SECOND AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT dated as of February 5, 2010 among GENESIS CRUDE OIL, L.P., as the Borrower, GENESIS ENERGY, L.P., as the Parent, and the Lenders Party Hereto
Exhibit
10.1
SECOND
AMENDMENT
TO
FIRST
AMENDED AND RESTATED CREDIT AGREEMENT
dated
as of
February
5, 2010
among
GENESIS
CRUDE OIL, L.P.,
as
the Borrower,
GENESIS
ENERGY, L.P.,
as
the Parent,
and
the
Lenders Party Hereto
FORTIS
CAPITAL CORP.,
as
Administrative Agent,
DEUTSCHE
BANK SECURITIES INC.,
as
Syndication Agent,
and
BANK
OF AMERICA, N.A.,
U.S.
BANK NATIONAL ASSOCIATION,
WACHOVIA
BANK, NATIONAL ASSOCIATION,
BMO
CAPITAL MARKETS FINANCING, INC.,
ROYAL
BANK OF CANADA, and
SUNTRUST
BANK,
as
Co-Documentation Agents
SECOND
AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO FIRST AMENDED AND
RESTATED CREDIT AGREEMENT (this “Second Amendment”) dated as of
February 5, 2010, is by and among GENESIS CRUDE OIL, L.P., a
Delaware limited partnership (the “Borrower”), GENESIS ENERGY, L.P., a
Delaware limited partnership (the “Parent”), FORTIS CAPITAL CORP., as
administrative agent (in such capacity, together with its successors in such
capacity, the “Administrative
Agent”) for the lenders party to the Credit Agreement referred to below
(collectively, the “Lenders”), and the undersigned
Lenders.
R E C I T A L
S
A. The
Borrower, the Parent, the Lenders, the Administrative Agent and the other agents
referred to therein are parties to that certain First Amended and Restated
Credit Agreement dated as of May 30, 2008 (the “Original Credit Agreement”), pursuant
to which the Lenders have made certain Loans and provided certain Commitments
(subject to the terms and conditions thereof) to the Borrower, as amended by
that certain First Amendment to First Amended and Restated Credit Agreement
dated as of July 18, 2008 (the “First Amendment”, and the
Original Credit Agreement as amended by the First Amendment, the “Credit
Agreement”).
B.
The Parent and the Borrower wish, and the Lenders signatory hereto
and the Administrative Agent are willing, to amend the Credit Agreement as more
fully described herein.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants herein
contained, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
Section
1. Defined
Terms. Each capitalized term used herein but not otherwise
defined herein has the meaning given such term in the Credit
Agreement. Unless otherwise indicated, all article, schedule, exhibit
and section references in this Second Amendment refer to articles and sections
of the Credit Agreement.
As used
in this Second Amendment, the following term has the meaning specified
below:
“Second Amendment Effective
Date” has the meaning assigned to such term in Section 3
hereof.
Section
2. Amendments to Credit
Agreement.
2.1 Amendments to Section 1.01
(Defined Terms).
(a) The
definition of “Agreement” is hereby amended
and restated in its entirety to read as follows:
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“Agreement” means the Existing
Credit Agreement, as amended and restated by this First Amended and Restated
Credit Agreement, as further amended by the First Amendment and the Second
Amendment, as the same may from time to time be amended, modified, restated, or
replaced from time to time, and any annexes, exhibits and schedules to any of
the foregoing.
(b) The
definition of “Change in
Control” is hereby amended and restated in its entirety to read as
follows:
“Change in Control” means the
occurrence of any of the following events: (i) the Parent and the
Restricted Subsidiaries (other than Restricted Subsidiaries that are Controlled,
or directly or indirectly owned (in whole or in part), by the Borrower) shall
cease to be the sole legal or beneficial owners (within the meaning of Rule
13d-3 under the Securities Exchange Act of 1934, as amended) of one-hundred
percent (100%) of the limited partnership interests of the Borrower (including
all securities which are convertible into limited partner interests), or (ii)
the General Partner shall cease to be the sole general partner of the Parent, or
(iii) the Continuing Directors shall cease to collectively constitute a majority
of the members of the board of directors of the General Partner, or (iv) members
of the Permitted Investor Group, collectively, shall cease to Control the
General Partner, or (v) any Restricted Subsidiary that is a partnership shall
cease to have as its general partner either the General Partner, the Parent or
another Restricted Subsidiary. As used herein, “Continuing Director”
means any member of the board of directors of the General Partner who (w) is a
member of such board of directors as of the date hereof or is specified in the
Parent’s filings with the SEC prior to the date hereof as a Person who is to
become a member of such board as of the Second Amendment Effective Date, (x) was
nominated for election or elected to such board of directors with the approval
of at least a majority of the Continuing Directors who were members of such
board at the time of such nomination or election; or (y) is a designee of a
member of the Permitted Investor Group.
(c)
The following definitions are hereby added to Section 1.01 of the Credit
Agreement where alphabetically appropriate:
“Family” means (i) an
individual, (ii) such individual’s spouse, (iii) any other natural person who is
related to such individual or such individual’s spouse within the second degree
of kinship and (iv) any other natural person who has been adopted by such
individual.
“Management Group” means (i)
members of the executive management personnel of the General Partner, (ii) any
spouse or descendant of any individual named in (i), (iii) any other natural
person who is a member of the Family of any such
individual referenced in (i)-(ii) above, (iv) any other natural
person who has been adopted by any such individual referenced in (i)-(iii)
above, and (v) any Related Person of any such Person referenced in (i)-(iv)
above.
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“Permitted Investor Group”
means the Xxxxxxxx Group, the Xxxxxxxxx Group and the Management
Group.
“Q GEI Holdings, LLC” is a
Delaware limited liability company controlled, directly or indirectly, by
Xxxxxxxx Capital Group II, L.P., its affiliated investment funds or their
respective Controlled Affiliates.
“Xxxxxxxx Acquisition” means
the acquisition by Q Genesis Acquisition, LLC, a Delaware limited liability
company, or its designees of, inter alia, all of the Class
A membership interests in the General Partner held by Denbury Resources Inc., a
Delaware corporation, through its subsidiary Denbury Gathering & Marketing,
Inc.
“Xxxxxxxx Group” means Xxxxxxxx
Capital Group GP Ltd., QEP Management Co. GP, LLC, Xxxxxxxx Capital Group II,
L.P., its affiliated investment funds, Q GEI Holdings, LLC, or any of their
respective Controlled Affiliates.
“Related Person” means, with
respect to a particular Person: (a) each other member of an individual’s Family;
(b) any
Person that is directly or indirectly Controlled by such individual and/or any
one or more members of such individual’s Family; (c) any Person with respect to
which such Person and/or one or more members of such Person’s Family and/or all
Related Persons thereto, collectively, constitute at least a majority of the
executors or trustees thereof (or in a similar capacity); and (d) any person
that is an estate planning vehicle (such as a trust) of which such Person and/or
one or more members of such Person’s Family and/or any Related Persons thereto,
collectively, are substantial beneficiaries.
“Xxxxxxxxx Family” means (i)
Xxxxxx X. Xxxxxxxxx, Xx., Xxxxxx X. Xxxxxxxxx, III, Xxxxxxx X. Xxxxxxxxx and
Xxxxxxxxx X. Xxxxxx, (ii) any spouse or descendant of any individual named in
(i), (iii) any other natural person who is a member of the Family of any such
individual referenced in (i)-(ii) above, and (iv) any other natural person who
has been adopted by any such individual referenced in (i)-(iii)
above.
“Xxxxxxxxx Group” means (i) any
member of the Xxxxxxxxx Family, (ii) any Related Person of any such member, and
(iii) Xxxxxx X. Xxxxxx Estate Trust for Xxxxxx X. Xxxxxxxxx, Xx., Xxxx X. Xxxxxx
Estate Trust for Xxxxxx X. Xxxxxxxxx, Xx., 1953 Trust for Xxxxxx X. Xxxxxxxxx,
Xx., Corby & Xxxxxx Xxxxxxxxx 2006 Family Trust, Xxxxxx 2006 Family Trust,
The Xxxxxxx X. Xxxxxxxxx 2007 Family Trust, The Xxxxxx X. Xxxxxxxxx III 2009
Family Trust, The Xxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxx 2009 Family Trust, and The
Xxxxxxx X. Xxxxxxxxx 2009 Family Trust. For the avoidance of doubt,
the Persons named in part (iii) above may be Related Person’s of members of the
Xxxxxxxxx Family.
3
“Second Amendment” means the
Second Amendment to First Amended and Restated Credit Agreement, dated as of
February 5, 2010, among the Borrower, the Parent, the Administrative Agent, the
Lenders party thereto, and the other agents and parties thereto.
“Second Amendment Effective
Date” has the meaning assigned to such term in the Second
Amendment.
Section
3. Conditions
Precedent. This Second Amendment shall not become effective
until the date (the “Second
Amendment Effective Date”) on which each of the following conditions is
satisfied (or waived in accordance with Section 10.02 of the Credit
Agreement):
(a) The
Administrative Agent shall have received from the Lenders required by the Credit
Agreement, the Parent, and the Borrower, executed counterparts (in such number
as may be requested by the Administrative Agent) of this Second
Amendment.
(b) The
Administrative Agent shall have received a certificate of an Authorized Officer
of the Parent certifying that the Xxxxxxxx Acquisition: (i) will be consummated
concurrently with the effectiveness of this Second Amendment and in all material
respects in accordance with all applicable Governmental Requirements and (ii)
(A) will not violate or result in a default under any material indenture,
agreement or other instrument binding upon the Parent or any Subsidiary or their
respective assets, or give rise to a right thereunder to require any material
payment to be made by the Parent or any Subsidiary, or give rise to a right by
any Person to purchase any assets of the Parent or any Subsidiary and (B) will
not result in the creation or imposition of any material Lien on any Property of
the Parent or any Subsidiary.
(c) The
Administrative Agent, the Arrangers and the Lenders shall have received all fees
and other amounts due and payable on or prior to the Second Amendment Effective
Date (including the amendment fee), including, to the extent invoiced,
reimbursement or payment of all out of pocket expenses required to be reimbursed
or paid by the Borrower hereunder.
(d) No
Default or Event of Default shall exist immediately before or after giving
effect to this Second Amendment, and the representations and warranties of the
Borrower Parties set forth herein shall be true and correct.
The
Administrative Agent shall notify the Borrower and the Lenders of the Second
Amendment Effective Date, and such notice shall be conclusive and
binding.
Section
4. Miscellaneous.
4.1 Confirmation. The
provisions of the Loan Documents, as amended by this Second Amendment, shall
remain in full force and effect in accordance with their terms following the
effectiveness of this Second Amendment.
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4.2 Ratification and
Affirmation; Representations and Warranties. Each Borrower
Party hereby (a) ratifies and affirms its obligations under, and acknowledges,
renews and extends its continued liability under, each Loan Document to which it
is a party and agrees that each Loan Document to which it is a party remains in
full force and effect, except as expressly amended hereby, notwithstanding the
amendments contained herein and (b) represents and warrants to the Lenders
that: (i) as of the date hereof, after giving effect to the terms of
this Second Amendment, all of the representations and warranties contained in
each Loan Document to which it is a party are true and correct, except to the
extent any such representations and warranties are expressly limited to an
earlier date, in which case, such representations and warranties shall continue
to be true and correct as of such specified earlier date as supplemented or
subject to such qualifications as are set forth in the applicable Schedule(s) as
of the Effective Date and (ii) (A) as of the date hereof, no Default has
occurred and is continuing and (B) immediately after giving effect to this
Second Amendment, no Default will have occurred and be continuing.
4.3 Credit
Document. This Second Amendment and each agreement,
instrument, certificate or document executed by the Borrower Parties or any of
their respective officers in connection therewith are “Loan Documents” as
defined and described in the Credit Agreement and all of the terms and
provisions of the Loan Documents relating to other Loan Documents shall apply
hereto and thereto.
4.4 Counterparts. This
Second Amendment may be executed by one or more of the parties hereto in any
number of separate counterparts, and all of such counterparts taken together
shall be deemed to constitute one and the same instrument. Delivery
of this Second Amendment by facsimile or other electronic transmission shall be
effective as delivery of a manually executed counterpart hereof.
4.5 NO ORAL
AGREEMENT. THIS SECOND AMENDMENT, THE CREDIT AGREEMENT AND THE
OTHER LOAN DOCUMENTS EXECUTED IN CONNECTION HEREWITH AND THEREWITH REPRESENT THE
FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR UNWRITTEN ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO SUBSEQUENT ORAL AGREEMENTS BETWEEN THE
PARTIES.
4.6 GOVERNING
LAW. THIS SECOND AMENDMENT (INCLUDING, BUT NOT LIMITED TO, THE
VALIDITY AND ENFORCEABILITY HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[SIGNATURES
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IN
WITNESS WHEREOF, the parties hereto have caused this Second Amendment to be duly
executed as of the date first written above.
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BORROWER:
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GENESIS
CRUDE OIL, L.P.
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By:
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GENESIS
ENERGY, LLC, its general partner
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By:
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/s/ R. V. Deere
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Name:
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R.
V. Deere
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Title:
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CFO
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PARENT:
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GENESIS
ENERGY, L.P.
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By:
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GENESIS
ENERGY, LLC, its general partner
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By:
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/s/ R. V. Deere
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Name:
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R.
V. Deere
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Title:
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CFO
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[Signature
Page to Second Amendment to First Amended and Restated Credit
Agreement]
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ADMINISTRATIVE AGENT,
ARRANGER AND LENDER:
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FORTIS
CAPITAL CORP.
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By:
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/s/ Mei Xxx Xxxx
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Name:
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Mei
Xxx Xxxx
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Title:
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Director
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By:
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/s/ Xxxx Xxxxxxxx
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Name:
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Xxxx
Xxxxxxxx
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Title:
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Director
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[Signature
Page to Second Amendment to First Amended and Restated Credit
Agreement]
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ARRANGER:
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DEUTSCHE
BANK SECURITIES INC.
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By:
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/s/ Xxxxx X. Xxxxxx
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Name:
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Xxxxx
X. Xxxxxx
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Title:
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Director
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By:
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/s/ Xxxxxx Xxxxxx
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Name:
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Xxxxxx
Xxxxxx
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Title:
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Vice
President
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By:
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/s/ Xxxxxxx Xxxx
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Name:
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Xxxxxxx
Xxxx
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Title:
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Associate
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LENDER:
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DEUTSCHE
BANK TRUST COMPANY
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AMERICAS
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By:
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/s/ Xxxxxx X. Xxxxxxxxxx
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Name:
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Xxxxxx
X. Xxxxxxxxxx
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Title:
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Director
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By:
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/s/ Xxxx X’Xxxxx
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Name:
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Xxxx
X’Xxxxx
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Title:
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Director
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[Signature
Page to Second Amendment to First Amended and Restated Credit
Agreement]
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LENDER:
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BANK
OF AMERICA, N.A.
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By:
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/s/ Xxxxxxx X. Xxxxxxx
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Name:
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Xxxxxxx
X. Xxxxxxx
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Title:
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Managing
Director
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[Signature
Page to Second Amendment to First Amended and Restated Credit
Agreement]
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LENDER:
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U.S.
BANK NATIONAL ASSOCIATION
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By:
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/s/ Xxxxxxx X. Xxx
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Name:
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Xxxxxxx
X. Xxx
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Title:
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Vice
President
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[Signature
Page to Second Amendment to First Amended and Restated Credit
Agreement]
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WACHOVIA
BANK, NATIONAL ASSOCIATION
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By:
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/s/ Xxxxxxx Xxxxx
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Name:
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Xxxxxxx
Xxxxx
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Title:
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Senior
Vice President
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[Signature
Page to Second Amendment to First Amended and Restated Credit
Agreement]
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BANK
OF SCOTLAND plc
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By:
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/s/ Xxxxx X. Xxxxxxxx
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Name:
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Xxxxx
X. Xxxxxxxx
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Title:
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Assistant
Vice President
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[Signature
Page to Second Amendment to First Amended and Restated Credit
Agreement]
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BMO
CAPITAL MARKETS FINANCING, INC.
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By:
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/s/ Xxxxxx Xxxxxxxx
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Name:
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Xxxxxx
Xxxxxxxx
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Title:
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Director
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[Signature
Page to Second Amendment to First Amended and Restated Credit
Agreement]
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COMERICA
BANK
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By:
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/s/ Xxxxxxx X. Xxxxx
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Name:
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Xxxxxxx
X. Xxxxx
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Title:
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Senior
Vice President
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[Signature
Page to Second Amendment to First Amended and Restated Credit
Agreement]
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GUARANTY
BANK
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By:
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/s/ Xxxx Xxxxxxxxx
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Name:
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Xxxx
Xxxxxxxxx
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Title:
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Senior
Vice President
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[Signature
Page to Second Amendment to First Amended and Restated Credit
Agreement]
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ROYAL
BANK OF CANADA
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By:
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/s/ Xxxxx X. York
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Name:
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Xxxxx
X. York
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Title:
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Authorized
Signatory
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[Signature
Page to Second Amendment to First Amended and Restated Credit
Agreement]
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SUNTRUST
BANK
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By:
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/s/ Xxxxxx X. Xxxxxxx
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Name:
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Xxxxxx
X. Xxxxxxx
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Title:
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Vice
President
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[Signature
Page to Second Amendment to First Amended and Restated Credit
Agreement]
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AMEGY
BANK NATIONAL ASSOCIATION
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By:
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/s/ Xxxxxxx Xxxxx
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Name:
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Xxxxxxx
Xxxxx
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Title:
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AVP
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[Signature
Page to Second Amendment to First Amended and Restated Credit
Agreement]
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STERLING
BANK
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By:
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/s/ Xxxx X. Xxxxxxx
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Name:
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Xxxx
X. Xxxxxxx
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Title:
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Vice
President
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[Signature
Page to Second Amendment to First Amended and Restated Credit
Agreement]
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UNION
BANK OF CALIFORNIA, N.A.
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By:
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Name:
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Title:
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[Signature
Page to Second Amendment to First Amended and Restated Credit
Agreement]
