CONSENT AND AMENDMENT
April 15, 2005
RECITALS:
Reference is made to that certain Amended and Restated Credit Agreement
dated as of June 1, 2004 (as heretofore amended or supplemented, the
"Agreement"), among Genesis Crude Oil, L.P., a Delaware limited partnership
("Borrower"), Genesis Energy, Inc., a Delaware corporation ("General Partner"),
Genesis Energy, L.P. ("Genesis Energy L.P."), a Delaware limited partnership,
Fleet National Bank, as administrative agent ("Administrative Agent"), Fleet
Securities, Inc. as exclusive arranger and book manager and the lenders party
thereto (the "Lenders"). Capitalized terms used herein and not otherwise
defined shall have the meanings given them in the Agreement.
Borrower has notified Administrative Agent that, during 2004, Borrower
incurred certain one time fees and expenses to implement procedures to comply
with the Xxxxxxxx-Xxxxx Act (such one-time extraordinary costs and expenses
being herein collectively called the "Compliance Expenses").
Xxxxxxxx has requested that Required Lenders treat up to an aggregate
amount not exceeding $1,100,000 of the Compliance Expenses as "extraordinary
losses" with respect to the first Fiscal Quarter of 2005 for purposes of clause
(ii) of the definition of Consolidated Net Income.
Additionally, in order to permit certain acquisitions contemplated by
Xxxxxxxx, Xxxxxxxx has requested that Required Lenders amend the definition of
"Permitted Acquisition" to allow Borrower to acquire assets involved in the
processing of Petroleum Inventory or carbon dioxide.
AGREEMENT:
The undersigned Lenders hereby consent to the treatment of up to an
aggregate amount not exceeding $1,100,000 of the Compliance Expenses as
"extraordinary losses" during the first Fiscal Quarter of 2005 for purposes of
clause (ii) of the definition of Consolidated Net Income.
Borrower, the Required Lenders and the Administrative Agent hereby
agree that, subject to the terms and conditions set forth herein, effective as
of the date hereof, the definition of "Permitted Acquisition" in Section 1.01 of
the Agreement is amended in its entirety to read as follows:
"Permitted Acquisitions" means (A) the acquisition of all of
the capital stock or other equity interest in a Person (exclusive of
general partner interests held by General Partner not in excess of a 1%
economic interest and exclusive of director qualifying shares and other
Equity Interests required to be held by an Affiliate to comply with a
requirement of Law), including an acquisition through a merger or
consolidation of such Person with or into a Loan Party or (B) any other
acquisition of all or a portion of the business, assets or operations
of a Person (whether in a single transaction or a series of related
transactions); provided that (i) prior to and after giving effect to
such acquisition no Default or Event of Default shall have occurred and
be continuing; (ii) all representations and warranties shall be true
and correct as if restated immediately following the consummation of
such acquisition; (iii) substantially all of such business, assets and
operations so acquired, or of the Person so acquired, consists of
marketing, gathering, transportation, storage, terminaling, processing
and pipeline operation of Petroleum Inventory or carbon dioxide;
provided, however that Administrative Agent shall have the reasonable
opportunity to review the due diligence conducted for the acquisition
of any processing business, assets and operations, including but not
limited to supply and sales contracts; and (iv) such acquisition is
either (x) for a purchase price not to exceed $25,000,000 for any
Denbury Carbon Dioxide Acquisition described in Schedule 1.1 or (y) for
a purchase price not to exceed $15,000,000 for each other acquisition,
or for a series of related acquisitions, from and after the date of
this Agreement.
This Consent and Amendment shall become effective as of the date first
above written when, and only when, (a) Administrative Agent shall have received,
at Administrative Agent's Office on or before April 15, 2005, (i) a counterpart
of this Consent and Amendment executed and delivered by Xxxxxxxx, General
Partner, Genesis Energy, L.P. and Required Lenders and (ii) and a counterpart of
the Consent and Agreement to this Consent and Amendment executed and delivered
by Genesis Pipeline Texas, L.P. and Genesis Pipeline USA, L.P. and (b)
Administrative Agent shall have received, for the account of each Lender who
executes this Consent and Amendment on or before April 15, 2005, an amendment
fee equal to 0.10% of the aggregate Commitment of such Lender.
Xxxxxxxx, General Partner and Genesis Energy L.P., each hereby
represent and warrant to Administrative Agent and each Lender the following:
(a) Immediately after giving effect to this Consent and Amendment there
shall exist no Default or Event of Default and immediately after giving effect
to this Consent and Amendment all representations and warranties contained
herein, in the Agreement or otherwise made in writing by any Loan Party in
connection herewith or therewith shall be true and correct in all material
respects with the same force and effect as if those representations and
warranties had been made on and as of the date hereof.
(b) The representations and warranties contained in the Loan Documents
are true and correct at and as of the time of the effectiveness hereof.
(c) Loan Parties (i) are duly authorized to execute and deliver any
documents hereunder to which they are a party and are and will continue to be
duly authorized to perform their obligations thereunder and (ii) have duly taken
all corporate or other entity action necessary to authorize the execution and
delivery of said documents to which they are a party and to authorize the
performance of the obligations of such Loan Party thereunder.
Except as expressly waived or agreed herein, all covenants, obligations
and agreements of the Restricted Persons contained in the Agreement shall remain
in full force and effect in accordance with their terms. Without limitation of
the foregoing, the consents, waivers and agreements set forth herein are limited
precisely to the extent set forth herein and shall not be deemed to (a) be a
consent or agreement to, or waiver or modification of, any other term or
condition of the Agreement or any of the documents referred to therein, or (b)
except as expressly set forth herein, prejudice any right or rights which
Administrative Agent and Lenders may now have or may have in the future under or
in connection with the Agreement or any of the documents referred to therein.
Except as expressly modified or amended hereby, the terms and provisions of the
Agreement and any other documents or instruments executed in connection with any
of the foregoing, are and shall remain in full force and effect, and the same
are hereby ratified and confirmed by Xxxxxxxx, General Partner and Genesis
Energy L.P. in all respects. Any reference to the Agreement in any Loan Document
shall be deemed to be a reference to the Agreement as modified and amended
hereby. The Agreement as hereby amended is hereby ratified and confirmed in all
respects.
Borrower, General Partner and Genesis Energy L.P. agree to reimburse
and save Administrative Agent harmless from and against liabilities for the
payment of all out-of-pocket costs and expenses arising in connection with the
preparation, execution, delivery, amendment, modification, waiver and
enforcement of, or the preservation of any rights under, this Consent and
Amendment, including, without limitation, the reasonable fees and expenses of
legal counsel to Administrative Agent which may be payable in respect of, or in
respect of any modification of, this Consent and Amendment.
This Consent and Amendment and the rights and obligations of the
parties hereunder shall be construed in accordance with and be governed by the
laws of the State of New York.
This Consent and Amendment is a "Loan Document" as defined and
described in the Agreement and all of the terms and provisions of the Agreement
relating to Loan Documents shall apply hereto.
This Consent and Amendment may be separately executed in counterparts
and by the different parties hereto in separate counterparts, each of which when
so executed shall be deemed to constitute one and the same agreement.
THIS CONSENT AND AMENDMENT AND THE DOCUMENTS REFERRED TO HEREIN
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the undersigned parties have executed this Consent
and Amendment as of the date first written above.
FLEET NATIONAL BANK,
in its capacity as Administrative Agent and as a
Lender
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
GENESIS CRUDE OIL, L.P.
By: Genesis Energy, Inc., its General Partner
By: /s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx, Chief Financial Officer
GENESIS ENERGY, INC.
By: /s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx, Chief Financial Officer
GENESIS ENERGY, L.P.
By: Genesis Energy, Inc., its General Partner
By: /s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx, Chief Financial Officer
Signature Page to Consent and Amendment
dated April 15, 2005
In Witness Whereof, the undersigned Xxxxxx hereby enters into the
Consent and Amendment dated as of April 15, 2005 among Genesis Crude Oil, L.P.,
Genesis Energy, Inc., Genesis Energy, L.P., Fleet National Bank, as
Administrative Agent and the Lender's signatory thereto.
X.X.Xxxx National Association
Name of Lender
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President
Signature Page to Consent and Amendment
dated April 15, 2005
In Witness Whereof, the undersigned Xxxxxx hereby enters into the
Consent and Amendment dated as of April 15, 2005 among Genesis Crude Oil, L.P.,
Genesis Energy, Inc., Genesis Energy, L.P., Fleet National Bank, as
Administrative Agent and the Lender's signatory thereto.
GUARANTY BANK
Name of Lender
By: /s/ Xxx X. Xxxxxxxx
Name: Xxx X. Xxxxxxxx
Title: Senior Vice President
Signature Page to Consent and Amendment
dated April 15, 2005
In Witness Whereof, the undersigned Xxxxxx hereby enters into the
Consent and Amendment dated as of April 15, 2005 among Genesis Crude Oil, L.P.,
Genesis Energy, Inc., Genesis Energy, L.P., Fleet National Bank, as
Administrative Agent and the Lender's signatory thereto.
BANK OF SCOTLAND
Name of Lender
By: /s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Assistant Vice President
Signature Page to Consent and Amendment
dated April 15, 2005
In Witness Whereof, the undersigned Xxxxxx hereby enters into the
Consent and Amendment dated as of April 15, 2005 among Genesis Crude Oil, L.P.,
Genesis Energy, Inc., Genesis Energy, L.P., Fleet National Bank, as
Administrative Agent and the Lender's signatory thereto.
UFJ BANK LIMITED, NEW YORK BRANCH
Name of Lender
By: /s/ X. X. Xxxxxxx
Name: X. X. Xxxxxxx
Title: Vice President
CONSENT AND AGREEMENT
Each of the undersigned hereby consents to the provisions of this
Consent and Amendment, hereby ratifies and confirms the Loan Documents, as
defined in the Agreement, to which it is a party and agrees that its obligations
and covenants thereunder are unimpaired hereby and shall remain in full force
and effect.
GENESIS PIPELINE TEXAS, L.P.
By: GENESIS ENERGY, INC., its general partner
By: /s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx
Chief Financial Officer
GENESIS PIPELINE USA, L.P.
By: GENESIS ENERGY, INC., its general partner
By: /s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx
Chief Financial Officer
