relating to property purchased by such Person (other than customary reservations or retentions of title under agreements with suppliers
entered into in the ordinary course of business), (d) all obligations of such Person issued or assumed as the deferred purchase price of property or services purchased by such Person (other
than trade debt incurred in the ordinary course of business and due within six months of the incurrence thereof) which would appear as liabilities on a balance sheet of such Person, (e) all
Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of
production from, property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed, (f) all guaranties of such Person with respect to Indebtedness of
the type referred in this definition of another Person, (g) the principal portion of all obligations of such Person under Capital Leases, (h) all obligations of such Person under Hedging
Agreements, (i) the maximum amount of all letters of credit issued or bankers' acceptances facilities created for the account of such Person and, without duplication, all drafts drawn
thereunder (to the extent unreimbursed), (j) all preferred Capital Stock issued by such Person and required by the terms thereof to be redeemed in cash, or for which mandatory sinking fund
payments in cash are due, by a fixed date prior to the Maturity Date, (k) the principal component of payments due on Capital Leases or under any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing product, other than operating leases that do not constitute any of the foregoing, during the applicable period
ending on such date, determined on a consolidated basis in accordance with GAAP, and (l) the Indebtedness of any partnership or unincorporated joint venture in which such Person is a general
partner or a joint venturer in which such Person is legally obligated with respect thereto. 


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



        "Initially Selected Real Estate" means the portion of the Real Estate that is described on  Schedule 7.2, comprising the terminals and related real estate assets
preliminarily selected by the 



14







 




Agent
pursuant to Section 7.2 and having projected Net Orderly Liquidation Value of not less than the Minimum Real Estate Liquidation Value. 



        "Interest Payment Date" means the date that is five (5) days after receipt by the Borrower of any invoice with respect to interest
due, which invoice shall be provided (a) as to any Base Rate Loan and any Swing Loan, for each calendar month to occur while such Loan is outstanding, (b) as to any Eurodollar Loan
having an Interest Period of three months or less, for such Interest Period, and (c) as to any Eurodollar Loan having an Interest Period longer than three months, for each three month period
during such Interest Period and for the period from the last full three month period during such Interest Period to the last day of such Interest Period. 



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


        "Internal Revenue" means the Internal Revenue Service and any successor agency. 


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


        "Inventory" means all of each Credit Party's inventory as such term is defined in the UCC but, including without limitation, all Petroleum
Inventory. 


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



15







 




        "Issuing Bank" means Wachovia or any Lender which shall issue a Letter of Credit for the account of the Borrower;  provided, that there shall not be more than two
(2) Lenders other than Wachovia that are Issuing Banks at any time. 


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


        "Landlord Agreement" means a Landlord Lien Waiver Agreement, substantially in the form of  Exhibit C (or such other form as shall be reasonably acceptable to the
Agent), between the Agent and a Credit Party's landlord on property that
is subject to a Mortgage. 


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


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



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


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


        "Lending Party" means the Agent and each Lender. 



        "Letter of Credit Committed Amount" means the maximum aggregate amount of the Letter of Credit Obligations that is permitted to be
outstanding from time to time pursuant to clause (a) of the proviso contained in Section 3.1, which is $200,000,000. 


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


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


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


        "Letters of Credit" means (a) all Existing Letters of Credit and (b) all other letters of credit (whether documentary or
stand-by and whether for the purchase of inventory, equipment or otherwise) issued by an Issuing Bank for the account of the Borrower pursuant to this Credit Agreement, and all amendments,
renewals, extensions or replacements thereof. 


        "LIBOR Index Loan" means a Swing Loan, or portion thereof, during any period in which it bears interest at the Adjusted LIBOR Index Rate. 


        "Lion Oil" means Lion Oil Company, an Arkansas corporation. 



16







 




        "Lion Oil Company Disposition Transaction" means any transaction entered into by the Borrower and approved by its board of directors for
the sale, transfer, assignment, contribution, distribution or other disposition of its interests in Lion Oil. 


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


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


        "Lockbox" has the meaning given to such term in Section 2.3(b)(i). 


        "Lockbox Account" has the meaning given to such term in Section 2.3(b)(i). 



        "Lockbox Bank" has the meaning given to such term in Section 2.3(b)(i). 


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



        "Maintenance Capital Expenditures" means the "Maintenance Capital Expenditures" (or any successor caption representing substantially
similar capital expenditures) as set forth in the Borrower's financial statements most recently filed with the SEC prior to any date of determination. 


        "Market Value", with respect to Petroleum Inventory, means, (i) with respect the Borrower's discretionary inventory held for
immediate sale or exchange, the sum of (x) the market price for such Petroleum Inventory, determined by using the published NYMEX price as of the date of any determination, (y) the
applicable location basis differential and (z) all applicable transportation and other costings, and (ii) with respect the Borrower's base, tank bottom and line fill inventory the sum of
(x) the market price for such Petroleum Inventory, determined by using the published or reported price in Platts Oilgram Price Report, commonly known as Platts, as of the date of any
determination and (y) all applicable transportation and other costings. Such valuation shall be consistent with historical practices in existence on the Closing Date or reflecting changing
industry practices. In the event NYMEX or Platts no longer provides the aforementioned price indices, the Borrower and the Agent shall replace one or both of the indicies with other third party
indices reasonably acceptable to each of the Borrower and the Agent. 


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



17







 




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


        "Material Contract" means any written contract or other arrangement (other than the Credit Documents), to which any Credit Party or any of
its Subsidiaries is a party as to which the breach, nonperformance, cancellation or failure to renew by any party thereto could reasonably be expected to have a Material Adverse Effect and shall
include in any event the Operative Documents (other than the Credit Documents) to which a Credit Party is a party. 


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


        "Minimum Real Estate Liquidation Value" means $100,000,000, or such lesser amount as the Agent may specify in its reasonable discretion. 



        "Moody's" means Moody's Investor Service, Inc. 


        "Mortgage" means, as to each parcel or tract of the Mortgaged Real Estate (or as to more than one parcel or tract, as the case may be),
the mortgage from the applicable Credit Party on such Mortgaged Real Estate, in form and substance reasonably satisfactory to the Agent, granting a Lien thereon, and conveying a security interest in
the Mortgage Related Equipment to secure the Obligations. 



        "Mortgagee Policy" means, for each parcel or tract of the Mortgaged Real Estate, an ALTA mortgagee title insurance policy issued by the
Title Insurance Company. 


        "Mortgage Related Equipment" means all equipment of any Credit Party that is located on or used in connection with any Mortgaged Real
Estate. 


        "Mortgaged Real Estate" means (i) the Initially Selected Real Estate and any Additionally Selected Real Estate having an aggregate
Net Orderly Liquidation Value of not less than the Minimum Real Estate Liquidation Value and which has become Accepted Real Estate, and (ii) any substitute real estate on which a Mortgage is
granted pursuant to Section 7.2, in each case on and as to each of which the Agent shall receive Mortgages and the Real Property Documentation. 


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



        "Negative Exchange Contract Balances" means, at any date, the amount of the balance, of any obligations of the Credit Parties to deliver
petroleum products arising from the exchange of petroleum products with trading partners. 


        "Net Orderly Liquidation Value" means, as to each parcel or tract of the Initially Selected Real Estate and any Additionally Selected Real
Estate, the orderly liquidation value thereof, as determined by and set forth in an Approved Appraisal, less estimated liquidation costs, discounts and expenses, as determined by the Agent in its
reasonable credit judgment. 


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


        "Notice of Borrowing and Payment" means a notice substantially in the form of  Exhibit G. 


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



18







 




        "Obligations" means the Loans, any other loans and advances or extensions of credit made or to be made by any Lender to the Borrower, or
to others for the Borrower's account, in each case pursuant to the terms and provisions of this Credit Agreement, together with interest thereon (including interest which accrues after the
commencement of any bankruptcy or similar case, whether or not such post-petition interest is allowed in such case) and, including, without limitation, any reimbursement obligation or
indemnity of the Borrower on account of Letters of Credit and all other Letter of Credit Obligations and all indebtedness, fees, liabilities and obligations which may at any time be owing by the
Borrower to any Lender (or an Affiliate of a Lender) in each case pursuant to this Credit Agreement or any other Credit Document, whether now in existence or incurred by the Borrower from time to time
hereafter, whether unsecured or secured by pledge, Lien upon or security interest in any of the Borrower's assets or property or the assets or property of any other Person, whether such indebtedness
is absolute or contingent, joint or several, matured or unmatured, direct or indirect and whether such Borrower is liable to such Lender (or an Affiliate of a Lender) for such indebtedness as
principal, surety, endorser, guarantor or otherwise. Obligations shall also include any other indebtedness owing to any Lender (or an Affiliate of a Lender) by the Borrower under this Credit Agreement
and the other Credit Documents, the Borrower's liability to any Lender (or an Affiliate of a Lender) pursuant to this Credit Agreement as maker or endorser of any promissory note or other instrument
for the payment of money, the Borrower's liability to any Lender (or an Affiliate of a Lender) pursuant to this Credit Agreement or any other Credit Document under any instrument of guaranty or
indemnity, or arising under any guaranty, endorsement or undertaking which any Lender (or an Affiliate of a Lender) may make or issue to others for any such Borrower's account pursuant to this Credit
Agreement, including any accommodation extended with respect to applications for Letters of Credit, all liabilities and obligations arising under Lender Hedging Agreements owing from the Borrower to
any Lender, or any Affiliate of a Lender (or any Person that was a Lender or an affiliate of a Lender at the time such Lender Hedging Agreement was entered into), permitted under  Section 9.2, all
liabilities and obligations now or hereafter arising from or in connection with any Cash Management Products, and all
obligations of the Guarantors to any Lender (or an Affiliate of any Lender) and the Agent arising under or in connection with the Guaranty Agreement or any other Credit Document, including, without
limitation, the Guaranteed Obligations (as defined in the Guaranty Agreement). 


        "Operating Income" means operating income as shown on the Borrower's financial statements in accordance with historical practices and in
compliance with GAAP. 


        "Operative Documents" means the Credit Documents, any Subordination Agreements and any documents or instruments evidencing Subordinated
Debt. 


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


        "Overadvance" means, as of any date of determination, the amount, if any, by which the outstanding Working Capital Obligations exceeds the
Borrowing Base. 


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



        "Paid LC Backed Inventory" means inventory that has been delivered to any Credit Party and is backed by a Letter of Credit that has not
been drawn upon or cancelled, and where the purchase price of all such inventory has been paid in full. 



19







 




        "Permitted Acquisitions" means any Acquisition by the Borrower or any of its consolidated Subsidiaries, so long as the provisions of  Section 7.16 are complied with,
if applicable, and which: 



        (a)   is
either an investment in the stock of a non-Guarantor entity or any other Acquisition, so long as each of the following conditions is satisfied in
connection therewith: 



          (i)  the
entity or assets being acquired are for the same or a similar line of business of those of the Borrower and its consolidated Subsidiaries, and 



         (ii)  the
aggregate amount of all such stock investments and other Acquisitions does not exceed $10,000,000 in any fiscal year; or 




        (b)   is
any other Acquisition not satisfying clause (a) above, so long as each of the following conditions is satisfied in connection therewith: 



          (i)  the
entity or assets being acquired are for the same or a similar line of business of those of the Borrower and its consolidated Subsidiaries; 



         (ii)  the
Acquisition has not been opposed by the board of directors of the entity that is selling the shares or assets to be acquired; 


        (iii)  the
pro forma consolidated cash flow, Excess Availability and Adjusted EBITDA of the Borrower and its consolidated Subsidiaries, after giving effect to the Acquisition
(including pro forma adjustments), are reasonably satisfactory to the Agent in its reasonable discretion; 


        (iv)  the
aggregate purchase price of all Acquisitions in any fiscal year does not exceed $125,000,000, less the amount of stock investments and other Acquisitions made
pursuant to clause (a) above during such fiscal year; 


         (v)  the
Lenders shall have received the quarterly compliance certificate for the fiscal quarter ending on September 30, 2005; 


        (vi)  after
giving effect to such Acquisition, no Default or Event of Default is in existence; and 


       (vii)  on
a pro forma basis after giving effect to such Acquisition, Excess Availability and the pro forma Fixed Charge Coverage Ratio immediately after the Acquisition shall
be not less than the amounts set forth below, depending on the amount of the purchase price of such Acquisition: 





	Purchase Price
 
	 	Minimum Excess

Availability upon

closing of

Acquisition
	 	Pro Forma Fixed

Charge Coverage

Ratio

	£ $50,000,000	 	$	75,000,000	 	N/A
	£ $100,000,000 but >$50,000,000	 	$	75,000,000	 	1:10 to 1.00
	> $100,000,000	 	$	100,000,000	 	1:10 to 1.00






        "Permitted Indebtedness" means: 



        (a)   Indebtedness
to the Lenders with respect to the Revolving Loans, the Letters of Credit or otherwise, pursuant to the Credit Documents; 


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



        (c)   purchase
money Indebtedness (including Capital Leases) hereafter incurred by the Credit Parties or any of their Subsidiaries to finance the purchase of fixed assets  provided that (i) the total of all such
Indebtedness for all such Persons taken together shall not exceed an 




20







 





aggregate
principal amount of $10,000,000 at any one time outstanding (including any such Indebtedness referred to in clause (e) immediately below); (ii) such Indebtedness when incurred
shall not exceed the purchase price of the asset(s) financed; and (iii) no such Indebtedness shall be refinanced for a principal amount in excess of the principal balance outstanding thereon
plus any interest, prepayment premium and other related costs at the time of such refinancing so long as all such costs do not exceed the foregoing $10,000,000 cap; 


        (d)   obligations
of the Borrower or any of its Subsidiaries in respect of Hedging Agreements entered into in order to manage existing or anticipated interest rate and
exchange rate risks and to manage commodity price risks in accordance with the Risk Management Policy; 


        (e)   Indebtedness
described on Schedule 1.1C and any refinancings of such Indebtedness;  provided that the aggregate principal amount of such Indebtedness is not
increased, the scheduled maturity dates of such Indebtedness are not shortened
and such refinancing is on terms and conditions no more restrictive than the terms and conditions of the Indebtedness being refinanced; 


        (f)    margin
loans owed to commodities brokers not in excess of an aggregate amount of $25,000,000 at any one time; 


        (g)   unsecured
Funded Indebtedness of the Credit Parties not exceeding at any time an aggregate amount of $50,000,000,  provided, that the Agent has been notified promptly of the material terms and conditions thereof
(any such amount shall be deducted from Average Excess
Availability for purposes of Section 8.1); provided, that after giving effect to the issuance of
such unsecured Funded Indebtedness and the application of any of the proceeds thereof on the issuance date no Default or Event of Default shall exist; 


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


        (i)    intercompany
loans made by a Credit Party to a Credit Party; 


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


        (k)   Subordinated
Debt; and 


        (l)    all
guaranties of such Person with respect to Indebtedness of the type referred in clauses (a) through (k) (other than (j)) of this definition of another
Person. 




        "Permitted Investments" means: 



        (a)   Cash
Equivalents; 


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


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


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


        (e)   Permitted
Acquisitions; 




21







 





        (f)    loans
to and Investments in (i) the Credit Parties and (ii) newly created Domestic Subsidiaries, and newly created Foreign Subsidiaries, provided that
(1) the applicable requirements of Section 7.16 are satisfied and (2) the aggregate amount of loans to and Investments in Foreign
Subsidiaries shall not exceed $7,500,000 at any time; 


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


        (h)   Hedging
Agreements entered into by the Borrower relating to the Loans hereunder and other Hedging Agreements entered into in order to manage existing or anticipated
interest rate and exchange rate risks and to manage commodity price risks in accordance with the Risk Management Policy; and 


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




        "Permitted Liens" means 



        (a)   Liens
granted to the Agent or the Lenders (or their Affiliates to secure Lender Hedging Agreements) by the Credit Parties pursuant to any Credit Document; 


        (b)   Liens
listed on Schedule 1.1B and, as to the Mortgaged Real Estate, such Liens of record as are reasonably
acceptable to the Agent in its reasonable discretion; 


        (c)   Liens
on fixed assets securing purchase money Indebtedness (including Capital Leases) to the extent permitted under Section 9.2,
provided that any such Lien attaches to such assets concurrently with or within thirty (30) days after the acquisition thereof and only to the assets to be acquired; 


        (d)   Liens
of warehousemen, mechanics, materialmen, workers, repairmen, fillers, packagers, processors, common carriers, landlords and other similar Liens arising by
operation of law or otherwise, not waived in connection herewith, for amounts that are not yet overdue or which are being appropriately contested in good faith by the relevant Credit Party by
proceedings, provided that in any such case an adequate reserve is being maintained by such Credit Party to the extent required by GAAP; 



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


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



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


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




22













  





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


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


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


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


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




        "Permitted Restricted Payment" means: 



        (a)   (i) in
any fiscal year in which the Lion Oil Company Disposition Transaction occurs, distributions derived therefrom and other dividends and distributions that do
not exceed an aggregate amount of $5,000,000 paid in cash on common and preferred stock that do not result in a breach of Section 8.1, if
applicable, and (ii) in any year other than the fiscal year in which distributions described in (i) are made, dividends and distributions paid in cash on common and preferred stock that
do not exceed an aggregate amount of $15,000,000 in any fiscal year and that do not result in a breach of Section 8.1, if applicable, and  provided
that after giving effect thereto, no other Default or Event of Default is in existence; 


        (b)   redemptions
and repurchases (exclusive of the redemption described in clauses (c) and (d) below) on account of any common or preferred Capital Stock in an
aggregate amount that does not exceed $25,000,000 in any fiscal year; provided that after giving effect thereto (i) the Lenders shall have
received the quarterly compliance certificate for the fiscal quarter ending on September 30, 2005, (ii) no Default or Event of Default is in existence and (iii) Excess
Availability is not less than $75,000,000; 


        (c)   the
redemption of preferred Capital Stock for an aggregate amount not exceeding the sum of $72,900,000 plus the amount necessary to redeem any such preferred Capital
Stock that was issued as "payment-in-kind" in lieu of a cash dividend, provided that after giving effect thereto (i) the
Lenders shall have received the quarterly compliance certificate for the fiscal quarter ending on September 30, 2005, (ii) no Default or Event of Default is in existence,
(iii) Excess Availability is not less than $75,000,000 and (4) the Fixed Charge Coverage Ratio on a proforma basis is equal to or greater than 1.10 to 1.00; and 


        (d)   the
redemption, repurchase, or repayment of the Senior Subordinated Notes, in whole or in part provided that after giving effect thereto (i) the Lenders shall
have received the quarterly compliance certificate for the fiscal quarter ending on September 30, 2005, (ii) no Default or Event of Default is in existence, (iii) Excess
Availability is not less than $100,000,000 and (iv) the Fixed Charge Coverage Ratio on a pro forma basis is equal to or greater than 1.10 to 1.00. 




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


        "Petroleum Inventory" means Inventory consisting of refined petroleum products. 



23







 




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


        "Pledge Agreement" means the Pledge Agreement, of even date herewith, between the Agent and the relevant Credit Parties, substantially in
the form of Exhibit D, as the same may be amended, restated, supplemented, or otherwise modified from time to time. 



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


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


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


        "Real Estate" means the real property owned or leased by the relevant Credit Parties described in  Schedule 6.19, as it may be updated from time to time pursuant to
Sections 7.9 and  7.17, together with all Structures thereon. 



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



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


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


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


        (d)   a
Mortgagee Policy for such Mortgaged Real Estate, in an amount not less than the amount for such Mortgaged Real Estate designated in  Schedule 7.2 with respect to any particular Mortgaged Property
(or, as to any Additionally Selected Real Estate, in any supplemental schedule
identifying such property), assuring the Agent that the Mortgage on such Mortgaged Real Estate creates a valid and enforceable first priority (subject to Permitted Liens) mortgage lien such Mortgaged
Real Estate, free and clear of all defects and encumbrances except Permitted Liens, which Mortgagee Policy shall be in form and substance reasonably satisfactory to the Agent and shall provide for
affirmative insurance and such reinsurance as the Agent may reasonably request, all of the foregoing in form and substance reasonably satisfactory to the Agent; 


        (e)   an
Approved Appraisal of such Mortgaged Real Estate; 


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


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




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


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


        (j)    any
existing environmental inspection report or reports in any Credit Party's possession; 


        (k)   any
existing surveys of the sites of such Mortgaged Real Estate in any Credit Party's possession; 




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


        "Reputable Carrier" means any carrier of Petroleum Inventory that the Borrower has determined in good faith is a reliable, reputable
carrier in the industry, unless the Agent, in its reasonable credit judgment has objected to the use of such carrier. 


        "Required Lenders" means, at any time, Lenders (excluding Defaulting Lenders) holding in the aggregate at least 51% of (i) the
Revolving Credit Commitments or (ii) if the Revolving Credit Commitments have been terminated, aggregate outstanding principal amount of the Working Capital Obligations (including participation
interests in Letter of Credit Obligations, but excluding Swing Loans)). 


        "Restricted Payment" means (i) any cash dividend or other cash distribution, direct or indirect, on account of any shares of any
class of Capital Stock of any Credit Party or any of its Subsidiaries, as the case may be, now or hereafter outstanding, (ii) any redemption, retirement, sinking fund or similar payment,
purchase or other acquisition for value, direct or indirect, of any shares of any class of Capital Stock of any Credit Party (other than purchase or redemption of Borrower's common stock issued to any
officer, director or employee in connection with the payment of withholding taxes on the vesting thereof) or any of its Subsidiaries now or hereafter outstanding by such Credit Party or Subsidiary, as
the case may be, except for any redemption, retirement, sinking funds or similar payment payable (x) solely to another Credit Party or (y) solely in such shares of that class of stock or
in any class of stock junior to that class or (iii) any cash payment made to redeem, purchase, repurchase or retire, or to obtain the surrender of, any outstanding warrants, options or other
rights to acquire any shares of any class of Capital Stock of any Credit Party (other than any such payment in respect of withholding taxes due upon the vesting or exercise of any stock option granted
to an officer, director or employee of a Credit Party) or any of its Subsidiaries now or hereafter outstanding. 


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


        "Revolving Credit Commitment Percentage" means, for any Lender, the percentage identified as its Revolving Credit Commitment Percentage on  Schedule 1.1A, as such
percentage may be 



25








 




modified
in connection with any assignment made in accordance with the provisions of Section 14.5. 


        "Revolving Credit Committed Amount" means the aggregate revolving credit line extended by the Lenders to the Borrower for Revolving Loans
and Letters of Credit pursuant to and in accordance with the terms of this Credit Agreement, in an amount up to $400,000,000, as such revolving credit line may be reduced from time to time in
accordance with Section 2.2(c). 



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


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


        "Risk Management Policy" means the guidelines for investment of funds of the Borrower and the Subsidiaries set forth in the Risk
Management Policy Manual of the Borrower in effect on the Closing Date, as modified or supplemented from time to time with the approval of the Board of Directors of the Borrower or an authorized
executive committee. 


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



        "Security Agreement" means the Security Agreement, of even date herewith, between the Agent and the Credit Parties (and such other Persons
who may from time to time become party thereto by joinder agreement), substantially in the form of Exhibit E, as the same may be amended,
restated, supplemented, or otherwise modified from time to time. 


        "Security Documents" means, collectively, the Pledge Agreement, the Security Agreement, each Mortgage, each Deposit Account Control
Agreement, and each Commodities Account Control Agreement. 



        "Senior Subordinated Notes" means the $200,000,000 91/8% Senior Subordinated Notes due 2010 issued by the Borrower pursuant
to the Senior Subordinated Notes Indenture. 


        "Senior Subordinated Notes Indenture" means the Indenture dated as of May 30, 2003, executed by the Borrower and Wells Fargo Bank
Minnesota, National Association, as indenture trustee, as the same may be amended, restated, supplemented, or otherwise modified from time to time. 


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



        "Solvent" means that the Borrower and its consolidated Subsidiaries will not (i) be "insolvent," within the meaning of such term as
defined in section 101 of the "Bankruptcy Code", or section 2 of either the "UFTA" or the "UFCA", or as defined or used in any "Other Applicable Law" (as those terms are defined below),
or (ii) be unable to pay its debts generally as such debts become due within the meaning of section 548 of the Bankruptcy Code, section 4 of the UFTA or section 6 of the
UFCA, or (iii) have an unreasonably small capital to engage in any business or transaction, whether current or contemplated, within the meaning of section 548 of the Bankruptcy Code,
section 4 of the UFTA or section 5 of the UFCA. For purposes of the foregoing, "Bankruptcy Code" means 11 U.S.C. section 101 et seq., "UFTA" means the Uniform Fraudulent Transfer
Act, "UFCA" means the Uniform Fraudulent Conveyance Act, and "Other Applicable 



26







 




Law"
means any other applicable law pertaining to fraudulent transfers or acts voidable by creditors, in each case as such law may be amended from time to time. 


        "Solvency Certificate" means an officer's certificate of the Borrower prepared by the chief financial officer of the Borrower as to the
financial condition, solvency and related matters of the Credit Parties, on a pro forma basis after giving effect to the initial borrowings under the Credit Documents, substantially in the form of  Exhibit M. 


        "Structures" means all plants, offices, manufacturing facilities, warehouses, administration buildings and related facilities of the
Credit Parties located on the Real Estate described on Schedule 6.19, as it may be updated from time to time pursuant to  Sections 7.9 and 7.17, together with all Structures thereon. 



        "Subordinated Debt" means the Senior Subordinated Notes and any other unsecured Indebtedness incurred by any Credit Party, which, in each
case, is expressly subordinated and made junior to the payment and performance in full of the Obligations and contains terms and conditions reasonably satisfactory to the Agent. 


        "Subordination Agreements" means the agreements entered into from time to time by and among the Borrower, the Agent, on behalf of the
Lenders, and a third party creditor of any such Borrower providing for the subordination of such third party creditor's claims to those of the Lenders on terms and conditions reasonably satisfactory
to the Agent. 


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


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


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


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



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



27







 




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


        "Titled In-Transit Inventory" means inventory which is with a Reputable Carrier on the water or in vessels in transit to the
United States of America and to which a Credit Party has title as evidenced by non-negotiable documents of title, bills of lading or other reasonably satisfactory documentation. 


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


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


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


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


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


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


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


 1.2    Accounting Terms and Determinations.  




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


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


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 1.3    Other Definitional Terms.  




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


 
 

ARTICLE II    
    
    LOANS    
    



 2.1    Revolving Loans and Swing Loans.  


        (a)    Commitments.    



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



        (ii)    Swing Loans.    In addition to the foregoing, Wachovia shall from time to time, upon the request of the
Borrower, if the applicable conditions precedent in Article V have been satisfied, make Swing Loans to the Borrower in an aggregate principal
amount at any time outstanding not exceeding $40,000,000; provided that, immediately after such Swing Loan is made, the conditions set forth in clauses
(i) and (ii) of Section 2.1(b) shall have been satisfied. Except for calculation of the Commitment Fee as set forth in the
definition thereof, Swing Loans shall not be considered a utilization of the Revolving Credit Commitment of Wachovia or any other Lender hereunder. All Swing Loans shall be made as Base Rate Loans or
as LIBOR Index Loans. At any time, upon the request of Wachovia, each Lender other than Wachovia shall, on the third (3rd) Business Day after such request is made, purchase a
participating interest in Swing Loans in an amount equal to its ratable share (based upon its respective Revolving Credit Commitment) of such Swing Loans. On such third (3rd) Business
Day, each Lender will immediately transfer to Wachovia, in immediately available funds, the amount of its participation. Whenever, at any time after Wachovia has received from any such Lender its
participating interest in a Swing Loan, the Agent receives any payment on account thereof, the Agent will distribute to such Lender its participating interest in such amount (appropriately adjusted,
in the case of interest payments, to reflect the period of time during which such Lender's participating interest was outstanding and funded); provided,
however, that in the event that such payment received by the Agent is required to be returned, such Lender will return to the Agent any portion thereof previously distributed
by the Agent to it. Each Lender's obligation to purchase such participating interests shall be absolute and 




29







 





unconditional
and shall not be affected by any circumstance, including, without limitation: (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or
any other Person may have against Wachovia requesting such purchase or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default or the
termination of the Revolving Credit Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Credit Parties or any other Person; (iv) any breach of this
Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. 




        (b)    Determination of Borrowing Base.    



          (i)  The
Lenders agree, subject to the terms and conditions of this Credit Agreement, from time to time, to make Revolving Loans to the Borrower on a revolving basis. The
Working Capital Obligations, shall not in the aggregate exceed the lesser of (A) the Revolving Credit Committed Amount then in effect and (B) the Borrowing Base. 


         (ii)  No
Lender shall be obligated at any time to make available to the Borrower its Revolving Credit Commitment Percentage of any requested Revolving Loan if such amount  plus its Revolving Credit Commitment
Percentage of all Revolving Loans and its Revolving Credit Commitment Percentage of all Letter of Credit
Obligations would exceed such Lender's Revolving Credit Commitment at such time. The aggregate balance of Working Capital Obligations shall not at any time exceed the Revolving Credit Committed
Amount. No Lender shall be obligated to make available, nor shall the Agent make available (except pursuant to and in accordance with  Section 2.1(d)(vi)), any Revolving Loans to the Borrower to the
extent such Revolving Loan when added to the then outstanding Revolving Loans,
Swing Loans and Letter of Credit Obligations would cause the aggregate outstanding Working Capital Obligations to exceed the lesser of (A) the Revolving Credit Committed Amount then in effect
and (B) the Borrowing Base. If at any time (1) the amount of all Working Capital Obligations outstanding exceeds (2) the lesser of (A) the Revolving Credit Committed Amount
then in effect and (B) the Borrowing Base the Borrower immediately shall make a mandatory prepayment in accordance with the provisions of  Section 2.2(b)(i). 




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



30







 

single
Swing Note payable to the order of Wachovia in the original principal amount of $40,000,000. 


        (d)    Borrowings.    



          (i)  Each
request for borrowings hereunder shall be made by a Notice of Borrowing and Payment from the Borrower to the Agent, given not later than
(A) 2:00 P.M. on the Business Day on which the proposed borrowing is requested to be made for Revolving Loans that will be Base Rate Loans and for Swing Loans and (B) during
normal business hours on the date that is three Business Days prior to the date of the requested borrowing of Revolving Loans that will be Eurodollar Loans. Each request for borrowing made in a Notice
of Borrowing and Payment shall be given by telecopy, setting forth (1) the requested date of such borrowing, (2) the aggregate amount of such requested borrowing and whether it is for a
Revolving Loan or Swing Loan, (3) whether such Revolving Loans will be Base Rate Loans or the Eurodollar Rate Loans, and if appropriate, the applicable Interest Period, (4) whether such
Swing Loans will be Base Rate Loans or LIBOR Index Loans, (5) certification by the Borrower that it has complied in all respects with  Section 5.2, all of which shall be specified in such
manner as is necessary to comply with all limitations on Revolving Loans and Swing Loans
outstanding hereunder (including, without limitation, availability under the Borrowing Base) and (6) the account at which such requested funds should be made available. Each request for
borrowing made in a Notice of Borrowing and Payment shall be irrevocable by and binding on the Borrower. The Borrower shall be entitled to borrow Revolving Loans in a minimum principal amount of
$1,000,000 and integral multiples of $1,000,000 in excess thereof (or the remaining amount of the Revolving Credit Committed Amount, if less) and shall be entitled to borrow Base Rate Loans or
Eurodollar Loans, or a combination thereof, as the Borrower may request; provided, that no more than eight (8) Eurodollar Loans shall be
outstanding hereunder at any one time; and provided, further, that Eurodollar Loans shall be in a minimum principal amount of at least $5,000,000 and
integral multiples of $1,000,000 in excess thereof. Revolving Loans may be repaid and reborrowed in accordance with the provisions hereof. Each Swing
Loan shall be in a minimum principal amount of at least $1,000,000 and integral multiples of $1,000,000 in excess thereof. Revolving Loans and Swing Loans may be repaid and reborrowed in accordance
with the provisions hereof. 


        The
Agent shall give to each Lender prompt notice (but in no event later than 3:00 P.M. on the date of the Agent's receipt of notice from the Borrower) of each requested borrowing
in a Notice of Borrowing and Payment by telecopy, telex or cable (other than any Notice of Borrowing and Payment which will be funded by the Agent in accordance with subsection (d)(ii) below).
No later than 4:00 P.M. on the date on which a Revolving Loan borrowing is requested to be made pursuant to the applicable Notice of Borrowing and Payment, each Lender will make available to
the Agent at the address of the Agent set forth on the signature pages hereto, in immediately available funds, its Revolving Credit Commitment Percentage of such borrowing requested to be made (unless
such funding is to be made by the Agent in accordance with subsection (d)(ii) below). Unless the Agent shall have been notified by any Lender prior to the date of borrowing that such Lender
does not intend to make available to the Agent its portion of the Revolving Loan borrowing to be made on such date, the Agent may assume that such Lender will make such amount available to the Agent
as required above and the Agent may, in reliance upon such assumption, make available the amount of the borrowing to be provided by such Lender. Upon fulfillment of the conditions set forth in  Section 5.2 for such borrowing, the Agent will make such funds available to the Borrower at the account specified by the Borrower in such Notice
of Borrowing and Payment. 


         (ii)  If
the amounts of Revolving Loans described in subsection (d)(i) of this Section 2.1 are not in fact made
available to the Agent by a Lender (such Lender being hereinafter 




31







 





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


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


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


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



        (vi)  Notwithstanding
anything to the contrary contained elsewhere herein, and whether or not a Default or Event of Default exists at the time, unless otherwise objected to
by the Required Lenders in writing, the Agent may in its reasonable discretion require all Lenders to honor requests or deemed requests by the Borrower for Revolving Loans at a time that an
Overadvance exists or which would result in an Overadvance and each Lender shall be obligated to continue to make its pro rata share of Revolving Loans, up to a maximum amount outstanding equal to its
Revolving Credit Commitment, so long as such Overadvance is not known by the Agent to exceed $10,000,000 and so long as such Overadvance is not outstanding for more than ten (10) Business Days.
No new Overadvance may be made at any time during which an existing Overadvance is outstanding. 




 2.2    Optional and Mandatory Prepayments; Reduction of Revolving Credit Committed Amount.  


        (a)    Voluntary Prepayments.    The Borrower shall have the right to prepay Loans in whole or in part from time to
time, but otherwise without premium or penalty; provided, however, that (i) Loans that are Eurodollar Loans may only be prepaid on three
(3) Business Days' prior written notice to the Agent specifying the applicable Loans to be prepaid; (ii) any prepayment of Loans that are Eurodollar Loans will be subject to  Section 4.10;
(iii) each such partial prepayment of Revolving Loans shall be in a minimum principal amount of $1,000,000 for Base Rate
Loans and 



32







 

$5,000,000
for Eurodollar Loans and (iv) each such partial prepayment of Swing Loans shall be in a minimum principal amount of $1,000,000. Voluntary prepayments shall be applied to Base Rate
Loans, LIBOR Index Loans or to Eurodollar Loans in the order of Interest Period maturities as directed by the Borrower. 


        (b)    Mandatory Prepayments.    



        (i)    Revolving Credit Committed Amount.    If at any time, the Working Capital Obligations outstanding shall exceed
the lesser of (A) the Revolving Credit Committed Amount then in effect and (B), except as permitted by Section 2.1(d)(vi), the Borrowing Base, the Borrower immediately shall pay to the
Agent, for the ratable account of the Lenders, an amount sufficient to eliminate such excess. 


        (ii)    Application of Mandatory Prepayments.    All amounts required to be paid pursuant to this  Section 2.2(b) shall be
applied to Swing Loans, and then Revolving Loans and (after all Revolving Loans have been repaid) to a cash collateral
account held by the Agent in respect of Letter of Credit Obligations. Within the parameters of the applications set forth above for Swing Loans and Revolving Loans, prepayments shall be applied first
to Base Rate Loans and then to Eurodollar Loans in direct order of Interest Period maturities. All prepayments under this Section 2.2(b) shall be
subject to Section 4.10. 




        (c)    Voluntary Reductions of Revolving Credit Committed Amount.    The Borrower may from time to time permanently
reduce or terminate the Revolving Credit Committed Amount in whole or in part (in minimum aggregate amounts of $5,000,000 or in integral multiples of $1,000,000 in excess thereof (or, if less, the
full remaining amount of the then applicable Revolving Credit Committed Amount)) upon three (3) Business Days' prior written notice to the Agent; provided,
however, no such termination or reduction shall be made which would cause the aggregate principal amount of outstanding Revolving Loans  plus Letter of Credit Obligations
outstanding to exceed the lesser of (A) the Revolving Credit Committed Amount and (B) the Borrowing
Base, unless, concurrently with such termination or reduction, the Borrower make a mandatory prepayment in accordance with the provisions of  Section 2.2(b)(i). The Agent shall promptly notify each
affected Lender of receipt by the Agent of any notice from the Borrower pursuant to this  Section 2.2(c). 



        (d)    Maturity Date.    The Revolving Credit Commitment of the Lenders, the commitment of Wachovia to make Swing
Loans and the Letter of Credit Commitment of the Issuing Bank shall automatically terminate on the Maturity Date. 


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


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



33









  




 2.3    Payments and Computations.  



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


        (b)    Lockboxes.    



          (i)  The
Borrower and (by execution and delivery of the Guaranty Agreement or of a joinder thereto and incorporation by reference therein) each Guarantor hereby agree to
comply with the provisions of this Section 2.3(b). Each of the Credit Parties, individually or through the Borrower, shall establish and shall
maintain one or more lockboxes (each a "Lockbox") with financial institutions, including, without limitation, Wachovia and Wells Fargo Bank, National
Association, selected by the Borrower and reasonably acceptable to the Agent (each a "Lockbox Bank") and shall instruct all account debtors on the
Accounts of each Credit Party to remit all payments to its respective Lockboxes. All amounts received by the Credit Parties from any account debtor, in addition to all other cash received from any
other source (including but not limited to proceeds from asset sales and judgments), shall be promptly deposited into an account which is maintained at a Lockbox Bank and which is subject to a Deposit
Account Control Agreement in favor of the Agent (each such account, a "Lockbox Account") or into the Cash Concentration Account. The foregoing
notwithstanding, unless the Agent otherwise requires, no Deposit Account Control Agreement shall be required with respect to any Lockbox Account maintained with the Agent, so long as the Agent has
"control" (as such term is used in Article 9 of the UCC) over such account. 


         (ii)  All
receipts held in the Lockboxes shall be remitted daily to the appropriate Lockbox Account. After the occurrence and during the continuance of an Event of Default,
or in the event there shall occur a breach of the covenants contained in clause (i) above or Section 9.10 for so long as any such breach
of the covenant contained in clause (i) or Section 9.10 continues and remains uncured, all funds deposited into the Lockbox Accounts on any Business Day shall be transferred to the Cash
Concentration Account. All amounts received directly by the Credit Parties from any account debtor, in addition to all other cash received from any other source (including, without limitation,
proceeds from asset sales and judgments), shall be held in trust by the Credit Parties and promptly deposited into a Lockbox Account or, if made by wire transfer, directly to a Lockbox Account. 


        (iii)  Funds
deposited into the Cash Concentration Account pursuant to clause (ii) above shall immediately become the property of the Agent and the Credit Parties
shall obtain the agreement by the Lockbox Banks to waive any offset rights against the funds so deposited, except as permitted by the Deposit Account Control Agreement pertaining thereto. The Agent
assumes no responsibility for the Lockbox arrangements, including without limitation, any claim of accord and satisfaction or release with respect to deposits accepted by the Lockbox Banks thereunder
except to the extent that the Agent begins to instruct the Lockbox Bank 




34







 





after
the occurrence and during the continuance of an Event of Default or breach of the covenants contained in clause (i) above or  Section 9.10. 



        (iv)  The
Credit Parties may close Lockboxes only with the prior written consent (such consent not to be unreasonably withheld or delayed) of the Agent and subject to the
terms and conditions set forth in any applicable Deposit Account Control Agreement. The Credit Parties may open new Lockboxes and Lockbox Accounts, subject to such Lockbox Account's being subject to a
Deposit Account Control Agreement as contemplated above. 


         (v)  No
Credit Party shall direct any account debtor to submit payment on any Account to any address or location other than to a Lockbox. No collections from any Account
shall be deposited into any account other than a Lockbox Account or the Cash Concentration Account. 




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


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


 2.4    Maintenance of Account.  




        The Agent shall maintain an account on its books in the name of the Borrower in which the Borrower will be charged with all loans and advances made by the Lenders
to the Borrower or for the Borrower's account, including the Revolving Loans, the Swing Loans, the Letter of Credit Obligations and any other Obligations, including any and all costs, expenses and
attorney's fees which the Agent may incur, including, without limitation, in connection with the exercise by or for the Lenders of any of the rights or powers herein conferred upon the Agent (other
than in connection with any assignments or participations by any Lender) or in the prosecution or defense of any action or proceeding by or against the Borrower or the Lenders concerning any matter
arising out of, connected with, or relating to this Credit Agreement or the Accounts, or any Obligations owing to the Lenders by the Borrower. The Borrower will be credited in accordance with  Section 2.3(b)(ii)
 above, with all amounts received by the Lenders from the Borrower or from others for the Borrower's account, including, as
above set forth, all amounts received by the Agent in payment of Accounts. In no event shall prior recourse to any Accounts or other Collateral be a prerequisite to the Agent's right to demand payment
of any Obligation upon its maturity. Further, it is understood that the Agent shall have no obligation whatsoever to perform in any respect any of the Borrower's contracts or obligations relating to
the Accounts. 



 2.5    Statement of Account.  




        Within fifteen (15) days after the end of each month the Agent shall send the Borrower a statement showing the accounting for the charges, loans, advances
and other transactions occurring between the Lenders and the Borrower during that month. The monthly statements shall be deemed 


35







 

correct
and binding upon the Borrower and shall constitute an account stated between the Borrower and the Lenders unless the Agent receives a written statement of the Borrower's exceptions within
forty-five (45) days after same is mailed to the Borrower. 



 2.6    Taxes.  


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


        (b)   Each
Foreign Lender agrees to deliver to the Borrower and the Agent on or prior to the Closing Date, or in the case of a Lender that is an assignee or transferee of an
interest under this Credit Agreement pursuant to Section 14.5(c) (unless the respective Lender was already a Lender hereunder immediately prior
to such assignment or transfer), on the date of such assignment or transfer to such Foreign Lender, two accurate and complete original signed copies of Internal Revenue Service
Form W-8 BEN, W-8 ECI or W-8 IMY, as applicable (or successor forms) certifying such Foreign Lender's entitlement to a complete exemption from United States
withholding tax with respect to payments to be made under this Credit Agreement and under any Note. In addition, each Foreign Lender agrees that it will deliver updated versions of the foregoing, as
applicable, whenever the previous certification has become obsolete or inaccurate in any material respect, together with such other forms as may be required in order to confirm or establish the
entitlement of such Foreign Lender to a continued exemption from or reduction in United States withholding tax with respect to payments under this Agreement and any Note. Notwithstanding anything to
the contrary contained in Section 2.6(a), but subject to the immediately succeeding sentence, (x) the Borrower shall be entitled, to the
extent it is required to do so by law, to deduct or withhold Payment Taxes imposed by the United States (or any political subdivision or taxing authority thereof or therein) from interest, fees or
other amounts payable hereunder for the account of any Foreign Lender to the extent that such Foreign Lender has not provided to the Borrower U.S. Internal Revenue Service Forms that establish a
complete exemption from such deduction or withholding and (y) the Borrower shall not be obligated pursuant to Section 2.6(a) to
gross-up payments to be made to a Foreign Lender in respect of Payment Taxes imposed by the United States if such Foreign Lender has not provided to the Borrower the Internal Revenue
Service Forms required to be provided to the Borrower pursuant to this Section 2.6(b) or if such forms do not provide for a complete exemption
from withholding tax. Notwithstanding anything to the contrary contained in the preceding sentence or elsewhere in this Section 2.6, the Borrower
agrees to pay additional amounts and to indemnify each Lender in the manner set forth in Section 2.6(a) (without regard to the identity of the
jurisdiction requiring the deduction or withholding) in respect of any amounts deducted or withheld by it as described in 



36







 




the
immediately preceding sentence as a result of any changes after the Closing Date in any applicable law, treaty, governmental rule, regulation, guideline or order, or in the interpretation thereof,
relating to the deducting or withholding of Payment Taxes. Notwithstanding anything to the contrary contained in this Section 2.6, the Borrower
shall not be required to pay any Payment Taxes for any period ending ninety (90) days or more prior to the request for payment of such Other Taxes. 



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


        (d)   If
the Borrower pays any additional amount pursuant to this Section 2.6 with respect to a Lender, such Lender
shall use reasonable efforts to obtain a refund of tax or credit against its tax liabilities on account of such payment; provided that such Lender shall
have no obligation to use such reasonable efforts if either (i) it is in an excess foreign tax credit position or (ii) it believes in good faith, in its reasonable discretion, that
claiming a refund or credit would cause adverse tax consequences to it. In
the event that such Lender receives such a refund or credit, such Lender shall pay to the Borrower an amount that such Lender reasonably determines is equal to the net tax benefit obtained by such
Lender as a result of such payment by the Borrower. In the event that no refund or credit is obtained with respect to the Borrower's payments to such Lender pursuant to this  Section 2.6, then such
Lender shall upon request provide a certification that such Lender has not received a refund or credit for such payments.
Nothing contained in this Section 2.6 shall require a Lender to disclose or detail the basis of its calculation of the amount of any tax benefit
or any other amount or the basis of its determination referred to in the proviso to the first sentence of this Section 2.6(a) to the Borrower or
any other party. 


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


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


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



37







 




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


 2.7    Sharing of Payments.  




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



 2.8    Allocation of Payments; Pro Rata Treatment.  


        (a)    Allocation of Payments Prior to Event of Default; Payments Generally.    Each borrowing of Revolving Loans and
any reduction of the Revolving Credit Commitments shall be made pro rata according to the respective Revolving Credit Commitment Percentages of the
Lenders. Each payment under this Agreement or any Note shall be applied, first, to any Fees then due and owing pursuant to Article IV, second, to
interest then due and owing in respect of the Swing Loans, third to principal then due and owing hereunder and under the Swing Loans, fourth, to interest then due and owing in respect of the Revolving
Loans and lastly, to principal then due and owing hereunder and under the Revolving Loans. Each payment on account of any Fees pursuant to  Article IV shall be made pro
rata in accordance with the respective amounts due and owing (except
the Issuing Bank Fees which shall be payable solely to the Issuing Bank). Each payment (other than prepayments) by the Borrower on account of principal of and interest on the Revolving Loans shall be
allocated pro rata among the Lenders in accordance with the respective principal amounts of their outstanding Loans. Payments made pursuant to  Section 4.9 shall be applied in accordance with such Section. Each voluntary and mandatory prepayment on account of principal of the Loans shall
be applied in accordance with Section 2.2(a) or (b), as applicable. 



        (b)    Allocation of Payments After Event of Default and Proceeds of Collateral.    Notwithstanding any other
provisions of this Credit Agreement or any other Credit Document to the contrary, after the occurrence and during the continuance of an Event of Default, all amounts collected or received by the Agent
or any Lender on account of the Obligations (whether in an insolvency or bankruptcy case or proceeding or otherwise) or any other amounts outstanding under any of the Credit Documents or in respect of
the Collateral (including, without limitation, any funds on deposit in any Lockbox Account, other deposit account, or the Cash Concentration Account) shall be paid over or delivered as follows: 



        FIRST,
to the payment of all reasonable out-of-pocket costs and expenses (including without limitation reasonable attorneys' fees) of the Agent in connection with
enforcing the 




38







 


rights
of the Lenders under the Credit Documents, any protective advances made by the Agent with respect to the Collateral under or pursuant to the terms of the Security Documents; 


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



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


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


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


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



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




        In
carrying out the foregoing, (a) amounts received shall be applied in the numerical order provided until exhausted prior to application to the next succeeding category;
(b) except for payments on Swing Loans, each of the Lenders shall receive an amount equal to its pro rata share (based on the proportion that its then outstanding Revolving Loans, Letters of
Credit Obligations and obligations outstanding under the Lender Hedging Agreements permitted by this Agreement bears to the aggregate then outstanding Revolving Loans, Letters of Credit Obligations,
and obligations outstanding under the Lender Hedging Agreements) of amounts available to be applied pursuant to clauses "THIRD", "FOURTH," "FIFTH," and "SIXTH" above; (c) to the extent that any
amounts available for distribution pursuant to clause "FIFTH" above are attributable to the issued but undrawn amount of outstanding Letters of Credit, such amounts shall be held by the Agent in a
cash collateral account (which account shall be an interest bearing checking account) and applied (x) first, to reimburse the Issuing Bank from time to time for any drawings under such Letters
of Credit and (y) then, following the expiration of any particular Letter of Credit, the cash collateral held therefor to all other obligations of the types described in clause "SIXTH" above in
the manner provided in this Section 2.8 and in the Security Documents. 


 2.9    Extensions and Conversions.  




        Subject to the terms of Article V, the Borrower shall have the option, on any Business Day, to extend
existing Eurodollar Loans into a subsequent permissible Interest Period, to convert Revolving Loans that are Base Rate Loans into Eurodollar Loans, or to convert Eurodollar Loans into Base Rate Loans;  provided,
however, that (i) except as provided in Section 4.10, Eurodollar Loans may be
converted into Base Rate Loans only on the last day of the Interest Period applicable thereto, (ii) Eurodollar Loans may be extended, and Base Rate Loans may be converted into Eurodollar Loans, 


39







 

only
if no Default or Event of Default is in existence on the date of extension or conversion, (iii) Loans extended as, or converted into, Eurodollar Loans shall be subject to the terms of the
definition of "Interest Period" and shall be in such minimum amounts as provided in with respect to Revolving Loans,  Section 2.1(d)(i), and
(iv) no more than eight (8) separate Eurodollar Loans shall be outstanding hereunder at any time. Each such
extension or conversion shall be effected by the Borrower by giving a written Notice of Extension/Conversion (or telephone notice promptly confirmed in writing) to the Agent prior to 2:00 P.M.
on the Business Day of, in the case of the conversion of a Eurodollar Loan into a Base Rate Loan, and on the third (3rd) Business Day prior to, in the case of the extension of a
Eurodollar Loan as, or conversion of a Base Rate Loan into, a Eurodollar Loan, the date of the proposed extension or conversion, specifying the date of the proposed extension or conversion, the Loans
to be so extended or converted, the types of Loans into which such Loans are to be converted and, if appropriate, the applicable Interest Periods with respect thereto. Each request for extension or
conversion shall constitute a representation and warranty by the Borrower of the matters specified in Article V. In the event the Borrower fails
to request an extension or conversion of any Eurodollar Loan in accordance with this Section, or any such conversion or extension is not permitted or required by this Section, then such Loan shall be
automatically converted into a Base Rate Loan at the end of the Interest Period applicable thereto. The Agent shall give each Lender notice as promptly as practicable of any such proposed extension or
conversion affecting any Loan. 



 2.10    Replacement of Lender.  




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



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


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


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




then,
so long as no Event of Default exists, the Borrower shall have the right to seek one or more replacement lenders which is reasonably satisfactory to the Agent (the
"Replacement Lender"). The Replacement Lender shall purchase the interests of the Affected Lender in the Loans, the Letters of Credit and its Revolving
Credit Commitment and shall assume the obligations of the Affected Lender hereunder and under the other Credit Documents upon execution by the Replacement Lender of an Assignment and Acceptance and
the tender by it to the Affected Lender of a purchase price agreed between it and the Affected Lender (or, if they are unable to agree, a purchase price in the amount of the Affected Lender's
Revolving Credit Commitment Percentage in the Loan and Letter of Credit Obligations, or appropriate credit support for contingent amounts included therein, and all other outstanding Obligations then
owed to the Affected Lender). Such assignment by the Affected Lender shall be deemed an early termination of any Eurodollar Loan to the extent of the Affected Lender's portion thereof, and the
Borrower will pay to the Affected Lender any resulting amounts due under Section 4.10. Upon consummation of such assignment, the Replacement Lender shall become party to this 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 Revolving Credit Commitment Percentage equal to the
Revolving Credit Commitment Percentage of the Affected Lender, the 


40







 

Affected
Lender shall be released from its obligations hereunder and under the other Credit Documents, and no further consent or action by any party shall be required. Upon the consummation of such
assignment, the Borrower, the Agent and the Affected Lender shall make appropriate arrangements so that a new Revolving Note is issued to the Replacement Lender if it has acquired a portion of the
Revolving Loans. The Borrower 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 2.10,
the Company shall continue to pay to the Affected Lender any Obligations as they become due and payable. 


 
 

ARTICLE III    
    
    LETTERS OF CREDIT    
    



 3.1    Issuance  




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



 3.2    Notice and Reports.  




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



 3.3    Participation.  




        Each Lender, upon issuance of a Letter of Credit, shall be deemed to have purchased without recourse a risk participation from the Issuing Bank in such Letter of
Credit and the obligations arising thereunder, in each case in an amount equal to its Revolving Credit Commitment Percentage of such Letter of Credit, and shall absolutely, unconditionally and
irrevocably assume, as primary obligor and not as surety, and be obligated to pay to the Issuing Bank therefor and discharge when due, its Revolving Credit Commitment Percentage of the obligations
arising under such Letter of Credit. Without limiting the scope and nature of each Lender's participation in any Letter of Credit, to the 


41







 

extent
that the Issuing Bank has not been reimbursed as required hereunder or under any such Letter of Credit, each such Lender shall pay to the Issuing Bank its Revolving Credit Commitment Percentage
of such unreimbursed drawing pursuant to the provisions of Section 3.4. The obligation of each Lender to so reimburse the Issuing Bank shall be
absolute and unconditional and shall not be affected by the occurrence of a Default, an Event of Default or any other occurrence or event. Any such reimbursement shall not relieve or otherwise impair
the obligation of the Borrower to reimburse the Issuing Bank under any Letter of Credit, together with interest as hereinafter provided. 



 3.4    Reimbursement.  




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


42









  




 3.5    Repayment with Revolving Loans.  




        On any day on which the Borrower shall have requested, or been deemed to have requested, a Revolving Loan advance to reimburse a drawing under a Letter of Credit,
the Agent shall give notice to the Lenders that a Revolving Loan has been requested or deemed requested by the Borrower to be made in connection with a drawing under a Letter of Credit, in which case
a Revolving Loan advance comprised of Base Rate Loans (or Eurodollar Loans to the extent the Borrower has complied with the procedures of  Section 2.1(d)(i) with respect thereto) shall be
immediately made to the Borrower by all Lenders (notwithstanding any termination of the
Revolving Credit Commitments pursuant to Section 11.2) pro rata based on the respective Revolving
Credit Commitment Percentages of the Lenders (determined before giving effect to any termination of the Revolving Credit Commitments pursuant to  Section 11.2) and the proceeds thereof shall be paid
directly by the Agent to the Issuing Bank for application to the respective Letter of Credit
Obligations. Each such Lender hereby irrevocably agrees to make its Revolving Credit Commitment Percentage of each such Revolving Loan immediately upon any such request or deemed request in the
amount, in the manner and on the date specified in the preceding sentence notwithstanding (i) the amount of such borrowing may not comply with
the minimum amount for advances of Revolving Loans otherwise required hereunder, (ii) whether any conditions specified in Article V are
then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) failure for any such request or deemed request for Revolving Loan to be made by the time otherwise
required hereunder, (v) whether the date of such borrowing is a date on which Revolving Loans are otherwise permitted to be made hereunder or (vi) any termination of the Revolving Credit
Commitments relating thereto immediately prior to or contemporaneously with such borrowing. In the event that any Revolving Loan cannot for any reason be made on the date otherwise required above
(including, without limitation, as a result of the commencement of a bankruptcy or insolvency case or proceeding with respect to the Borrower), then each such Lender hereby agrees that it shall
forthwith purchase (as of the date such borrowing would otherwise have occurred, but adjusted for any payments received from the Borrower on or after such date and prior to such purchase) from the
Issuing Bank such participation in the outstanding Letter of Credit Obligations as shall be necessary to cause each such Lender to share in such Letter of Credit Obligations ratably (based upon the
respective Revolving Credit Commitment Percentages of the Lenders (determined before giving effect to any termination of the Revolving Credit Commitments pursuant to  Section 11.2)), provided that at the time any purchase of participation pursuant to this sentence
is actually made, the purchasing Lender shall be required to pay to the Issuing Bank, to the extent not paid to the Issuing Bank by the Borrower in accordance with the terms of  Section 3.4,
interest on the principal amount of participation purchased for each day from and including the day upon which such borrowing would
otherwise have occurred to but excluding the date of payment for such participation, at the rate equal to, if paid within two (2) Business Days of the date of the Revolving Loan advance, the
Federal Funds Rate, and thereafter at a rate equal to the Base Rate. 



 3.6    Renewal, Extension.  




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



 3.7    Uniform Customs and Practices.  




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



 3.8    Indemnification; Nature of Issuing Bank's Duties.  



        (a)   In
addition to its other obligations under this Article III, the Borrower agrees to protect, indemnify, pay and
save the Issuing Bank harmless from and against any and all claims, demands, 



43







 

liabilities,
damages, losses, costs, charges and expenses (including reasonable attorneys' fees) that the Issuing Bank may incur or be subject to as a consequence, direct or indirect, of
(A) the issuance of any Letter of Credit or (B) the failure of the Issuing Bank to honor a drawing under a Letter of Credit as a result of Government Acts. 



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


        (c)   In
furtherance and extension and not in limitation of the specific provisions hereinabove set forth, any action taken or omitted by the Issuing Bank, under or in
connection with any Letter of Credit or the related certificates, if taken or omitted in good faith, shall not put such Issuing Bank under any resulting liability to the Borrower. It is the intention
of the parties that this Credit Agreement shall be construed and applied to protect and indemnify the Issuing Bank against any and all risks involved in the issuance of the Letters of Credit, all of
which risks are hereby assumed by the Borrower, including, without limitation, any and all Government Acts. The Issuing Bank shall not, in any way, be liable for any failure by the Issuing Bank or
anyone else to pay any drawing under any Letter of Credit as a result of any Government Acts or any other cause beyond the control of the Issuing Bank. 


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


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


 3.9    Responsibility of Issuing Bank.  




        It is expressly understood and agreed that the obligations of the Issuing Bank hereunder to the Lenders are only those expressly set forth in this Credit
Agreement and that the Issuing Bank shall be entitled to assume that the conditions precedent set forth in Article III or V have been satisfied
unless it 


44







 

shall
have acquired actual knowledge that any such condition precedent has not been satisfied; provided, however, that nothing set forth in this  Article III
shall be deemed to prejudice the right of any Lender to recover from the Issuing Bank any amounts made available by such Lender to
the Issuing Bank pursuant to this Article III in the event that it is determined by a court of competent jurisdiction that the payment with
respect to a Letter of Credit constituted gross negligence or willful misconduct on the part of the Issuing Bank. 



 3.10    Conflict with Letter of Credit Documents.  




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


 
 

ARTICLE IV    
    
    INTEREST AND FEES    
    



 4.1    Interest on Loans.  




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



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


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




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



 4.2    Interest After Event of Default.  




        Interest on any amount of matured principal under the Loans, and interest on the amount of principal under the Revolving Loans outstanding as of the date an Event
of Default occurs, and at all times thereafter until the earlier of the date upon which (a) all Obligations have been paid and satisfied in full or (b) such Event of Default shall have
been cured or waived, shall be payable on demand at the Default Rate. Interest shall be payable on any other amount due hereunder and shall accrue at the Default Rate, from the date due and payable
until paid in full. 



 4.3    Commitment Fee.  




        The Borrower shall pay to the Agent for the benefit of the Lenders the Commitment Fee due in respect of each
calendar month within five (5) days after receipt of a statement therefor. 



 4.4    Lenders' Fees/Agent's Fees.  




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



 4.5    Letter of Credit Fees.  


        (a)    Letter of Credit Fee.    In consideration of the issuance of standby Letters of Credit hereunder, the Borrower
promises to pay to the Agent for the account of each Lender a monthly fee (the "Letter of Credit Fee") on such Lender's Revolving Credit Commitment
Percentage of the 



45







 




average
daily maximum amount available to be drawn under each such Letter of Credit computed at a per annum rate for each day from the date of issuance (or the Closing Date, as to Existing Letters of
Credit) to the date of expiration equal to the Applicable Percentage for Eurodollar Loans. The Letter of Credit Fee will be payable five (5) days after receipt of an invoice therefor. 


        (b)    Issuing Bank Fees.    In addition to the Letter of Credit Fee payable pursuant to clause (a) above, the
Borrower promises to pay to the Issuing Bank for its own account without sharing by the other Lenders letter of credit fronting fees in the amount of 1/8% and the negotiation fees
agreed to by the Borrower and the Issuing Bank from time to time and the customary charges from time to time of the Issuing Bank with respect to the issuance, amendment, transfer, administration,
cancellation and conversion of, and drawings under, such Letters of Credit (collectively, the "Issuing Bank Fees"). 


 4.6    Authorization to Charge Account.  




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



 4.7    Indemnification in Certain Events.  




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



 4.8    Inability To Determine Interest Rate.  




        If prior to the first day of any Interest Period, (a) the Agent shall have determined in good faith (which determination shall be conclusive and binding
upon the Borrower) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period,
(b) the Agent has received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period 


46







 

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



 4.9    Illegality.  




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




 4.10    Funding Indemnity.  




        The Borrower promises to indemnify each Lender and to hold each Lender harmless from any loss or expense which such Lender may sustain or incur (other than
through such Lender's gross negligence or willful misconduct) as a consequence of (a) default by the Borrower in making a borrowing of, conversion into or extension of Eurodollar Loans after
the Borrower has given a notice requesting the same in accordance with the provisions of this Credit Agreement, (b) default by the Borrower in making any prepayment of a Eurodollar Loan after
the Borrower has given a notice thereof in accordance with the provisions of this Credit Agreement, and (c) the making of a prepayment of Eurodollar Loans on a day which is not the last day of
an Interest Period with respect thereto. With respect to Eurodollar Loans, such indemnification may include an amount equal to the excess, if any, of (i) the amount of interest which would have
accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrow, convert or extend to the last day of the
applicable Interest Period (or, in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of
interest for such Eurodollar Loans provided for herein over (ii) the amount of interest (as reasonably determined by such Lender) which would
have accrued to such Lender on such amount by placing such amount on deposit for a comparable period with leading 


47







 

banks
in the interbank Eurodollar market. This covenant shall survive the termination of this Credit Agreement and the payment of the Loans and all other amounts payable hereunder. 


 
 

ARTICLE V    
    
    CONDITIONS PRECEDENT    
    


        The obligation of the Lenders to make any Revolving Loan or of the Issuing Bank to issue any Letter of Credit hereunder is subject to the satisfaction of, or
waiver of, the following conditions precedent: 



 5.1    Closing Conditions.  




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



        (a)    Executed Credit Documents.    Receipt by the Agent of duly executed counterparts of: this Credit Agreement, any
requested Revolving Notes; the Swing Note, the Contribution Agreement, the Security Documents; and all other Credit Documents, each in form and substance acceptable to the Lenders in their reasonable
discretion. 


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



        (i)    Charter Documents.    Copies of the articles or certificates of incorporation or other formation or charter
documents of each Credit Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization
and certified by a secretary or assistant secretary of such Credit Party to be true and correct as of the Closing Date. 



        (ii)    Bylaws.    A copy of the bylaws or operating agreement or similar agreement of each Credit Party certified by
a secretary or assistant secretary of such Credit Party to be true and correct as of the Closing Date. 


        (iii)    Resolutions.    Copies of resolutions of the Board of Directors or similar managing body of each Credit Party
approving and adopting the Credit Documents to which it is a party, the transactions contemplated therein and authorizing execution and delivery thereof, certified by a secretary or assistant
secretary of such Credit Party to be true and correct and in force and effect as of the Closing Date. 



        (iv)    Good Standing.    Copies of (i) certificates of good standing, existence or its equivalent with respect
to each Credit Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and each other jurisdiction in which
the failure to so qualify and be in good standing could reasonably be expected to have a Material Adverse Effect; provided, however, that to the extent
that any such certificates from other jurisdictions are not reasonably available on the Closing Date, they may be provided within thirty (30) days thereafter and (ii) to the extent
available, a certificate indicating payment of all corporate or other franchise taxes certified as of a recent date by the appropriate taxing Governmental Authorities. 


        (v)    Incumbency.    An incumbency certificate of each Credit Party certified by a secretary or assistant secretary
to be true and correct as of the Closing Date. 




        (c)    Financial Statements.    Receipt by the Agent and the Lenders of the financial statements and accompanying
accountants' opinion described in Section 6.6 and such other information 



48







 

relating
to the Credit Parties as the Agent may reasonably require in connection with the structuring and syndication of credit facilities of the type described herein. 


        (d)    Opinions of Counsel.    Receipt by the Agent of an opinion, or opinions (which shall cover, among other things,
authority, legality, validity, binding effect, enforceability and attachment and perfection of Liens) reasonably satisfactory to the Agent, addressed to the Agent and the Lenders and dated the Closing
Date, from legal counsel to the Credit Parties. 


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



          (i)  termination
of all UCC-1 financing statements in favor of Bank Boston, N.A. and UBS AG, Stamford Branch and searches of UCC filings in the jurisdiction of
organization of each Credit Party, the chief executive office of each Credit Party and each jurisdiction where any Collateral is located or where a filing could have been properly made by a creditor
of a Credit Party, copies of the financing statements on file in such jurisdictions and evidence that, upon filing of such termination statements for all such UCC-1 financing statements in
favor of Bank Boston, N.A. and UBS AG, Stamford Branch, no Liens exist other than Permitted Liens; 


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


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


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


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



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




        (f)    Real Property Collateral.    The Agent shall have received a Mortgage and all Real Property Documentation for
each parcel or tract of the Initially Selected Real Estate that constitutes Accepted Real Estate on such date. 



        (g)    Priority of Liens.    The Agent shall have received satisfactory evidence that the Agent, on behalf of the
Lenders, holds a perfected, first priority Lien on all Collateral (limited as set forth in paragraph (f) above, as to Accepted Real Estate), subject to no other Liens other than Permitted
Liens. 


        (h)    Opening Borrowing Base Certificate.    Receipt by the Agent of a Borrowing Base Certificate dated as of the
Closing Date, but derived from information for September 3, 2004 or such other date reasonably satisfactory to the Agent, substantially in the form of  Exhibit K and certified by the chief
financial officer of the Borrower to be true and correct as of the Closing Date. 


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



49







 




        (j)    Corporate Structure.    The corporate capital and ownership structure of the Borrower and its Subsidiaries
shall be as described in Schedule 6.9. 


        (k)    Governmental, Shareholder and Third Party Consents.    Receipt by the Agent of evidence that all governmental,
shareholder and third party consents and approvals necessary in connection with the transactions contemplated hereby and expiration of all applicable waiting periods without any action being taken by
any authority that could restrain, prevent or impose any material adverse conditions on such transactions or that could seek or threaten any of the foregoing, and no law or regulation shall be
applicable which in the reasonable judgment of the Agent could have such effect. 


        (l)    Litigation.    There shall not exist any pending or threatened action, suit, investigation or proceeding
against any Credit Party or its assets that could reasonably be expected to (i) have a Material Adverse Effect or (ii) affect any transaction contemplated by this Credit Agreement or any
other Credit Document or the ability of the Credit Parties to perform their respective obligations under the Credit Documents. 


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


        (n)    Officer's Certificates.    Receipt by the Agent of a certificate or certificates executed by the president or
chief financial officer of the Borrower as of the Closing Date stating that (i) after giving effect to the making of the Loans and application of the proceeds thereof, each Credit Party is in
compliance with all existing financial obligations, (ii) all governmental, shareholder and third party consents and approvals, if any, with respect to the Credit Documents and the transactions
contemplated thereby have been obtained, (iii) no action, suit, investigation or proceeding is pending or threatened in any court or before any arbitrator or governmental instrumentality that
purports to affect any Credit Party or any transaction contemplated by the Credit Documents, if such action, suit, investigation or proceeding could reasonably be expected to have a Material Adverse
Effect and (iv) immediately after giving effect to this Credit Agreement, the other Credit Documents and all the transactions contemplated therein to occur on such date, (A) each of the
Credit Parties is solvent, (B) no Default or Event of Default exists, (C) all representations and warranties contained herein and in the other Credit Documents are true and correct in
all material respects, and (D) the Borrower is in compliance with the financial covenant set forth in Article VIII. 


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



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


        (q)    Subordinated Debt.    Receipt by the Agent of certified copies of the Senior Subordinated Notes Indenture. 


        (r)    Payment of Existing Working Capital Facility and Termination of Liens.    Receipt by the Agent of a payoff
letter reasonably satisfactory to it regarding payment in full of all indebtedness 



50







 




under
the Credit Agreement dated as of February 28, 2003, as amended, by and among UBS AG, as agent, the lenders party thereto and the Borrower, and termination of the commitments of the
lenders thereunder and termination of all Liens granted pursuant thereto. 


        (s)    Material Adverse Change.    (i) No Material Adverse Change, or development reasonably likely to have a
Material Adverse Effect, shall have occurred since June 30, 2003, except for any disclosures made in the Borrower's Quarterly Report on Form 10-Q's filed with the SEC since
that date, and (ii) no occurrence or event which is reasonably likely to have a Material Adverse Effect shall have occurred since June 30, 2003, except for any disclosures made in the
Borrower's Quarterly Report on Form 10-Q's filed with the SEC since that date, and be continuing. 


        (t)    Fees.    On or prior to the Closing Date, the Lenders shall have received payment in full of the fees required
to be paid to the Lenders on the Closing Date. 


        (u)    Minimum Excess Availability.    Receipt by the Agent of evidence reasonably satisfactory to the Agent that the
Borrower has Excess Availability of at least $125,000,000 (without giving effect to clause (k) of the definition of Borrowing Base for the purpose of calculating such Excess Availability) as of
the Closing Date, after giving effect to the payment of fees and expenses associated with the closing of this Credit Agreement, the making of the Loans and other extensions of credit and the
application of the proceeds thereof to be made on the Closing Date and after deductions for past due payables and other obligations. 



        (v)    Annual Budget.    Receipt by the Agent of an annual budget for the fiscal year ended June 30, 2005,
together with financial projections prepared on an annual basis covering the period from the Closing Date to the Maturity Date, and the Agent's satisfaction with such budget and financial projections
in its reasonable determination. 


        (w)    Cash Management System.    The Borrower's cash management system is reasonably satisfactory to the Agent and
provides for control in favor of the Agent on behalf of the Lenders. 



        (x)    Minimum Consolidated Adjusted EBITDA.    Minimum Consolidated Adjusted EBITDA (but without giving effect to
paragraph (e) of the definition thereof) for the fiscal year ending June 2004 of not less than $40,000,000, as determined based on the audited annual financial statements for such fiscal
year, or if such statements are not yet final, in a draft thereof. 


        (y)    Other.    Receipt by the Lenders of such other documents, instruments, agreements or information as reasonably
requested by any Lender, including, without limitation, information regarding litigation, tax, accounting, labor, insurance, pension liabilities (actual or contingent), real estate leases, material
contracts, debt agreements, property ownership and contingent liabilities of the Credit Parties. 


 5.2    Condition to all Loans and Letters of Credit.  


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



          (i)  the
representations and warranties contained in this Credit Agreement are true and correct in all material respects on and as of the date of such Revolving Loan or
Swing Loan or issuance of such Letter of Credit as though made on and as of such date, except to the 




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extent
that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and complete on and as of such
earlier date); and 


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




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



 
 

ARTICLE VI    
    
    REPRESENTATIONS AND WARRANTIES    
    


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



 6.1    Organization and Qualification.  




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



 6.2    Solvency.  




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



 6.3    Liens; Inventory.  




        There are no Liens in favor of third parties with respect to any of the Collateral, including, without limitation, with respect to the Inventory, wherever
located, other than Permitted Liens. Upon the proper filing of financing statements and the proper recordation of other applicable documents with the appropriate filing or recordation offices in each
of the necessary jurisdictions, the security interests granted pursuant to the Credit Documents constitute and shall at all times constitute, as required pursuant to the Credit Documents, valid and
enforceable first, prior and perfected Liens on the Collateral (other than Permitted Liens). The Credit Parties are, or will be at the time additional Collateral is acquired by them, the absolute
owners of the Collateral with full right to pledge, sell, 


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consign,
transfer and create a Lien therein, free and clear of any and all Liens in favor of third parties, except Permitted Liens. The Credit Parties will at their expense warrant, until all of the
Credit and Collateral Termination Events have occurred, and, at the Agent's request, defend the Collateral from any and all Liens (other than Permitted Liens) of any third party. The Credit Parties
will not grant, create or permit to exist, any Lien upon the Collateral, or any proceeds thereof, in favor of any third party (other than Permitted Liens). 



 6.4    No Conflict.  




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



 6.5    Enforceability.  




        The Credit Agreement and all of the other Credit Documents, as applicable, are the legal, valid and binding obligations of such Credit Party, and with respect to
those Credit Documents executed and delivered by any other Subsidiary, of each such other Subsidiary, and are enforceable against such Credit Party and such other Subsidiaries, as the case may be, in
accordance with their terms except as such enforceability may be limited by (i) the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and (ii) general principles of equity. 



 6.6    Financial Data; Material Adverse Change.  


        (a)   The
Borrower has furnished to the Lenders the following financial statements (the "Financials"): (i) the most
recent 10-K filed with the SEC prior to the Closing Date (ii) the most recent 10-Q filed with the SEC prior to the Closing Date (iii) an unaudited opening
consolidated balance sheet of the Borrower dated June 30, 2004. The Financials referred to in the foregoing clauses (i) and (ii) are and the historical financial statements to be
furnished to the Lenders in accordance with Section 7.1 will be in accordance with the books and records of the Borrower and fairly present the
financial condition of the Borrower and each of the Credit Parties at the dates thereof and the results of operations for the periods indicated (subject, in the case of unaudited financial statements,
to normal year-end adjustments), and such financial statements have been and will be prepared in conformity with GAAP consistently applied throughout the periods involved, except as
provided in Section 7.1(c). 



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        (b)   Since
the date of the Financials, there have been no changes in the condition, financial or otherwise, of the Borrower or any of the Credit Parties as shown on the
balance sheets of the Borrower and each of the Credit Parties, except (i) as contemplated herein and (ii) for changes in the ordinary course of business (none of which individually or in
the aggregate constitutes a Material Adverse Change). 


 6.7    Locations of Offices and Records.  




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



 6.8    Fictitious Business Names.  




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



 6.9    Subsidiaries.  




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



 6.10    No Judgments or Litigation.  




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



 6.11    No Defaults.  




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


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 6.12    No Employee Disputes.  




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



 6.13    Compliance with Law.  




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



 6.14    ERISA.  




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



 6.15    Compliance with Environmental Laws.  




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


55







 

regulation,
direction, ordinance, criteria or guidelines. Except as disclosed on Schedule 6.15 and except as could not reasonably be expected to
have a Material Adverse Effect, to the knowledge of each Credit Party and any of its Subsidiaries, none of the operations of such Credit Party or any of its Subsidiaries is the subject of any federal
or state investigation evaluating whether such Credit Party or any of its Subsidiaries disposed any hazardous or toxic waste, substance or constituent or other substance at any site that may require
remedial action, or any federal or state investigation evaluating whether any remedial action is needed to respond to a release of any hazardous or toxic waste, substance or constituent, or other
substance into the environment. Except as disclosed on Schedule 6.15 and except for any notices required in connection with any environmental
permits in the ordinary course of business, neither such Credit Party nor any of its Subsidiaries have filed any notice under any federal or state law indicating past or present treatment, storage or
disposal of a hazardous waste or reporting a spill or release of a hazardous or toxic waste, substance or constituent, or other substance into the environment. Except as disclosed on  Schedule 6.15
and except as could not reasonably be expected to have a Material Adverse Effect, neither such Credit Party nor any of its
Subsidiaries have any contingent liability of which such Credit Party has knowledge in connection with any release of any hazardous or toxic waste, substance or constituent, or other substance into
the environment, nor has such Credit Party or any of its Subsidiaries received any notice or letter advising it of potential liability arising from the disposal of any hazardous or toxic waste,
substance or constituent or other substance into the environment. 



 6.16    Use of Proceeds.  




        All proceeds of the Loans will be used only in accordance with Section 7.13. 



 6.17    Intellectual Property.  




        Such Credit Party and each of its Subsidiaries possesses adequate assets, licenses, patents, patent applications, copyrights, service marks, trademarks and
tradenames to continue to conduct its business as heretofore conducted by it. Schedule 6.17 sets forth (a) all of the federal, state and
foreign registrations of trademarks, service marks and other marks, trade names or other trade rights of such Credit Party and its Subsidiaries, and all pending applications for any such
registrations, (b) all of the patents and copyrights of such Credit Party and its Subsidiaries and all pending applications therefor and (c) all other trademarks, service marks and other
marks, trade names and other trade rights used by such Credit Party or any of its Subsidiaries in connection with their businesses, in each case necessary for the conduct of such Credit Party's and
such Credit Party's Subsidiaries' business (collectively, the "Proprietary Rights"). Such Credit Party and its Subsidiaries are collectively the owners
of each of the trademarks listed on Schedule 6.17 as indicated on such schedule, and no other Person has the right to use any of such marks in
commerce either in the identical form or in such near resemblance thereto as may be likely to cause confusion or to cause mistake or to deceive. Each of the trademarks listed on  Schedule 6.17 is a
federally registered trademark of such Credit Party or its Subsidiaries having the registration number and issue date set
forth on Schedule 6.17. The Proprietary Rights listed on Schedule 6.17 are all those used
in the businesses of such Credit Party and its Subsidiaries. Except as disclosed on Schedule 6.17, no person has a right to receive any royalty
or similar payment in respect of any Proprietary Rights pursuant to any contractual arrangements entered into by such Credit Party, or any of its Subsidiaries and no person otherwise has a right to
receive any royalty or similar payment in respect of any such Proprietary Rights except as disclosed on Schedule 6.17. Neither such Credit Party
nor any of its Subsidiaries has granted any license or sold or otherwise transferred any interest in any of the Proprietary Rights to any other person. The use of each of the Proprietary Rights by
such Credit Party and its Subsidiaries is not infringing upon or otherwise violating the rights of any third party in or to such Proprietary Rights, and no proceeding has been instituted against or
notice received by such Credit Party or any of its Subsidiaries that are presently outstanding alleging that the use of any of the Proprietary Rights infringes upon or otherwise violates 


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the
rights of any third party in or to any of the Proprietary Rights. Neither such Credit Party nor any of its Subsidiaries have given notice to any Person that it is infringing on any of the
Proprietary Rights and to the best of such Credit Party's knowledge, no Person is infringing on any of the Proprietary Rights. All of the Proprietary Rights of such Credit Party and its Subsidiaries
are valid and enforceable rights of such Credit Party and its Subsidiaries and will not cease to be valid and in full force and effect by reason of the execution and delivery of this Credit Agreement
or the Credit Documents or the consummation of the transactions contemplated hereby or thereby. 



 6.18    Licenses and Permits.  




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



 6.19    Title to Property.  




        Such Credit Party has to its best knowledge (i) defensible fee simple title to or valid leasehold interests in all of its real property, including, without
limitation, the Real Estate (all such real property and the nature of such Credit Party's or any of its Subsidiary's interest therein is disclosed on  Schedule 6.19, as it may be updated from time
to time pursuant to Section 7.9,) and
(ii) defensible title to all of its other property (including without limitation, all real and other property in each case as reflected in the Financial Statements delivered to the Agent
hereunder), other than properties disposed of in the ordinary course of business or in any manner otherwise permitted under this Credit Agreement since the date of the most recent audited consolidated
balance sheet of such Credit Party, and in each case subject to no Liens other than Permitted Liens. Such Credit Party and its Subsidiaries, to the best of their respective knowledge, enjoy peaceful
and undisturbed possession of all its real property, including, without limitation, the Real Estate, and there is no pending or, to the best of their knowledge, threatened condemnation proceeding
relating to any such real property. No material default exists under (i) any Lease on any property on which is Mortgage is granted, or (ii) any other Lease, to the extent such default
would reasonably be expected to have a Material Adverse Effect. All of the Structures and other tangible assets owned, leased or used by such Credit Party or any of its Subsidiaries in the conduct of
their respective businesses, to the best of their respective knowledge, are (a) insured to the extent and in a manner required by Section 7.10, (b) structurally sound with no
known defects which have or could reasonably be expected to have a Material Adverse Effect, (c) in good operating condition and repair, subject to ordinary wear and tear, (d) not in need
of maintenance or repair except for ordinary, routine maintenance and repair the cost of which is immaterial and except to the extent failure to so maintain and repair could not reasonably be expected
to have a Material Adverse Effect, (e) sufficient for the operation of the businesses of such Credit Party and its Subsidiaries as currently conducted, except to the extent failure to be so
sufficient could not reasonably be expected to have a Material Adverse Effect and (f) in conformity with all applicable laws, ordinances, orders, regulations and other requirements (including
applicable zoning, environmental, motor vehicle safety, occupational safety and health laws and regulations) relating thereto, except where the failure to conform could not reasonably be expected to
have a Material Adverse Effect. 


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 6.20    Labor Matters.  




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



 6.21    Investment Company, Etc.  




        Neither such Credit Party nor any of its Subsidiaries is (a) an "investment company" or a company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, (b) a "holding company" or a "subsidiary company" of a "holding company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company," within the meaning of the Public Utility Holding Company Act of 1935, as amended, or (c) subject to any other law which regulates or restricts its ability to
borrow money or to consummate the transactions contemplated by this Credit Agreement or the other Credit Documents or to perform its obligations hereunder or thereunder. 



 6.22    Margin Security.  




        Such Borrower does not own any margin stock and no portion of the proceeds of any Loans or Letters of Credit shall be used by the Borrower for the purpose of
purchasing or carrying any "margin stock" (as defined in Regulation U of the Board of Governors of the Federal Reserve System) or for any other purpose which violates the provisions or
Regulation U, of said Board of Governors or for any other purpose in violation of any applicable statute or regulation, or of the terms and conditions of this Credit Agreement. 



 6.23    No Event of Default.  




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



 6.24    Taxes and Tax Returns.  




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



 6.25    No Other Indebtedness.  




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


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 6.26    Status of Accounts.  




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



 6.27    Material Contracts.  




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



 6.28    Survival of Representations.  




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



 6.29    Affiliate Transactions.  




        Except as set forth on Schedule 6.29, neither such Credit Party nor any of its Subsidiaries is a party to
or bound by any agreement or arrangement (whether oral or written) to which any Affiliate of such Credit Party or any of its Subsidiaries is a party except (a) in the ordinary course of and
pursuant to the reasonable requirements of such Credit Party's or such Subsidiary's business and (b) upon fair and reasonable terms no less favorable to such Credit Party and such Subsidiary
than it could obtain in a comparable arm's-length transaction with an unaffiliated Person. 



 6.30    Accuracy and Completeness of Information.  




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



 6.31    Anti-Terrorism Laws.  


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



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



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


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


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



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


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




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


 6.32    Deposit Accounts and Commodities Accounts.  




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



 6.33    Force Majeure.  




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


 
 

ARTICLE VII    
    
    AFFIRMATIVE COVENANTS    
    



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



 7.1    Financial Information.  




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



        (a)   within
ninety (90) days after the close of the fiscal year of the Borrower, the audited consolidated balance sheets and statements of income and retained earnings
and of changes in cash flow of the Borrower and its Subsidiaries, for such year, each setting forth in comparative form the corresponding figures for the preceding year, prepared in accordance with
GAAP, and accompanied by a report and unqualified opinion of KPMG LLP (which shall not be limited as to 



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the
scope of the audit or qualified as to the status of the Credit Parties as a going concern) or other Independent Accountant selected by the Borrower and approved by the Agent; provided, that so
long as the Borrower is required to file and has timely filed a 10-K with the SEC, such filing will satisfy this covenant; 


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


        (c)   within
forty five (45) days after the end of each month other than the final month of each fiscal quarter, which shall be submitted within five (5) days
after the Borrower submits its Form 10-Q for such quarter with the Securities and Exchange Commission, unaudited consolidated financial statements as of the end of such period and
for such period then ended and for the period from the beginning of the current fiscal year to the end of such period, 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, line fill and tank bottom inventory shall be deemed to be carried at the lower of cost or market as determined only on
a quarterly basis) and present fairly, in all material respects, on a summary basis the financial position of the Borrower 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 and certified by an Executive Officer; 



        (d)   at
the time of delivery of each quarterly and annual statement, a Compliance Certificate stating that such officer has caused this Credit Agreement to be reviewed and
has no knowledge of any default by the Borrower in the performance or observance of any of the provisions of this Credit Agreement, during, or at the end of, as applicable, such quarter or year, or,
if such officer has such knowledge, specifying each default and the nature thereof, and showing compliance by the Borrower as of the date of such statement with the financial covenant set forth in  Section 8.1, and calculations for such financial covenant shall be included, even if such financial covenant is not then in effect pursuant to
the terms thereof, and the other applicable covenants set forth in Exhibit J; 



        (e)   The
Borrowing Base will be reported in a Borrowing Base Certificate furnished to the Agent according to the following: 



          (i)  if
Excess Availability is equal to or greater than $100,000,000, Borrowing Base Certificates will be will be completed as of the last day of the calendar month and
delivered within 5 Business Days thereafter, with a Borrowing Base Certificate updated from the most recently furnished complete Borrowing Base Certificate as to gross accounts receivable and
inventory to be prepared as of the last Business Day of each week and delivered within 2 Business Days thereafter, or 



         (ii)  if
Excess Availability is less than $100,000,000, Borrowing Base Certificates will be delivered twice monthly, completed as of the closest Business Day to each of the
15th day (or such other day, not later than the 20th, on which the Borrower internally adjusts its basis for inventory) and the last day of each calendar month and delivered within 5 Business Days
thereafter, with a Borrowing Base Certificate updated from the most recently furnished complete Borrowing Base Certificate as to gross accounts receivable and inventory to be prepared as of the last
Business Day of each week and delivered within 2 Business Days 




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thereafter;
provided, that if Excess Availability is at least $100,000,000 for 30 consecutive days, such fact may be reported and Borrowing Base Certificates and updated Borrowing Base Certificates
showing gross accounts receivable and inventory thereafter shall again be reported pursuant to clause (i) above unless and until Excess Availability again goes below $100,000,000. 




        Notwithstanding
the foregoing, (i) the Borrower may submit additional Borrowing Base Certificates or updates thereof at any time during a calendar month, and they shall be taken
into account in determining Average Excess Borrowing Base Availability and Excess Availability and (ii) the Agent will reserve the right to require that Borrowing Base Certificates and such
updates thereof be furnished on a more frequent basis, in its reasonable discretion. In addition, on or before the 15th day of each month (or if such day is not a Business Day, then on the next
succeeding Business Day), the Borrower shall furnish a written report to the Agent setting forth the accounts receivable aged trial balance at the immediately preceding month end for each account
debtor, aged by due date, which aging reports shall indicate which Accounts are current, up to 30, 30 to 60 and over 60 days past due and any other documentation reasonably required by the
Agent as back-up. The Agent may, but shall not be required to, rely on each Borrowing Base Certificate delivered hereunder as accurately setting forth the available Borrowing Base for all
purposes of this Credit Agreement until such time as a new Borrowing Base Certificate is delivered to the Agent in accordance herewith; Borrowing Base Certificates may be prepared and submitted to the
Lenders on a more frequent basis than weekly, provided that such certificate complies with the requirements set forth elsewhere herein. The Agent shall
send copies of the Borrowing Base Certificates and updates received by it pursuant to the foregoing to the Lenders; provided, that any Lender may
request copies thereof from the Borrower; 


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



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


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


        (i)    promptly
upon receipt thereof, copies of all notices delivered to the Borrower or sent by the Borrower with respect to Subordinated Debt, including, without limitation,
any notice of default (the Borrower expressly agreeing to furnish all such notices electronically); 


        (j)    promptly
and in any event within five (5) Business Days after becoming aware of the occurrence of a Default or Event of Default, a certificate of the chief
executive officer or chief financial officer of the Borrower specifying the nature thereof and the Credit Parties' proposed response thereto, each in reasonable detail; and 


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



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 7.2    Mortgaged Real Estate.  




        In consultation with the Borrower, the Agent has identified the Initially Selected Real Estate and the items that will comprise the Real Property Documentation
related thereto has been or shall be obtained and furnished to the Agent for its review as soon as reasonably possible. On the Closing Date, the Agent, for the benefit of the Lenders, shall receive a
Mortgage on each parcel or tract of the Initially Selected Real Estate that constitutes Accepted Real Estate on such date, conveying a first priority Lien thereon, subject to no other Liens other than
Permitted Liens. Upon receipt of all Approved Appraisals for the Initially Selected Real Estate, if the aggregate Net Orderly Liquidation Value of the Initially Selected Real Estate is less than the
Minimum Real Estate Liquidation Value, the Agent shall identify and select, Additionally Selected Real Estate in such a manner as to minimize legal fees, mortgage taxes, title insurance and other
applicable costs and charges. The Additionally Selected Real Estate shall then be appraised according to the foregoing, and such process shall be continued until terminals and related real estate
having Approved Appraisals showing appraised aggregate Net Orderly Liquidation Value of not less than the Minimum Real Estate Liquidation Value have been identified. The items that will comprise the
Real Property Documentation for each such parcel or tract shall be obtained and delivered as soon as reasonably practicable after such parcel or tract has been identified as part of the Initially
Selected Real Estate and Additionally Selected Real Estate pursuant to the foregoing process, and as soon as each such Initially Selected Real Estate and Additionally Selected Real Estate has become
Accepted Real Estate, the Agent, for the benefit of the Lenders, shall receive a Mortgage on such parcel or tract, conveying a first priority Lien thereon, subject to no other
Liens other than Permitted Liens. In the event any Credit Party desires to substitute any other real estate property for existing Mortgaged Real Estate, the Borrower will so notify the Agent and, if
the Agent receives Real Property Documentation reasonably satisfactory to it with respect thereto, a Mortgage shall be executed and delivered thereon in favor of the Agent, for the benefit of the
Lenders, and such property shall become Mortgaged Real Estate, and the property for which such property was substituted shall be released by the Agent. 



 7.3    Corporate Existence.  




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



 7.4    ERISA.  




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



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



63







 

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


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


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


        (e)   within
three (3) Business Days after the filing thereof with the Internal Revenue Service, a copy of each funding waiver request filed with respect to any Benefit
Plan and all communications received by any Credit Party or any of its Subsidiaries or ERISA Affiliates with respect to such request; 


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


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


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


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


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


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




        For
purposes of this Section 7.4, any Credit Party or any of its Subsidiaries or ERISA Affiliates shall be deemed to know all facts
known by the administrator of any Plan of which such entity is the plan sponsor. 


        The
Credit Parties will establish, maintain and operate all Plans to comply in all material respects with the provisions of ERISA, the Internal Revenue Code, and all other applicable
laws, and the regulations and interpretations thereunder other than to the extent that the Credit Parties are in good 


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faith
contesting by appropriate proceedings the validity or implication of any such provision, law, rule, regulation or interpretation. 



 7.5    Proceedings or Adverse Changes.  




        The Credit Parties will as soon as possible, and in any event within five (5) Business Days after any Credit Party learns of the following, give written
notice to the Agent of (i) any material proceeding(s) being instituted or threatened in writing to be instituted by or against any Credit Party or any of its Subsidiaries in any federal, state,
local or foreign court or before any commission or other regulatory body (federal, state, local or foreign), if the amount involved is equal to or in excess of $10,000,000 and (ii) any Material
Adverse Change. Provision of such notice by the Credit Parties will not constitute a waiver or excuse of any Default or Event of Default occurring as a result of such changes or events. 



 7.6    Environmental Matters.  




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



 7.7    Books and Records; Inspection.  




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


65







 

Collateral,
(c) inspecting and/or copying (at such Credit Party' expense) any and all records pertaining thereto, (d) discussing the affairs, finances and business of any Credit Party or
with any officers, employees and directors of any Credit Party with the Independent Accountant and (e) verifying Eligible Accounts Receivable and/or Eligible Petroleum Inventory. The Lenders,
in the reasonable discretion of the Agent, may accompany the Agent at their sole expense in connection with the foregoing inspections. 


        The
Agent expects to conduct two (2) field examinations per year (or more frequently, if Excess Availability is less than $100,000,000), but reserves the right, in its reasonable
discretion, to conduct a field examination at any time, or with less frequency, upon reasonable notice to the Borrower. Each Credit Party agrees to afford the Agent thirty (30) days prior
written notice of any change in its jurisdiction of organization or the location of its chief executive office or place of business from the locations specified in  Schedule 6.7, and to execute in
advance of such change, cause to be filed and/or delivered to the Agent any financing statements or other
documents required by the Agent, all in form and substance reasonably satisfactory to the Agent. Each Credit Party agrees to furnish the Agent with such other information regarding its business
affairs and financial condition as the Agent may reasonably request from time to time. 



 7.8    Collateral Records.  




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



 7.9    Security Interests.  




        Each Credit Party will use commercially reasonable efforts to defend the Collateral against all claims and demands of all Persons at any time claiming the same or
any interest therein other than Permitted Liens. Each Credit Party agrees to, and will cause the other Credit Parties to, comply with the requirements of all applicable state and federal laws
necessary to grant to the Lenders valid and perfected first security interest in the Collateral as required by this Agreement and the Security Documents. The Agent is hereby authorized by each Credit
Party to file any financing statements in accordance with Section 5(f) of the Security Agreement. Each Credit Party agrees to take the following
actions as the Agent may reasonably request, from time to time, by way of: reasonably cooperating with the Agent's custodians; keeping stock records; paying claims, which might if unpaid, become a
Lien (other than a Permitted Lien) on the Collateral except for claims which are being contested in good faith; assigning its rights to the payment of Accounts pursuant to the Assignment of Claims Act
of 1940, as amended (31 U.S.C. §3727 et. seq.) (the failure of which to so assign will permit the Agent to exclude such Accounts from the Borrowing Base); and performing such further acts
as the Agent may reasonably require in order to effect the purposes of Security Documents. Subject to any limitation expressly set forth herein any and all reasonable fees, costs and expenses of
whatever kind and nature (including any Taxes, reasonable attorneys' fees or costs for insurance of any kind), which the Agent may incur with respect to the Collateral or the Obligations: in filing
public notices; in preparing or filing documents; in protecting, maintaining, or preserving the Collateral or its interest therein; in enforcing or foreclosing the Liens hereunder, whether through
judicial procedures or otherwise; or in defending or prosecuting any actions or proceedings arising out of or relating to its transactions with any Credit Party or any of its Subsidiaries under this
Credit Agreement or any other Credit Document, 


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will
be borne and paid by the Credit Parties. If same are not promptly paid by the Credit Parties upon presentation of correct, detailed invoices, the Agent may pay same on the Credit Parties' behalf,
and the amount thereof shall be an Obligation secured hereby and due to the Agent on demand. If any Credit Party acquires or leases any Real Estate after the date hereof, such Credit Party will
promptly submit to the Agent an updated Schedule 6.19 pursuant to Section 7.17. 



 7.10    Insurance; Casualty Loss.  




        Each Credit Party will, and will cause each of the Subsidiaries to, maintain public liability insurance and replacement value property damage insurance on the
Collateral under such policies of insurance, with such insurance companies, in such amounts and covering such risks as are commercially reasonable for the industry and taking into account the
interests of the Agent in the Collateral. All policies covering the Collateral are to name the Credit Parties and the Agent as additional insureds, as their interests may appear. Certificates of
insurance evidencing such insurance covering the Collateral are to be delivered to the Agent on or prior to the Closing Date, premium prepaid, with the Agent as
additional insured, and shall provide for not less than thirty (30) days prior written notice to the Agent or ten (10) days in the case of non-payment of premium, of the
exercise of any right of cancellation. In the event any Credit Party or any of its Subsidiaries fail to respond in a timely and appropriate manner (as determined by the Agent in its reasonable
discretion) with respect to collecting under any insurance policies required to be maintained under this Section 7.10, and if the amount involved
is $5,000,000 or more, the Agent shall have the right, in the name of the Agent such Credit Party or Subsidiary, to file claims under such insurance policies, to receive and give acquittance for any
payments that may be payable thereunder, and to execute any and all endorsements, receipts, releases, assignments, reassignments or other documents that may be necessary to effect the collection,
compromise or settlement of any claims under any such insurance policies. Each Credit Party will provide written notice to the Agent of the occurrence of any of the following events within fifteen
(15) Business Days after the occurrence of such event: any material asset or property owned or used by any Credit Party or any of its Subsidiaries is (i) materially damaged or destroyed,
or suffers any other material loss or (ii) is condemned, confiscated or otherwise taken, in whole or in part, or the use thereof is otherwise diminished so as to render impracticable or
unreasonable the use of such asset or property for the purpose to which such asset or property were used immediately prior to such condemnation, confiscation or taking, by exercise of the powers of
condemnation or eminent domain or otherwise, and in either case the amount of the damage, destruction, loss or diminution in value of the Collateral which is in excess of $4,000,000 (collectively, a
"Casualty Loss"). Each Credit Party will diligently file and prosecute its claim or claims for any award or payment in connection with a Casualty Loss.
After the occurrence and during the continuance of an Event of Default, (i) no settlement on account of any such Casualty Loss shall be made without the consent of the Agent and (ii) the
Agent may participate in any such proceedings and the Credit Parties will deliver to the Agent such documents as may be requested by the Agent to permit such participation and will consult with the
Agent, its attorneys and agents in the making and prosecution of such claim or claims. Each Credit Party hereby irrevocably authorizes and appoints the Agent its
attorney-in-fact, after the occurrence and continuance of an Event of Default, to collect and receive for any such award or payment and to file and prosecute such claim or
claims, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest, and each Credit Party shall, upon demand of the Agent, make, execute and deliver any and all
assignments and other instruments sufficient for the purpose of assigning any such award or payment to the Agent for the benefit of the Lenders, free and clear of any encumbrances, other than
Permitted Liens. 



 7.11    Taxes.  




        Each Credit Party will, and will cause each of the Subsidiaries to, pay, when due, all Taxes levied or assessed against any Credit Party, any of its Subsidiaries
or any of the Collateral; provided, however, 


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that
unless such Taxes have become a federal tax or ERISA Lien on any of the assets of any Credit Party or any of its Subsidiaries, in each case in an amount that would create an Event of Default, no
such Tax, other than state excise taxes, need be paid if the same is being contested in good faith, by appropriate proceedings promptly instituted and appropriately conducted and if an adequate
reserve or other appropriate provision shall have been made therefor as required in order to be in conformity with GAAP. 



 7.12    Compliance With Laws.  




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



 7.13    Use of Proceeds.  




        The proceeds of any advances made hereunder shall be used by the Borrower solely to refinance existing indebtedness, to finance the ongoing capital expenditures
and working capital needs of the Borrower, and to finance other general corporate purposes of the Borrower; provided, however, that in any event, no
portion of the proceeds of any such advances shall be used by the Borrower for the purpose of purchasing or carrying any "margin stock" (as defined in Regulation U of the Board of Governors of
the Federal Reserve System) or for any other purpose which violates the provisions or Regulation U of said Board of Governors or for any other purpose in violation of any applicable statute or
regulation, or of the terms and conditions of this Credit Agreement. 



 7.14    Fiscal Year; Accounting Policies; Risk Management Policy.  




        Each Credit Party agrees that it will not change its fiscal year from a year ending June 30 unless required by law, in which case such Credit Party will
give the Agent prompt written notice thereof. Subject to Section 1.2, each Credit Party agrees that it will provide prompt notice to the Agent of
any material change to its accounting policies from those used to prepare the financial statements delivered pursuant to Section 5.1(c). Each
Credit Party agrees that it will maintain its Risk Management Policy, subject to such changes as may be approved by its Board of Directors. In the event of any material change in its Risk Management
Policy, within twenty (20) days thereof, it will notify the Agent and furnish to the Agent a copy of such change. 



 7.15    Notification of Certain Events.  




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



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


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


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


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



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 7.16    Additional Guarantors.  




        With respect to any newly created or acquired Subsidiary of the Borrower or any existing Subsidiary of the Borrower, if such Subsidiary has 5% or more of the
consolidated total assets or contributes 5% or more of the consolidated operating profits of the Borrower and its consolidated Subsidiaries, or if such Subsidiary would be required to be a guarantor
of the Senior Subordinated Notes pursuant to the Senior Subordinated Notes Indenture, the Credit Parties will provide the Agent with written notice thereof setting forth information in reasonable
detail describing all of the material assets of such Person and shall (a) cause any such Person that is a Domestic Subsidiary to execute and deliver to the Agent a Joinder Agreement in
substantially the form of Exhibit L, causing such Subsidiary to become a party to (i) the Guaranty, as a joint and several "Guarantor",
(ii) the Security Agreement, as an "Obligor" granting a first priority Lien on its personal property, subject to Permitted Liens, (iii) the Contribution Agreement, as a "Contributing
Party" and (iv) as appropriate, the Pledge Agreement, as a "Pledgor", causing all of its Capital Stock (or, in the case of any Foreign Subsidiary, and without waiving the requirement for the
prior consent of the Required Lenders for the formation or acquisition thereof, sixty-five percent (65%) of its Capital Stock) to be delivered to the Agent (together with undated stock
powers signed in blank and pledged to the Agent), and (b) deliver such other documentation as the Agent may reasonably request in connection with the foregoing, including, without limitation,
appropriate UCC-1 financing statements, certified resolutions and other organizational and authorizing documents of such Person and favorable opinions of counsel (which may be in the
Borrower's legal department) to such Person (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to above), all in form,
content and scope reasonably satisfactory to the Agent. 



 7.17    Revisions or Updates to Schedules.  




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



 7.18    Collection of Accounts.  




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



 7.19    Notice of Matters Affecting Accounts.  




        Each Credit Party will notify the Agent promptly of any matters materially affecting the value, enforceability or collectibility of any Account and of all
material customer disputes, offsets, defenses, counterclaims, in each case if the amount contested is equal to or in excess of $5,000,000. 



 7.20    Maintenance of Property.  




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


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 7.21    Trademarks.  




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



 7.22    Anti-Terrorism Laws.  




        None of the Credit Parties shall, nor shall any of them permit any of their respective Subsidiaries to, (i) conduct any business or engage in any
transaction or dealing with any Blocked Person, including the making or receiving any contribution of funds, goods or services to or for the benefit of any Blocked Person; (ii) deal in, or
otherwise engage in any transaction relating to, any property or interests in property blocked pursuant to Executive Order No. 13224; or (iii) knowingly engage in on conspire to engage
in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in Executive Order No. 13224 or the USA Patriot
Act. Each of the Credit Parties shall deliver to the Agent and Lenders any certification or other evidence reasonably requested from time to time by the Agent or any Lender, in the Agent's reasonable
discretion, confirming such Person's compliance with this Section. 


 
 

ARTICLE VIII    
    
    FINANCIAL COVENANTS    
    


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



 8.1    Fixed Charge Coverage Ratio.  




        A Fixed Charge Coverage Ratio shall be maintained of not less than 1.10 to 1.00 as of the last day of each fiscal quarter, commencing with the first fiscal
quarter after the Closing; provided that such ratio may be less than 1.10:1.00 if Average Excess Availability is at least $75,000,000 (without giving
effect to clause (k) of the definition of Borrowing Base for the purpose of calculating such Excess Availability). 


 
 

ARTICLE IX    
    
    NEGATIVE COVENANTS    
    


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



 9.1    Restrictions on Liens.  




        Mortgage, assign, pledge, transfer or otherwise permit any Lien or judgment (whether as a result of a purchase money or title retention transaction, or other
security interest, or otherwise) to exist on any of its assets or properties, whether real, personal or mixed, whether now owned or hereafter acquired, except for Permitted Liens. 


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 9.2    Restrictions on Additional Indebtedness.  




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



 9.3    Restrictions on Sale of Assets.  




        Sell, lease, assign, transfer or otherwise dispose of any assets (including the Capital Stock of any Subsidiary of the Borrower) other than (a) sales of
Inventory in the ordinary course of business, (b) sale-leaseback transactions permitted by Section 9.14, (c) sales or
other dispositions in the ordinary course of business of assets or properties that are obsolete or that are no longer used or useful in the conduct of such Credit Party's or Subsidiary's business,
(d) sales in the ordinary course of business of assets or properties (other than Inventory) used in such Credit Party's or Subsidiary's business that are worn out or in need of replacement and
that are replaced within six (6) months with assets of reasonably equivalent value or utility, (e) other asset sales not exceeding in the aggregate for all Credit Parties $10,000,000 in
any fiscal year and (f) the Lion Oil Company Disposition Transaction. 



 9.4    No Corporate Changes.  


        (a)   Merge
or consolidate with any Person, provided, however, that subject to  Section 7.16, the Borrower and its Subsidiaries may merge or consolidate with and
into each other (so long as, if such merger or consolidation
involves the Borrower, the Borrower is the surviving entity, if such merger or consolidation involves a Domestic Subsidiary and a Foreign Subsidiary, the Domestic Subsidiary is the surviving entity
and if such merger or consolidation involves a Credit Party and a Subsidiary that is not a Credit Party, the Credit Party is the surviving entity) and the Credit Parties may engage in Permitted
Acquisitions, (b) alter or modify any Credit Party's or any of its Subsidiary's Articles or Certificate of Incorporation or other equivalent organizational document or form of organization in
any manner adverse to the interests of the Agent or the Lenders or in any way which could reasonably be expected
to have a Material Adverse Effect, (c) without providing thirty (30) days prior written notice to the Agent (or such shorter period as determined by the Agent) and without filing (or
confirming that the Agent has filed) such amendments to any previously filed financing statements as may be necessary to maintain perfection of the security interest created under the Credit Documents
as the Agent may require, (i) change its state of incorporation or formation, (ii) change its registered corporate name, (iii) change the location of its books and records from
the locations set forth on Schedule 6.7, or (iv) change the location of its Collateral from the locations set forth for such Person on  Schedule 6.7, or (d) enter into or engage in any business, operation or activity materially different from that presently being conducted
by the Credit Parties; provided, however, that notwithstanding the foregoing, the Borrower may dissolve or liquidate any Subsidiary that is not a Credit
Party and is not required to be one pursuant hereto. 


 9.5    No Guarantees.  




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



 9.6    No Restricted Payments.  




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


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 9.7    No Investments.  




        Make any Investment other than Permitted Investments. 



 9.8    No Affiliate Transactions.  




        Enter into any transaction with, including, without limitation, the purchase, sale or exchange of property or the rendering of any service to any Subsidiary or
Affiliate of any Credit Party except (a) in the ordinary course of such Credit Party's business and upon fair and reasonable terms no less favorable to such Credit Party than could be obtained
in a comparable arm's-length transaction with an unaffiliated Person and (b) as permitted under Section 9.6. 



 9.9    No Prohibited Transactions Under ERISA.  



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


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



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


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


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


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


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


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


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


 9.10    No Additional Bank or Commodities Accounts.  




        Open, maintain or otherwise have any checking, savings or other accounts at any bank or other financial institution, or any other account where money is or may be
deposited or maintained with any Person, other than (a) commodities accounts maintained with commodities brokers in the ordinary course of business in accordance with historical practices, each
of which shall be subject to a Commodities Account Control Agreement, except to the extent otherwise determined by the Agent, (b) the accounts set forth on  Schedule 6.32, each of which shall
be subject to a Deposit Account Control Agreement, except to the extent otherwise determined by the Agent,
(c) deposit accounts established after the Closing Date that are subject to a Deposit Account Control Agreement, (d) other 


72







 

deposit
accounts established after the Closing Date solely as payroll and other zero balance accounts and (e) other deposit accounts established after the Closing Date, so long as at any time
the aggregate balance in all such accounts does not exceed $10,000,000. 



 9.11    Restrictions on the Borrower.  




        Hold, in the case of Borrower only, any assets other than the stock of the Credit Parties and the other Subsidiaries listed on  Schedule 6.9 and have, in the case of Borrower only, any liabilities other than (a) the liabilities under the Credit Documents,
(b) other Indebtedness in existence on the date hereof and refinancings thereof, (c) Subordinated Debt, and (d) tax, routine administrative and other liabilities
not constituting Indebtedness, intercompany liabilities not prohibited hereby and guarantees constituting Permitted Indebtedness, in each case incurred in the ordinary course of business. In the case
of Borrower only, sell, transfer or otherwise dispose of any shares of Capital Stock of or other ownership interests in the Credit Parties or such Subsidiaries, or engage in any business other than
owning the stock of the Credit Parties and such Subsidiaries. 



 9.12    Additional Negative Pledges.  




        Create or otherwise cause or suffer to exist or become effective, or permit any of the Subsidiaries to create or otherwise cause or suffer to exist or become
effective, directly or indirectly: (i) any prohibition or restriction (including any agreement to provide equal and ratable security to any other Person in the event a Lien is granted to or for
the benefit of the Agent and the Lenders) on the creation or existence of any Lien upon the assets of any Credit Party or any of its Subsidiaries, other than Permitted Liens, except (1) this
Agreement and the other Credit Documents, (2) covenants in documents creating Permitted Liens, but only to the extent of the property encumbered by such Permitted Lien, (3) covenants in
existing documents, including, without limitation, the Senior Subordinated Notes, but only as such covenants exist on the Closing Date and (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 Borrower or any of its Subsidiaries (whether now owned or hereafter acquired) securing the
Loans or any Lender Hedging Agreement; or (ii) any Contractual Obligation which may restrict or inhibit the Agent's rights or ability to sell or otherwise dispose of the Collateral or any part
thereof after the occurrence of an Event of Default. 



 9.13    Subordinated Debt.  




        Effect or permit any change in or amendment to any document or instrument pertaining to the subordination, terms of payment or required prepayments of any
Subordinated Debt, increase the rates or amounts of interest or fees payable with respect to any Subordinated Debt, effect or permit any change in or amendment to any document or instrument pertaining
to the covenants or events of default of any Subordinated Debt if the effect of any such change or amendment is to make such covenants or events of default more restrictive, give any notice of
optional redemption or optional prepayment or offer to repurchase under any such document or instrument, or, directly or indirectly, make any payment of principal of or interest on or in redemption,
retirement or repurchase of any Subordinated Debt, except, so long as no Default or Event of Default is in existence or would be created thereby: (i) for the scheduled payments required by the
terms of the documents and instruments evidencing Subordinated Debt and permitted by the subordination provisions of the documents and instruments evidencing Subordinated Debt; and (ii) for
payments in respect of the Senior Subordinated Notes to the extent constituting a Permitted Restricted Payment. 



 9.14    Sale and Leaseback.  




        Enter into any arrangement, directly or indirectly, whereby any Credit Party or any of its Subsidiaries shall sell or transfer any property owned by it to a
Person (other than the Credit Parties or 


73







 

any
of their Subsidiaries) in order then or thereafter to lease such property or lease other property which such Credit Party or Subsidiary intends to use for substantially the same purpose as the
property being sold or transferred. Notwithstanding the foregoing provisions of this Section 9.14, any Credit Party or any of its Subsidiaries
may sell or transfer any property owned by it as described in the preceding sentence provided that the aggregate current market value of all assets so
sold or transferred (in each case determined at the time of such sale or transfer, and taking into account all such sales or transfers under this  Section 9.14 since the Closing Date) shall not
exceed $20,000,000. 



 9.15    Limitations.  




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



 9.16    Operating Lease Obligations.  




        Enter into or permit any Subsidiary to enter into, assume or permit to exist any obligations for the payment of rent under operating leases which in the aggregate
for all such Persons would exceed $20,000,000 in any fiscal year, exclusive of payments for the chartering of vessels in the ordinary course of business. 


 
 

ARTICLE X    
    
    POWERS    
    



 10.1    Appointment as Attorney-in-Fact.  




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


 
 

ARTICLE XI    
    
    EVENTS OF DEFAULT AND REMEDIES    
    



 11.1    Events of Default.  




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



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



        (b)   any
representation or warranty, contained in this Credit Agreement, the other Credit Documents or any other agreement, document, instrument or certificate among any
Credit Party, 



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the
Agent and the Lenders or executed by any Credit Party in favor of the Agent or the Lenders shall prove untrue in any material respect on or as of the date it was made or was deemed to have been
made; 


        (c)   failure
of any Credit Party to perform, comply with or observe any term, covenant or agreement applicable to it contained in  Section 7.1(j), Section 7.3, Section 7.5, Section 7.7 (but only as to inspection rights),
Article VIII or Sections
9.3, 9.4, 9.6, 9.13 or 9.14; 


        (d)   failure
to comply with any other covenant contained in this Credit Agreement, the other Credit Documents or any other agreement, document, instrument or certificate
among any Credit Party, the Agent and the Lenders or executed by any Credit Party in favor of the Agent or the Lenders and, in the event such breach or failure to comply is capable of cure, such
breach or failure to comply is not cured within thirty (30) days after the earlier of (a) notice thereof by the Administrative Agent and (b) an Executive Officer of the Borrower
becoming aware thereof; 


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



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


        (g)   the
occurrence of a Change of Control; 



        (h)   any
Credit Party or any of its Subsidiaries shall fail to make any payment in respect of Indebtedness outstanding (other than the Notes) in an aggregate principal amount
of $10,000,000 or more when due or within any applicable grace period; or 


        (i)    (i) any
event or condition shall occur which results in the acceleration of the maturity of Indebtedness outstanding of any Credit Party or any of its
Subsidiaries in an aggregate principal amount of $10,000,000 or more (including, without limitation, any required mandatory prepayment or "put" of such Indebtedness to such Credit Party or Subsidiary
or enables (or, with the giving of notice or lapse of time or both, would enable) the holders of such Indebtedness or commitment or any Person acting on such holders' behalf to accelerate the maturity
thereof or terminate any such commitment prior to its normal expiration (including, without limitation, any required mandatory prepayment or "put" of such Indebtedness to such Credit Party or
Subsidiary), or (ii) the failure of any Credit Party to pay any termination payment when due upon the termination of any Lender Hedging Agreement; 


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



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


        (k)   (i) any
Governmental Authority with applicable jurisdiction determines that the Senior Subordinated Notes or any other Subordinated Debt in an amount of
$10,000,000 or more is not subordinated to any of the Obligations or (ii) the subordination provisions in any agreement relating to Subordinated Debt shall, in whole or in part, terminate,
cease to be effective or cease to be legally valid, binding and enforceable as to any holder of such Subordinated Debt; 



        (l)    one
or more judgments or decrees shall be entered against, or Lien arising from any environmental liability shall be imposed against one or more of the Credit Parties or
any of their Subsidiaries involving a liability of $10,000,000 or more in the aggregate (to the extent not paid or covered by insurance as determined by the Agent in its reasonable discretion) and any
such judgments or decrees shall not have been vacated, discharged or stayed or bonded pending appeal within sixty (60) days from the entry thereof; 


        (m)  any
Termination Event with respect to a Benefit Plan shall have occurred and be continuing thirty (30) days after notice thereof shall have been given to the
Borrower by the Agent or any Lender, and the then current value of such Benefit Plan's benefits guaranteed under Title IV of ERISA exceeds the then current value of such Benefit Plan's assets
allocable to such benefits by more than $10,000,000 (or in the case of a Termination Event involving the withdrawal of a substantial employer, the withdrawing employer's proportionate share of such
excess exceeds such amount); or 


        (n)   any
event of default on the part of a Credit Party shall have occurred under any Material Contract to which any Credit Party is a party, if as a result of such event of
default the liability of such Credit Party thereunder is $10,000,000 or more. 


 11.2    Acceleration.  




        Upon the occurrence and during the continuance of an Event of Default, and at any time thereafter, at the direction of the Required Lenders, the Agent shall, upon
the written, telecopied or telex request of the Required Lenders, and by delivery of written notice to the Credit Parties from the Agent, take any or all of the following actions, without prejudice to
the rights of the Agent, any Lender or the holder of any Note to enforce its claims against the Borrower: (a) declare all Obligations (other than those arising in connection with a Lender
Hedging Agreement) to be immediately due and payable (except with respect to any Event of Default set forth in Section 11.1(f), in which case all
Obligations (other than those arising in connection with a Lender Hedging Agreement) shall automatically become immediately due and payable without the necessity of any notice or other demand) without
presentment, demand, protest or any other action, notice or obligation of the Agent or any Lender, (b) immediately terminate this Credit Agreement and the Revolving Credit Commitments
hereunder; and (c) enforce any and all rights and interests created and existing under the Credit Documents or arising under applicable law, including, without limitation, all rights and
remedies existing under the Security Documents and all rights of setoff. The enumeration of the foregoing rights is not intended to be exhaustive and the exercise of any right shall not preclude the
exercise of any other rights, all of which shall be cumulative. 


        In
addition, upon demand by the Agent or the Required Lenders upon the occurrence of any Event of Default, and at any time thereafter unless and until such Event of Default has been
waived by the requisite Lenders (in accordance with the voting requirements of Section 14.9), the Borrower shall deposit with the Agent for the
benefit of the Lenders with respect to each Letter of Credit then 


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outstanding,
promptly upon such demand, cash or Cash Equivalents in an amount equal to the greatest amount for which such Letter of Credit may be drawn. Such deposit shall be held by the Agent for the
benefit of the Issuing Bank and the other Lenders as security for, and to provide for the payment of, outstanding Letters of Credit. 


 
 

ARTICLE XII    
    
    TERMINATION    
    



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


        (b)   This
Credit Agreement, together with all other Credit Documents, shall continue in full force and effect, until each of the following events (collectively, the
"Credit and Collateral Termination Events") has occurred: (i) all Obligations have been fully and finally paid and performed (other than inchoate
indemnity obligations), (ii) all Letters of Credit have expired or terminated (or other arrangements relating thereto that are reasonably satisfactory to the Agent have been made in a writing
signed by the Borrower and the Issuing Bank in respect of such Letter of Credit), (iii) all Lender Hedging Agreements have expired or terminated (or other arrangements relating thereto have
been made in a writing signed by all Persons party to such Lender Hedging Agreement and the Agent), (iv) all agreements relating to Cash Management Products have expired or terminated (or other
arrangements relating thereto have been made in a writing signed by all Persons party to such agreements and the Agent), and (v) all Revolving Credit Commitments have been terminated and no
Person or Governmental Authority shall have any right to request any return or reimbursement of funds from the Agent or the Lenders in connection with any of the foregoing. 



 
 

ARTICLE XIII    
    
    THE AGENT    
    



 13.1    Appointment of Agent.  



        (a)   Each
Lender hereby designates Wachovia as Agent to act as herein specified. Each Lender hereby irrevocably authorizes, and each holder of any Note or participation in
any Letter of Credit by the acceptance of a Note or participation shall be deemed irrevocably to authorize, the Agent to take such action on its behalf under the provisions of this Credit Agreement
and the Notes and any other instruments and agreements referred to herein and to exercise such powers and to perform such duties hereunder and thereunder as are specifically delegated to or required
of the Agent by the terms hereof and thereof and such other powers as are reasonably incidental thereto. The Agent shall hold all Collateral and all payments of principal, interest, Fees, charges and
expenses received pursuant to this Credit Agreement or any other Credit Document for the ratable benefit of the Lenders. The Agent may perform any of its duties hereunder by or through its agents or
employees. Each Lender hereby designates JPMorgan Chase Bank and UBS AG, Stamford Branch as the Syndication Agents and Société Générale, New
York Branch and Wells Fargo Foothill, LLC, as the Documentation Agents. The Syndication Agents and the 



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Documentation
Agents, in such capacity, shall have no duties or obligations whatsoever under this Credit Agreement or any other Credit Document or any other document or any matter related hereto and
thereto, but shall nevertheless be entitled to all the indemnities and other protection afforded to the Agent under this Article XIII. 


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


 13.2    Nature of Duties of Agent.  




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



 13.3    Lack of Reliance on Agent.  


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


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


 13.4    Certain Rights of the Agent.  




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


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against
the Agent as a result of the Agent acting or refraining from acting hereunder in accordance with the instructions of the Required Lenders or each of the Lenders, as the case may be. 



 13.5    Reliance by Agent.  




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



 13.6    Indemnification of Agent.  




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



 13.7    The Agent in its Individual Capacity.  




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



 13.8    Holders of Notes.  




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


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 13.9    Resignation of Agent.  




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



 13.10    Collateral Matters.  


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



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remedies,
powers and privileges conferred upon the Agent hereunder and under the other Credit Documents may be exercised by the Agent without the necessity of the joinder of any other parties unless
otherwise required by applicable law. 


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


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


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



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



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


 13.11    Actions with Respect to Defaults.  




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



 13.12    Delivery of Information.  




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


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 13.13    No Reliance on Administrative Agent's Customer Identification Program.  




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



 13.14    USA Patriot Act.  




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


 
 

ARTICLE XIV    
    
    MISCELLANEOUS    
    



 14.1    Waivers.  




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



 14.2    JURY TRIAL.  




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



 14.3    GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE.  



        (a)   THIS
CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE 



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WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PROVISIONS THEREOF other than Section 5-1401 of the New York General Obligations Law. Any legal
action or proceeding with respect to this Credit Agreement or any other Credit Document shall be brought in the courts of the State of New York in New York County or of the United States for the
Southern District of New York, and, by execution and delivery of this Credit Agreement the Borrower, and by execution and delivery of the Guaranty Agreement or of a joinder thereto and incorporation
by reference therein each of the Guarantors, hereby irrevocably accepts for itself and in respect of its property, generally and unconditionally, the nonexclusive jurisdiction of such courts, and
agrees to be bound by the other provisions set forth in this Section 14.3. Each of the Credit Parties further irrevocably consents to the service
of process out of any of the aforementioned courts in any such action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, to it at the address set out for
notices pursuant to Section 14.4, such service to become effective three (3) days after such mailing. Nothing herein shall affect the
right of the Agent or any Lender to serve process in any other manner permitted by law or to commence legal proceedings or to otherwise proceed against any Credit Party in any other jurisdiction. 


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


 14.4    Notices.  




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



 14.5    Assignability.  



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


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


        (c)   Any
Lender may, in the ordinary course of its lending business and in accordance with applicable law, at any time, assign to any Approved Assignee and, with the consent
of the Agent and, so long as no Event of Default is in existence, the Borrower (such consent not to be unreasonably withheld or delayed) and concurrent notice to the Borrower, but without the consent 



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of
any other Lender, assign to one or more other Eligible Assignees all or a portion of its rights and obligations under this Credit Agreement and any Notes held by it;  provided, however, that (i) any
such assignment of a portion must be for a constant and non varying portion of its Loans and Revolving Credit
Commitments, (ii) for each such assignment, the parties thereto shall execute and deliver to the Agent, for its acceptance and recording in the Register (as defined below), an Assignment and
Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500 to be paid by the assignee, (iii) no such assignment shall be for less than
$5,000,000 or, if less, the entire remaining Revolving Credit Commitments of such Lender of the Revolving Credit Commitments (or, with respect to Swing Loans, 100% thereof and of the commitment to
make Swing Loans) and (iv) if such assignee is a Foreign Lender, all of the requirements of Section 2.6(b) shall have been satisfied as a
condition to such assignment; and provided, further, that any assignment to an Approved Assignee shall not be subject to the minimum assignment amounts
specified herein. Upon such execution and delivery of the Assignment and Acceptance to the Agent, from and after the Acceptance Date, (x) the assignee thereunder shall be a party hereto, and,
to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, such assignee shall have the rights and obligations of a Lender hereunder and
(y) the assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than any
rights it may have pursuant to Section 14.7 which will survive) and be released from its obligations under this Credit Agreement (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Credit Agreement, such Lender shall cease to be a party hereto). 


        (d)   By
executing and delivering an Assignment and Acceptance, the assignee thereunder confirms and agrees as follows: (i) other than as provided in such Assignment
and Acceptance, the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this
Credit Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Credit Agreement, the Notes or any other instrument or document furnished pursuant
hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Credit Parties or the performance or
observance by the Credit Parties of any of its obligations under this Credit Agreement or any of the other Credit Documents or any other instrument or document furnished pursuant hereto or thereto,
(iii) such assignee confirms that it has received a copy of this Credit Agreement, together with copies of the financial statements referred to in  Section 7.1 and such other documents and
information as it has deemed appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance, (iv) such assignee will, independently and without reliance upon the Agents, such assigning Lender or any other Lender and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Credit Agreement, (v) such assignee appoints and authorizes the Agents
to take such action as agent on its behalf and to exercise such powers under this Credit Agreement and the other Credit Documents as are delegated to the Agents by the terms hereof, together with such
powers as are reasonably incidental thereto and (vi) such assignee agrees that it will
perform in accordance with their terms all of the obligations which by the terms of this Credit Agreement are required to be performed by it as a Lender. 



        (e)   The
Agent shall maintain at its address referred to in Section 14.4 a copy of each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitments of, and principal amount of the Loans owing to, each
Lender from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Agents and the Lenders may treat each Person whose name is recorded in the Register as a 



85







 




Lender
hereunder for all purposes of this Credit Agreement. The Register and copies of each Assignment and Acceptance shall be available for inspection by the Borrower or any Lender at any reasonable
time and from time to time upon reasonable prior notice. 


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


        (g)   Each
Lender may sell participations, without the consent of the Agent, the Borrower (as to any Person, other than a fund, that would be an Eligible Assignee for an
assignment) any other Lender, to one or more parties in or to all or a portion of its rights and obligations under this Credit Agreement (including, without limitation, all or a portion of its
Revolving Credit Commitments, the Loans owing to it and any Note or Notes held by it); provided that (i) such Lender's obligations under this
Credit Agreement (including, without limitation, its Revolving Credit Commitments to the Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Credit Agreement, (iv) the Borrower, the
Agent, and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Credit Agreement and (v) such Lender
shall not transfer, grant, assign or sell any participation under which the participant shall have rights to approve any amendment or waiver of this
Credit Agreement except to the extent such amendment or waiver would (A) extend the final maturity date or the date for the payments of any installment of fees or principal or interest of any
Loans or Letter of Credit reimbursement obligations in which such participant is participating, (B) reduce the amount of any installment of principal of the Loans or Letter of Credit
reimbursement obligations in which such participant is participating, (C) except as otherwise expressly provided in this Credit Agreement, reduce the interest rate applicable to the Loans or
Letter of Credit reimbursement obligations in which such participant is participating, or (D) except as otherwise expressly provided in this Credit Agreement, reduce any Fees payable hereunder. 



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



86







 




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


 14.6    Information.  




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



 14.7    Payment of Expenses; Indemnification.  




        The Borrower agrees to: (a) pay all reasonable out-of-pocket costs and expenses of (i) the Agent in connection with
(A) the syndication, negotiation, preparation, execution, delivery, administration and monitoring of this Credit Agreement and the other Credit Documents and the documents and instruments
referred to therein or executed in connection therewith, including evaluating the compliance by the Credit Parties with law and the provisions of such documents, including, without limitation, the
reasonable fees and expenses of special counsel to the Agent, the reasonable fees and expenses of counsel for the Agent in connection with collateral issues and all due diligence, and the costs and
expenses incurred in connection with all appraisals, field exams, and of obtaining all Real Property Documentation, and all recording costs, fees and taxes payable in connection with the Collateral,
and (B) any amendment, waiver or consent relating hereto and thereto including, without limitation, any such amendments, waivers or consents resulting from or related to any
work-out, re-negotiation or restructure relating to the performance by any of the Credit Parties under this Credit Agreement or any other Credit Documents and (ii) the
Agent and the Lenders in connection with enforcement of the Credit Documents and the documents and instruments referred to therein or executed in connection therewith, including but not limited to,
any work-out, re-negotiation or restructure relating to the performance by any of the Credit Parties under this Credit Agreement or any other Credit Documents, including,
without limitation, in connection with any such enforcement upon receipt of a correct invoice, the reasonable fees and disbursements of counsel for the Agent and each of the Lenders (including the
allocated costs of internal counsel), and the reasonable fees and expenses of a financial consultant engaged by the Agent or its counsel in connection with the foregoing. The Borrower shall indemnify,
defend and hold harmless the Agent, Wachovia Capital Markets, LLC (in its capacity as arranger), the Issuing Bank and each of the Lenders and their respective directors, 


87







 

officers,
agents, employees and counsel from and against (x) any and all losses, claims, damages, liabilities, deficiencies, judgments or expenses incurred by any of them (except to the extent
that it is finally judicially determined to have resulted from their own gross negligence or willful misconduct) arising out of or by reason of any litigation, investigation, claim or proceeding which
arises out of or is in any way related to (i) this Credit Agreement, any Letter of Credit or any other Credit Documents or the transactions contemplated hereby or thereby, (ii) any
actual or proposed use by the Borrower of the proceeds of the Loans or (iii) the Agent's, the Issuing Bank's or the Lenders' entering into this Credit Agreement, the other Credit Documents or
any other agreements and documents relating hereto, including, without limitation, amounts paid in settlement, court costs and the fees and disbursements of counsel incurred in connection with any
such litigation, investigation, claim or proceeding or any advice rendered in connection with any of the foregoing and (y) any such losses, claims, damages, liabilities, deficiencies, judgments
or expenses (except to the extent that any of the foregoing are finally judicially determined to have resulted from their own gross negligence or willful misconduct)incurred in connection with any
remedial or other action taken by the Borrower or any of the Lenders in connection with compliance by the Borrower or any of its Subsidiaries, or any of their respective properties, with any federal,
state or local environmental laws, acts, rules, regulations, orders or ordinances. If and to the extent that the obligations of the Borrower hereunder are unenforceable for any reason, such Borrower
hereby agrees to make the maximum contribution to the payment and satisfaction of such obligations which is permissible under applicable law. The Borrower's obligations under this  Section 14.8
shall survive any termination of this Credit Agreement and the other Credit
Documents and the payment in full of the Obligations, and are in addition to, and not in substitution of, any other of their Obligations set forth in this Credit Agreement. In addition, the Borrower
shall, upon demand, pay to the Agent and any Lender all costs and expenses (including the reasonable fees and disbursements of counsel and other professionals) paid or incurred by the Agent, the
Issuing Bank or such Lender in (A) enforcing or defending its rights under or in respect of this Credit Agreement, the other Credit Documents or any other document or instrument now or
hereafter executed and delivered in connection herewith, (B) in collecting the Loans, (C) in foreclosing or otherwise collecting upon the Collateral or any part thereof and
(D) obtaining any legal, accounting or other advice in connection with any of the foregoing. 



 14.8    Entire Agreement, Successors and Assigns.  




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



 14.9    Amendments, Etc.  




        Neither the amendment or waiver of any provision of this Credit Agreement or any other Credit Document, nor the consent to any departure by any Credit Party
therefrom, shall in any event be effective unless the same shall be in writing and signed by the Required Lenders, or if the Lenders shall not be parties thereto, by the parties thereto and consented
to by the Required Lenders and (so long as no Event of Default has occurred and is continuing) the Borrower, and each such amendment, waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided that no amendment, waiver or consent shall unless in writing and signed by all the Lenders, do
any of the following: (a) increase the Revolving Credit Commitments of the Lenders or subject the Lenders to any additional obligations, (b) except as otherwise expressly provided in
this Credit Agreement, reduce the principal of, or interest on, any Loan or Note or any Letter of Credit reimbursement obligations or any fees hereunder, (c) postpone any date fixed for any
payment or mandatory prepayment in respect of principal of, or interest on, any Loan or Note or any Letter of Credit reimbursement obligations or any fees hereunder, (d) change the percentage
of the Revolving 


88







 

Credit
Commitments, or any minimum requirement necessary for the Lenders or the Required Lenders to take any action hereunder, (e) amend or waive Section 2.2(b),
Section 2.7, Section 2.8, Section 13.6 or this Section 14.9, or change the definition of Required
Lenders, (f) except as otherwise expressly provided in this Credit Agreement, and other than in connection with the financing, refinancing, sale or other disposition of any asset of the Credit
Parties permitted under this Credit Agreement, release any Liens in favor of the Lenders on any material portion of the Collateral, (g) except as expressly permitted hereunder, release any
Credit Party from its obligations hereunder or under the Guaranty and the other Credit Documents to which it is a party or (h) increase the advance rates used to calculate the Borrowing Base or
modify the definition of Borrowing Base and, provided, further, that no amendment, waiver or consent affecting the rights or duties of the Agent or the
Issuing Bank under any Credit Document shall in any event be effective, unless in writing and signed by the Agent or of Wachovia with respect to Swing Loans and/or the Issuing Bank or Wachovia, as
applicable, in addition to the Lenders required hereinabove to take such action. Notwithstanding any of the foregoing to the contrary, the consent of the Borrower shall not be required for any
amendment, modification or waiver of the provisions of Article XIII (other than the provisions of  Section 13.9). In addition, the Borrower and
the Lenders hereby authorize the Agent to modify this Credit Agreement by unilaterally amending or
supplementing Schedule 1.1A from time to time in the manner requested by the Borrower, the Agent or any Lender in order to reflect any
assignments or transfers of the Loans as provided for hereunder; provided, however, that the Agent shall promptly deliver a copy of any such
modification to the Borrower and each Lender. 



 14.10    Nonliability of Agent and Lenders.  




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



 14.11    Independent Nature of Lenders' Rights.  




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



 14.12    Counterparts.  




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



 14.13    Effectiveness.  




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



 14.14    Severability.  




        In case any provision in or obligation under this Credit Agreement or any Notes or the other Credit Documents shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and 


89







 

enforceability
of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby. 



 14.15    Headings Descriptive.  




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



 14.16    Maximum Rate.  




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



 14.17    Right of Setoff.  




        In addition to and not in limitation of all rights of offset that any Lender or other holder of a Note may have under applicable law, each Lender or other holder
of a Loan or Note shall, if any Event of Default has occurred and is continuing and whether or not such Lender or such holder has made any demand or the Obligations of the Borrower are matured, have
the right to appropriate and apply to the payment of the Obligations of such Borrower all deposits (general or special, time or demand, provisional or final) then or thereafter held by and other
indebtedness or property then or thereafter owing by such Lender or other holder, including, without limitation, any and all amounts in the Cash Concentration Account. Any amount received as a result
of the exercise of such rights shall be reallocated among the Lenders as set forth in Section 3.8. 



 14.18    Delegation of Authority.  




        Each Guarantor (by execution and delivery of the Guaranty Agreement or of a joinder thereto and incorporation by reference therein) hereby authorizes and appoints
the Borrower and each of the Responsible Officers of the Borrower, to be its attorneys ("its Attorneys") and in its name and on its 


90







 

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


91









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



	BORROWER:	 	TRANSMONTAIGNE INC.
	

 	
 	
By:	
 	

/s/  RANDALL J. LARSON      

	 	 	Name:	 	Randall J. Larson
	 	 	Title:	 	Executive Vice President and Chief Financial Officer




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	AGENT AND LENDERS:	 	WACHOVIA BANK, NATIONAL ASSOCIATION, as Agent and as a Lender
	

 	
 	

By:	
 	

/s/  KEVIN HARRISON      

	 	 	Name:	 	Kevin Harrison
	 	 	Title:	 	Managing Director
	

 	
 	

Lending Office (Base Rate Loans)*
	

 	
 	

Address:	
 	

191 Peachtree Street, N.E.

Atlanta, GA 30303

Attn: Betty Eberhardt

Telephone: 404-332-6452

Facsimile: 404-332-6977
	

 	
 	

Lending Office (Eurodollar Loans)*
	

 	
 	

Address:	
 	

191 Peachtree Street, N.E.

Atlanta, GA 30303

Attn: Betty Eberhardt

Telephone: 404-332-6452

Facsimile: 404-332-6977




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	 	 	JPMORGAN CHASE BANK,

as Syndication Agent and as a Lender
	

 	
 	

By:	
 	

/s/  J. RICHARD HAWK      

	 	 	Name:	 	J. Richard Hawk
	 	 	Title:	 	Vice President
	

 	
 	

Lending Office (Base Rate Loans)*
	

 	
 	

Address:	
 	

395 N. Service Road, Floor 3

Melville, NY 11747

Attn: Alfred B. Austin

Telephone: 631-755-8433

Facsimile: 631-755-8460
	

 	
 	

Lending Office (Eurodollar Loans)*
	

 	
 	

Address:	
 	

395 N. Service Road, Floor 3

Melville, NY 11747

Attn: Alfred B. Austin

Telephone: 631-755-8433

Facsimile: 631-755-8460




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	 	 	UBS AG, Stamford Branch,

as Syndication Agent and as a Lender
	

 	
 	

By:	
 	

/s/  WILFRED V. SAINT      

	 	 	Name:	 	Wilfred V. Saint
	 	 	Title:	 	Director, Banking Products Services, US
	

 	
 	

By:	
 	

/s/  JOSELIN FERNANDES      

	 	 	Name:	 	Joselin Fernandes
	 	 	Title:	 	Associate Director, Banking Products Services, US
	

 	
 	

Lending Office (Base Rate Loans)*
	

 	
 	

Address:	
 	

677 Washington Boulevard

Stamford, CT 06901

Attn: Barbara Ezell-McMichael

Telephone: 203-719-0473

Facsimile: 203-719-3888
	

 	
 	

Lending Office (Eurodollar Loans)*
	

 	
 	

Address:	
 	

677 Washington Boulevard

Stamford, CT 06901

Attn: Barbara Ezell-McMichael

Telephone: 203-719-0473

Facsimile: 203-719-3888




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	 	 	SOCIETE GENERALE,

as Documentation Agent and as a Lender
	

 	
 	

By:	
 	

/s/  EMMANUEL CHESNEAU      

	 	 	Name:	 	Emmanuel Chesneau
	 	 	Title:	 	Director
	

 	
 	

By:	
 	

/s/  CRAIG A. TASHJIAN      

	 	 	Name:	 	Craig A. Tashjian
	 	 	Title:	 	Managing Director
	

 	
 	

Lending Office (Base Rate Loans)*
	

 	
 	

Address:	
 	

560 Lexington Avenue

New York, NY 10022

Attn: Carmen Espinal

Telephone: 212-278-7048

Facsimile: 212-278-7343
	

 	
 	

Lending Office (Eurodollar Loans)*
	

 	
 	

Address:	
 	

560 Lexington Avenue

New York, NY 10022

Attn: Carmen Espinal

Telephone: 212-278-7048

Facsimile: 212-278-7343




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	 	 	WELLS FARGO FOOTHILL, LLC,

as Documentation Agent and as a Lender
	

 	
 	

By:	
 	

/s/  RINA SHINODA      

	 	 	Name:	 	Rina Shinoda
	 	 	Title:	 	Vice President
	

 	
 	

Lending Office (Base Rate Loans)*
	

 	
 	

Address:	
 	

2450 Colorado Ave., St. 3000 West

Santa Monica, CA 90404

Attn: Lalaine Pechayco

Telephone: 310-453-7280

Facsimile: 310-453-7422
	

 	
 	

Lending Office (Eurodollar Loans)*
	

 	
 	

Address:	
 	

2450 Colorado Ave., St. 3000 West

Santa Monica, CA 90404

Attn: Lalaine Pechayco

Telephone: 310-453-7280

Facsimile: 310-453-7422




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	 	 	BNP PARIBAS,

as a Lender
	

 	
 	

By:	
 	

/s/  ZALI WIN      

	 	 	Name:	 	Zali Win
	 	 	Title:	 	Director
	

 	
 	

By:	
 	

/s/  EDWARD CHIN      

	 	 	Name:	 	Edward Chin
	 	 	Title:	 	Managing Director
	

 	
 	

Lending Office (Base Rate Loans)*
	

 	
 	

Address:	
 	

787 Seventh Ave.

New York, NY 10019

Attn: Meredith Cook

Telephone: 212-841-2098

Facsimile: 212-841-2536
	

 	
 	

Lending Office (Eurodollar Loans)*
	

 	
 	

Address:	
 	

787 Seventh Ave.

New York, NY 10019

Attn: Meredith Cook

Telephone: 212-841-2098

Facsimile: 212-841-2536




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	 	 	GENERAL ELECTRIC CAPITAL CORPORATION

as a Lender
	

 	
 	

By:	
 	

/s/  SCOTT B. KAPLAN      

	 	 	Name:	 	Scott B. Kaplan
	 	 	Title:	 	Duly Authorized Signatory
	

 	
 	

Lending Office (Base Rate Loans)*
	

 	
 	

Address:	
 	

350 S. Beverly Drive, Suite 200

Beverly Hills, CA 90212

Attn: Account Manager

(TransMontaigne)

Telephone: 310-203-0335

Facsimile: 310-785-0644
	

 	
 	

Lending Office (Eurodollar Loans)*
	

 	
 	

Address:	
 	

350 S. Beverly Drive, Suite 200

Beverly Hills, CA 90212

Attn: Account Manager

(TransMontaigne)

Telephone: 310-203-0335

Facsimile: 310-785-0644




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	 	 	SUNTRUST BANK NA,

as a Lender
	

 	
 	

By:	
 	

/s/  MARK PICKERING      

	 	 	Name:	 	Mark Pickering
	 	 	Title:	 	Vice President
	

 	
 	

Lending Office (Base Rate Loans)*
	

 	
 	

Address:	
 	

303 Peachtree Street, 3rd Floor

Atlanta, GA 30308

Attn: Monica Young

Telephone: 404-588-8629

Facsimile: 404-230-5307
	

 	
 	

Lending Office (Eurodollar Loans)*
	

 	
 	

Address:	
 	

303 Peachtree Street, 3rd Floor

Atlanta, GA 30308

Attn: Monica Young

Telephone: 404-588-8629

Facsimile: 404-230-5307




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	 	 	LASALLE BANK NATIONAL ASSOCIATION,

as a Lender
	

 	
 	

By:	
 	

/s/  DARREN LEMKAU      

	 	 	Name:	 	Darren Lemkau
	 	 	Title:	 	Senior Vice President
	

 	
 	

Lending Office (Base Rate Loans)*
	

 	
 	

Address:	
 	

One North Brentwood, Suite 950

St. Louis, MO 63105

Attn: Kim Admire

Telephone: 314-613-1908

Facsimile: 314-621-1612
	

 	
 	

Lending Office (Eurodollar Loans)*
	

 	
 	

Address:	
 	

One North Brentwood, Suite 950

St. Louis, MO 63105

Attn: Kim Admire

Telephone: 314-613-1908

Facsimile: 314-621-1612




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	 	 	MERRILL LYNCH CAPITAL, a Division of Merrill Lynch Business Financial Services Inc.,

as a Lender
	

 	
 	

By:	
 	

/s/  T. BUKOWSKI      

	 	 	Name:	 	T. Bukowski
	 	 	Title:	 	Director
	

 	
 	

Lending Office (Base Rate Loans)*
	

 	
 	

Address:	
 	

222 North LaSalle

Chicago, IL 60601

Attn: Shirley Winters

Telephone: 312-750-6143

Facsimile: 312-499-3336
	

 	
 	

Lending Office (Eurodollar Loans)*
	

 	
 	

Address:	
 	

222 North LaSalle

Chicago, IL 60601

Attn: Shirley Winters

Telephone: 312-750-6143

Facsimile: 312-499-3336




102







 


	 	 	NATIONAL CITY BUSINESS CREDIT, INC.,

as a Lender
	

 	
 	

By:	
 	

/s/  JASON HANES      

	 	 	Name:	 	Jason Hanes
	 	 	Title:	 	Senior Associate
	

 	
 	

Lending Office (Base Rate Loans)*
	

 	
 	

Address:	
 	

1965 East 6th Street

Suite 400 Locator 3049

Cleveland, OH 44114

Attn: Jason Hanes

Telephone: 216-222-9508

Facsimile: 216-222-9555
	

 	
 	

Lending Office (Eurodollar Loans)*
	

 	
 	

Address:	
 	

1965 East 6th Street

Suite 400 Locator 3049

Cleveland, OH 44114

Attn: Jason Hanes

Telephone: 216-222-9508

Facsimile: 216-222-9555




103







 


	 	 	PNC BANK, NATIONAL ASSOCIATION,

as a Lender
	

 	
 	

By:	
 	

/s/  TERRANCE O. MCKINNEY      

	 	 	Name:	 	Terrance O. McKinney
	 	 	Title:	 	Vice President
	

 	
 	

Lending Office (Base Rate Loans)*
	

 	
 	

Address:	
 	

2 Tower Center, 8th Floor

East Brunswick, NJ 08816

Attn: Gurdatt Jagnanan

Telephone: 732-220-4302

Facsimile: 732-220-4395
	

 	
 	

Lending Office (Eurodollar Loans)*
	

 	
 	

Address:	
 	

2 Tower Center, 8th Floor

East Brunswick, NJ 08816

Attn: Gurdatt Jagnanan

Telephone: 732-220-4302

Facsimile: 732-220-4395




104







 


	 	 	ALLIED IRISH BANKS, p.l.c.,

as a Lender
	

 	
 	

By:	
 	

/s/  MARTIN S. CHIN      

	 	 	Name:	 	Martin S. Chin
	 	 	Title:	 	Vice President
	

 	
 	

By:	
 	

/s/  MARGARET BRENNAN      

	 	 	Name:	 	Margaret Brennan
	 	 	Title:	 	Vice President
	

 	
 	

Lending Office (Base Rate Loans)*
	

 	
 	

Address:	
 	

Corporation Operations,

Iona Building—Block A

152 Shelbourne Road

Ballsbridge, Dublin 4, IRELAND

Attn: Niamh Colreavy

Telephone: (011-353-1) 641-6632

Facsimile: (011-353-1) 608-9795
	

 	
 	

Lending Office (Eurodollar Loans)*
	

 	
 	

Address:	
 	

Corporation Operations,

Iona Building—Block A

152 Shelbourne Road

Ballsbridge, Dublin 4, IRELAND

Attn: Niamh Colreavy

Telephone: (011-353-1) 641-6632

Facsimile: (011-353-1) 608-9795




105







 


	 	 	FLEET NATIONAL BANK,

as a Lender
	

 	
 	

By:	
 	

/s/  MICHAEL J. BROCHETTI      

	 	 	Name:	 	Michael J. Brochetti
	 	 	Title:	 	Director
	

 	
 	

Lending Office (Base Rate Loans)*
	

 	
 	

Address:	
 	

100 Federal Street

Boston, MA 02110

Attn: Francis A. Camillo

Telephone: 617-434-5092

Facsimile: 617-434-0201
	

 	
 	

Lending Office (Eurodollar Loans)*
	

 	
 	

Address:	
 	

100 Federal Street

Boston, MA 02110

Attn: Francis A. Camillo

Telephone: 617-434-5092

Facsimile: 617-434-0201




106







 


	 	 	SIEMENS FINANCIAL SERVICES, INC.,

as a Lender
	

 	
 	

By:	
 	

/s/  FRANK AMODIO      

	 	 	Name:	 	Frank Amodio
	 	 	Title:	 	Vice President—Credit
	

 	
 	

Lending Office (Base Rate Loans)*
	

 	
 	

Address:	
 	

170 Wood Avenue South

Iselin, NJ 08830

Attn: Robert Nadler

Telephone: 732-590-6636

Facsimile: 732-590-6648
	

 	
 	

Lending Office (Eurodollar Loans)*
	

 	
 	

Address:	
 	

170 Wood Avenue South

Iselin, NJ 08830

Attn: Robert Nadler

Telephone: 732-590-6636

Facsimile: 732-590-6648




107







 


	 	 	HIBERNIA NATIONAL BANK,

as a Lender
	

 	
 	

By:	
 	

/s/  DARIA MAHONEY      

	 	 	Name:	 	Daria Mahoney
	 	 	Title:	 	Vice President
	

 	
 	

Lending Office (Base Rate Loans)*
	

 	
 	

Address:	
 	

313 Carondelet

10th Floor

New Orleans, LA 70130

Attn: Gina Santos

Telephone: 504-533-5569

Facsimile: 504-533-5434
	

 	
 	

Lending Office (Eurodollar Loans)*
	

 	
 	

Address:	
 	

313 Carondelet

10th Floor

New Orleans, LA 70130

Attn: Gina Santos

Telephone: 504-533-5569

Facsimile: 504-533-5434




108







 


	 	 	U.S. BANK NATIONAL ASSOCIATION,

as a Lender
	

 	
 	

By:	
 	

/s/  MONTE E. DECKERD      

	 	 	Name:	 	Monte E. Deckerd
	 	 	Title:	 	Vice President
	

 	
 	

Lending Office (Base Rate Loans)*
	

 	
 	

Address:	
 	

555 S.W. Oak, PDQRP7LS

Portland, OR 97208

Attn: Hanny Nawawi

Telephone: 503-275-7894

Facsimile: 503-275-8181
	

 	
 	

Lending Office (Eurodollar Loans)*
	

 	
 	

Address:	
 	

555 S.W. Oak, PDQRP7LS

Portland, OR 97208

Attn: Hanny Nawawi

Telephone: 503-275-7894

Facsimile: 503-275-8181




109







 


	 	 	RZB FINANCE LLC,

as a Lender
	

 	
 	

By:	
 	

/s/  F. DIETER BEINTREXLER      

	 	 	Name:	 	F. Dieter Beintrexler
	 	 	Title:	 	President
	

 	
 	

By:	
 	

/s/  ASTRID WILKE      

	 	 	Name:	 	Astrid Wilke
	 	 	Title:	 	Vice President
	

 	
 	

Lending Office (Base Rate Loans)*
	

 	
 	

Address:	
 	

24 Grassy Plain Street

Bethel, CT 06801

Telephone: 203-207-7738

Facsimile: 203-744-6474
	

 	
 	

Lending Office (Eurodollar Loans)*
	

 	
 	

Address:	
 	

24 Grassy Plain Street

Bethel, CT 06801

Attn: Terri Weiner

Telephone: 203-207-7738

Facsimile: 203-744-6474




110











QuickLinks


TABLE OF CONTENTS

EXHIBITS AND SCHEDULES


SENIOR SECURED WORKING CAPITAL CREDIT FACILITY

W I T N E S S E T H

ARTICLE I DEFINITIONS


ARTICLE II LOANS


ARTICLE III LETTERS OF CREDIT


ARTICLE IV INTEREST AND FEES

ARTICLE V CONDITIONS PRECEDENT

ARTICLE VI REPRESENTATIONS AND WARRANTIES


ARTICLE VII AFFIRMATIVE COVENANTS

ARTICLE VIII FINANCIAL COVENANTS

ARTICLE IX NEGATIVE COVENANTS


ARTICLE X POWERS

ARTICLE XI EVENTS OF DEFAULT AND REMEDIES

ARTICLE XII TERMINATION

ARTICLE XIII THE AGENT



ARTICLE XIV MISCELLANEOUS