-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, AQfJYpxMwub9MElSWglrG4crQ9O78OU5CJCwZMAVrEvX+gufXopZGuZRdnLyktmi 5WoVWLbEEYhqcbSG+WEUcA== 0001022321-03-000012.txt : 20030325 0001022321-03-000012.hdr.sgml : 20030325 20030325172622 ACCESSION NUMBER: 0001022321-03-000012 CONFORMED SUBMISSION TYPE: 10-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 20021231 FILED AS OF DATE: 20030325 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GENESIS ENERGY LP CENTRAL INDEX KEY: 0001022321 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-PETROLEUM BULK STATIONS & TERMINALS [5171] IRS NUMBER: 760513049 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-12295 FILM NUMBER: 03616406 BUSINESS ADDRESS: STREET 1: 500 DALLAS SUITE 2500 CITY: HOUSTON STATE: TX ZIP: 77002 BUSINESS PHONE: 7138602500 MAIL ADDRESS: STREET 1: 500 DALLAS SUITE 2500 CITY: HOUSTON STATE: TX ZIP: 77002 10-K 1 f10k02.txt 10K GENESIS ENERGY, L.P UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Form 10-K X ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE - ------- ACT OF 1934 For the fiscal year ended December 31, 2002 OR - -------TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 Commission file number 1-12295 GENESIS ENERGY, L.P. (Exact name of registrant as specified in its charter) Delaware 76-0513049 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 500 Dallas, Suite 2500, Houston, Texas 77002 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (713) 860-2500 Securities registered pursuant to Section 12(b) of the Act: Name of Each Exchange Title of Each Class on Which Registered ------------------- --------------------- Common Units American Stock Exchange Securities registered pursuant to Section 12(g) of the Act: NONE Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes |X| No Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. |X| Indicate by check mark whether the registrant is an accelerated filer (as defined by Rule 12b-2 of the Securities Exchange Act of 1934). ------- Aggregate market value of the Common Units held by non-affiliates of the Registrant, based on closing prices in the daily composite list for transactions on the American Stock Exchange on June 28, 2002, was approximately $32,861,250. At March 3, 2003, 8,625,000 Common Units were outstanding. 2 GENESIS ENERGY, L.P. 2002 FORM 10-K ANNUAL REPORT Table of Contents Page Part I Item 1. Business....................................................... 3 Item 2. Properties..................................................... 10 Item 3. Legal Proceedings.............................................. 11 Item 4. Submission of Matters to a Vote of Security Holders............ 11 Part II Item 5. Market for Registrant's Common Units and Related Security Holder Matters................................................. 11 Item 6. Selected Financial Data........................................ 12 Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations...................................... 13 Item 7a. Quantitative and Qualitative Disclosures about Market Risk..... 32 Item 8. Financial Statements and Supplementary Data.................... 32 Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure....................................... 32 Part III Item 10. Directors and Executive Officers of the Registrant............. 33 Item 11. Executive Compensation......................................... 34 Item 12. Security Ownership of Certain Beneficial Owners and Management. 36 Item 13. Certain Relationships and Related Transactions................. 37 Item 14. Controls and Procedures........................................ 37 Part IV Item 15. Exhibits, Financial Statement Schedules and Reports on Form 8-K 38 CERTIFICATIONS ........................................................... 41 3 PART I Item 1. Business General Genesis Energy, L.P., a Delaware limited partnership, was formed in December 1996. We conduct our operations through our affiliated limited partnership, Genesis Crude Oil, L.P. and its subsidiary partnerships (collectively, the "Partnership" or "Genesis"). We are an independent gatherer and marketer of crude oil. Our operations are concentrated in Texas, Louisiana, Alabama, Florida, Mississippi and New Mexico. In our gathering and marketing business, we are principally engaged in the purchase and aggregation of crude oil at the wellhead for resale at various points along the crude oil distribution chain, which extends from the wellhead to aggregation at terminal facilities, refineries and other end markets (the "Distribution Chain"). Our gathering and marketing margins are generated by buying crude oil at competitive prices, efficiently transporting or exchanging the crude oil along the Distribution Chain and marketing the crude oil to customers at favorable prices. We utilize our trucking fleet of 74 leased tractor-trailers and our gathering lines to transport crude oil. We also transport purchased crude oil on trucks, barges and pipelines owned and operated by third parties. In the fourth quarter of 2002, we purchased an average of approximately 63,000 barrels per day of crude oil at the wellhead. We also make bulk purchases of crude oil at pipeline and terminal facilities. When opportunities arise to increase margin or to acquire a grade of crude oil that more nearly matches the specifications for crude oil we are obligated to deliver, we may exchange crude oil with third parties through exchange or buy/sell agreements. These purchases were significantly reduced in 2002 compared to prior years. In the fourth quarter of 2002, our bulk and exchange transactions averaged 20,000 barrels per day, down from 260,000 barrels per day in the fourth quarter of 2001. The reduction is attributable primarily to credit requirements for these transactions as discussed below. In addition to our gathering and marketing business, our operations include transportation of crude oil at regulated published tariffs on our three common carrier pipeline systems. We transported a total of approximately 77,000 barrels per day on our three common carrier crude oil pipeline systems and related gathering lines during the fourth quarter of 2002. These systems are the Texas System, the Jay System extending between Florida and Alabama, and the Mississippi System extending between Mississippi and Louisiana. These pipeline systems have numerous points where the crude oil owned by the shipper can be injected into the pipeline for delivery to or transfer to connecting pipelines. Genesis earns a tariff for the transportation services, with the tariff rate per barrel of crude oil varying with the distance from injection point to delivery point. Genesis Energy, Inc. (the "General Partner"), a Delaware corporation, serves as the sole general partner of Genesis Energy, L.P., Genesis Crude Oil,L.P. (GCOLP) and GCOLP's subsidiary partnerships, Genesis Pipeline Texas, L.P.and Genesis Pipeline USA, L.P. The General Partner is owned by Denbury Gathering & Marketing, Inc., a subsidiary of Denbury Resources Inc. Denbury acquired the General Partner from Salomon Smith Barney Holdings Inc. and Salomon Brothers Holding Company Inc. in May 2002. Business Overview In our gathering and marketing business, we seek to purchase and sell crude oil at points along the Distribution Chain where gross margins can be achieved. We generally purchase crude oil at prevailing prices from producers at the wellhead under short-term contracts and then transport the crude oil along the Distribution Chain for sale to or exchange with customers. Our margins from our gathering and marketing operations are generated by the difference between the price of crude oil at the point of purchase and the price of crude oil at the point of sale, minus the associated costs of aggregation and transportation and the cost of supplying credit in the form of letters of credit or guaranties. We generally enter into an exchange transaction only when the cost of the exchange is less than the alternative costs that it would otherwise incur in transporting or storing the crude oil. In addition, we may exchange one grade of crude oil for another to maximize margins or meet contract delivery requirements. Gross margin from gathering, marketing and pipeline operations varies from period to period, depending to a significant extent upon changes in the supply and demand of crude oil and the resulting changes in U.S. crude oil inventory levels. Generally, as we purchase crude oil, we simultaneously establish a margin by selling crude oil for physical delivery to third party users, such as independent refiners or major oil companies. Through these transactions, we seek to maintain a position that is substantially balanced between crude oil purchases, on the one 4 hand, and sales or future delivery obligations, on the other hand. It is our policy not to acquire and hold crude oil, futures contracts or other derivative products for the purpose of speculating on crude oil price changes. Oil prices rose in the latter half of 2002 such that the NYMEX price for WTI was $31.20 at December 31, 2002. International factors such as the strike by oil workers in Venezuela and the potential for war with Iraq as well as domestic influences such as the supply of crude oil in the United States have contributed to the price increase. An increase in the market price of crude oil does not impact us to the extent many people expect. When market prices for oil increase, we must pay more for crude oil, but we normally are able to sell it for more. To the extent we have crude oil inventories, we can be impacted by market-price changes. Most of our contracts for the purchase and sale of crude oil have components in the pricing provisions such that the price paid or received is adjusted for changes in the market price for crude oil. Typically the pricing in a contract to purchase crude oil will consist of the market price component and a bonus, which is generally a fixed amount ranging from a few cents to several dollars. Typically the pricing in a contract to sell crude oil will consist of the market price component and a bonus that is not fixed, but instead is based on another market factor. This floating bonus is usually the price quoted by Platt's for WTI "P-Plus". Because the bonus for purchases of crude oil is fixed and P-Plus floats in the sales contracts, the margin on an individual transaction can vary from month-to-month depending on changes in the P-Plus component. P-Plus does not necessarily move in correlation with the price of oil in the market. P-Plus is affected by numerous factors such as future expectations for changes in crude oil prices, such that crude oil prices can be rising, but P-Plus can be decreasing. Some purchase contracts and sale contracts also include a component for grade differentials. The grade refers to the type of crude oil. Crude oils from different wells and areas can have different chemical compositions. These different grades of crude oil will appeal to different customers depending on the processing capabilities of the refineries who ultimately receive the oil. When we set a fixed bonus, we take into consideration the typical grade differences in the market.. If we then sell the oil under a contract with a floating grade differential in the formula, and that grade differential fluctuates, we can then experience an increase or decrease in our gross margin from that oil purchase and sale. This volatility in grade differentials adds volatility to our gross margins. The purchase and sales contracts are primarily "Evergreen" contracts which means they continue from month to month unless one of the parties to the contract gives 30-days notice of cancellation. In order to change the pricing in a fixed bonus contract, we would have to give 30-days notice that we want to cancel and renegotiate the contract. This notice time requirement, therefore, means that at least a month will pass before the fixed bonus can be reduced to correspond with a decrease in the P-Plus component of the related sales contract. In this case our margin would be reduced until such a change is made. Because of the volatility of P-Plus and grade differentials, it is not practical to renegotiate every purchase contract for every change in P-Plus or a grade differential. So margins from the sale of the crude oil can be volatile as a result of these timing differences. Through the pipeline systems we own and operate, our pipeline subsidiaries transport crude oil for our gathering and marketing subsidiary and other shippers pursuant to tariff rates regulated by the Federal Energy Regulatory Commission ("FERC") or the Texas Railroad Commission. Accordingly, we offer transportation services to any shipper of crude oil, provided that the products tendered for transportation satisfy the conditions and specifications contained in the applicable tariff. Pipeline revenues are a function of the level of throughput and the distance from the point where the crude oil was injected into the pipeline and the delivery point. We also can earn revenue from pipeline loss allowance volumes. In exchange for bearing the risk of pipeline volumetric losses from whatever source, we deduct volumetric pipeline loss allowances and crude quality deductions. Such allowances and deductions are offset by measurement gains and losses. When the allowances exceed measurement losses, the net pipeline loss allowance volumes are earned and recognized as income and inventory available to sell valued at the market price for the crude oil. Until the volumes are sold, they are held as inventory at the lower of cost or market value. When the volumes are sold, any difference between the carrying amount and the sale price is recognized as additional revenue. The margins from the Partnership's pipeline operations are generated by the difference between the regulated published tariff, pipeline loss allowance revenues and the fixed and variable costs of operating and maintaining the pipeline. 5 Producer Services Crude oil purchasers who buy from producers compete on the basis of competitive prices and quality of services. Through our team of crude oil purchasing representatives, we maintain relationships with more than 600 producers. We believe that our ability to offer high-quality field and administrative services to producers is a key factor in our ability to maintain volumes of purchased crude oil and to obtain new volumes. High-quality field services include efficient gathering capabilities, availability of trucks, willingness to construct gathering pipelines where economically justified, timely pickup of crude oil from tank batteries at the lease or production point, accurate measurement of crude oil volumes received, avoidance of spills and effective management of pipeline deliveries. Accounting and other administrative services include securing division orders (statements from interest owners affirming the division of ownership in crude oil purchased by the Partnership), providing statements of the crude oil purchased each month, disbursing production proceeds to interest owners and calculation and payment of production taxes on behalf of interest owners. In order to compete effectively, we must maintain records of title and division order interests in an accurate and timely manner to make prompt and correct payment of crude oil production proceeds on a monthly basis, together with the correct payment of all severance and production taxes associated with such proceeds. In 2002, we distributed payments to approximately 15,000 interest owners. Credit Our credit standing is a major consideration for parties with whom we do business. At times, in connection with our crude oil purchases or exchanges, we are required to furnish guarantees or letters of credit. In most purchases from producers and most exchanges, an open line of credit is extended by the seller up to a dollar limit, with credit support required for amounts in excess of the limit. When we market crude oil, we must determine the amount, if any, of the line of credit to be extended to any given customer. Since typical sales transactions can involve tens of thousands of barrels of crude oil, the risk of nonpayment and nonperformance by customers is a major consideration in our business. We believe that our sales are made to creditworthy entities or entities with adequate credit support. We have not experienced any nonpayment or nonperformance by our customers during 2001 or 2002. Over the last year there have been an unusual number of business failures and very large restatements by small as well as large companies in the energy industry. Because the energy industry is very credit intensive, these failures and restatements have focused attention on the credit risks of companies in the energy industry by credit rating agencies, producers and counterparties. This focus on credit has affected requests for credit from producers. While we have seen some increase in requests for credit support from producers, we have been relatively successful in obtaining open credit from most producers. When credit support has been required, we have generally been successful in adjusting the price we pay to purchase the crude oil to reflect the cost to us of providing letters of credit. Credit review and analysis are also integral to our leasehold purchases. Payment for all or substantially all of the monthly leasehold production is sometimes made to the operator of the lease, who is responsible for the correct payment and distribution of such production proceeds to the proper parties. In these situations, we must determine whether the operator has sufficient financial resources to make such payments and distributions and to indemnify and defend us in the event any third party should bring a protest, action or complaint in connection with the distribution of production proceeds by the operator. Competition In the various business activities described above, we are in competition with a number of major oil companies and smaller entities. There is intense competition for leasehold purchases of crude oil. The number and location of our pipeline systems and trucking facilities give us access to domestic crude oil production throughout our area of operations. We purchase leasehold barrels from more than 600 producers. In the fourth quarter of 2002, approximately 38 percent of the leasehold barrels were purchased from ten producers, with Denbury representing eight percent of total leasehold-barrel purchases. We have considerable flexibility in marketing the volumes of crude oil that we purchase, without dependence on any single customer or transportation or storage facility. Our largest competitors in the purchase of leasehold crude oil production are Plains All American Pipeline, L.P., EOTT Energy Partners, L.P., Shell Trading Company, GulfMark Energy, Inc. and TEPPCO Partners, L.P. Additionally, we compete with many regional or 6 local gatherers who may have significant market share in the areas in which they operate. Competitive factors include price, personal relationships, range and quality of services, knowledge of products and markets, availability of trade credit and capabilities of risk management systems. Our most significant competitors in our pipeline operations are primarily common carrier and proprietary pipelines owned and operated by major oil companies, large independent pipeline companies and other companies in the areas where the Mississippi and Texas Systems deliver crude oil. The Jay System operates in an area not currently served by pipeline competitors. Competition among common carrier pipelines is based primarily on posted tariffs, quality of customer service and proximity to refineries and connecting pipelines. We believe that high capital costs, tariff regulation and problems in acquiring rights-of-way make it unlikely that other competing crude oil pipeline systems comparable in size and scope to our pipelines will be built in the same geographic areas in the near future, provided that our pipelines continue to have available capacity to satisfy demands of shippers and that our tariffs remain at competitive levels. Employees To carry out various purchasing, gathering, transporting and marketing activities, the General Partner employed, at February 14, 2003, approximately 230 employees, including management, truck drivers and other operating personnel, division order analysts, accountants, tax specialists, contract administrators, schedulers, marketing and credit specialists and employees involved in our pipeline operations. None of the employees are represented by labor unions, and we believe that relationships with our employees are good. Regulation Sarbanes-Oxley Act of 2002 In July 2002, the Sarbanes-Oxley Act of 2002 was signed into law to protect investors by improving the accuracy and reliability of corporate disclosures made pursuant to securities laws. The Securities and Exchange Commission is required to issue rules to adopt and implement the provision of Sarbanes-Oxley. The SEC has issued some final rules. Rules that are effective now that affect us are requirements for certifications by our Chief Executive Officer and Chief Financial Officer in our quarterly and annual filings with the SEC; disclosures regarding controls and procedures, disclosures regarding critical accounting estimates and policies and requirements to make filings with the SEC available on our website. Additional rules that will become effective during 2003 include disclosures regarding audit committee financial experts and charters, disclosure of our Code of Ethics for the CEO and senior financial officers, disclosures regarding contractual obligations and off-balance sheet arrangements and transactions, and requirements for filing earnings press releases with the SEC. Additionally, we will be required to include in our Form 10-K for 2003 a certification on internal accounting controls and a report from our auditors regarding that certification. Pipeline Tariff Regulation The interstate common carrier pipeline operations of the Jay and Mississippi systems are subject to rate regulation by FERC under the Interstate Commerce Act ("ICA"). FERC regulations require that oil pipeline rates be posted publicly and that the rates be "just and reasonable" and not unduly discriminatory. Effective January 1, 1995, FERC promulgated rules simplifying and streamlining the ratemaking process. Previously established rates were "grandfathered", limiting the challenges that could be made to existing tariff rates. Rates of interstate oil pipelines are currently regulated by the FERC primarily through an index methodology, whereby a pipeline is allowed to change its rates based on the change in year to year in an index. Under the regulations, we are able to change our rates within prescribed ceiling levels that are tied to the Producer Price Index for Finished Goods. Rate increases made pursuant to the index will be subject to protest, but such protests must show that the portion of the rate increase resulting from application of the index is substantially in excess of the pipeline's increase in costs. Alternatively, FERC allows for rate changes under three other methods--a cost-of-service methodology, competitive market showings ("Market-Based Rates"), or agreements between shippers and the oil pipeline company that the rate is acceptable ("Settlement Rates"). The pipeline tariff rates on our Mississippi and Jay Systems are either rates that were grandfathered and have been changed under the index methodology or Settlement Rates. None of our tariffs have been subjected to a protest or complaint by any shipper or other interested party. 7 Our intrastate common carrier pipeline operations in Texas are subject to regulation by the Texas Railroad Commission. The applicable Texas statutes require that pipeline rates be non-discriminatory and provide a fair return on the aggregate value of the property of a common carrier, after providing reasonable allowance for depreciation and other factors and for reasonable operating expenses. There is no case law interpreting these standards as used in the applicable Texas statutes. This is because historically, as well as currently, the Texas Railroad Commission has not been aggressive in regulating common carrier pipelines such as ours and has not investigated the rates or practices of such carriers in the absence of shipper complaints, which have been few and almost invariably have been settled informally. In 2002 we increased the tariffs on our Texas System due to higher costs to operate and maintain the pipeline. Although no assurance can be given that the tariffs we charge would ultimately be upheld if challenged, we believe that the tariffs now in effect can be sustained. Environmental Regulations We are subject to federal and state laws and regulations relating to the protection of the environment. At the federal level such laws include the Clean Air Act; the Clean Water Act; the Resource Conservation and Recovery Act; the Comprehensive Environmental Response, Compensation, and Liability Act; and the National Environmental Policy Act. Failure to comply with these laws and regulations may result in the assessment of administrative, civil and criminal penalties or in the imposition of injunctive relief. Although compliance with such laws has not had a significant effect on our business, such compliance in the future could prove to be costly, and there can be no assurance that we will not incur such costs in material amounts. The Clean Air Act regulates, among other things, the emission of volatile organic compounds in order to minimize the creation of ozone. Such emissions may occur from the handling or storage of crude oil. The required levels of emission control are established in state air quality control implementation plans. Both federal and state laws impose substantial penalties for violation of these applicable requirements. We believe that we are in substantial compliance with applicable clean air requirements. The Clean Water Act controls the discharge of oil and derivatives into certain surface waters. The Clean Water Act provides penalties for any discharges of crude oil in harmful quantities and imposes liability for the costs of removing an oil spill. State laws for the control of water pollution also provide varying civil and criminal penalties and liabilities in the case of a release of crude oil in surface waters or into the ground. Federal and state permits for water discharges may be required. The Oil Pollution Act of 1990 ("OPA"), as amended by the Coast Guard Authorization Act of 1996, requires operators of offshore facilities and certain onshore facilities near or crossing waterways to provide financial assurance in the amount of $35 million to cover potential environmental cleanup and restoration costs. This amount is subject to upward regulatory adjustment. We believe that we are in substantial compliance with the Clean Water Act and OPA. We have developed an Integrated Contingency Plan (ICP) to satisfy components of the OPA, as amended in the Clean Water Act. The ICP also satisfies regulations of the federal Department of Transportation, the federal Occupational Safety and Health Act ("OSHA") and state regulations. This plan meets regulatory requirements as to notification, procedures, response actions, response teams, response resources and spill impact considerations in the event of an oil spill. The Resource Conservation and Recovery Act regulates, among other things, the generation, transportation, treatment, storage and disposal of hazardous wastes. Transportation of petroleum, petroleum derivatives or other commodities may invoke the requirements of the federal statute, or state counterparts, which impose substantial penalties for violation of applicable standards. The Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), also known as the "Superfund" law, imposes liability, without regard to fault or the legality of the original conduct, on certain classes of persons that are considered to have contributed to the release of a "hazardous substance" into the environment. Such persons include the owner or operator of the disposal site or sites where the release occurred and companies that disposed or arranged for the disposal of the hazardous substances found at the site. Persons who are or were responsible for releases of hazardous substances under CERCLA may be subject to joint and several liability for the costs of cleaning up the hazardous substances that have been released into the environment and for damages to natural resources, and it is not uncommon for neighboring landowners and other third parties to file claims for personal injury and property damage allegedly caused by the hazardous substances released into the environment. In the ordinary course of our operations, substances may be generated or handled which fall within the definition of 8 "hazardous substances." Although we have applied operating and disposal practices that werestandard in the industry at the time, hydrocarbons or other waste may have been disposed of or released on or under the property owned or leased by us or under locations where such wastes have been taken for disposal. Further, we may own or operate properties that in the past were operated by third parties whose operations were not under our control. Those properties and any wastes that may have been disposed of or released on them may be subject to CERCLA, RCRA and analogous state laws, and we potentially could be required to remediate such properties. Under the National Environmental Policy Act ("NEPA"), a federal agency, in conjunction with a permit holder, may be required to prepare an environmental assessment or a detailed environmental impact study before issuing a permit for a pipeline extension or addition that would significantly affect the quality of the environment. Should an environmental impact study or assessment be required for any proposed pipeline extensions or additions, the effect of NEPA may be to delay or prevent construction or to alter the proposed location, design or method of construction. We are subject to similar state and local environmental laws and regulations that may also address additional environmental considerations of particular concern to a state. On December 20, 1999, we had a spill of crude oil from our Mississippi System. Approximately 8,000 barrels of oil spilled from the pipeline near Summerland, Mississippi, and entered a creek and river nearby. The spill was cleaned up, with ongoing monitoring and reduced clean-up activity expected to continue for an undetermined period of time. The oil spill is covered by insurance and the financial impact to us for the cost of the clean-up has not been material. During 2002, we reached agreement in principal with the US Environmental Protection Agency (EPA) and the Mississippi Department of Environmental Quality (MDEQ) for the payment of fines under federal and state environmental laws with respect to this 1999 spill. Based on the discussions leading to this agreement in principal, we have recorded accrued liabilities totaling of $3.0 million during 2001 and 2002. While we are pleased with the progress we have made toward resolving the uncertainty of this environmental liability during 2002, no assurance can be made that we will reach final agreement with the federal and Mississippi governments or the specific terms of a final agreement if one is reached. Safety Regulations Our crude oil pipelines are subject to construction, installation, operating and safety regulation by the Department of Transportation ("DOT") and various other federal, state and local agencies. The Pipeline Safety Act of 1992, among other things, amends the Hazardous Liquid Pipeline Safety Act of 1979 ("HLPSA") in several important respects. It requires the Research and Special Programs Administration ("RSPA") of DOT to consider environmental impacts, as well as its traditional public safety mandate, when developing pipeline safety regulations. In addition, the Pipeline Safety Act mandates the establishment by DOT of pipeline operator qualification rules requiring minimum training requirements for operators, and requires that pipeline operators provide maps and records to RSPA. It also authorizes RSPA to require that pipelines be modified to accommodate internal inspection devices, to mandate the installation of emergency flow restricting devices for pipelines in populated or sensitive areas, and to order other changes to the operation and maintenance of petroleum pipelines. Significant expenses could be incurred in the future if additional safety measures are required or if safety standards are raised and exceed the current pipeline control system capabilities. On March 31, 2001, the Department of Transportation promulgated Integrity Management Plan (IMP) regulations. The IMP regulations require that we perform baseline assessments of all pipelines that could affect a High Consequence Area. The integrity of these pipelines must be assessed by internal inspection, pressure test, or equivalent alternative new technology. A High Consequence Area (HCA) is defined as (a) a commercially navigable waterway; (b) an urbanized area that contains 50,000 or more people and has a density of at least 1,000 people per square mile; (c) other populated areas that contain a concentrated population, such as an incorporated or unincorporated city, town or village; and (d) an area of the environment that has been designated as unusually sensitive to oil spills. Due to the proximity of all of our pipelines to water crossings and populated areas, we have designated all of our pipelines as affecting HCAs. The IMP regulation required us to prepare an Integrity Management Plan that details the risk assessment factors, the overall risk rating for each segment of pipe, a schedule for completing the integrity assessment, the methods to assess pipeline integrity, and an explanation of the assessment methods selected. The risk factors to be 9 considered include proximity to population areas, waterways and sensitive areas, known pipe and coating conditions, leak history, pipe material and manufacturer, cathodic protection adequacy, operating pressure levels and external damage potential. The IMP regulations require that the baseline assessment be completed within seven years of March 31, 2002, with 50% of the mileage assessed in the first three and one-half years. Reassessment is then required every five years. As testing is complete, we are required to take prompt remedial action to address all integrity issues raised by the assessment. No assurance can be given that the cost of testing and the required rehabilitation identified will not be material costs to Genesis that may not be fully recoverable by tariff increases. In addition to the IMP, we have developed a Risk Management Plan as part of the IMP. This plan is intended to minimize the offsite consequences of catastrophic spills. As part of this program, we have developed a mapping program. This mapping program will identify HCAs and unusually sensitive areas (USAs) along the pipeline right-of-ways in addition to mapping of shorelines to characterize the potential on waterways of a spill of crude oil. States are largely preempted from regulating pipeline safety by federal law but may assume responsibility for enforcing federal intrastate pipeline regulations and inspection of intrastate pipelines. In practice, states vary considerably in their authority and capacity to address pipeline safety. We do not anticipate any significant problems in complying with applicable state laws and regulations in those states in which we operate. Our crude oil pipelines are also subject to the requirements of the Office of Pipeline Safety of the federal Department of Transportation regulations requiring qualification of all pipeline personnel. The Operator Qualification (OQ) program required operators to develop and submit a written program by April, 2001. The regulations also require all pipeline operators to develop a training program for pipeline personnel and qualify them on individual covered tasks at the operator's pipeline facilities by October 2002. The intent of the OQ regulations is to ensure a qualified workforce by pipeline operators and contractors when performing covered tasks on the pipeline and its facilities, thereby reducing the probability and consequences of incidents caused by human error. Our crude oil operations are also subject to the requirements of the Federal Occupational Safety and Health Act ("OSHA") and comparable state statutes. We believe that our crude oil pipelines and trucking operations have been operated in substantial compliance with OSHA requirements, including general industry standards, record keeping requirements and monitoring of occupational exposure to regulated substances. Various other federal and state regulations require that we train all employees in pipeline and trucking operations in HAZCOM and disclose information about the hazardous materials used in our operations. Certain information must be reported to employees, government agencies and local citizens upon request. In general, we expect to increase our expenditures in the future to comply with higher industry and regulatory safety standards such as those described above. While the total amount of increased expenditures cannot be accurately estimated at this time, we anticipate that we will expend a total of approximately $9.6 million in 2003 and 2004 for testing and rehabilitation under the IMP. We operate our fleet of leased trucks as a private carrier. Although a private carrier that transports property in interstate commerce is not required to obtain operating authority from the ICC, the carrier is subject to certain motor carrier safety regulations issued by the DOT. The trucking regulations cover, among other things, driver operations, maintaining log books, truck manifest preparations, the placement of safety placards on the trucks and trailer vehicles, drug testing, safety of operation and equipment, and many other aspects of truck operations. We are also subject to OSHA with respect to its trucking operations. We are subject to federal EPA regulations for the development of a written Spill Prevention Control and Countermeasure (SPCC) Plan. All trucking facilities have a current SPCC Plan and employees have received training on the SPCC Plan and regulations. Annually, trucking employees receive training regarding the transportation of hazardous materials. Commodities regulation Our price risk management operations are subject to constraints imposed under the Commodity Exchange Act and the rules of the NYMEX. The futures and options contracts that are traded on the NYMEX are subject to strict regulation by the Commodity Futures Trading Commission. Information Regarding Forward-Looking Information The statements in this Annual Report on Form 10-K that are not historical information may be forward looking statements within the meaning of Section 27a of the Securities Act of 1933 and Section 21E of the Securities 10 Exchange Act of 1934. Although we believe that our expectations regarding future events are based on reasonable assumptions, no assurance can be made that our goals will be achieved or that expectations regarding future developments will prove to be correct. Important factors that could cause actual results to differ materially from the expectations reflected in the forward looking statements herein include, but are not limited to, the following: o changes in regulations; o our success in obtaining additional lease barrels; o changes in crude oil production volumes (both world-wide and in areas in which we have operations); o developments relating to possible acquisitions, dispositions or business combination opportunities; o volatility of crude oil prices, P-Plus and grade differentials; o the success of the risk management activities; o credit requirements by the counterparties; o the cost of obtaining liability and property insurance at a reasonable cost; o acts of sabotage, terrorism or other similar acts causing damage greater than our insurance coverage limits; o our ability in the future to generate sufficient amounts of Available Cash to permit the payment to unitholders of a quarterly distribution; o any additional requirements for testing or changes in the Mississippi pipeline system as a result of the oil spill that occurred there in December 1999; o any fines and penalties federal and state regulatory agencies may impose in connection with the oil spill that would not be reimbursed by insurance; o the costs of testing under the IMP and any rehabilitation required as a result of that testing; o estimated timing and amount of future capital expenditures; o our success in increasing tariff rates on our common carrier pipelines; o results of current or threatened litigation; and o conditions of capital markets and equity markets during the periods covered by the forward looking statements. All previous and subsequent written or oral forward looking statements attributable to us, or persons acting on the Partnership's behalf, are expressly qualified in their entirety by the foregoing cautionary statements. Item 2. Properties We own and operate three common carrier crude oil pipeline systems. The pipelines and related gathering systems consist of the 623-mile Texas system, the 103-mile Jay System extending between Florida and Alabama, and the 219-mile Mississippi System extending between Mississippi and Louisiana. The Texas system includes 338 miles of pipe that has been temporary idled. The segments that have been temporary idled are Groesbeck to Hearne, Bryan to Satsuma (in northwest Houston), and Satsuma to Cullen Junction (south Houston). We entered into a joint tariff with Teppco Crude Pipeline Company L.P. to transfer oil to their custody near Satsuma and receive it back from them at Cullen Junction. We own approximately 800,000 barrels of storage capacity associated with the Texas pipeline system. Additionally, we lease approximately 200,000 barrels of storage capacity for the Texas System. We own 200,000 barrels of storage capacity on our Mississippi System, with the tankage spread across the system. The Jay system has 200,000 barrels of storage capacity, primarily at Jay station. In addition to transporting crude oil by pipeline, the Partnership transports crude oil through a fleet of leased tractors and trailers. At December 31, 2002, the trucking fleet consisted of 74 tractor-trailers. The trucking fleet generally hauls the crude oil to one of the approximately 97 pipeline injection stations owned or leased by the Partnership. We lease approximately 27,000 square feet of office space in Houston, Texas, for our corporate office. This lease expires in 2005. 11 Item 3. Legal Proceedings We are involved from time to time in various claims, lawsuits and administrative proceedings incidental to our business. In our opinion, the ultimate outcome, if any, is not expected to have a material adverse effect on the financial condition or results of operations of the Partnership. See Note 20 of Notes to Consolidated Financial Statements. Item 4. Submission of Matters to a Vote of Security Holders None. PART II Item 5. Market for Registrant's Common Units and Related Security Holder Matters The following table sets forth, for the periods indicated, the high and low sale prices per Common Unit and the amount of cash distributions paid per Common Unit. Price Range Cash High Low Distributions(1) 2002 ---------- --------- ---------------- ---- First Quarter..... $ 3.94 $ 2.31 $ - Second Quarter.... $ 4.20 $ 1.80 $ - Third Quarter..... $ 5.75 $ 2.00 $ - Fourth Quarter.... $ 5.00 $ 4.05 $ 0.20 (2) 2001 ---- First Quarter..... $ 6.10 $ 3.50 $ 0.20 Second Quarter.... $ 6.00 $ 4.15 $ 0.20 Third Quarter..... $ 6.92 $ 4.20 $ 0.20 Fourth Quarter.... $ 7.00 $ 2.33 $ 0.20 - --------------------- (1) Cash distributions are shown in the quarter paid and are based on the prior quarter's activities. (2) A special distribution of $0.20 per unit was paid on December 16, 2002 to mitigate potential taxable income allocations to Unitholders.
At December 31, 2002, there were 8,625,000 Common Units outstanding. As of December 31, 2002, there were approximately 10,000 record holders and beneficial owners (held in street name) of the Partnership's Common Units. The Partnership will distribute 100% of its Available Cash as defined in the Partnership Agreement within 45 days after the end of each quarter to Unitholders of record and to the General Partner. Available Cash consists generally of all of the cash receipts less cash disbursements of the Partnership adjusted for net changes to reserves. The full definition of Available Cash is set forth in the Partnership Agreement and amendments thereto, which is filed as an exhibit hereto. In the fourth quarter of 2000, the Partnership was restructured pursuant to a vote of the Common Unitholders. As a result of this restructuring, the target Minimum Quarterly Distribution ("MQD") was reduced from $0.50 per Common Unit to $0.20 per Common Unit beginning with the distribution for the fourth quarter of 2000. In 2001, we announced that we would not pay a distribution for the fourth quarter of 2001, which would normally have been paid in February 2002. We did not pay regular distributions for 2002. The payment of distributions in the future is dependent upon our ability to generate sufficient Available Cash and whether we would violate covenants in our credit agreement by making such distributions. Should distributions resume, the distribution per common unit will be based upon the Available Cash generated for that quarter, which may be less than $0.20 per unit. See Management's Discussion and Analysis of Financial Condition and Results of Operations - Distributions. Copies of our press releases and our filings with the SEC are available on our website. Our website is www.genesiscrudeoil.com. 12 Item 6. Selected Financial Data The table below includes selected financial data for the Partnership for the years ended December 31, 2002, 2001, 2000, 1999 and 1998 (in thousands, except per unit and volume data). Year Ended December 31, ------------------------------------------------------------------------------ 2002 2001 2000 1999 1998 ------------- ------------- ------------- -------------- -------------- Income Statement Data: Revenues: Gathering & marketing revenues. $ 891,595 $ 3,326,003 $ 4,309,614 $ 2,144,646 $ 2,216,942 Pipeline revenues.............. 20,211 14,195 14,940 16,366 16,533 ------------- ------------- ------------- -------------- -------------- Total revenues............... 911,806 3,340,198 4,324,554 2,161,012 2,233,475 Cost of sales: Crude cost..................... 859,312 3,293,836 4,281,567 2,118,318 2,184,529 Field operating costs.......... 16,451 15,649 13,673 11,669 12,778 Pipeline operating costs....... 12,928 10,897 8,652 8,161 7,971 ------------- ------------- ------------- -------------- -------------- Total cost of sales.......... 888,691 3,320,382 4,303,892 2,138,148 2,205,278 ------------- ------------- ------------- -------------- -------------- Gross margin...................... 23,115 19,816 20,662 22,864 28,197 General and administrative expenses 8,289 11,691 10,942 11,649 11,468 Depreciation and amortization..... 5,813 7,546 8,032 8,220 7,719 Impairment of long-lived assets... - 45,061 - - - Other operating charges........... 1,500 1,500 1,387 - 373 ------------- ------------- ------------- -------------- -------------- Operating income (loss)........... 7,513 (45,982) 301 2,995 8,637 Interest income (expense), net.... (1,035) (527) (1,010) (929) 154 Change in fair value of derivatives (2,094) 2,259 - - - Other income (expense)............ 708 167 1,148 849 28 ------------- ------------- ------------- -------------- -------------- Income (loss) before minority interest and cumulative effect of change in accounting principle 5,092 (44,083) 439 2,915 8,819 Minority interests................ - (4) 258 583 1,763 ------------- ------------- ------------- -------------- -------------- Income (loss) before cumulative effect of change in accounting principle....................... 5,092 (44,079) 181 2,332 7,056 Cumulative effect of change in accounting principle, net of minority interest effect - 467 - - - ------------- ------------- ------------- -------------- -------------- Net income (loss)................. $ 5,092 $ (43,612) $ 181 $ 2,332 $ 7,056 ============= ============= ============= ============== ============== Net income (loss) per common unit- basic and diluted: Income (loss) before cumulative effect of change in accounting principle.................... $ 0.58 $ (5.01) $ 0.02 $ 0.27 $ 0.80 Cumulative effect of change in accounting principle - 0.05 - - - ------------- ------------ ------------- -------------- -------------- Net income (loss).............. $ 0.58 $ (4.96) $ 0.02 $ 0.27 $ 0.80 ============= ============ ============= ============== ============== Cash distributions per common unit: $ 0.20 $ 0.80 $ 2.28 $ 2.00 $ 2.00 Balance Sheet Data (at end of period): Current assets.................... $ 92,830 $ 182,100 $ 350,604 $ 274,717 $ 185,216 Total assets...................... 137,537 230,113 449,343 380,592 297,173 Long-term liabilities............. 5,500 13,900 - 3,900 15,800 Minority interests................ 515 515 520 30,571 29,988 Partners' capital................. 35,302 32,009 82,615 53,585 67,871 Other Data: Maintenance capital expenditures.. $ 4,211 $ 1,882 $ 1,685 $ 1,682 $ 1,509 Volumes (bpd): Gathering and marketing: Wellhead..................... 63,911 84,677 99,602 93,397 114,400 Bulk and exchange............ 37,002 270,845 297,776 242,992 325,468 Pipeline ...................... 75,869 84,686 86,458 94,048 85,594
13 The table below summarizes the Partnership's quarterly financial data for 2002 and 2001 (in thousands, except per unit data). 2002 Quarters --------------------------------------------------------------- First Second Third Fourth ------------ ------------ ------------ ------------ Revenues................................. $ 239,239 $ 240,769 $ 209,916 $ 221,882 Gross margin............................. $ 5,438 $ 6,222 $ 6,268 $ 5,187 Operating income......................... $ 1,927 $ 2,543 $ 1,296 $ 1,747 Net income............................... $ 1,314 $ 2,106 $ 103 $ 1,569 Net income per Common Unit-basic and diluted............................ $ 0.15 $ 0.24 $ 0.01 $ 0.18 2001 Quarters --------------------------------------------------------------- First Second Third Fourth ------------ ------------ ------------ ------------ Revenues................................. $ 930,293 $ 920,879 $ 821,647 $ 667,379 Gross margin............................. $ 4,625 $ 5,791 $ 6,261 $ 3,139 Operating income (loss).................. $ 1 $ 922 $ 1,429 $ (48,334) Net income (loss) before cumulative effect of change in accounting principle.............................. $ 3,404 $ 2,500 $ (267) $ (49,720) Cumulative effect of change in accounting principle, net of minority interest effect................................. $ 467 $ - $ - $ - Net income............................... $ 3,871 $ 2,500 $ (267) $ (49,720) Net income (loss) before cumulative effect of change in accounting principle per Common Unit - basic and diluted................................ $ 0.39 $ 0.28 $ (0.03) $ (5.65) Net income (loss) per Common Unit - basic and diluted $ 0.44 $ 0.28 $ (0.03) $ (5.65)
Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations Included in Management's Discussion and Analysis are the following sections: o Highlights of 2002 o Outlook for 2003 and Beyond o Liquidity and Capital Resources o Results of Operations o Other Matters o New Accounting Pronouncements o Critical Accounting Policies Highlights of 2002 We believe that the most important event of 2002 was the sale of our General Partner by Salomon to a subsidiary of Denbury Resources Inc. ("Denbury") on May 14, 2002. Genesis owns and operates a 219-mile pipeline system in Mississippi adjacent to several of Denbury's existing and prospective oil fields. Denbury is the largest oil and natural gas operator in the state of Mississippi. There may be mutual benefits to Denbury and Genesis due to this common production and transportation area. Because of this relationship, we may obtain certain commitments for increased crude oil volumes, while Denbury may obtain the certainty of transportation for its oil production at competitive market rates. As Denbury continues to acquire and develop old oil fields using carbon dioxide (CO2) based tertiary recovery operations, Denbury would expect to add crude oil gathering and CO2 supply infrastructure to these fields. We may be able to provide or acquire this infrastructure and provide support to 14 Denbury's development of these fields. Further, as the fields are developed over time, it may create increased demand for our crude oil transportation services. During 2002, average daily throughput on the Mississippi System where Denbury is a significant source of production near the pipeline increased from approximately 6,000 barrels per day during May, 2002, the month Denbury acquired our general partner, to approximately 9,900 barrels per day during December. We expect this trend of increased throughput on these segments of the system to continue. However, we can make no assurances that such increased throughput will continue or predict that it will increase at this rate. As a result of its acquisition by Denbury, the General Partner, Genesis Energy, Inc. ("Genesis") amended Section 11.2 of the Second Amended and Restated Agreement of Limited Partnership of Genesis Energy, L.P. ("the Partnership Agreement") to broaden the right of the Common Unitholders to remove the general partner of Genesis Energy, L.P. ("GELP"). Prior to this amendment, the general partner could only be removed for cause and with approval by holders of two-thirds or more of the outstanding limited partner interests in GELP. As amended, the Partnership Agreement provides that, with the approval of at least a majority of the limited partners in GELP, the general partner also may be removed without cause. Any limited partner interests held by the general partner and its affiliates are to be excluded from such a vote. The amendment further provides that if it is proposed that the removal is without cause and an affiliate of Denbury is the general partner to be removed and not proposed as a successor, then any action for removal must also provide for Denbury to be granted an option effective upon its removal to purchase GELP's Mississippi pipeline system at a price that is 110 percent of its fair market value at that time. Fair value is to be determined by agreement of two independent appraisers, one chosen by the successor general partner and the other by Denbury or if they are unable to agree, the mid-point of the values determined by them. The amendment was negotiated on behalf of GELP by the audit committee of the board of directors of Genesis. Upon determination of its fairness, including obtaining an opinion from the investment banking firm of the GulfStar Group as to the amendment's fairness to the Common Unitholders of GELP, and an opinion from Delaware legal counsel as to the form of the amendment, the audit committee recommended approval of the amendment to the board of directors of Genesis. During 2002, we reached agreement in principal with the US Environmental Protection Agency (EPA) and the Mississippi Department of Environmental Quality (MDEQ) for the payment of fines under federal and state environmental laws with respect to the Leaf River Spill in December, 1999. See "Other Matters Crude Oil Spill". Based on the discussions leading to this agreement in principal, we have recorded accrued liabilities totaling of $3.0 million during 2001 and 2002. While we are pleased with the progress we have made toward resolving the uncertainty of this environmental liability during 2002, no assurance can be made that we will reach final agreement with the federal and Mississippi governments or the specific terms of a final agreement if one is reached. We successfully completed a major transformation of our gathering and marketing business model during 2002. The primary driver compelling us to change our gathering and marketing business model was the December 31, 2001 replacement of the $300 million Guaranty Facility from Salomon with a $130 million credit facility with Citicorp North America, Inc. See Note 8 to Consolidated Financial Statements and Credit Resources and Liquidity. As a result of this change, we reduced credit support from a daily average of $174.5 million in Salomon guarantees in 2001 to a daily average of $30.2 million in letters of credit from Citicorp. We also reduced the direct cost of trade credit by half from $1.2 million in 2001 to $0.6 million in 2002. To achieve this result, we reduced our average bulk and exchange volumes by 86 percent and our average wellhead volumes by 25 percent from the 2001 levels. We also actively redirected the focus of our lease gathering business to eliminate all volumes that required letters of credit but did not generate sufficient gross margin to support the cost of such credit support. As a result of these and other changes, gathering and marketing gross margin per barrel increased from $0.13 in 2001 to $0.43 in 2002. The financial performance of the gathering and marketing business exceeded our expectations under the new business model. We were pleased to be able to generate gross margin from the gathering and marketing business in 2002 that was 96 percent of the gross margin generated in 2001 while reducing volumes by 72 percent and credit support by 83 percent. We also were able to make permanent reductions to general and administrative expenses of $1.0 million by this change to our business model. As a result of the changes in our business activities described above, we were able to reduce inventory volumes at some locations that had been purchased in prior periods at prices significantly less than the prices at 15 the time we sold those volumes. These volumes had been necessary to ensure efficient and uninterrupted operations in our gathering and marketing activities. Prices for crude oil rose significantly during 2002 as is evidenced by the increase in the price of West Texas Intermediate crude oil (WTI) on the New York Mercantile Exchange (NYMEX), which rose from $20.24 at December 31, 2001 to $31.20 at December 31, 2002. By reducing this inventory in a period of increasing prices we recognized $0.9 million of increased gross margin from the sale of this crude oil. During 2002, we took several steps to improve the profitability of our pipeline operations. Our strategy involved three key initiatives. First, we evaluated our pipeline systems to determine which segments, if any, should be sold, idled or abandoned to reduce cost or risk of operation. Second, we increased our tariffs wherever feasible to achieve an acceptable risk adjusted rate of return. Third, we adjusted our pipeline loss allowances to levels consistent with our peers. We idled or abandoned 338 miles of pipeline on the Texas System during 2002. We expect to sell, idle or abandon more of the Texas System during 2003. While we have made progress evaluating strategic opportunities with respect to the Texas and Jay Systems, these projects are still in progress and we have no substantial information to report at this time. We increased most tariffs on the Texas System by 80 percent effective May 1, 2002. We were pleased that this tariff increase did not result in a significant decrease in volumes on the system. For the Jay System we increased tariffs by 37 percent effective August 1, 2002. For all three systems we increased the pipeline loss allowance that we charge our shippers for assuming the operational risk of volumetric losses from 0.05% to 0.2% effective September 1, 2002. This adjustment placed us in line with most of our peers in the liquids pipeline transportation business. This change is important to us since it reduces the risk of incurring economic loss from operational anomalies and creates some opportunity to profit from operating the pipeline in an effective manner. We developed and implemented a plan during 2002 to place the Mississippi System in condition to handle increased throughput expected from production increases in the area. We implemented operational changes that will allow us to operate much of this pipeline at significantly reduced pressures and will allow us to monitor and evaluate activity on the system in a more effective manner. We also completed the work necessary to restore the segment idled as a result of the 1999 Leaf River Spill. We expect to complete testing and restart this segment early in 2003. Financial results for 2002 were negatively impacted by the effects of SFAS No. 133, "Accounting for Derivative Instruments and Hedging Activities" (as amended and interpreted). With the significant reduction in our bulk and exchange activities at December 31, 2001, combined with a review of existing contracts, we determined that we had only one contract meeting the requirement for treatment as a derivative contract under SFAS No. 133 at December 31, 2002. As a result, the fair value of the net asset for derivatives decreased by $2.1 million. During 2002, we did not make a regular quarterly distribution. In December 2001, we obtained a credit facility from Citicorp North America to replace our Guaranty facility and our Credit Agreement with BNP Paribas. See Note 9. This facility, however, includes a provision that does not allow us to pay a distribution for any quarter unless the Borrowing Base under the facility exceeded the usage under the facility for every day of the quarter by at least $20 million plus the total amount of the distribution. For the first and second quarters of 2002, we did not pay distributions as the excess of the Borrowing Base over the usage was less than the required amount. During the third and fourth quarters of 2002, we met the test and were not restricted from making a distribution under the credit facility. However, we did not make a regular quarterly distribution for these periods because of reserves established for future needs of the Partnership. Such future needs include, but are not limited to the payment of fines imposed by regulatory agencies for the December 1999 crude oil spill and future expenditures that will be required for pipeline management integrity programs required by federal regulations. Because some of the Partnership's Unitholders were allocated taxable income for 2002, we did make a special distribution in the amount of $0.20 per unit on December 16, 2002 to Unitholders of record as of December 2, 2002. The amount of taxable income allocated to each unitholder varied, depending on the timing of the unit purchases and the amount of each unitholder's basis in their units. The distribution was made to mitigate the burden of incurring a tax liability without receiving a cash distribution. More detailed discussion of the financial results for 2002 can be found below in "Liquidity and Capital Resources" and "Results of Operations". More detailed discussion of the expectations for restoring the distribution can be found below in "Outlook for 2003 and Beyond." 16 Outlook for 2003 and Beyond Gathering and Marketing Operations The key drivers affecting our gathering and marketing gross margin include production volumes, volatility of P+ margins, volatility of grade differentials, inventory management, and credit costs. A significant factor affecting our gathering and marketing gross margins is changes in the domestic production of crude oil. Short-term and long-term price trends impact the amount of capital that producers have available to maintain existing production and to invest in developing crude reserves, which in turn impacts the amount of crude oil that is available to be gathered and marketed by us and our competitors. The volatility in prices over the last four years makes it very difficult to estimate the volume of crude oil available to purchase. We expect to continue to be subject to volatility and long-term declines in the availability of crude oil production for purchase by us. Oil prices rose in the latter half of 2002 such that the NYMEX price for WTI was $31.20 at December 31, 2002. International factors such as the strike by oil workers in Venezuela and the potential for war with Iraq as well as domestic influences such as the supply of crude oil in the United States have contributed to the price increase. An increase in the market price of crude oil does not impact us to the extent many people expect. When market prices for oil increase, we must pay more for crude oil, but we normally are able to sell it for more. Most of our contracts for the purchase and sale of crude oil have components in the pricing provisions such that the price paid or received is adjusted for changes in the market price for crude oil. Often the pricing in a contract to purchase crude oil will consist of the market price component and a bonus, which is generally a fixed amount ranging from a few cents to several dollars. Typically the pricing in a contract to sell crude oil will consist of the market price component and a bonus that is not fixed, but instead is based on another market factor. This floating bonus is usually the price quoted by Platt's for WTI "P-Plus". Because the bonus for purchases of crude oil is fixed and P-Plus floats in the sales contracts, the margin on an individual transaction can vary from month-to-month depending on changes in the P-Plus component. P-Plus does not necessarily move in correlation with the price of oil in the market. P-Plus is affected by numerous factors such as future expectations for changes in crude oil prices, such that crude oil prices can be rising, but P-Plus can be decreasing. The table below shows the average P-Plus and the average posted price for West Texas Intermediate (WTI) as posted by Koch Supply & Trading, L.P. for each month in 2002. Month Average P-Plus WTI Posting ----- -------------- ----------- January $2.7900 $16.5161 February $2.7440 $17.6071 March $2.8520 $21.3306 April $2.8940 $22.9500 May $3.1005 $23.7903 June $3.9100 $22.4500 July $3.0010 $23.7500 August $3.3330 $24.9516 September $3.9860 $26.4750 October $3.2310 $25.6613 November $3.3740 $23.0917 December $3.9130 $26.2177 As can be seen from this table, changes in P-Plus do not necessarily correspond to changes in the market price of oil. This unpredictable volatility in P-Plus can create volatility in our earnings. A few purchase contracts and some sale contracts also include a component for grade differentials. The grade refers to the type of crude oil. Crude oils from different wells and areas can have different chemical compositions. These different grades of crude oil will appeal to different customers depending on the processing capabilities of the refineries who ultimately process the oil. We may buy oil under a contract where we considered the typical grade differences in the market when we set the fixed bonus. If we then sell the oil under a contract with a floating grade differential in the formula, and that grade differential fluctuates, then we can experience an increase or decrease in our gross margin from that oil purchase and sale. The table below shows the grade differential 17 between West Texas Intermediate grade crude oil and West Texas Sour grade crude oil for each month of 2002 and the differential between West Texas Intermediate grade crude oil and Light Louisiana Sweet grade crude oil for each month of 2002. WTI/WTS WTI/LLS Month Differential Differential ----- ------------ ------------ January $(1.834) $ 0.260 February $(1.544) $ 0.353 March $(1.231) $ 0.432 April $(1.254) $ 0.358 May $(1.049) $ 0.493 June $(1.352) $(0.581) July $(1.016) $ 0.175 August $(0.812) $ 0.098 September $(1.257) $(0.370) October $(1.666) $(0.167) November $(1.408) $ 0.186 December $(2.243) $(0.008) As can be seen from this table, the WTI/WTS market differential varied from $0.812 in August to $2.243 per barrel in December, 2002. The WTI/LLS market differential varied from a negative $0.581 in June to a positive $0.493 in May 2002. This volatility in grade differentials can affect the volatility of our gathering and marketing gross margins. The purchase and sales contracts are primarily "Evergreen" contracts which means they continue from month to month unless one of the parties to the contract gives 30-days notice of cancellation. In order to change the pricing in a fixed bonus contract, we would have to give 30-days notice that we want to cancel and renegotiate the contract. This notice time requirement, therefore, means that at least a month will pass before the fixed bonus can be reduced to correspond with a decrease in the P-Plus component of the related sales contract. In this case our margin would be reduced until such a change is made. Because of the volatility of P-Plus, it is not practical to renegotiate every purchase contract for every change in P-Plus. So margins from the sale of the crude oil can be volatile as a result of these timing differences. Another factor that can contribute to volatility in our earnings is inventory management. Generally contracts for the purchase of crude oil will state that we will buy all of the production for the month from a particular well. We generally aggregate the volumes purchased from numerous wells and deliver it into a pipeline where we sell the crude oil to a third party. While oil producers can make estimates of the volume of oil that their wells will produce in a month, they cannot state absolutely how much oil will be produced. Our sales contracts typically state a specific volume to be sold. Consequently, if a well produces more than expected we will purchase volumes in a month that we have not contracted to sell. These volumes are then held as inventory and are sold in a later month. Should the market price of crude oil fluctuate while we have these inventory volumes, we may have to record a loss in our financial statements should the market price fall below the cost of the inventory. Should market prices rise, then we will experience a gain when we sell the unexpected volume of inventory in a later month at higher prices. We believe we have successfully changed our business model for our gathering and marketing activities to consume less credit support and working capital. We expect this business to continue to perform well during 2003, although not as well as in 2002. Both volumes and margins are expected to be lower during 2003 as this business is likely to be subject to volatility and increased trade credit costs. Additionally, this business may be constrained by the need for trade credit if crude oil prices increase above current levels. During 2003, we expect gathering and marketing gross margins to decline due to an expected decrease in the volume of crude oil to be gathered during 2003. Pipeline Operations As discussed above in "Highlights of 2002", volumes on our pipeline systems declined in 2002. Additionally, operating and maintenance costs increased. For 2003, we expect that volumes may decline in some areas our pipelines serve, but overall average volumes to transport will likely increase from 2002 levels. We also 18 expect to expend funds on additional testing under the integrity management regulations and other large maintenance projects. Volumes on our Texas System averaged 51,987 barrels per day in 2002. We expect that these volumes will decline in 2003 slightly, however the effect of the volume decline on tariff revenues for the year should be mitigated as the increase in tariffs that took effect in May 2002 will be in effect for all of 2003. In 2003, we expect to test the Webster to Texas City segment as well as the Cullen Junction to Webster sections under the integrity management regulations. See discussion of the integrity management regulations in Safety Regulation under in "Item 1. This testing in 2003 is expected to add over $0.3 million to routine operating and maintenance expenses. The results of the testing will likely result in upgrades to the pipeline which we have estimated will cost approximately $3.3 million. Additional discussion of expectations for capital expenditures for the Texas System can be found in Capital Expenditures in "Liquidity and Capital Resources" below. In 2002, we stopped using segments of the Texas System from Bryan to Satsuma and from Satsuma to Cullen Junction. In September, we entered into a joint tariff agreement with Teppco Crude Pipeline Company, L.P. for Teppco to transport oil from Satsuma to Cullen Junction. During 2003, we plan to idle these segments that are no longer in use. To idle a segment of pipeline, we must purge the crude oil in the line and replace it with inert gas. This process will add maintenance costs that we estimate to total less than $0.1 million. We are currently reviewing strategic opportunities for the Texas System. While the tariff increases in 2002 have improved the outlook for this system, we continue to examine opportunities for every part of the system to determine if each segment should be sold, abandoned or invested in for further growth. As part of this examination, we must consider the ability to increase tariffs, which involves reviewing the alternatives available to shippers to move the oil on other pipelines or by truck, production and drilling in the area around the pipeline, the costs to test and improve our pipeline under integrity management regulations, and other maintenance and capital expenditure expectations. The Mississippi System is best analyzed in three segments. The first segment is the portion of the pipeline that begins in Soso, MS and extends to Gwinville, MS where the spill occurred in 1999. We spent $0.6 million in 2002 upgrading the pipeline from Soso to Gwinville. We expect this segment of the pipeline to be fully operational during the first half of 2003. The second segment from Gwinville to Liberty has also been improved to handle the increased volumes produced by Denbury and transported on the pipeline. Volumes on this segment have risen from a low of 3,300 barrels per day in February to almost 10,000 barrels per day in December 2002. In order to handle this higher volume, we have made capital expenditures for tank, station and pipeline improvements and we will need to make more. See Capital Expenditures under "Liquidity and Capital Resources" below. The third segment of the pipeline from Liberty to near Baton Rouge, LA has been out of service since February 1, 2002 while a connecting carrier performs maintenance on its pipeline. The connecting carrier expects to complete their maintenance activities in the second quarter of 2003. At that time we will need to determine if there are sufficient volumes available to be transported on this segment of pipeline to justify the costs to perform the integrity testing and possible upgrading that may be identified in that testing. In 2002, this segment of pipeline contributed $0.1 million to pipeline revenues. In 2001, this segment contributed $1.5 million to pipeline revenues. As discussed above, Denbury is the largest oil and natural gas producer in Mississippi. Our Mississippi pipeline is adjacent to several of Denbury's existing and prospective oil fields. There may be mutual benefits to Denbury and us due to this common production and transportation area. Because of this relationship, we may be able to obtain certain commitments for increased crude oil volumes, while Denbury may obtain the certainty of transportation for its oil production at competitive market rates. As Denbury continues to acquire and develop old oil fields using carbon dioxide (CO2) based tertiary recovery operations, Denbury would expect to add crude oil gathering and CO2 supply infrastructure to these fields. Further, as the fields are developed over time, it may create increased demand for our crude oil transportation services. We believe that the highest and best use of the Jay pipeline system in Florida/Alabama would be to convert it to natural gas service. We have entered into strategic alliances with parties in the region to explore this opportunity. Part of the process will involve finding alternative methods for us to continue to provide crude oil transportation services in the area. While we believe this initiative has long-term potential, it is not expected to have a substantial impact on us during 2003 or 2004. 19 Pipeline gross margins should decline slightly in 2003. We expect to obtain the benefit of the 2002 tariff increases for the full year 2003 as well as continued increases to throughput. Offsetting these revenue increases will be increased costs for maintenance, insurance and safety. General and Administrative Expenses General and administrative expenses are expected to remain stable. Offsetting permanent cost reductions from the changed business model will be a one-time adjustment for replacing the Citicorp Agreement with a new bank facility with Fleet National Bank as agent, and cost increases for insurance and other costs to comply with SEC regulations mandated by the Sarbanes-Oxley Act. Capital Expenditures An important factor affecting our outlook is capital expenditures. In our 2001 Form 10-K, we indicated that we may need to increase capital expenditures as a result of complying with IMP regulations and other regulatory requirements. Based on our preliminary experience with the IMP program during 2002, we have established a capital budget of $6.7 million for 2003. For 2004, we expect to make capital expenditures of $8.4 million. After 2004, capital expenditures are expected to return to a normal pattern of approximately $2.0 million per year. Access to Capital In the first quarter of 2003, we replaced the credit facility from Citicorp North America, Inc. ("Citicorp Agreement") with a three-year $65 million revolving loan and letter of credit facility with Fleet National Bank as agent ("Fleet Agreement"). The Fleet Agreement has terms similar to the terms in the Citicorp Agreement. The details of those terms are described more fully below in "Liquidity and Capital Resources". The main differences from the Citicorp Agreement are as follows: (a) the new facility permits us to make acquisitions of assets that are used in our existing business; (b) the new facility does not have the $3.0 million limitation on capital expenditures per year and (c) the new facility includes a restriction on our ability to make distributions that requires a difference of $10 million between the borrowing base and utilization of the facility plus distributions, as measured once each month. In the Citicorp Agreement, the borrowing base had to exceed utilization (working capital borrowings plus outstanding letters of credit) plus the amount of the distribution by $20 million every day of the quarter in order for us to make a distribution. As a result of the replacement of the Citicorp Agreement, the unamortized fees paid in December 2001 to obtain the Citicorp Agreement will be charged to expense in the first quarter of 2003. The amount of fees to be charged to expense is $0.6 million. Our outlook will also be impacted by our access to capital for growth. In March 2003, we entered into the $65 million three-year revolving credit facility led by Fleet Bank to replace our existing facility. The combination of obtaining this new facility and our relationship with Denbury should improve our ability to grow the business. However, based on our experience in obtaining this facility, we believe that it will be important for us to further strengthen our balance sheet and improve our financial metrics to be able to improve our access to significant capital for growth. Distribution Expectations As a master limited partnership, the key consideration of our Unitholders is the amount of our distribution, its reliability and the prospects for distribution growth. As stated above, we made no regular distribution during 2002. We made no distribution with respect to the first two quarters of 2002 because of a restrictive covenant in our credit facility with Citicorp. We made no regular distribution for the third and fourth quarters as we added to reserves for the future needs of the Partnership. We did make a special distribution to our Unitholders in December 2002, to mitigate the burden of incurring a tax liability without receiving a cash distribution. During 2002 we generated $11.8 million of Available Cash before reserves, required debt payments and the special distribution. During 2003, we expect Available Cash before distributions to be less. We expect to resume regular quarterly distributions during 2003 with an anticipated first quarter distribution of at least $0.05 per unit on May 15, 2003, to unitholders of record as of April 30, 2003. Based on the need for larger than normal capital expenditures to comply with the pipeline regulations during 2003 and 2004 and the need to strengthen our balance sheet to improve our access to capital for growth, and considering the restrictive covenant in our new credit facility, we do not expect to restore the regular distribution to the targeted minimum 20 quarterly distribution amount of $0.20 per quarter for the next year or two. However, if we exceed our expectations for improving the performance of the business, if our capital projects cost less than we currently estimate, or if our access to capital allows us to make accretive acquisitions, we may be able to restore the targeted minimum quarterly distribution sooner. Liquidity and Capital Resources Cash Flows During 2002, we generated cash flows from operating activities of $7.4 million as compared to $16.8 million for 2001. In 2002, we reduced our current liabilities by $87.5 million while our current assets declined by $89.3 million. In 2001, we reduced our current liabilities by $159.3 million while our current assets declined by $168.5 million. Factors related to the timing of cash receipts and payments related to the bulk and exchange business were the primary reasons for the fluctuation in our current assets and liabilities in these periods. Cash flows used in investing activities in 2002 were $2.0 million as compared to $1.4 million in 2001. In 2002 we expended $4.2 million for property and equipment additions. These expenditures included replacement of pipe in Mississippi and Texas and upgrades to pipeline stations in Mississippi to handle larger volumes of crude oil throughput, including building new tanks. Offsetting these expenditures in 2002, were sales of surplus assets from which we received $2.2 million. In early 2002, we sold our two seats on the NYMEX for $1.7 million. These seats had become surplus assets when the business model was changed to reduce bulk and exchange activities, reducing the level of NYMEX activity that Genesis would need. We also received $0.5 million from the sale of excess land with a building. In 2001, we expended $1.9 million for property and equipment, primarily in the pipeline operations. We received $0.5 million from the sale of tractors and trailers that were no longer needed as the fleet was replaced with new equipment leased from Ryder Transportation Inc. Net cash expended for financing activities was $10.2 million in 2002 as compared to $15.1 million in 2001. In 2002 we reduced long-term debt outstanding at year end by $8.4 million from the balance at December 31, 2001. We also paid a special distribution of $0.20 per unit in December 2002, which utilized $1.8 million of cash. In 2001, we reduced debt by $8.1 million from the balance at December 31, 2000, and paid four quarterly distributions in the amount of $0.20 per unit each, which utilized $7.0 million of cash. Capital Expenditures As discussed above, we expended $4.2 million in 2002 for property and equipment. We spent $1.8 million for capital expenditures on the Mississippi Pipeline System, $1.6 million on the Texas Pipeline System, and $0.8 million for computer hardware, software, communication and other technological equipment used for pipeline and trucking operations. The $1.8 million spent for the Mississippi Pipeline System was for two purposes. First, we made improvements to the pipeline from Soso to Gwinville where the crude oil spill had occurred in December 1999 to restore this segment to service. This project was part of the IMP program discussed below. Second, we improved the pipeline from Gwinville to Liberty to be able to handle increased volumes on that segment by adding tankage and making other improvements to station equipment. In Texas, we upgraded the West Columbia segment of the pipeline and improved station equipment. Complying with Department of Transportation Pipeline Integrity Management Program (IMP) regulations has been and will be a significant driver in determining the amount and timing of our capital expenditure requirements. On March 31, 2001, the Department of Transportation promulgated the IMP regulations. The IMP regulations require that we perform baseline assessments of all pipelines that could affect a High Consequence Area. The integrity of these pipelines must be assessed by internal inspection, pressure test, or equivalent alternative new technology. A High Consequence Area (HCA) is defined as (a) a commercially navigable waterway; (b) an urbanized area that contains 50,000 or more people and has a density of at least 1,000 people per square mile; (c) other populated areas that contain a concentrated population, such as an incorporated or unincorporated city, town or village; and (d) an area of the environment that has been designated as unusually sensitive to oil spills. Due to the proximity of all of our pipelines to water crossings and populated areas, we have designated all of our pipelines as affecting HCAs. In accordance with the IMP regulations, we prepared a written Integrity Management Plan by March 31, 2002, that details our plans for testing and assessing each segment of the pipeline. The IMP regulations require that the baseline assessment be completed within seven years of March 31, 2002, with 50% of the mileage 21 assessed in the first three and one-half years. Reassessment is then required every five years. We expect to spend $1.0 million in 2003 and $0.1 million in 2004 for pipeline integrity testing that will be charged to pipeline operating expense as incurred. As testing is complete, we are required to take prompt remedial action to address all integrity issues raised by the assessment. The rehabilitation action required as a result of the assessment and testing is expected to impact our capital expenditure program by requiring us to make improvements to our pipeline. This creates a difficult budgeting and planning challenge as we cannot predict the results of pipeline testing until they are completed. Based on estimated improvements required from assessments made during 2002, we have estimated capital expenditures to be made during the IMP assessment period from 2002 through 2009. These capital expenditure projections are based on very preliminary data regarding the cost of rehabilitation. Such capital expenditure projections will be updated as improved data is obtained. During 2002, $1.7 million of the $4.2 million in capital expenditures were for rehabilitation of the Mississippi and Texas Pipeline Systems. Based on actual experience during 2002 applied to our written IMP plan, we expect to spend significant amounts in 2003 and 2004 for capital expenditures. In 2003, we estimate our capital expenditures will be approximately $8.0 million. We expect $4.1 million of the $8.0 million will be spent for capital improvements to our pipeline systems as result of the IMP assessments. Of the remaining $3.9 million in capital expenditures, substantially all of it will be spent on other pipeline improvements such as tankage, equipment upgrades, and corrosion control. In 2004, we expect the level of capital expenditures to be approximately $8.3 million with $4.6 million for pipeline integrity improvements and the balance of $3.5 million for tankage and other improvements. At the end of 2004, we expect that we will have incurred most of the significant costs related to the IMP regulatory compliance and expect to only spend $1.8 million in 2005 for capital items, with $1.2 million related to IMP. Expenditures in years after 2006 should remain in the $1.5 million to $2.5 million level as the expected integrity improvements should not be as great on the segments of the pipelines with the lower 50% risk. Capital Resources In December 2001, we entered into a two-year $130 million Senior Secured Revolving Credit Facility ("Citicorp Agreement") with Citicorp to provide letters of credit and working capital borrowings. In May 2002, we elected, under the terms of the Citicorp Agreement, to amend the Citicorp Agreement to reduce the maximum facility amount to $80 million. The Citicorp Agreement contains a sublimit for working capital loans of $25 million with the remainder available for letters of credit to support crude oil purchases. In March 2003, we replaced our Citicorp Agreement with a $65 million three-year credit facility with a group of banks with Fleet National Bank as agent ("Fleet Agreement"). The Fleet Agreement also has a sublimit for working capital loans in the amount of $25 million, with the remainder of the facility available for letters of credit. The key terms of the Fleet Agreement are as follows: o Letter of credit fees are based on the Applicable Usage Level ("AUL") and will range from 2.00% to 3.00%. During the first six months of the facility, the rate will be 2.50%. The AUL is a function of the facility usage to the borrowing base on that day. o The interest rate on working capital borrowings is also based on the AUL and allows for loans based on the prime rate or the LIBOR rate at our option. The interest rate on prime rate loans can range from the prime rate plus 1.00% to the prime rate plus 2.00%. The interest rate for LIBOR-based loans can range from the LIBOR rate plus 2.00% to the LIBOR rate plus 3.00%. During the first six months of the facility, the rate will be the Libor rate plus 2.50%. o We will pay a commitment fee on the unused portion of the $65 million commitment. This commitment fee is also based on the AUL and will range from 0.375% to 0.50%. During the first six months of the facility, the commitment fee will be 0.50%. o The amount that we may have outstanding cumulatively in working capital borrowings and letters of credit is subject to a Borrowing Base calculation. The Borrowing Base (as defined in the Fleet Agreement) generally includes our cash balances, net accounts receivable and inventory, less deductions for certain accounts payable, and is calculated monthly. 22 o Collateral under the Fleet Agreement consists of our accounts receivable, inventory, cash accounts, margin accounts and property and equipment. o The Fleet Agreement contains covenants requiring a Current Ratio (as defined in the Fleet Agreement), a Leverage Ratio (as defined in the Fleet Agreement), a Cash Flow Coverage Ratio (as defined in the Fleet Agreement), a Funded Indebtedness to Capitalization Ratio (as defined in the Fleet Agreement), Minimum EBITDA, and limitations on distributions to Unitholders. Under the Citicorp Agreement, distributions to Unitholders and the General Partner could only be made if the Borrowing Base exceeded the usage (working capital borrowings plus outstanding letters of credit) under the Citicorp Agreement for every day of the quarter by at least $20 million plus the distribution. Under the Fleet Agreement, this provision is changed to require that the Borrowing Base exceed the usage under the Fleet Agreement by at least $10 million plus the distribution measured once each month. See additional discussion below under "Distributions". At December 31, 2002, we had $5.5 million outstanding under the Citicorp Agreement. Due to the revolving nature of loans under the Citicorp Agreement, additional borrowings and periodic repayments and re-borrowings may be made until the maturity date of December 31, 2003. At December 31, 2002, we had letters of credit outstanding under the Citicorp Agreement totaling $26.3 million, comprised of $13.8 million and $12.5 million for crude oil purchases related to December 2002 and January 2003, respectively. As a result of our decision to reduce the level of bulk and exchange transactions, credit support in the form of letters of credit has been less in 2002 than it was in 2001. However, any significant decrease in our financial strength, regardless of the reason for such decrease, may increase the number of transactions requiring letters of credit, which could restrict our gathering and marketing activities due to the limitations of the Fleet Agreement and Borrowing Base. This situation could in turn adversely affect our ability to maintain or increase the level of our purchasing and marketing activities or otherwise adversely affect our profitability and Available Cash. Working Capital Our balance sheet reflects negative working capital of $3.5 million. The majority of this difference can be attributed to the accrual for the fines and penalties that we expect to pay to state and federal regulators related to the December 1999 Mississippi oil spill. That accrual is $3.0 million. As we have a working capital sublimit under the Fleet Agreement of $25 million and have only borrowed $5.5 million at December 31, 2002, we have the ability to borrow the funds to make the necessary payments. Contractual Obligation and Commercial Commitments In addition to the Citicorp Agreement discussed above, we have contractual obligations under operating leases as well as commitments to purchase crude oil. The table below summarizes these obligations and commitments at December 31, 2002 (in thousands). Payments Due by Period ----------------------------------------------------------------------- Less than 1 - 3 4 - 5 After 5 Contractual Cash Obligations Total 1 Year Years Years Years ---------------------------- ------------ ------------ ----------- ------------ ------------ Operating Leases......... $ 15,630 $ 4,128 $ 7,057 $ 1,927 $ 2,518 Unconditional Purchase Obligations (1) 139,852 138,918 934 - - ------------ ------------ ----------- ------------ ------------ Total Contractual Cash Obligations $ 155,482 $ 143,046 $ 7,991 $ 1,927 $ 2,518 ============ ============ =========== ============ ============ (1) The unconditional purchase obligations included above are contracts to purchase crude oil, generally at market-based prices. For purposes of this table, market prices at December 31, 2002, were used to value the obligations, such that actual obligations may differ from the amounts included above.
Distributions The Partnership Agreement for Genesis Energy, L.P. provides that we will distribute 100% of our Available Cash within 45 days after the end of each quarter to Unitholders of record and to the General Partner. Available 23 Cash consists generally of all of our cash receipts less cash disbursements adjusted for net changes to reserves. (A full definition of Available Cash is set forth in the Partnership Agreement.) The Partnership Agreement indicates that the target minimum quarterly distribution ("MQD") for each quarter is $0.20 per unit. Under the terms of the Citicorp Agreement, we could not pay a distribution for any quarter unless the Borrowing Base exceeded the usage under the Citicorp Agreement (working capital loans plus outstanding letters of credit) for every day of the quarter by at least $20 million plus the total amount of the distribution. For the first and second quarters of 2002, we did not pay a distribution as the excess of the Borrowing Base over the usage dropped below the required total. During the third quarter of 2002, we met this test and thus were not restricted from making a distribution under the Citicorp Agreement. However, we did not make a distribution for the third quarter of 2002 because of a reserve established for future needs of the Partnership. These reserves exceeded Available Cash for the third quarter of 2002. Similarly, we did not make a regular distribution for the fourth quarter of 2002 as reserves again exceeded Available Cash. Such future needs of the Partnership include, but are not limited to, the fines that are being imposed in connection with the crude oil spill that occurred on the Mississippi System in December 1999 and future expenditures that will be required for pipeline integrity management programs required by federal regulations that are described above under "Capital Expenditures". Available cash before reserves for the year ended December 31, 2002, is as follows (in thousands): Net income................................................... $ 5,092 Depreciation and amortization................................ 5,813 Increase to environmental accrual............................ 1,500 Change in fair value of derivatives.......................... 2,094 Net gain from asset sales.................................... 1,535 Maintenance capital expenditures............................. (4,211) ----------- Available Cash before reserves............................... $ 11,823 Special distribution paid in December 2002................... (1,760) Reduction of debt required in 2002 as a result of asset sales (2,171) ----------- Remaining Available Cash before reserves..................... $ 7,892 =========== As discussed above in Outlook for 2003 and Beyond above, we expect to resume regular quarterly distributions during 2003 of at least $0.05 per unit. Any decision to restore the distribution to the targeted minimum quarterly distribution will take into account our ability to sustain the distribution on an ongoing basis with cash generated by our existing asset base, capital requirements needed to maintain and optimize the performance of our asset base, and our ability to finance our existing capital requirements and accretive acquisitions. For each of the first three quarters of 2001, the Partnership paid a distribution to the Common Unitholders and the General Partner of $0.20 per unit. Some of the Partnership's Unitholders were allocated taxable income for 2002. The amount of taxable income allocated to each unitholder varied, depending on the timing of unit purchases and the amount of each unitholder's tax basis in their units. In order to mitigate the burden of incurring a tax liability without receiving a cash distribution, we made a special distribution in the amount of $0.20 per unit on December 16, 2002 to Unitholders of record as of December 2, 2002. Industry Credit Market Disruptions Over the last eighteen months there have been an unusual number of business failures and large financial restatements by small as well as large companies in the energy industry. Because the energy industry is very credit intensive, these failures and restatements have focused attention on the credit risks of companies in the energy industry by credit rating agencies, producers and counterparties. This focus on credit has affected us in two ways - requests for credit from producers and extension of credit to counterparties. While we have seen some increase in requests for credit support from producers (primarily in the first quarter of 2002), we have been relatively successful in obtaining open credit from most producers. Because we are an aggregator of crude oil, sales of crude oil tend to be large volume transactions. In transacting business with our counterparties, we must decide how much credit to extend to each counterparty, as well as the form and amount of financial assurance to obtain from counterparties when credit is not extended. 24 We have modified our credit arrangements with certain counterparties that have been adversely affected by recent financial difficulties in the energy industry. Our accounts receivable settle monthly and collection delays generally relate only to discrepancies or disputes as to the appropriate price, volume or quality of crude oil delivered. Of the $80.7 million aggregate receivables on our consolidated balance sheet at December 31, 2002, approximately $79.9 million, or 99%, were less than 30 days past the invoice date. FERC Notice of Proposed Rulemaking On August 1, 2002, the Federal Energy Regulatory Commission ("FERC") issued a Notice of Proposed Rulemaking that, if adopted, would amend its Uniform System of Accounts for public utilities, natural gas companies and oil pipeline companies by requiring specific written documentation concerning the management of funds from a FERC-regulated subsidiary by a non-FERC-regulated parent. Under the proposed rule, as a condition for participating in a cash management or money pool arrangement, the FERC-regulated entity would be required to maintain a minimum proprietary capital balance (stockholder's equity) of 30 percent, and the FERC-regulated entity and its parent would be required to maintain investment grade credit ratings. If either of these conditions is not met, the FERC-regulated entity would not be eligible to participate in the cash management or money pool arrangement. This proposed rule was subject to a comment period of 15 days after its publication in the Federal Register. A significant number of comments were received by the FERC. Hearings have been held by the FERC and industry organizations have submitted suggestions of changes to the proposed rule. At this time, it is unclear when, or if, the rule will be enacted. We believe that, if enacted as proposed, this rule may affect the manner in which we manage our cash; however, we are unable to predict the full impact of this proposed regulation on our business. Results of Operations The following review of the results of operations and financial condition should be read in conjunction with the Consolidated Financial Statements and Notes thereto. Selected financial data for this discussion of the results of operations follows, in thousands. Years Ended December 31, ----------------------------------------------- 2002 2001 2000 ------------ ----------- ------------ Revenues Gathering & marketing....................... $ 891,595 $ 3,326,003 $ 4,309,614 Pipeline.................................... $ 20,211 $ 14,195 $ 14,940 Gross margin Gathering & marketing....................... $ 15,832 $ 16,518 $ 14,374 Pipeline.................................... $ 7,283 $ 3,298 $ 6,288 General and administrative expenses............. $ 8,289 $ 11,691 $ 10,942 Depreciation and amortization................... $ 5,813 $ 7,546 $ 8,032 Impairment of long-lived assets................. $ - $ 45,061 $ - Other operating charges......................... $ 1,500 $ 1,500 $ 1,387 Operating income (loss)......................... $ 7,513 $ (45,982) $ 301 Interest income (expense), net.................. $ (1,035) $ (527) $ (1,010) Change in fair value of derivatives............. $ (2,094) $ 2,259 $ - Cumulative effect of adoption of FAS 133........ $ - $ 467 $ - Net gain on disposal of surplus assets.......... $ 708 $ 167 $ 1,148
25 Our profitability depends to a significant extent upon our ability to maximize gross margin. Gross margins from gathering and marketing operations are a function of volumes purchased and the difference between the price of crude oil at the point of purchase and the price of crude oil at the point of sale, minus the associated costs of aggregation and transportation. The absolute price levels for crude oil do not necessarily bear a relationship to gross margin as absolute price levels normally impact revenues and cost of sales by equivalent amounts. Because period-to-period variations in revenues and cost of sales are not generally meaningful in analyzing the variation in gross margin for gathering and marketing operations, such changes are not addressed in the following discussion. In our gathering and marketing business, we seek to purchase and sell crude oil at points along the Distribution Chain where we can achieve positive gross margins. We generally purchase crude oil at prevailing prices from producers at the wellhead under short-term contracts. We then transport the crude along the Distribution Chain for sale to or exchange with customers. Additionally, we enter into exchange transactions with third parties. We generally enter into exchange transactions only when the cost of the exchange is less than the alternate cost we would incur in transporting or storing the crude oil. In addition, we often exchange one grade of crude oil for another to maximize margins or meet contract delivery requirements. Prior to the first quarter of 2002, we purchased crude oil in bulk at major pipeline terminal points. These bulk and exchange transactions were characterized by large volumes and narrow profit margins on purchases and sales. Generally, as we purchase crude oil, we simultaneously establish a margin by selling crude oil for physical delivery to third party users, such as independent refiners or major oil companies. Through these transactions, we seek to maintain a position that is substantially balanced between crude oil purchases, on the one hand, and sales or future delivery obligations, on the other hand. It is our policy not to hold crude oil, futures contracts or other derivative products for the purpose of speculating on crude oil price changes. Year Ended December 31, 2002 Compared with Year Ended December 31, 2001 Gross margin. Gathering and marketing gross margins decreased $0.7 million or 4% to $15.8 million for the year ended December 31, 2002, as compared to $16.5 million for the year ended December 31, 2001. The factors affecting gross margin were: o an increase in gross margin of $22.4 million due to an increase in the average difference between the price of crude oil at the point of purchase and the price of crude oil at the point of sale; o a 72 percent decrease in wellhead, bulk and exchange purchase volumes between 2001 and 2002, resulting in a decrease in gross margin of $23.9 million; o a decrease of $0.7 million in credit costs primarily due to the reduction in bulk and exchange transactions; o a $0.9 million increase in gross margin in the 2002 period as a result of the sale of crude oil that is no longer needed to ensure efficient and uninterrupted operations; and o an increase of $0.8 million in field operating costs, primarily from a $0.4 million increase in payroll and benefits, a $0.3 million increase in repair costs, and a $0.1 million increase in insurance costs. The increased payroll-related costs and fuel costs can be attributed to an approximate 12 percent increase in the miles driven in our trucks. The increase in repair costs is attributable primarily to repairs at truck unloading stations. The increased insurance costs reflect a combination of changes in the insurance market and the Partnership's loss history. As discussed previously, we changed our business model in 2002 to substantially eliminate our bulk and exchange activity due to the relatively low margins and high credit requirements for these transactions. Additionally, we reviewed our wellhead purchase contracts to determine whether margins under those contracts would support higher credit costs. In some cases, contracts were cancelled. These volume reductions were the primary reasons gathering and marketing volumes decreased by 72%. Pipeline gross margin increased $4.0 million or 121% to $7.3 million for the year ended December 31, 2002, as compared to $3.3 million for the year ended December 31, 2001. The factors affecting pipeline gross margin were: 26 o an increase in revenues from sales of pipeline loss allowance barrels of $2.3 million primarily as a result of revising pipeline tariffs to increase the amount of the pipeline loss allowance imposed on shippers, and the recognition of pipeline loss allowance volumes, measurement gains net of measurement losses, and crude quality deductions as inventory; o an increase of 43 percent in the average tariff on shipments resulting in an increase in revenue of $5.1 million; o a decrease in throughput of 10 percent between the two years, resulting in a revenue decrease of $1.4 million; and o an increase in pipeline operating costs of $2.0 million in 2002 primarily due to greater expenditures for personnel and benefits, for maintenance of right-of-ways including clearing of tree canopies and costs associated with residential and commercial development around our pipelines, for testing under the pipeline integrity management regulations, for tank and station maintenance projects, for safety, training and related projects, for liability and property damage insurance, and for other operating costs, offset by reduced power costs and lower costs for remote monitoring and control. Personnel and benefits costs increased $0.3 million primarily as a result of additions to the operations staff in Mississippi and costs associated with work vehicles for the new staff added $0.1 million. Costs associated with maintenance of right of ways and testing under pipeline integrity regulations increased a combined $0.3 million. Tank and station maintenance expenses increased $0.2 million. In 2002, we increased safety training for our pipeline operations personnel at a cost of $0.2 million. Additionally we undertook a project to add Global Positioning Satellite information to our pipeline maps as required pursuant to pipeline safety regulations. Expenses incurred on this project in 2002 totaled $0.5 million. Insurance costs increased by $0.4 million due to the combination of insurance market conditions and our loss history. Other operating costs, including corrosion control and tank rentals, increased by $0.5 million. Power costs were lower by $0.2 million due to electricity deregulation in Texas. Our remote monitoring and control costs were lower by $0.3 million as we completed the transition in early 2002 from a more expensive service. General and administrative expenses. General and administrative expenses decreased $3.4 million in 2002 from the 2001 level. Changes in personnel costs primarily due to the elimination of bulk and exchange activities reduced generaland administrative expenses $2.3 million, and charges from our bonus program were $0.8 million less in 2002. The remaining decrease of $0.3 million is attributable to decreases in expenses for legal, tax and other professional services, offset by small increases in administrative insurance costs and contract labor costs. Depreciation and amortization. Depreciation and amortization expense decreased $1.7 million in 2002 from the 2001 level. As a result of the impairment of the pipeline assets in 2001, the value to be depreciated was reduced. Other operating charge. In 2002, we reached an agreement in principle with the federal and state regulatory authorities regarding the fines we would pay related to the spill that occurred in December 1999 in Mississippi. The cost to us under the agreement is expected to be $3.0 million. In the fourth quarter of 2001 we accrued $1.5 million for this potential fine and in the third quarter of 2002 another $1.5 million was accrued. Interest income (expense), net. In 2002, the Partnership had an increase in its net interest expense of $0.5 million. In 2001, the Partnership paid commitment fees on the unused portion of its $25 million facility with BNP Paribas. In the 2002 period, the Partnership paid commitment fees on the unused portion of the Credit Agreement with Citicorp. From January 1, 2002, until May 3, 2002, that facility maximum was $130 million. At May 3, 2002, the Credit Agreement was reduced to a maximum of $80 million. The larger amount of the credit facility resulted in substantially higher commitment fees in 2002. Change in fair value of derivatives. As a result of the significant reduction in our bulk and exchange activities at December 31, 2001, and a review of contracts existing at December 31, 2002, we determined that substantially all of our contracts do not meet the requirement for treatment as derivative contracts under SFAS No. 133, "Accounting for Derivative Instruments and Hedging Activities" (as amended and interpreted). The contracts were designated as normal purchases and sales under the provisions for that treatment in SFAS No. 133. As a result, the fair value of the Partnership's net asset for derivatives decreased by $2.1 million for the nine months ended September 30, 2002. 27 At December 31, 2002, the only contracts qualifying as a derivative under SFAS No. 133 were a cash flow hedge of inventory. The change in the fair value of these contracts at December 31, 2002 was a loss of $39,000, which is reflected as a reduction of consolidated comprehensive income. The consolidated balance sheet includes $39,000 in other current liabilities as a result of recording the fair value of derivatives. The fair value of our derivative contracts at December 31, 2002, was determined using the sources for fair value as shown in the table below (in thousands). Fair Value of Contracts at Period-End Maturity Maturity Maturity in less than 3-6 Excess of Total Source of Fair Value 3 Months Months 6 Months Fair Value -------------------- -------- ------ -------- ---------- Prices actively quoted................. $ 39 $ - $ - $ 39 Prices provided by other external sources - - - - Prices based on models and other valuation methods.................... - - - - --------- ------ -------- ---------- Total.................................. $ 39 $ - $ - $ 39 ========= ====== ======== ==========
Net gain on disposal of surplus assets. In 2002, we disposed of our seats on the NYMEX for $1.7 million, resulting in a gain of $0.5 million. The changes we made in our business model to reduce our bulk and exchange activities eliminated our reasons for owning the NYMEX seats. Additionally, in 2002, we sold surplus land and a building and surplus used vehicles resulting in additional cumulative net gains of $0.2 million. In 2000, we made the decision to lease our tractor/trailer fleet from Ryder Transportation Services. The majority of the existing fleet was sold in 2000 and 2001. Cash proceeds of $0.4 million and a gain of $0.1 million in 2001 were realized in 2001 from this sale. Year Ended December 31, 2001 Compared with Year Ended December 31, 2000 Gross margin. Gathering and marketing gross margins increased $2.1 million or 15% to $16.5 million for the year ended December 31, 2001, as compared to $14.4 million for the year ended December 31, 2000. The factors affecting gross margin were: o a 23 percent increase in the average difference between the price of crude oil at the point of purchase and the price of crude oil at the point of sale, which increased gross margin by $6.3 million; o a decrease of 11% percent in wellhead, bulk and exchange purchase volumes between 2000 and 2001, resulting in a decrease in gross margin of $3.3 million; o a decrease of $0.5 million in credit costs primarily due to a 15 percent decrease in the average absolute price level of crude oil and the decrease in purchase volumes; and o an increase of $2.0 million in field operating costs, primarily from a $2.2 million increase in rental costs due to the replacement of the tractor/trailer fleet with a leased fleet in the fourth quarter of 2000, a $0.2 million increase in payroll and benefits, and a $0.1 million increase in insurance costs, offset by $0.5 million decrease in repair costs. The increased payroll-related costs and fuel costs can be attributed to an approximate 4% increase in the number of barrels transported by the Partnership in trucks. The increased insurance costs reflect a combination of changes in the insurance market and the Partnership's loss history. The decline in repair costs is attributable to the change to the use of leased vehicles under a full-service maintenance lease. In addition, gross margin in 2000 included an unrealized loss on written option contracts of $0.6 million. In the latter half of 2001, Genesis began making changes to its business operations to prepare for the change from the $300 million Guaranty Facility with Salomon to a smaller letter of credit facility. These changes resulted in a substantial decrease in the Partnership's bulk and exchange activity due to the relatively low margins and high credit requirements on these transactions. Additionally, the Partnership began reviewing its wellhead purchase 28 contracts to determine whether margins under those contracts would support higher credit costs. In some cases, contracts were cancelled. These volume reductions were the primary reasons gathering and marketing volumes decreased by 11%. See "Outlook" below for additional discussion of these changes to business operations. Pipeline gross margin decreased $3.0 million or 48% to $3.3 million for the year ended December 31, 2001, as compared to $6.3 million for the year ended December 31, 2000. Pipeline revenues declined $0.4 million as a result of small declines in throughput and average tariffs. Revenues from sales of pipeline loss allowance barrels decreased $0.4 million as a result of lower crude prices. Pipeline operating costs were $2.2 million higher in the 2001 period primarily due to a $1.3 million increase in maintenance costs, a $0.3 million increase in insurance costs, a $0.2 million increase in payroll and related benefits and a $0.4 increase in general operating costs. The increased insurance costs reflect the combination of changes in the insurance market and the Partnership's loss history. General and administrative expenses. General and administrative expenses increased $0.7 million in 2001 from the 2000 level. In 2001, the Partnership's costs for professional services and contract labor increased $0.7 million, primarily as a result of the proposed sale of the general partner and related legal and consulting costs. See "Termination of Proposed General Partner Sale" below. Also contributing to the increase in general and administrative costs was a $0.4 million increase in salaries and benefits and $0.7 million of severance costs incurred as a result of a reduction in personnel. The number of personnel was reduced to reflect the reduced bulk purchases planned by the Partnership, as well as the overall decline in operating income. Offsetting the increases that total $1.8 million was a reduction in expenses of $1.1 million related to the Restricted Unit Plan. Depreciation and amortization. Depreciation and amortization expense decreased $0.5 million in 2001 from the 2000 level. This decrease is primarily attributable to the sale in the last quarter of 2000 of the Partnership's tractor/trailer fleet, thereby reducing depreciation, combined with the completion of depreciation on assets of the Partnership that had reached the end of their depreciable lives. Impairment of long-lived assets. As a result of declining revenues and significant increases in costs for operations and maintenance combined with regulatory changes requiring additional testing for pipeline integrity, the Partnership determined that its estimated undiscounted future cash inflows from the pipeline assets is less than the carrying value of those assets. As a result, the Partnership wrote the assets down to their estimated fair value in accordance with Statement of Financial Accounting Standard No. 121, "Accounting for the Impairment of Long-Lived Assets and Long-Lived Assets to Be Disposed Of" (FAS 121). An impairment charge of $45.0 million was recorded, with $38.0 million recorded to accumulated depreciation of the pipeline assets and $7.0 million recorded to accumulated amortization of goodwill. Other operating charge. In 2001, the Partnership recorded a charge of $1.5 million related to environmental matters, including the Mississippi spill that occurred in December 1999. In 2000, other operating charges included $1.4 million of costs related to the restructuring of the Partnership in December 2000. This $1.4 million of costs consisted primarily of legal and accounting fees, financial advisor fees, proxy solicitation expenses and the costs to print and mail a proxy statement to Common Unitholders. Interest income (expense), net. In 2001, the Partnership had a decrease in its net interest expense of $0.5 million. Interest expense decreased $0.6 million and interest income decreased $0.1 million. Average daily debt outstanding declined by $6.8 million, resulting in the decrease in interest expense. Interest income decreased primarily as a result of lower interest rates. Change in fair value of derivatives. The Partnership utilizes crude oil futures contracts and other financial derivatives to reduce its exposure to unfavorable changes in crude oil prices. On January 1, 2001, the Partnership adopted the provisions of SFAS No. 133, "Accounting for Derivative Instruments and Hedging Activities", which established new accounting and reporting guidelines for derivative instruments and hedging activities. SFAS No. 133 established accounting and reporting standards requiring that every derivative instrument (including certain derivative instruments embedded in other contracts) be recorded in the balance sheet as either an asset or liability measured at its fair value. SFAS No. 133 requires that changes in the derivative's fair value be recognized currently in earnings unless specific hedge accounting criteria are met. Under SFAS No. 133, the Partnership marks to fair value all of its derivative instruments at each period end with changes in fair value being recorded as unrealized gains or losses. Such unrealized gains or losses will change, based on prevailing market prices, at each balance sheet date prior to the period in which the transaction actually occurs. In general, SFAS No. 133 requires that at the date of initial adoption, the difference between the fair value 29 of derivative instruments and the previous carrying amount of those derivatives be recorded in net income or other comprehensive income, as appropriate, as the cumulative effect of a change in accounting principle. On January 1, 2001, recognition of the Partnership's derivatives resulted in a gain of $0.5 million, which was recognized in the consolidated statement of operations as the cumulative effect of adopting SFAS No. 133. Certain derivative contracts related to written option contracts had been recorded on the balance sheet at fair value at December 31, 2000, so no adjustment was necessary for those contracts upon adoption of SFAS No. 133. Net gain on disposal of surplus assets. In 2000, management of the General Partner made the decision to lease its tractor/trailer fleet from Ryder Transportation Services. The majority of the existing fleet was sold, resulting in cash proceeds of $0.4 million and a gain of $0.1 million in 2001 and proceeds of $1.8 million and a net gain of $1.0 million in 2000. The Partnership sold additional surplus assets, which resulted in proceeds of $0.1 million and a gain of $0.1 million in 2000. Other Matters Crude Oil Contamination The Partnership was named one of the defendants in a complaint filed on January 11, 2001, in the 125th District Court of Harris County, Texas, cause No. 2001-01176. Pennzoil-Quaker State Company ("PQS") seeks property damages, loss of use and business interruption suffered as a result of a fire and explosion that occurred at the Pennzoil Quaker State refinery in Shreveport, Louisiana, on January 18, 2000. PQS claims the fire and explosion was caused, in part, by Genesis selling to PQS crude oil that was contaminated with organic chlorides. We believe that the suit is without merit and intend to vigorously defend ourselves in this matter. We believe that any potential liability will be covered by insurance. PQS is also a defendant in five suits brought by neighbors living in the vicinity of the PQS Shreveport, Louisiana refinery in the First Judicial District Court, Caddo Parish, Louisiana, cause nos. 455,647-A. 455,658-B, 455,655-A, 456,574-A, and 458,379-C. PQS has brought third party demand against Genesis and others for indemnity with respect to the fire and explosion of January 18, 2000. We believe that the demand against Genesis is without merit and intend to vigorously defend ourselves in this matter. We believe that any potential liability will substantially be covered by insurance. Insurance We maintain insurance of various types that we consider adequate to cover our operations and properties. The insurance policies are subject to deductibles that we consider reasonable. The policies do not cover every potential risk associated with operating our assets, including the potential for a loss of significant revenues. Consistent with the coverage available in the industry, our policies provide limited pollution coverage, with broader coverage for sudden and accidental pollution events. Additionally, as a result of the events of September 11, the cost of insurance available to the industry has risen significantly, and insurers have excluded or reduced coverage for losses due to acts of terrorism and sabotage. Since September 11, 2001, warnings have been issued by various agencies of the United States Government to advise owners and operators of energy assets that those assets may be a future target of terrorist organizations. Any future terrorist attacks on our assets, or assets of our customers or competitors could have a material adverse affect on our business. We believe that we are adequately insured for public liability and property damage to others as a result of our operations. However, no assurances can be given that an event not fully insured or indemnified against will not materially and adversely affect our operations and financial condition. Additionally, no assurance can be given that we will be able to maintain insurance in the future at rates that we consider reasonable. New Accounting Pronouncements SFAS 143 In June, 2001, the FASB issued SFAS No. 143, "Accounting for Asset Retirement Obligations." This statement requires entities to record the fair value of a liability for legal obligations associated with the retirement obligations of tangible long-lived assets in the period in which it is incurred. When the liability is initially recorded, a corresponding increase in the carrying amount of the related long-lived asset would be recorded. Over time, 30 accretion of the liability is recognized each period, and the capitalized cost is depreciated over the useful life of the related asset. Upon settlement of the liability, an entity either settles the obligation for its recorded amount or incurs a gain or loss on settlement The standard is effective for Genesis on January 1, 2003. With respect to our pipelines, federal regulations will require us to purge the crude oil from our pipelines when the pipelines are retired. Our right of way agreements do not require us to remove pipe or otherwise perform remediation upon taking the pipelines out of service. Many of our truck unload stations are on leased sites that require that we remove our improvements upon expiration of the lease term. For our pipelines, we expect that we will be unable to reasonably estimate and record liabilities for the majority of our obligations that fall under the provisions of this statement because we cannot reasonably estimate when such obligations would be settled. For the truck unload stations, the site leases have provisions such that the lease continues until one of the parties gives notice that it wishes to end the lease. At this time we cannot reasonably estimate when such notice would be given and when the obligations to remove our improvements would be settled. We will record asset retirement obligations in the period in which we determine the settlement dates. SFAS 145 In April 2002, the FASB issued SFAS No. 145, "Rescission of FASB Statements No. 4, 44, and 64, Amendment of FASB Statement No. 13, and Technical Corrections." SFAS No. 145 rescinds SFAS No. 4, "Reporting Gains and Losses from Extinguishment of Debt" and an amendment of that statement, SFAS No. 64, "Extinguishments of Debt Made to Satisfy Sinking-Fund Requirements." SFAS No. 145 also rescinds SFAS No. 44, "Accounting for Intangible Assets of Motor Carriers." SFAS No. 145 also amends SFAS No. 13, "Accounting for Leases," to eliminate an inconsistency between the required accounting for sale-leaseback transactions and the required accounting for certain lease modifications that have economic effects that are similar to sale-leaseback transactions. SFAS No. 145 also amends other existing authoritative pronouncements to make various technical corrections, clarify meanings, or describe their applicability under changed conditions. The provisions related to the rescission of SFAS No. 4 shall be applied in fiscal years beginning after May 15, 2002. The provisions related to SFAS No. 13 shall be effective for transactions occurring after May 15, 2002. All other provisions shall be effective for financial statements issued on or after May 15, 2002, with early application encouraged. The adoption of this statement did not have a material effect on our results of operations. SFAS 146 In June 2002, the FASB issued SFAS No. 146, "Accounting for Costs Associated with Exit or Disposal Activities," which addresses accounting for restructuring and similar costs. SFAS No. 146 supersedes previous accounting guidance, principally EITF Issue No. 94-3. We will adopt the provisions of SFAS No. 146 for restructuring activities initiated after December 31, 2002. SFAS No. 146 requires that the liability for costs associated with an exit or disposal activity be recognized when the liability is incurred. Under Issue No. 94-3, a liability for an exit cost was recognized at the date of commitment to an exit plan. SFAS No. 146 also establishes that the liability should initially be measured and recorded at fair value. Accordingly, SFAS No. 146 may affect the timing of recognizing future restructuring costs as well as the amounts recognized. The impact that SFAS No. 146 will have on our consolidated financial statements will depend on the circumstances of any specific exit or disposal activity. Interpretation No. 45 In November 2002, the FASB issued Interpretation No. 45, "Guarantor's Accounting and Disclosure Requirements for Guarantees, Including Indirect Guarantees of Indebtedness of Others". This interpretation of SFAS No. 5, 57 and 107, and rescission of FASB Interpretation No. 34 elaborates on the disclosures to be made by a guarantor in its interim and annual financial statements about its obligations under certain guarantees that it has issued. It also clarifies that a guarantor is required to recognize, at the inception of a guarantee, a liability for the fair value of the obligation undertaken in issuing the guarantee. The initial recognition and initial measurement provisions of this interpretation are applicable on a prospective basis to guarantees issued or modified after December 31, 2002. The disclosure requirements in this interpretation are effective for financial statements of interim or annual periods after December 15, 2002. 31 SFAS 148 In December 2002, the FASB issued SFAS No. 148, "Accounting for Stock-Based Compensation-Transition and Disclosure," which provides alternative methods of transition from a voluntary change to the fair value based method of accounting for stock-based employee compensation. In addition, SFAS No. 148 amends the disclosure requirements of SFAS No. 123 in both annual and interim financial statements. SFAS No. 148 is effective for financial statements for fiscal years ending after December 15, 2002, and financial reports containing condensed financial statements for interim periods beginning after December 15, 2002. At this time, there are no outstanding grants of Partnership units under our Restricted Unit Plan (see Note 15). Therefore, we do not believe that the adoption of this statement will have a material effect on either our financial position, results of operations, cash flows or disclosure requirements. Critical Accounting Policies and Estimates The preparation of consolidated financial statements in conformity with accounting principles generally accepted in the United States requires us to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities, if any, at the date of the consolidated financial statements and the reported amounts of revenues and expenses during the reporting period. Although we believe these estimates are reasonable, actual results could differ from those estimates. The critical accounting policies and estimates that we have identified are discussed below. Depreciation, Amortization and Impairment of Long-Lived Assets We calculate depreciation and amortization based on useful lives estimated at the time the assets are placed in service. Events in future periods, however, can cause us to change our estimates, thus impacting the future calculation of depreciation and amortization. When events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable, we compare the carrying value of the fixed asset to the estimated undiscounted future cash flows from that asset. Should the undiscounted future cash flows be less than the carrying value, we record an impairment charge to reflect the asset at fair value. Fair value is determined by discounting the future estimated cash flows. Determination as to whether and how much an asset is impaired involves numerous management estimates. Impairment reviews and calculations are based on assumptions that are consistent with our business plans. In 2001, we recorded an impairment charge to our pipeline assets and goodwill totaling $45.1 million. Additionally we adjusted the remaining useful lives of our pipeline assets to be consistent with the determination of the period of time when we would expect future estimated cash flows from the assets. Revenue and Expense Accruals We routinely make accruals for both revenues and expenses due to the timing of compiling billing information, receiving third party information and reconciling our records with those of third parties. Additionally the provisions of SFAS No. 133, require estimates to be made of the effectiveness of derivatives as hedges and the fair value of derivatives. The actual results of the transactions involving the derivative instruments will most likely differ from the estimates. We base these estimates on information obtained from third parties and our internal records. We believe our estimates for revenue and expense items are reasonable, but there can be no assurance that actual amounts will not vary from estimated amounts. Liability and Contingency Accruals We accrue reserves for contingent liabilities including, but not limited to, environmental remediation and potential legal claims. When our assessment indicates that it is probable that a liability has occurred and the amount of the liability can be reasonably estimated, accruals are made. Our estimates are based on all known facts at the time and our assessment of the ultimate outcome, including consultation with external experts and counsel.. These estimates are revised as additional information is obtained or resolution is achieved. In 2001, we recorded an estimate of $1.5 million for the potential liability for fines related to the crude oil spill in December 1999, from our Mississippi pipeline system. Based on new information obtained in meetings with regulators, this estimate was increased to a total of $3.0 million in 2002. 32 Item 7a. Quantitative and Qualitative Disclosures about Market Risk Our primary price risk relates to the effect of crude oil price fluctuations on our inventories and the fluctuations each month in grade and location differentials and their affect on future contractual commitments. We utilize NYMEX commodity based futures contracts and forward contracts to hedge its exposure to these market price fluctuations. We believe the hedging program has been effective in minimizing overall price risk. At December 31, 2002, we used futures contracts exclusively in its hedging program with the latest contract being settled in February 2003. Information about these contracts is contained in the table set forth below. Sell (Short) Buy (Long) Contracts Contracts Crude Oil Inventory ----------- ------------ Volume (1,000 bbls)............................. 128 Carrying value (in thousands)................... $ 3,612 Fair value (in thousands)....................... $ 4,163 Commodity Future Contracts: Contract volumes (1,000 bbls)................... 96 Weighted average price per bbl..................$ 30.79 Contract value (in thousands)...................$ 432 Mark-to-market change (in thousands)............$ (39) ----------- Market settlement value (in thousands)..........$ 393 =========== The table above presents notional amounts in barrels, the weighted average contract price, total contract amount in U.S. dollars and the market settlement value amount in U.S. dollars. The market settlement value was determined by using the notional amount in barrels multiplied by the December 31, 2002 closing prices of the applicable NYMEX futures contract adjusted for location and grade differentials, as necessary. Item 8. Financial Statements and Supplementary Data The information required hereunder is included in this report as set forth in the "Index to Consolidated Financial Statements" on page 43. Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosures On May 2, 2002, the Board of Directors and its audit committee dismissed Arthur Andersen LLP as our independent public accountants and engaged Deloitte & Touche LLP to serve as our independent auditors for the fiscal year ending December 31, 2002. Arthur Andersen's report on our consolidated financial statements for the fiscal years ended December 31, 2001 and December 31, 2000, did not contain any adverse opinion or disclaimer of opinion, nor were they qualified or modified as to uncertainty or audit scope. In addition, there were no modifications as to accounting principles except that the most recent audit report of Andersen contained an explanatory paragraph with respect to the change in the method of accounting for derivative instruments effective January 1, 2001, as required by the Financial Accounting Standards Board. During the fiscal years ended December 31, 2001 and December 31, 2000, and through the date of the Board of Director's decision, there were no disagreements with Arthur Andersen on any matter of accounting principle or practice, financial statement disclosure, or auditing scope or procedure which, if not resolved to Arthur Andersen's satisfaction, would have caused them to make reference to the subject matter in connection with their reports on our consolidated financial statements for such years; and there were no reportable events, as described in Item 304(a)(1)(v) of Regulation S-K. During the fiscal years ended December 31, 2001 and December 31, 2000, and through the date of the Board of Director's decision, we did not consult Deloitte & Touche LLP with respect to the application of accounting 33 principles to a specified transaction, with completed or proposed, or the type of audit opinion that might be rendered on our consolidated financial statements, or any other matters or reportable events described in Items 304(a)(2)(i) and (ii) or Regulation S-K. Part III Item 10. Directors and Executive Officers of the Registrant We do not directly employ any persons responsible for managing or operating the Partnership or for providing services relating to day-to-day business affairs. The General Partner provides such services and is reimbursed for its direct and indirect costs and expenses, including all compensation and benefit costs. The Board of Directors of the General Partner consists of eight persons. Four of the directors, including the Chairman of the Board, are executives of Denbury. Our Chief Exceutive Officer serves on the Board of Directors. The three remaining directors are independent of Genesis and Denbury or any of its affiliates. The Board of Directors of the General Partner has established a committee (the "Audit Committee") consisting of the independent directors. The committee has the authority to review, at the request of the General Partner, specific matters as to which the General Partner believes there may be a conflict of interest in order to determine if the resolution of such conflict is fair and reasonable to the Partnership. In addition, the committee reviews our external financial reporting, recommends engagement of our independent accountants, and reviews the adequacy of our internal accounting controls. Directors and Executive Officers of the General Partner Set forth below is certain information concerning the directors and executive officers of the General Partner. All executive officers serve at the discretion of the General Partner. Name Age Position - ------------------------------ --- --------------------------------------- Gareth Roberts................ 50 Director and Chairman of the Board Mark J. Gorman................ 48 Director, Chief Executive Officer and President Ronald T. Evans............... 40 Director Herbert I. Goodman............ 80 Director Susan O. Rheney............... 43 Director Phil Rykhoek.................. 46 Director J. Conley Stone............... 71 Director Mark A. Worthey............... 45 Director Ross A. Benavides............. 49 Chief Financial Officer, General Counsel and Secretary Kerry W. Mazoch............... 56 Vice President, Crude Oil Acquisitions Karen N. Pape................. 45 Vice President and Controller Gareth Roberts has served as a Director and Chairman of the Board of the General Partner since May 2002. Mr. Roberts is President, Chief Executive Officer and a director of Denbury Resources Inc. and has served in those capacities since 1992. Mr. Roberts also serves on the board of directors of Belden & Blake Corporation. Mark J. Gorman has served as a Director of the General Partner since December 1996 and as President and Chief Executive Officer since October 1999. From December 1996 to October 1999 he served as Executive Vice President and as Chief Operating Officer from October 1997 to October 1999. He was President of Howell Crude Oil Company, a wholly-owned subsidiary of Howell Corporation, from September 1992 to December 1996. Ronald T. Evans has served as a director of the General Partner since May 2002. Mr. Evans is Vice President of Reservoir Engineering of Denbury and has served in that capacity since September 1999. Before joining Denbury, Mr. Evans was employed in a similar capacity with Matador Petroleum Corporation for three years and employed by Enserch Exploration, Inc. for twelve years in various positions. Herbert I. Goodman was elected to the Board of Directors of the General Partner in January 1997. He is the Chairman of IQ Holdings, Inc., a manufacturer and marketer of petrochemical-based consumer products. During 2001, he served as the Chief Executive Officer of PEPEX.NET, LLC, which provides electronic trading solutions to the international oil industry. From 1988 until 1996 he was Chairman and Chief Executive Officer of Applied Trading Systems, Inc., a trading and consulting business. 34 Susan O. Rheney became a Director of the General Partner in March 2002. Ms. Rheney is a private investor and formerly was a principal of The Sterling Group, L.P., a private financial and investment organization from 1992 to 2000. Ms. Rheney is a director of Texas Petrochemical Holdings, Inc., where she serves on the audit and finance committees, American Plumbing and Mechanical, Inc., where she serves on the audit and compensation committees and Mail-Well, Inc. Phil Rykhoek has served as a director of the General Partner since May 2002. Mr. Rykhoek is Chief Financial Officer, Vice President, Secretary and Treasurer of Denbury, and has served in those capacities since 1995. J. Conley Stone was elected to the Board of Directors of the General Partner in January 1997. From 1987 to his retirement in 1995, he served as President, Chief Executive Officer, Chief Operating Officer and Director of Plantation Pipe Line Company, a common carrier liquid petroleum products pipeline transporter. Mark A. Worthey has served as a director of the General Partner since May 2002. Mr. Worthey is Vice President, Operations for Denbury and has been with Denbury since September 1992. Ross A. Benavides has served as Chief Financial Officer of the General Partner since October 1998. He has served as General Counsel and Secretary since December 1999. He served as Tax Counsel for Lyondell Petrochemical Company ("Lyondell") from May 1997 to October 1998. Prior to joining Lyondell, he was Vice President of Basis Petroleum Corporation. Kerry W. Mazoch has served as Vice President, Crude Oil Acquisitions, of the General Partner since August 1997. From 1991 to 1997 he held the position of Vice President and General Manager of Crude Oil Acquisitions at Northridge Energy Marketing Corp., a wholly-owned subsidiary of TransCanada Pipelines Limited. Karen N. Pape was named Vice President and Controller of the General Partner effective in March 2002. Ms. Pape has served as Controller and as Director of Finance and Administration of the General Partner since December 1996. From 1990 to 1996, she was Vice President and Controller of Howell Corporation. Section 16(a) of the Securities Exchange Act of 1934 requires the officers and directors of the General Partner and persons who own more than ten percent of a registered class of the equity securities of the Partnership to file reports of ownership and changes in ownership with the SEC and the New York Stock Exchange. Based solely on its review of the copies of such reports received by it, or written representations from certain reporting persons that no Forms 5 was required for those persons, we believe that during 2002 its officers and directors complied with all applicable filing requirements in a timely manner. The three independent directors receive an annual fee of $30,000. The Audit Committee Chairman receives an annual fee of $4,000 and all members of the Audit Committee receive $1,500 for attendance at committee meetings. Beginning in 2003, Denbury will receive $120,000 from the Partnership for providing four of its executives as directors. Mr. Gorman does not receive a fee for his service as a director. Item 11. Executive Compensation Under the terms of the Partnership Agreement, we are required to reimburse the General Partner for expenses relating to the operation of the Partnership, including salaries and bonuses of employees employed on behalf of the Partnership, as well as the costs of providing benefits to such persons under employee benefit plans and for the costs of health and life insurance. See "Certain Relationships and Related Transactions." The following table summarizes certain information regarding the compensation paid or accrued by Genesis during 2002, 2001, and 2000 to the Chief Executive Officer and each of our three other executive officers (the "Named Officers"). 35 Summary Compensation Table Long-Term Annual Compensation Compensation Awards Other Annual Restricted All Other Salary Bonus Compensation Stock Awards Compensation Name and Principal Position Year $ $ $ (1) $ $ - ------------------------------- ---- --------- ------- ------------ ------------ ----------- Mark J. Gorman 2002 270,000 5,193 - - 11,500 (2) Chief Executive Officer 2001 270,000 56,814 - - 10,200 (3) and President 2000 270,000 50,000 - - 10,200 (3) Ross A. Benavides 2002 180,000 3,462 - - 11,500 (2) Chief Financial Officer, 2001 175,000 54,785 - - 10,200 (3) General Counsel and 2000 150,000 50,000 - - 9,173 (4) Secretary Kerry W. Mazoch 2002 170,000 3,270 - - 11,478 (5) Vice President, Crude 2001 169,000 30,720 - - 10,200 (3) Oil Acquisitions 2000 166,000 30,000 - - 10,080 (6) Karen N. Pape 2002 136,000 2,616 - - 10,118 (7) Vice President and Controller (1) No Named Officer had "Perquisites and Other Personal Benefits" with a value greater than the lesser of $50,000 or 10% of reported salary and bonus. (2) Includes $5,500 of Company-matching contributions to a defined contribution plan and $6,000 of profit-sharing contributions to a defined contribution plan. (3) Includes $5,100 of Company-matching contributions to a defined contribution plan and $5,100 of profit-sharing contributions to a defined contribution plan. (4) Includes $4,587 of Company-matching contributions to a defined contribution plan and $4,586 of profit-sharing contributions to a defined contribution plan. (5) Includes $5,500 of Company-matching contributions to a defined contribution plan and $5,978 of profit-sharing contributions to a defined contribution plan. (6) Includes $4,980 of Company matching contributions to a defined contribution plan and $5,100 of profit-sharing contributions to a defined contribution plan. (7) Includes $5,059 of Company-matching contributions to a defined contribution plan and $5,059 of profit-sharing contributions to a defined contribution plan.
Employment and Severance Agreements The Partnership has severance agreements with Mr. Gorman, Mr. Benavides, Mr. Mazoch and Ms. Pape that expire May 14, 2003. The severance agreements with Mr. Gorman, Mr. Benavides, Mr. Mazoch and Ms. Pape provide that in the event of a Changed Circumstance (as defined in the severance agreement) or a Changed Circumstance within one year of a Change in Control (as defined as a sale of substantially all of the Partnership's assets or a change in the ownership of fifty percent or more of the General Partner), the officer shall be entitled to: (i) a lump sum payment of one year of annual salary, (ii) immediate vesting of any unvested awards under the Restricted Unit Plan and (iii) payment of any incentive compensation payable to the executive in accordance with the Incentive Plan. 36 Restricted Unit Plan In January 1997, the General Partner adopted a restricted unit plan for key employees of the General Partner that provided for the award of rights to receive Common Units under certain restrictions including meeting thresholds tied to Available Cash and Adjusted Operating Surplus. In January 1998, the restricted unit plan was amended and restated, and the thresholds tied to Available Cash and Adjusted Operating Surplus were eliminated. The discussion that follows is based on the terms of the Amended and Restated Restricted Unit Plan (the "Restricted Unit Plan"). Initially, rights to receive 291,000 Common Units are available under the Restricted Unit Plan. From these Units, rights to receive 261,000 Common Units (the "Restricted Units") were allocated to approximately 34 individuals, subject to the vesting conditions described below and subject to other customary terms and conditions. One-third of the Restricted Units allocated to each individual vested annually beginning in December 1998. The remaining rights to receive 30,000 Common Units initially available under the Restricted Unit Plan may be allocated or issued in the future to key employees on such terms and conditions (including vesting conditions) as the Compensation Committee of the General Partner ("Compensation Committee") shall determine. Upon "vesting" in accordance with the terms and conditions of the Restricted Unit Plan, Common Units allocated to a plan participant will be issued to such participant. Units issued to participants may be newly issued Units acquired by the General Partner from the Partnership at then prevailing market prices or may be acquired by the General Partner in the open market. In either case, the associated expense will be borne by the Partnership. Until Common Units have vested and have been issued to a participant, such participant shall not be entitled to any distributions or allocations of income or loss and shall not have any voting or other rights in respect of such Common Units. No consideration will be payable by the plan participants upon vesting and issuance of the Common Units. The plan participant cannot sell the Common Units until one year after the date of vesting. Termination without cause in violation of a written employment agreement, or a Significant Event as defined in the Restricted Unit Plan, will result in immediate vesting of all non-vested units and conversion to Common Units without any restrictions. Bonus Plan In February 2001, the Compensation Committee of the Board of Directors of the General Partner approved a Bonus Plan (the "Bonus Plan") for all employees of the General Partner. The Bonus Plan is designed to enhance the financial performance of the Partnership by rewarding employees for achieving financial performance objectives. The Bonus Plan will be administered by the Compensation Committee. Under this plan, amounts will be allocated for the payment of bonuses to employees each time GCOLP earns $1.5 million of Available Cash. The amount allocated to the bonus pool increases for each $1.5 million earned, such that a bonus pool of $1.2 million will exist if the Partnership earns $9.0 million of Available Cash. Bonuses will be paid to employees as each $1.5 million increment of Available Cash is earned, but only if distributions are made to the Common Unitholders. Payments under the Bonus Plan will be at the discretion of the Compensation Committee, and the General Partner can amend or change the Bonus Plan at any time. In 2002, we paid no regular quarterly distributions to our Common Unitholders, so no bonuses accrued under the Bonus Plan. The Compensation Committee chose, however, to pay a bonus to all employees equivalent to one week of pay. Item 12. Security Ownership of Certain Beneficial Owners and Management We know of no one who beneficially owns in excess of five percent of the Common Units of the Partnership. As set forth below, certain beneficial owners own interests in the General Partner of the Partnership as of February 28, 2003. 37 Amount and Nature Name and Address of Beneficial Ownership Percent Title of Class of Beneficial Owner as of January 1, 2002 of Class - ---------------------------------------- ------------------------- ----------------------------- ---------------- General Partner Interest Genesis Energy, Inc. 1 (1) 100.00 500 Dallas, Suite 2500 Houston, TX 77002 General Partner Interest Denbury Resources Inc. 1 (1) 100.00 5100 Tennyson Parkway. Plano, TX 75024 --------------------- (1) Denbury owns Genesis Energy, Inc. The reporting of the General Partner interest shall not be deemed to be a concession that such interest represents a security.
The following table sets forth certain information as of February 28, 2003, regarding the beneficial ownership of the Common Units by all directors of the General Partner, each of the named executive officers and all directors and executive officers as a group. This information is based on data furnished by the persons named. Amount and Nature of Beneficial Ownership --------------------------------------------------------------- Sole Voting and Shared Voting and Percent Title of Class Name Investment Power Investment Power of Class - ------------------------- ------------------- -------------------- ------------------- ------------- Genesis Energy, L.P. Gareth Roberts - - * Common Unit Mark J. Gorman 25,525 - * Ronald T. Evans - 1,000 * Herbert I. Goodman 2,000 - * Susan O. Rheney - 700 * Phil Rykhoek 4,000 - * J. Conley Stone 1,000 - * Mark A. Worthey - - * Ross A. Benavides 9,283 - * Kerry W. Mazoch 8,085 584 * Karen N. Pape 3,386 - * All directors and executive officers as a group (11 in number) 53,279 2,284 * --------------------- * Less than 1%
The above table includes shares owned by certain members of the families of the directors or executive officers, including shares in which pecuniary interest may be disclaimed. Item 13. Certain Relationships and Related Transactions Through its control of the General Partner, Denbury has the ability to control the management of the Partnership and GCOLP. Genesis enters into transactions with Denbury and the General Partner in the ordinary course of its operations. During 2002, these transactions included: o Purchases of crude oil from Denbury totaling $26.4 million. o Provision of personnel to manage and operate the assets and operations of Genesis by the General Partner. Genesis reimbursed the General Partner for all direct and indirect costs of these services in the amount of $17.3 million. Item 14. Controls and Procedures We have evaluated the effectiveness of the design and operation of our disclosure controls and procedures as of a date within 90 days prior to the filing date of this annual report on Form 10-K (the "Evaluation Date"). Such 38 evaluation was conducted under the supervision and with the participation of our Chief Executive Officer (CEO) and Chief Financial Officer (CFO). Based on such evaluation, the CEO and CFO concluded that, as of the Evaluation Date, Genesis' disclosure controls and procedures are effective in alerting them on a timely basis to material information relating to Genesis (including its consolidated subsidiaries) required to be included in Genesis' periodic filing under the Exchange Act. Since the Evaluation Date, there have not been any significant changes in our internal controls or in other factors that could significantly affect such controls. Item 15. Exhibits, Financial Statement Schedules, and Reports on Form 8-K (a)(1) and (2) Financial Statements and Financial Statement Schedules See "Index to Consolidated Financial Statements" set forth on page 43. (a)(3) Exhibits 3.1 Certificate of Limited Partnership of Genesis Energy, L.P. ("Genesis") (incorporated by reference to Exhibit 3.1 to Registration Statement, File No. 333-11545) 3.2 Third Amended and Restated Agreement of Limited Partnership of Genesis (incorporated by reference to Exhibit 4.1 of Form 8-K dated July 31, 2002) 3.3 Certificate of Limited Partnership of Genesis Crude Oil, L.P. (the "Operating Partnership") (incorporated by reference to Exhibit 3.3 to Form 10-K for the year ended December 31, 1996) 3.4 Third Amended and Restated Agreement of Limited Partnership of the Operating Partnership (incorporated by reference to Exhibit 4.1 to Form 8-K dated July 31, 2002) 10.1 Purchase & Sale and Contribution & Conveyance Agreement dated as of December 3, 1996 among Basis Petroleum, Inc. ("Basis"), Howell Corporation ("Howell"), certain subsidiaries of Howell, Genesis, the Operating Partnership and Genesis Energy, L.L.C. (incorporated by reference to Exhibit 10.1 to Form 10-K for the year ended December 31, 1996) 10.2 First Amendment to Purchase & Sale and Contribution & Conveyance Agreement (incorporated by reference to Exhibit 10.2 to Form 10-K for the year ended December 31, 1996) 10.3 Severance Agreement between Genesis Energy, L.L.C. and Mark J. Gorman (incorporated by reference to Exhibit 10.5 of Form 10-K for the year ended December 31, 2001) 10.4 Severance Agreement between Genesis Energy, L.L.C. and Ross A. Benavides (incorporated by reference to Exhibit 10.6 of Form 10-K for the year ended December 31, 2001) 10.5 Severance Agreement between Genesis Energy, L.L.C. and Kerry W. Mazoch (incorporated by reference to Exhibit 10.7 of Form 10-K for the year ended December 31, 2001) 10.6 Severance Agreement between Genesis Energy, L.L.C. and Karen N. Pape (incorporated by reference to Exhibit 10.8 of Form 10-K for the year ended December 31, 2001) 10.7 Office Lease at One Allen Center between Trizec Allen Center Limited Partnership (Landlord) and Genesis Crude Oil, L.P. (Tenant) (incorporated by reference to Exhibit 10 to Form 10-Q for the quarterly period ended September 30, 1997) 10.8 Amended and Restated Restricted Unit Plan (incorporated by reference to Exhibit 10.18 to Form 10-K for the year ended December 31, 1997) 10.9 Amended and Restated Credit Agreement dated as of May 3, 2002, between Genesis Crude Oil, L.P., Genesis Energy, L.L.C., Genesis Energy, L.P., 39 Citicorp North America, Inc., and Certain Financial Institutions (incorporated by reference to Form 10-Q for the period ended March 31, 2002) * 10.10 Credit Agreement dated as of March 14, 2003, between Genesis Crude Oil, L.P., Genesis Energy, Inc. Genesis Energy, L.P., Fleet National Bank and Certain Financial Institutions 11.1 Statement Regarding Computation of Per Share Earnings (See Note 3 to the Consolidated Financial Statements - "Net Income Per Common Unit") * 21.1 Subsidiaries of the Registrant * 99.1 Certification by Chief Executive Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act 0f 2002. * 99.2 Certification by Chief Financial Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act 0f 2002 -------------------- * Filed herewith (b) Reports on Form 8-K None. 40 SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized on the 19 th day of March, 2003. GENESIS ENERGY, L.P. (A Delaware Limited Partnership) By: GENESIS ENERGY, INC., as General Partner By: /s/ Mark J. Gorman -------------------------------- Mark J. Gorman Chief Executive Officer and President Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons in the capacities and on the dates indicated. /s/ MARK J. GORMAN Director, Chief Executive Officer March 19, 2003 - ------------------------- and President Mark J. Gorman (Principal Executive Officer) /s/ ROSS A. BENAVIDES Chief Financial Officer, March 19, 2003 - ------------------------- General Counsel and Secretary Ross A. Benavides (Principal Financial Officer) /s/ KAREN N. PAPE Vice President and Controller March 19, 2003 - ------------------------- Karen N. Pape (Principal Accounting Officer) /s/ GARETH ROBERTS Chairman of the Board and March 19, 2003 - ------------------------- Director Gareth Roberts /s/ RONALD T. EVANS Director March 19, 2003 - ------------------------- Ronald T. Evans /s/ HERBERT I GOODMAN Director March 19, 2003 - ------------------------- Herbert I. Goodman /s/ SUSAN O. RHENEY Director March 19, 2003 - ------------------------- Susan O. Rheney /s/ PHILIP RYKHOEK Director March 19, 2003 - ------------------------- Philip Rykhoek /s/ J. CONLEY STONE Director March 19, 2003 - ------------------------- J. Conley Stone /s/ MARK A. WORTHEY Director March 19, 2003 - -------------------------- Mark A. Worthey 41 CERTIFICATIONS PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002 CERTIFICATION I, Mark J. Gorman, certify that: 1. I have reviewed this annual report on Form 10-K of Genesis Energy, L.P.; 2. Based on my knowledge, this annual report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this annual report; 3. Based on my knowledge, the financial statements, and other financial information included in this annual report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this annual report; 4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in exchange Act Rules 13a-14 and 15d-14) for the registrant and we have: a) designed such disclosure controls and procedures to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this annual report is being prepared; b) evaluated the effectiveness of the registrant's disclosure controls and procedures as of a date within 90 days prior to the filing date of this annual report (the "Evaluation Date"); and c) presented in this annual report our conclusions about the effectiveness of the disclosure controls and procedures based on our evaluation as of the Evaluation Date; 5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent function): a) all significant deficiencies in the design or operation of internal controls which could adversely affect the registrant's ability to record, process, summarize and report financial data and have identified for the registrant's auditors any material weaknesses in internal controls; and b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal controls; and 6. The registrant's other certifying officer and I have indicated in this annual report whether or not there were significant changes in internal controls or in other factors that could significantly affect internal controls subsequent to the date of our most recent evaluation, including any corrective actions with regard to significant deficiencies and material weaknesses. Date: March 19, 2003 /s/ Mark J. Gorman ----------------------------------- Mark J. Gorman President & Chief Executive Officer 42 CERTIFICATION I, Ross A. Benavides, certify that: 1. I have reviewed this annual report on Form 10-K of Genesis Energy, L.P.; 2. Based on my knowledge, this annual report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this annual report; 3. Based on my knowledge, the financial statements, and other financial information included in this annual report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this annual report; 4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in exchange Act Rules 13a-14 and 15d-14) for the registrant and we have: a) designed such disclosure controls and procedures to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this annual report is being prepared; b) evaluated the effectiveness of the registrant's disclosure controls and procedures as of a date within 90 days prior to the filing date of this annual report (the "Evaluation Date"); and c) presented in this annual report our conclusions about the effectiveness of the disclosure controls and procedures based on our evaluation as of the Evaluation Date; 5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent function): a) all significant deficiencies in the design or operation of internal controls which could adversely affect the registrant's ability to record, process, summarize and report financial data and have identified for the registrant's auditors any material weaknesses in internal controls; and b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal controls; and 6. The registrant's other certifying officer and I have indicated in this annual report whether or not there were significant changes in internal controls or in other factors that could significantly affect internal controls subsequent to the date of our most recent evaluation, including any corrective actions with regard to significant deficiencies and material weaknesses. Date: March 19, 2003 /s/ Ross A. Benavides ---------------------------- Ross A. Benavides Chief Financial Officer 43 GENESIS ENERGY, L.P. INDEX TO CONSOLIDATED FINANCIAL STATEMENTS Page Independent Auditors' Report........................................... 44 Consolidated Balance Sheets, December 31, 2002 and 2001................ 46 Consolidated Statements of Operations for the Years Ended December 31, 2002, 2001 and 2000....................................... 47 Consolidated Statements of Comprehensive Income for the Years Ended December 31, 2002, 2001 and 2000................................. 48 Consolidated Statements of Cash Flows for the Years Ended December 31, 2002, 2001 and 2000....................................... 49 Consolidated Statements of Partners' Capital for the Years Ended December 31, 2002, 2001 and 2000................................. 50 Notes to Consolidated Financial Statements............................. 51 44 INDEPENDENT AUDITORS' REPORT Genesis Energy, L.P. Houston, Texas We have audited the accompanying consolidated balance sheet of Genesis Energy, L.P., (the "Partnership") as of December 31, 2002, and the related consolidated statements of operations, comprehensive income, partners' capital and cash flows for the year then ended. These financial statements are the responsibility of the Partnership's management. Our responsibility is to express an opinion on these financial statements based on our audit. The consolidated balance sheet of the Partnership as of December 31, 2001 and the consolidated statements of operations, partners' capital and cash flows for the two years in the period ended December 31, 2001, were audited by other auditors who have ceased operations. Those auditors expressed an unqualified opinion on those statements dated March 8, 2002, and included an explanatory paragraph that described the Partnership's change in method of accounting for derivative instruments as discussed in Note 3 to those financial statements. We conducted our audit in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for our opinion. In our opinion, the December 31, 2002 consolidated financial statements referred to above present fairly, in all material respects, the financial position of Partnership at December 31, 2002, and the results of its operations and its cash flows for the year then ended in conformity with accounting principles generally accepted in the United States of America. As discussed in Note 8 to the consolidated financial statements, in 2002, the Partnership changed its method of accounting for goodwill. As discussed in Note 19 to the consolidated financial statements, in 2001, the Partnership changed its method of accounting for derivative instruments. As discussed above, the financial statements of Genesis Energy, L.P. as of December 31, 2001, and for the years ended December 31, 2001 and 2000, were audited by other auditors who have ceased operations. As described in Note 8, these financial statements have been revised to include transitional disclosures required by Statement of Financial Standards ("Statement") No. 142, Goodwill and Other Intangible Assets, which was adopted by the Partnership as of January 1, 2002. Our audit procedures with respect to the disclosures in Note 8 with respect to the year ended December 31, 2001, and the year ended December 31, 2000, included (a) agreeing the previously reported net income to the previously issued financial statements and the adjustments to reported net income representing amortization expense recognized in those periods related to goodwill as a result of initially applying Statement No. 142 to the Company's underlying records obtained from management, and (b) testing the mathematical accuracy of the reconciliation of adjusted net income to reported net income, and the related earnings-per-unit amounts. In our opinion, the disclosures for the year ended December 31, 2001, and the year ended December 31, 2000, in Note 8 are appropriate. However, we were not engaged to audit, review or apply any procedures to the 2001 or 2000 financial statements of the Partnership other than with respect to such disclosures and, accordingly, we do not express an opinion or any other form of assurance on the 2001 or 2000 financial statements taken as a whole. /s/ Deloitte & Touche LLP DELOITTE & TOUCHE LLP Houston, Texas March 14, 2003 45 REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS To Genesis Energy, L.P.: We have audited the accompanying consolidated balance sheets of Genesis Energy, L.P., (a Delaware limited partnership) as of December 31, 2001 and 2000, and the related consolidated statements of operations, cash flows and partners' capital for each of the three years in the period ended December 31, 2001. These financial statements are the responsibility of the Partnership's management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with auditing standards generally accepted in the United States. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of Genesis Energy, L.P. as of December 31, 2001 and 2000, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2001, in conformity with accounting principles generally accepted in the United States. As explained in Note 3 to the consolidated financial statements, effective January 1, 2001, the Partnership changed its method of accounting for derivative instruments. ARTHUR ANDERSEN LLP Houston, Texas March 8, 2002 This is a copy of the audit report previously issued by Arthur Andersen LLP in connection with our filing on Form 10-K for the year ended December 31, 2001. This audit report has not been reissued by Arthur Andersen LLP in connection with this filing on Form 10-K. 46 GENESIS ENERGY, L.P. CONSOLIDATED BALANCE SHEETS (In thousands) December 31, December 31, 2002 2001 -------- ---------- ASSETS CURRENT ASSETS Cash and cash equivalents...................................... $ 1,071 $ 5,777 Accounts receivable - Trade....................................................... 80,664 160,734 Related party............................................... - 1,064 Inventories.................................................... 4,952 3,737 Insurance receivable for pipeline spill costs.................. 3,425 1,570 Other.......................................................... 2,718 9,218 ---------- ---------- Total current assets........................................ 92,830 182,100 FIXED ASSETS, at cost............................................. 118,418 115,336 Less: Accumulated depreciation................................ (73,958) (69,626) ----------- ----------- Net fixed assets............................................ 44,460 45,710 OTHER ASSETS, net of amortization................................. 247 2,303 ---------- ---------- TOTAL ASSETS...................................................... $ 137,537 $ 230,113 ========== ========== LIABILITIES AND PARTNERS' CAPITAL CURRENT LIABILITIES Accounts payable - Trade....................................................... $ 82,640 $ 172,848 Related party............................................... 4,746 697 Accrued liabilities............................................ 8,834 10,144 ---------- ---------- Total current liabilities................................... 96,220 183,689 LONG-TERM DEBT.................................................... 5,500 13,900 COMMITMENTS AND CONTINGENCIES (Note 20) MINORITY INTERESTS................................................ 515 515 PARTNERS' CAPITAL Common unitholders, 8,625 units issued and outstanding......... 34,626 31,361 General partner................................................ 715 648 Accumulated other comprehensive loss........................... (39) - ---------- ---------- Total partners' capital..................................... 35,302 32,009 ---------- ---------- TOTAL LIABILITIES AND PARTNERS' CAPITAL........................... $ 137,537 $ 230,113 ========== ==========
The accompanying notes are an integral part of these consolidated financial statements. 47 GENESIS ENERGY, L.P. CONSOLIDATED STATEMENTS OF OPERATIONS (In thousands, except per unit amounts) Year Ended December 31, ----------------------------------------------- 2002 2001 2000 ------------ ----------- ------------ REVENUES: Gathering and marketing revenues Unrelated parties................................. $ 888,559 $ 3,296,156 $ 4,274,519 Related parties................................... 3,036 29,847 35,095 Pipeline revenues.................................... 20,211 14,195 14,940 ------------ ----------- ------------ Total revenues................................. 911,806 3,340,198 4,324,554 COST OF SALES: Crude costs, unrelated parties....................... 832,860 3,257,137 4,150,888 Crude costs, related parties......................... 26,452 36,699 130,679 Field operating costs................................ 16,451 15,649 13,673 Pipeline operating costs............................. 12,928 10,897 8,652 ------------ ----------- ------------ Total cost of sales............................... 888,691 3,320,382 4,303,892 ------------ ----------- ------------ GROSS MARGIN............................................ 23,115 19,816 20,662 EXPENSES: General and administrative........................... 8,289 11,691 10,942 Depreciation and amortization........................ 5,813 7,546 8,032 Impairment of long-lived assets...................... - 45,061 - Other operating charges.............................. 1,500 1,500 1,387 ------------ ----------- ------------ OPERATING INCOME (LOSS)................................. 7,513 (45,982) 301 OTHER INCOME (EXPENSE): Interest income...................................... 69 166 259 Interest expense..................................... (1,104) (693) (1,269) Change in fair value of derivatives.................. (2,094) 2,259 - Net gain on disposal of surplus assets............... 708 167 1,148 ------------ ----------- ------------ Income (loss) before minority interests and cumulative effect of change in accounting principle.............. 5,092 (44,083) 439 Minority interests...................................... - (4) 258 ------------ ----------- ------------ Income (loss) before cumulative effect of change in accounting principle.................................. 5,092 (44,079) 181 Cumulative effect of change in accounting principle, net of minority interest effect........................... - 467 - ------------ ----------- ------------ NET INCOME (LOSS)....................................... $ 5,092 $ (43,612) $ 181 ============ =========== ============ NET INCOME PER COMMON UNIT- BASIC AND DILUTED: Income (loss) before cumulative effect of change in accounting principle............................ $ 0.58 $ (5.01) $ 0.02 Cumulative effect of change in accounting principle - 0.05 - Net income (loss)................................. $ 0.58 $ (4.96) $ 0.02 ============ ========== ============ WEIGHTED AVERAGE NUMBER OF COMMON UNITS OUTSTANDING..... 8,625 8,624 8,617 ============ =========== ============
The accompanying notes are an integral part of these consolidated financial statements. 48 GENESIS ENERGY, L.P. CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (In thousands) Year Ended December 31, --------------------------------------- 2002 2001 2000 ---------- --------- --------- NET INCOME (LOSS)................................................... $ 5,092 $ (43,612) $ 181 OTHER COMPREHENSIVE INCOME (LOSS): Change in fair value of derivatives used for hedging purposes.. (39) - - ---------- --------- --------- COMPREHENSIVE INCOME (LOSS)......................................... $ 5,053 $(43,612) $ 181 ========== ======== =========
The accompanying notes are an integral part of these consolidated financial statements. 49 GENESIS ENERGY, L.P. CONSOLIDATED STATEMENTS OF CASH FLOWS (In thousands) Year Ended December 31, --------------------------------------- 2002 2001 2000 ---------- --------- --------- CASH FLOWS FROM OPERATING ACTIVITIES: Net income (loss)................................................. $ 5,092 $ (43,612) $ 181 Adjustments to reconcile net income to net cash provided by operating activities - Depreciation................................................... 4,965 6,228 6,714 Amortization of other assets................................... 848 1,318 1,318 Impairment of long-lived assets................................ - 45,061 - Cumulative effect of change in accounting principle............ - (467) - Change in fair value of derivatives............................ 2,055 (2,259) - Gain on disposal of surplus assets............................. (708) (167) (1,148) Minority interests equity in earnings (losses)................. - (4) 258 Restructuring costs............................................ - - 1,387 Other noncash charges.......................................... 1,500 1,605 1,801 Changes in components of working capital - Accounts receivable......................................... 81,134 167,666 (80,905) Inventories................................................. (1,051) (2,743) (590) Other current assets........................................ 4,645 3,565 4,436 Accounts payable............................................ (86,159) (154,117) 74,316 Accrued liabilities......................................... (4,904) (5,230) (3,355) ---------- --------- --------- Net cash provided by operating activities........................... 7,417 16,844 4,413 CASH FLOWS FROM INVESTING ACTIVITIES: Additions to property and equipment............................... (4,211) (1,882) (1,685) Change in other assets............................................ 5 - 11 Proceeds from sales of assets..................................... 2,243 453 1,942 ---------- --------- --------- Net cash (used in) provided by investing activities................. (1,963) (1,429) 268 CASH FLOWS FROM FINANCING ACTIVITIES: Bank borrowings (repayments), net................................. (8,400) (8,100) 2,100 Distributions to common unitholders............................... (1,725) (6,898) (19,645) Distributions to General Partner.................................. (35) (141) (352) Distributions to minority interest owner.......................... - (1) - Issuance of additional partnership interests...................... - - 13,702 Payment of restructuring costs.................................... - - (1,387) Purchase of treasury units, net................................... - (6) (255) ---------- --------- --------- Net cash used in financing activities............................... (10,160) (15,146) (5,837) Net (decrease) increase in cash and cash equivalents................ (4,706) 269 (1,156) Cash and cash equivalents at beginning of period.................... 5,777 5,508 6,664 ---------- --------- --------- Cash and cash equivalents at end of period.......................... $ 1,071 $ 5,777 $ 5,508 ========== ========= =========
The accompanying notes are an integral part of these consolidated financial statements. 50 GENESIS ENERGY, L.P. CONSOLIDATED STATEMENTS OF PARTNERS' CAPITAL (In thousands) Partners' Capital Accumulated Other Common General Treasury Comprehensive Unitholders Partner Units Income Total ----------- --------- -------- ------------- --------- Partners' capital, December 31, 1999................ $ 52,574 $ 1,051 $ (40) $ - $ 53,585 Net income.......................................... 177 4 - - 181 Cash distributions.................................. (19,645) (352) - - (19,997) Purchase of treasury units.......................... - - (255) - (255) Issuance of treasury units to Restricted Unit Plan participants...................................... - - 289 - 289 Excess of expense over cost of treasury units issued for Restricted Unit Plan.......................... 901 - - - 901 Elimination of additional partnership interests..... 17,248 352 - - 17,600 Elimination of subordinated limited partner interests in Operating Partnership.......................... 29,705 606 - - 30,311 ----------- --------- -------- ------------- --------- Partners' capital, December 31, 2000................ 80,960 1,661 (6) - 82,615 Net loss ........................................... (42,740) (872) - - (43,612) Cash distributions.................................. (6,898) (141) - - (7,039) Purchase of treasury units.......................... - - (6) - (6) Issuance of treasury units to Restricted Unit Plan participants...................................... - - 12 - 12 Excess of expense over cost of treasury units issued for Restricted Unit Plan.......................... 39 - - - 39 ----------- --------- -------- ------------- --------- Partners' capital, December 31, 2001................ 31,361 648 - - 32,009 Net income.......................................... 4,990 102 - - 5,092 Cash distributions.................................. (1,725) (35) - - (1,760) Change in fair value of derivatives used for hedging purposes - - - (39) (39) ----------- --------- -------- ------------- --------- Partners' capital, December 31, 2002................ $ 34,626 $ 715 $ - $ (39) $ 35,302 =========== ========= ======== ============= =========
The accompanying notes are an integral part of these consolidated financial statements. 51 GENESIS ENERGY, L.P. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 1. Partnership Structure Genesis Energy, L.P. ("GELP" or the "Partnership") was formed in December 1996 as an initial public offering of 8.6 million Common Units, representing limited partner interests in GELP of 98%. The General Partner of GELP is Genesis Energy, Inc. (the "General Partner") and owns a 2% general partner interest in GELP. The General Partner is owned by Denbury Gathering & Marketing, Inc. a subsidiary of Denbury Resources Inc. Genesis Crude Oil, L.P. is the operating limited partnership and is owned 99.99% by GELP and 0.01% by the General Partner. Genesis Crude Oil, L.P. has two subsidiary partnerships, Genesis Pipeline Texas, L.P. and Genesis Pipeline USA, L.P. Genesis Crude Oil, L.P. and its subsidiary partnerships will be referred to as GCOLP. Previous Structure Prior to a restructuring in December 2000, GELP owned 80.01% of GCOLP and Salomon Smith Barney Holdings Inc. ("Salomon") and Howell Corporation ("Howell") owned an aggregate of 2.2 million subordinated limited partner units in GCOLP ("Subordinated OLP Units"). As a result of the December 2000 restructuring, the Subordinated OLP Units were eliminated. 2. Basis of Presentation The accompanying financial statements and related notes present the consolidated financial position as of December 31, 2002 and 2001 for GELP and its results of operations, cash flows and changes in partners' capital for the years ended December 31, 2002, 2001 and 2000. No provision for income taxes related to the operation of GELP is included in the accompanying consolidated financial statements, as such income will be taxable directly to the partners holding partnership interests in the Partnership. 3. Summary of Significant Accounting Policies Principles of Consolidation The Partnership owns and operates its assets through GCOLP, an operating limited partnership. The accompanying consolidated financial statements reflect the combined accounts of the Partnership and the operating partnership after elimination of intercompany transactions. Nature of Operations The principal business activities of the Partnership are the purchasing, gathering, transporting and marketing of crude oil in the United States. The Partnership gathers crude oil at the wellhead principally in the southern and southwestern states. The Partnership also owns and operates three crude oil pipelines. The pipelines are in Texas, Mississippi/Louisiana and Florida/Alabama. Use of Estimates The preparation of consolidated financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities, if any, at the date of the consolidated financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. Cash and Cash Equivalents The Partnership considers investments purchased with an original maturity of three months or less to be cash equivalents. The Partnership has no requirement for compensating balances or restrictions on cash. 52 Inventories Crude oil inventories held for sale are valued at the lower of average cost or market. Fuel inventories are carried at the lower of cost or market. Fixed Assets Property and equipment are carried at cost. Depreciation of property and equipment is provided using the straight-line method over the respective estimated useful lives of the assets. Asset lives are 12 to 20 years for pipelines and related assets, 3 to 7 years for vehicles and transportation equipment, and 3 to 10 years for buildings, office equipment, furniture and fixtures and other equipment. In 2001, the Partnership recorded an impairment charge related to its pipelines and related assets. See Note 11. The remaining book value of these assets will be amortized over the useful lives of the assets which, based on the estimated cash flows, is expected to be 7 to 15 years. Maintenance and repair costs are charged to expense as incurred. Costs incurred for major replacements and upgrades are capitalized and depreciated over the remaining useful life of the asset. Certain volumes of crude oil are classified in fixed assets, as they are necessary to ensure efficient and uninterrupted operations of the gathering businesses. These crude oil volumes are carried at their weighted average cost. Other Assets Other assets consist primarily of intangibles. Intangibles include a covenant not to compete, which is being amortized over five years. Minority Interests Minority interests represent a 0.01% general partner interest in GCOLP held by the General Partner. Prior to the December 2000 restructuring, minority interests represented the Subordinated OLP Units held by Salomon and Howell totaling 19.59% and a 0.4% interest in GCOLP owned directly by the General Partner. Environmental Liabilities The Partnership provides for the estimated costs of environmental contingencies when liabilities are likely to occur and reasonable estimates can be made. Ongoing environmental compliance costs, including maintenance and monitoring costs, are charged to expense as incurred. Revenue Recognition Gathering and marketing revenues are recognized when title to the crude oil is transferred to the customer. Pipeline revenues are recognized upon delivery of the barrels to the location designated by the shipper. Pipeline loss allowance revenues are recognized to the extent that pipeline losses allowances charged to shippers exceed pipeline measurement losses for the period based upon the fair market value of the crude oil upon which the allowance is based. Cost of Sales Cost of sales consists of the cost of crude oil and field and pipeline operating expenses. Field and pipeline operating expenses consist primarily of labor costs for drivers and pipeline field personnel, truck rental costs, fuel and maintenance, utilities, insurance and property taxes. Derivatives Effective January 1, 2001, the Partnership accounts for its derivative transactions in accordance with Statement of Financial Accounting Standards No. 133 "Accounting for Derivative Instruments and Hedging Activities", as amended and interpreted. Derivative transactions, which can include forward contracts and futures positions on the NYMEX, are recorded on the balance sheet as assets and liabilities based on the derivative's fair value. Changes in the fair value of derivative contracts are recognized currently in earnings unless specific hedge accounting criteria are met. If the derivatives meet those criteria, the derivative's gains and losses offset related results on the hedged item in the income statement. We must formally designate the derivative as a hedge and document and assess the effectiveness of derivatives associated with transactions that receive hedge accounting. Derivative instruments that hedge our commodity price risks involve our normal business activities, and have been designated as cash flow hedges under SFAS No. 133, SFAS No. 133 designates derivatives that hedge 53 exposure to variable cash flows of forecasted transactions as cash flow hedges and the effective portion of the derivative's gain or loss is initially reported as a component of other comprehensive income (outside earnings) and subsequently reclassified into earnings when the forecasted transaction affects earnings. The ineffective portion of the gain or loss is reported in earnings immediately. If a derivative transaction qualifies for and is designated as a normal purchase and sale, it is exempted from the fair value accounting requirements and is accounted for using traditional accrual accounting. Net Income Per Common Unit Basic net income per Common Unit is calculated on the weighted average number of outstanding Common Units. The weighted average number of Common Units outstanding was 8,625,000, 8,623,741 and 8,616,744 for the years ended December 31, 2002, 2001 and 2000, respectively. For this purpose, the 0.01% or 2% General Partner interest, as applicable, is excluded from net income. Diluted net income per Common Unit did not differ from basic net income per Common Unit for any period presented. 4. New Accounting Pronouncements In June, 2001, the FASB issued SFAS No. 143, "Accounting for Asset Retirement Obligations." This statement requires entities to record the fair value of a liability for legal obligations associated with the retirement obligations of tangible long-lived assets in the period in which it is incurred. When the liability is initially recorded, a corresponding increase in the carrying amount of the related long-lived asset would be recorded. Over time, accretion of the liability is recognized each period, and the capitalized cost is depreciated over the useful life of the related asset. Upon settlement of the liability, an entity either settles the obligation for its recorded amount or incurs a gain or loss on settlement. The standard is effective for Genesis on January 1, 2003. With respect to our pipelines, federal regulations will require us to purge the crude oil from our pipelines when the pipelines are retired. Our right of way agreements do not require us to remove pipe or otherwise perform remediation upon taking the pipelines out of service. Many of our truck unload stations are on leased sites that require that we remove our improvements upon expiration of the lease term. For our pipelines, we expect that we will be unable to reasonably estimate and record liabilities for the majority of our obligations that fall under the provisions of this statement because we cannot reasonably estimate when such obligations would be settled. For the truck unload stations, the site leases have provisions such that the lease continues until one of the parties gives notice that it wishes to end the lease. At this time we cannot reasonably estimate when such notice would be given and when the obligations to remove our improvements would be settled. We will record asset retirement obligations in the period in which we determine the settlement dates. In April 2002, the FASB issued SFAS No. 145, "Rescission of FASB Statements No. 4, 44, and 64, Amendment of FASB Statement No. 13, and Technical Corrections." SFAS No. 145 rescinds SFAS No. 4, "Reporting Gains and Losses from Extinguishment of Debt" and an amendment of that statement, SFAS No. 64, "Extinguishments of Debt Made to Satisfy Sinking-Fund Requirements." SFAS No. 145 also rescinds SFAS No. 44, "Accounting for Intangible Assets of Motor Carriers." SFAS No. 145 also amends SFAS No. 13, "Accounting for Leases," to eliminate an inconsistency between the required accounting for sale-leaseback transactions and the required accounting for certain lease modifications that have economic effects that are similar to sale-leaseback transactions. SFAS No. 145 also amends other existing authoritative pronouncements to make various technical corrections, clarify meanings, or describe their applicability under changed conditions. The provisions related to the rescission of SFAS No. 4 shall be applied in fiscal years beginning after May 15, 2002. The provisions related to SFAS No. 13 shall be effective for transactions occurring after May 15, 2002. All other provisions shall be effective for financial statements issued on or after May 15, 2002, with early application encouraged. The adoption of this statement did not have a material effect on the Partnership's results of operations. In June 2002, the FASB issued SFAS No. 146, "Accounting for Costs Associated with Exit or Disposal Activities," which addresses accounting for restructuring and similar costs. SFAS No. 146 supersedes previous accounting guidance, principally EITF Issue No. 94-3. Genesis will adopt the provisions of SFAS No. 146 for restructuring activities initiated after December 31, 2002. SFAS No. 146 requires that the liability for costs associated with an exit or disposal activity be recognized when the liability is incurred. Under Issue No. 94-3, a liability for an exit cost was recognized at the date of commitment to an exit plan. SFAS No. 146 also establishes that the liability should initially be measured and recorded at fair value. Accordingly, SFAS No. 146 may affect the timing of recognizing future restructuring costs as well as the amounts recognized. The impact that SFAS No. 146 54 will have on the consolidated financial statements will depend on the circumstances of any specific exit or disposal activity. In November 2002, the FASB issued Interpretation No. 45, "Guarantor's Accounting and Disclosure Requirements for Guarantees, Including Indirect Guarantees of Indebtedness of Others". This interpretation of SFAS No. 5, 57 and 107, and rescission of FASB Interpretation No. 34 elaborates on the disclosures to be made by a guarantor in its interim and annual financial statements about its obligations under certain guarantees that it has issued. It also clarifies that a guarantor is required to recognize, at the inception of a guarantee, a liability for the fair value of the obligation undertaken in issuing the guarantee. The initial recognition and initial measurement provisions of this interpretation are applicable on a prospective basis to guarantees issued or modified after December 31, 2002. The disclosure requirements in this interpretation are effective for financial statements of interim or annual periods after December 15, 2002. In December 2002, the FASB issued SFAS No. 148, "Accounting for Stock-Based Compensation-Transition and Disclosure," which provides alternative methods of transition from a voluntary change to the fair value based method of accounting for stock-based employee compensation. In addition, SFAS No. 148 amends the disclosure requirements of SFAS No. 123 in both annual and interim financial statements. SFAS No. 148 is effective for financial statements for fiscal years ending after December 15, 2002, and financial reports containing condensed financial statements for interim periods beginning after December 15, 2002. At this time, there are no outstanding grants of Partnership units under our Restricted Unit Plan (see Note 15). Therefore, we do not believe that the adoption of this statement will have a material effect on either our financial position, results of operations, cash flows or disclosure requirements. 5. Business Segment and Customer Information Based on its management approach, the Partnership believes that all of its material operations revolve around the gathering, transportation and marketing of crude oil and it currently reports its operations, both internally and externally, as a single business segment. Marathon Ashland Petroleum LLC and ExxonMobil Corporation accounted for 18.5% and 13.6% of total revenues in 2002, respectively. In 2001, BP Amoco Corporation subsidiaries and Enron Corporation subsidiaries accounted for 10.6% and 14.1% of total revenues, respectively. Genesis received full payment for all sales to Enron Corporation subsidiaries. In 2000, no customer accounted for more than 10% of the Partnership's revenues. 6. Inventories Inventories consisted of the following (in thousands). December 31, 2002 2001 ------------ ------------ Crude oil inventories, at lower of cost or market...................... $ 4,841 $ 3,662 Fuel and supplies inventories, at lower of cost or market...................... 111 75 ------------ ------------ Total inventories.................... $ 4,952 $ 3,737 ============ ============ 7. Fixed Assets Fixed assets consisted of the following (in thousands). December 31, 2002 2001 ------------ ------------ Land and buildings....................... $ 3,492 $ 3,718 Pipelines and related assets............ 101,397 98,085 Vehicles and transportation equipment... 1,527 1,808 Office equipment, furniture and fixtures 3,138 2,809 Other .................................. 8,864 8,916 ------------ ------------ 118,418 115,336 Less - Accumulated depreciation.. (73,958) (69,626) ------------ ------------ Net fixed assets................. $ 44,460 $ 45,710 ============ ============ 55 Depreciation expense was $4,965,000, $6,228,000 and $6,714,000 and for the years ended December 31, 2002, 2001 and 2000, respectively. In 2001, the Partnership recorded an impairment charge related to its pipeline assets of $38,049,000. See Note 11. 8. Other Assets Other assets consisted of the following (in thousands). December 31, 2002 2001 ------------ ------------ Covenant not to compete................... $ 4,238 $ 4,238 NYMEX seats............................... - 1,203 Other..................................... 42 47 ------------ ------------ 4,280 5,488 Less - Accumulated amortization.... (4,033) (3,185) ------------- ------------ Net other assets............ $ 247 $ 2,303 ============ ============ In 2001, the Partnership recorded an impairment charge related to goodwill of $7,012,000, which reduced the net book value of goodwill to zero at December 31, 2001. See Note 11. .In accordance with SFAS No. 142, "Goodwill and Other Intangible Assets," which we adopted January 1, 2002, we test other intangible assets periodically to determine if impairment has occurred. An impairment loss is recognized for intangibles if the carrying amount of an intangible asset is not recoverable and its carrying amount exceeds its fair value. As of December 31, 2002, no impairment has occurred. Amortization expense for goodwill was $470,000 for the years ended December 31, 2001 and 2000. Amortization expense for the covenant-not-to-compete was $848,000 for the each of the years ended December 31, 2002, 2001 and 2000. Accumulated amortization of the covenant-not-to-compete was $4,033,000 and $3,185,000 at December 31, 2002 and 2001, respectively. The estimated aggregate amortization expense for 2003 is expected to be $205,000, at which time the covenant-not-to-compete will have expired. Had SFAS No. 142 been in effect prior to January 1, 2002, reported net income and net income per unit would have been as follows (in thousands, except per unit amounts): Year Ended December 31, 2002 2001 2000 ----------- ----------- ----------- Reported net income............... $ 5,092 $ (43,612) $ 181 Goodwill amortization, after minority interest effect........ $ - $ 470 $ 384 ----------- ----------- ----------- Adjusted net income............... $ 5,092 $ (43,142) $ 565 =========== =========== =========== Net income per unit-basic and diluted: Reported net income............... $ 0.58 $ (4.96) $ 0.02 Goodwill amortization............. - $ 0.05 $ 0.04 ----------- ----------- ----------- Adjusted net income............... $ 0.58 $ (4.91) $ 0.06 =========== =========== =========== In February 2002, the Partnership sold its NYMEX seats for a total of $1,700,000. 9. Credit Resources In 2001, Genesis had a $300 million Master Credit Support Agreement ("Guaranty Facility") with Salomon and a $25 million working capital facility ("WC Facility") with BNP Paribas. Effective December 19, 2001, GCOLP entered into a two-year $130 million Senior Secured Revolving Credit Facility ("Credit Agreement") with Citicorp North America, Inc. ("Citicorp"). Citicorp and Salomon, the former owner of the partnership's General Partner, are both wholly-owned subsidiaries of Citigroup Inc. The Credit Agreement replaced the Guaranty Facility and the WC Facility. In May 2002, the Partnership elected, under the terms of the Credit Agreement, to amend the Credit Agreement to reduce the maximum facility amount to $80 million. The Credit Agreement had a $25 million sublimit for 56 working capital loans. Any amount not being used for working capital loans was available for letters of credit to support crude oil purchases. During the first four months of 2002, Salomon provided guaranties to the Partnership's counterparties under a transition arrangement between Salomon, Citicorp and the Partnership. For crude oil purchases in December 2001 and April 2002, a maximum of $100 million in guaranties were available to be issued under the Salomon guaranty facility. Beginning with May 2002, Citicorp provided letters of credit to the Partnership's counterparties. In March 2003, the Partnership replaced the Citicorp Credit Agreement with a $65 million three-year credit facility with a group of banks with Fleet National Bank as agent ("Fleet Agreement"). The Fleet Agreement also has a sublimit for working capital loans in the amount of $25 million, with the remainder of the facility available for letters of credit. The key terms of the Fleet Agreement are as follows: o Letter of credit fees are based on the Applicable Usage Level ("AUL") and will range from 2.00% to 3.00%. During the first six months of the facility, the rate will be 2.50%. The AUL is a function of the facility usage to the borrowing base on that day. o The interest rate on working capital borrowings is also based on the AUL and allows for loans based on the prime rate or the LIBOR rate at our option. The interest rate on prime rate loans can range from the prime rate plus 1.00% to the prime rate plus 2.00%. The interest rate for LIBOR-based loans can range from the LIBOR rate plus 2.00% to the LIBOR rate plus 3.00%. During the first six months of the facility, the rate will be the Libor rate plus 2.50%. o The Partnership will pay a commitment fee on the unused portion of the $65 million commitment. This commitment fee is also based on the AUL and will range from 0.375% to 0.50%. During the first six months of the facility, the commitment fee will be 0.50%. o The amount that the Partnership may have outstanding cumulatively in working capital borrowings and letters of credit is subject to a Borrowing Base calculation. The Borrowing Base (as defined in the Fleet Credit Agreement) generally includes cash balances, net accounts receivable and inventory, less deductions for certain accounts payable, and is calculated monthly. o Collateral under the Fleet Agreement consists of the Partnership's accounts receivable, inventory, cash accounts, margin accounts and property and equipment. o The Fleet Agreement contains covenants requiring a Current Ratio (as defined in the Fleet Agreement), a Leverage Ratio (as defined in the Fleet Agreement), a Cash Flow Coverage Ratio (as defined in the Fleet Agreement), a Funded Indebtedness to Capitalization Ratio (as defined in the Fleet Agreement), Minimum EBITDA, and limitations on distributions to Unitholders. Under the Citicorp Credit Agreement, distributions to Unitholders and the General Partner could only be made if the Borrowing Base exceeds the usage (working capital borrowings plus outstanding letters of credit) under the Citicorp Credit Agreement for every day of the quarter by at least $20 million. Under the Fleet Agreement, this provision is changed to require that the Borrowing Base exceed the usage under the Fleet Credit Facility by at least $10 million plus the distribution measured once each month. See additional discussion below under "Distributions". At December 31, 2002, the Partnership had $5.5 million outstanding under the Citicorp Credit Agreement. Due to the revolving nature of loans under the Citicorp Credit Agreement, additional borrowings and periodic repayments and re-borrowings may be made until the maturity date of December 31, 2003. As a result of the refinancing of the debt under the Fleet Agreement, this outstanding balance is shown as long-term debt in the consolidated balance sheet. At December 31, 2002, the Partnership had letters of credit outstanding under the Citicorp Credit Agreement totaling $26.3 million, comprised of $13.8 million and $12.5 million for crude oil purchases related to December 2002 and January 2003, respectively. Credit Availability As a result of the Partnership's decision to reduce the level of bulk and exchange transactions, credit support in the form of letters of credit has been less in 2002 than it was in 2001. However, any significant decrease in the Partnership's financial strength, regardless of the reason for such decrease, may increase the number of transactions 57 requiring letters of credit, which could restrict its gathering and marketing activities due to the limitations of the Fleet Agreement and Borrowing Base. This situation could in turn adversely affect its ability to maintain or increase the level of its purchasing and marketing activities or otherwise adversely affect its profitability and Available Cash. Distributions Generally, GCOLP will distribute 100% of its Available Cash within 45 days after the end of each quarter to Unitholders of record and to the General Partner. Available Cash consists generally of all of the cash receipts less cash disbursements of GCOLP adjusted for net changes to reserves. As a result of the restructuring approved by Unitholders in December 2000, the target minimum quarterly distribution ("MQD") for each quarter was reduced to $0.20 per unit. The Partnership has not made a regular quarterly distribution since the fourth quarter of 2001. Under the Citicorp Agreement, distributions to Unitholders and the General Partner could only be made if the Borrowing Base exceeded the usage (working capital borrowings plus outstanding letters of credit) under the Citicorp Agreement for every day of the quarter by at least $20 million plus the distribution. Under the Fleet Agreement, this provision is changed to require that the Borrowing Base exceed the usage under the Fleet Agreement by at least $10 million plus the distribution measured once each month. For the first and second quarters of 2002, the Partnership did not pay a distribution as the excess of the Borrowing Base over the usage dropped below the required level. During the third quarter of 2002, the Partnership met the test and thus was not restricted from making a distribution under the Credit Agreement. However, a distribution was not made for the third quarter of 2002 because of a reserve established fro future needs of the Partnership. These reserves exceeded Available Cash for the third quarter of 2002. Similarly, the Partnership did not make a distribution for the fourth quarter of 2002 as reserves again exceeded Available Cash. Such future needs of the Partnership include, but are not limited to, the fines that are being imposed in connection with the crude oil spill that occurred on the Mississippi System in December 1999 and future expenditures that will be required for pipeline integrity management programs required by federal regulations. Management of the Partnership is still evaluating plans to restore the distribution. Any distribution to restore the distribution will take into account the Partnership's ability to sustain the distribution on an ongoing basis with cash generated by the existing asset base, capital requirements needed to maintain and optimize the performance of the asset base, and the Partnership's ability to finance its existing capital requirements and accretive acquisitions. If distributions are resumed, the distribution per common unit may be for less than the MQD target of $0.20 per unit. The Partnership Agreement authorizes the General Partner to cause GCOLP to issue additional limited partner interests and other equity securities, the proceeds from which could be used to provide additional funds for acquisitions or other GCOLP needs. 10. Partnership Equity Partnership equity in GELP consists of the general partner interest of 2% and 8.6 million Common Units representing limited partner interests of 98%. The Common Units were sold to the public in an initial public offering in December 1996. The general partner interest is held by the General Partner. The Partnership is managed by the General Partner. The General Partner also holds a 0.01% general partner interest in GCOLP, which is reflected as a minority interest in the consolidated balance sheet at December 31, 2002. 11. Impairment of Pipeline Assets In the fourth quarter of 2001, as a result of declining revenues and rising costs from its pipeline operations for operations and maintenance combined with regulatory changes requiring additional testing for pipeline integrity, the Partnership determined that the estimated undiscounted future cash flows did not support the carrying value of its pipelines. Under Statement of Financial Accounting Standard No. 121, "Accounting for the Impairment of Long-Lived Assets and Long-Lived Assets to Be Disposed Of" (SFAS 121) (the relevant accounting guidance at that time), the carrying value of the assets must be reduced to the fair value of the assets. The estimated fair value of the pipelines was determined by reducing the estimated undiscounted future cash flows plus salvage value to its present value at December 31, 2001. Because the goodwill on the consolidated balance sheet was generated from the acquisition of the pipeline assets, the carrying value of the net goodwill was reduced to zero with the remaining impairment allocated to the fixed assets. An impairment charge totaling $45.1 million was recorded for the pipeline assets and goodwill. 58 12. Other Operating Charges In each of the third quarter of 2002 and the fourth quarter of 2001, the Partnership recorded a charge of $1.5 million, for a total of $3.0 million, related to environmental matters including the Mississippi spill that occurred in 1999. These charges are reflected as other operating charges on the consolidated statement of operations for 2002 and 2001. In connection with the restructuring of the Partnership in December 2000, costs totaling $1.4 million were incurred primarily for legal and accounting fees, financial advisor fees, proxy solicitation expenses and the costs to print and mail proxy materials to Common Unitholders. These costs are reflected as other operating charges in the consolidated statement of operations for 2000. The cash needed to fund these expenses was provided from the final distribution support obligation payment made by Salomon pursuant to the terms of the proxy statement. 13. Transactions with Related Parties Sales, purchases and other transactions with affiliated companies, except the guarantee fees paid to Salomon, in the opinion of management, are conducted under terms no more or less favorable than those conducted with unaffiliated parties. Sales and Purchases of Crude Oil A summary of sales to and purchases from related parties of crude oil is as follows (in thousands). Year Ended December 31, 2002 2001 2000 ----------- ----------- ----------- Purchases from Denbury............... $ 26,452 Sales to Salomon affiliates.......... $ 3,036 $ 29,847 $ 35,095 Purchases from Salomon and Howell affiliates......................... $ - $ 36,699 $ 130,679 Denbury became a related party in May 2002. Purchases during the period from May 14, 2002 to December 31, 2002 from Denbury were $26.5 million. Purchases in 2002 from Denbury before it became an affiliate were $10.9 million. Purchases from Denbury are secured by letters of credit. The related party sales in all years were made to Phibro, Inc., ("Phibro"), a subsidiary of Salomon. Purchases of $36.7 million and $121.1 million, respectively, were made in 2001 and 2000 from Phibro. These transactions were bulk and exchange transactions. Purchases of wellhead production were made from Howell in 2000 of $9.6 million. General and Administrative Services The Partnership does not directly employ any persons to manage or operate its business. Those functions are provided by the General Partner. The Partnership reimburses the General Partner for all direct and indirect costs of these services. Total costs reimbursed to the General Partner by the Partnership were $17,280,000, $18,089,000, and $16,946,000 for the years ended December 31, 2002, 2001 and 2000, respectively. Credit Agreement In December 2001, Citicorp began providing the Partnership with a working capital and letter of credit facility. In January 1, 2002, until Mary 14, 2002, when Citicorp ceased to be a related party, the Partnership incurred letter of credit fees, interest and commitment fees totaling $396,000 under the Credit Agreement. In 2001, the Partnership paid Citicorp for interest and commitment fees totaling $27,000 and $900,000 as a fee for providing the facility. This facility fee is being amortized to earnings over the two-year life of the Credit Agreement and is included in interest expense on the consolidated statements of operations. Guaranty Fees In 2001 and 2000, Salomon provided a guaranty facility to the Partnership and, from January 2002 to April 2002, Salomon provided guaranties under a transition arrangement with Salomon, Citicorp and the Partnership. For the years ended December 31, 2002, 2001 and 2000, the Partnership paid Salomon $61,000, $1,250,000 and $1,712,000, respectively, for guarantee fees. The guarantee fees are included as a component in cost of crude on the consolidated statements of operations. These guarantee fees were less than the cost of a letter of credit facility from a bank. 59 14. Supplemental Cash Flow Information In 2000, two noncash transactions occurred as a result of the restructuring of the Partnership. Additional Partnership Interests and minority interests related to the Subordinated OLP Units were eliminated and resulted in an increase in the capital accounts of the Common Unitholders and General Partner of GELP. Cash received by the Partnership for interest during the years ended December 31, 2002, 2001 and 2000 was $68,000, $195,000, and $241,000, respectively. Cash payments for interest were $537,000, $1,391,000, and $1,370,000 during the years ended December 31, 2002, 2001 and 2000, respectively. 15. Employee Benefit Plans The Partnership does not directly employ any of the persons responsible for managing or operating the Partnership. Employees of the General Partner provide those services and are covered by various retirement and other benefit plans. In order to encourage long-term savings and to provide additional funds for retirement to its employees, the General Partner sponsors a profit-sharing and retirement savings plan. Under this plan, the General Partner's matching contribution is calculated as the lesser of 50% of each employee's annual pretax contribution or 3% of each employee's total compensation. The General Partner also made a profit-sharing contribution of 3% of each eligible employee's total compensation. The expenses included in the consolidated statements of operations for costs relating to this plan were $564,000, $603,000, and $570,000 for the years ended December 31, 2002, 2001 and 2000, respectively. The General Partner also provided certain health care and survivor benefits for its active employees. In 2002, 2001 and 2000, these benefit programs were self-insured. The General Partner plans to continue self-insuring these plans in the future. The expenses included in the consolidated statements of operations for these benefits were $1,360,000, $1,526,000, and $1,718,000 in 2002, 2001 and 2000, respectively. Restricted Unit Plan In January 1997, the General Partner adopted a restricted unit plan for key employees of the General Partner that provided for the award of rights to receive Common Units under certain restrictions, including meeting thresholds tied to Available Cash and Adjusted Operating Surplus. In January 1998, the restricted unit plan was amended and restated, and the thresholds tied to Available Cash and Adjusted Operating Surplus were eliminated. The discussion that follows is based on the terms of the Amended and Restated Restricted Unit Plan (the "Restricted Unit Plan"). Initially, rights to receive 291,000 Common Units are available under the Restricted Unit Plan. From these Units, rights to receive 261,000 Common Units (the "Restricted Units") were allocated to approximately 34 individuals, subject to the vesting conditions described below and subject to other customary terms and conditions. One-third of the Restricted Units allocated to each individual vested annually beginning in December 1998. The remaining rights to receive 30,000 Common Units available under the Restricted Unit Plan may be allocated or issued in the future to key employees on such terms and conditions (including vesting conditions) as the Compensation Committee of the General Partner ("Compensation Committee") shall determine. Upon "vesting" in accordance with the terms and conditions of the Restricted Unit Plan, Common Units allocated to a plan participant will be issued to such participant. Units issued to participants may be newly issued Units acquired by the General Partner from the Partnership at then prevailing market prices or may be acquired by the General Partner in the open market. In either case, the associated expense will be borne by the Partnership. Until Common Units have vested and have been issued to a participant, such participant shall not be entitled to any distributions or allocations of income or loss and shall not have any voting or other rights in respect of such Common Units. No consideration will be payable by the participants in the Restricted Unit Plan upon vesting and issuance of the Common Units. Additionally, the participant cannot sell the Common Units until one year after the date of vesting. Termination without cause in violation of a written employment agreement, or a Significant Event as defined in the Restricted Unit Plan, will result in immediate vesting of all non-vested units and conversion to Common Units without any restrictions. 60 In 2001 and 2000, the Partnership recorded expense of $55,000 and $1,192,000, respectively, related to the Restricted Units. Bonus Plan In February 2001, the Compensation Committee of the Board of Directors of the General Partner approved a Bonus Plan (the "Bonus Plan") for all employees of the General Partner. The Bonus Plan is designed to enhance the financial performance of the Partnership by rewarding all employees for achieving financial performance objectives. The Bonus Plan will be administered by the Compensation Committee. Under this plan, amounts will be allocated for the payment of bonuses to employees each time GCOLP earns $1.5 million of Available Cash. The amount allocated to the bonus pool increases for each $1.5 million earned, such that a bonus pool of $1.2 million will exist if the Partnership earns $9.0 million of Available Cash. Bonuses will be paid to employees as each $1.5 million increment of Available Cash is earned, but only if distributions are made to the Common Unitholders. Payments under the Bonus Plan will be at the discretion of the Compensation Committee, and the General Partner will be able to amend or change the Bonus Plan at any time. 16. Sale of Tractor/Trailer Fleet Management of the Partnership made the decision to sell its existing tractor/trailer fleet and replace it with vehicles provided by Ryder Transportation Services ("Ryder") under an operating lease. During 2000, the Partnership sold 22 tractors and 68 trailers for a total of $1,802,000 and recognized a gain of $1,037,000 on the sale of this equipment. The remaining 31 tractors were sold on January 8, 2001, for $400,000. The net book value of those tractors, totaling $286,000, was reflected in other current assets at December 31, 2000. A gain of $114,000 on this sale was recorded in 2001. 17. Concentration and Credit Risk The Partnership derives its revenues from customers primarily in the crude oil industry. This industry concentration has the potential to impact the Partnership's overall exposure to credit risk, either positively or negatively, in that the Partnership's customers could be affected by similar changes in economic, industry or other conditions. However, the Partnership believes that the credit risk posed by this industry concentration is offset by the creditworthiness of the Partnership's customer base. The Partnership's portfolio of accounts receivable is comprised primarily of major international corporate entities with stable payment experience. The credit risk related to contracts which are traded on the NYMEX is limited due to the daily cash settlement procedures and other NYMEX requirements. The Partnership has established various procedures to manage its credit exposure, including initial credit approvals, credit limits, collateral requirements and rights of offset. Letters of credit, prepayments and guarantees are also utilized to limit credit risk to ensure that management's established credit criteria are met. 18. Fair Value of Financial Instruments The carrying values of cash and cash equivalents, accounts receivable, accounts payable and accrued liabilities in the Consolidated Balance Sheets approximated fair value due to the short maturity of these instruments. Additionally, the carrying value of the long-term debt approximated fair value due to its floating rate of interest. At December 31, 2002 and 2001, the Partnership had no option contracts outstanding. At December 31, 2000, the carrying amount and estimated fair values of option contracts used as hedges was $7.3 million. Quoted market prices were used in determining the fair value of the option contracts. If quoted prices were not available, fair values were estimated on the basis of pricing models or quoted prices for contracts with similar characteristics. Judgment is required in interpreting market data and the use of different market assumptions or estimation methodologies may affect the estimated fair value amounts. 19. Derivatives The Partnership's market risk in the purchase and sale of its crude oil contracts is the potential loss that can be caused by a change in the market value of the asset or commitment. In order to hedge its exposure to such market fluctuations, the Partnership enters into various financial contracts, including futures, options and swaps. Normally, any contracts used to hedge market risk are less than one year in duration. 61 The Partnership utilizes crude oil futures contracts and other financial derivatives to reduce its exposure to unfavorable changes in crude oil prices. On January 1, 2001, the Partnership adopted the provisions of SFAS No. 133, "Accounting for Derivative Instruments and Hedging Activities", which established new accounting and reporting guidelines for derivative instruments and hedging activities. SFAS No. 133 established accounting and reporting standards requiring that every derivative instrument (including certain derivative instruments embedded in other contracts) be recorded in the balance sheet as either an asset or liability measured at its fair value. SFAS No. 133 requires that changes in the derivative's fair value be recognized currently in earnings unless specific hedge accounting criteria are met. Special accounting for qualifying hedges allows a derivative's gains and losses to offset related results on the hedged item in the income statement. Companies must formally document, designate and assess the effectiveness of transactions that receive hedge accounting. Under SFAS No. 133, the Partnership marks to fair value its derivative instruments at each period end with changes in fair value of derivatives not designated as hedges being recorded as unrealized gains or losses. Such unrealized gains or losses will change, based on prevailing market prices, at each balance sheet date prior to the period in which the transaction actually occurs. Unrealized gains or losses on derivative transaction qualifying as hedges are reflected in other comprehensive income. In general, SFAS No. 133 requires that at the date of initial adoption, the difference between the fair value of derivative instruments and the previous carrying amount of those derivatives be recorded in net income or other comprehensive income, as appropriate, as the cumulative effect of a change in accounting principle. On January 1, 2001, recognition of the Partnership's derivatives resulted in a gain of $0.5 million, which was recognized in the consolidated statement of operations as the cumulative effect of adopting SFAS No. 133. Certain derivative contracts related to written option contracts had been recorded on the balance sheet at fair value at December 31, 2000, so no adjustment was necessary for those contracts upon adoption of SFAS No. 133. The Partnership regularly reviews its contracts to determine if the contracts qualify for treatment as derivatives in accordance with SFAS No. 133. At December 31, 2002, the Partnership determined that the only contract qualifying as a derivative was a qualifying cash flow hedge. The decrease of $39,000 in the fair value of this hedge is recorded in other comprehensive income and as accumulated other comprehensive income in the consolidated balance sheet. No hedge ineffectiveness was recognized during 2002. The anticipated transaction (crude oil sales) will occur in January 2003, and all related amounts currently held in other comprehensive income will be reclassed to the income statement in 2003. The Partnership determined that its other derivative contracts qualified for the normal purchase and sale exemption at December 31, 2002. Therefore, the decrease in fair value of the Partnership's net asset for derivatives not qualifying as hedges decreased to zero. This decrease in fair value of $2.1 million is recorded as a loss in the consolidated statements of operations under the caption "Change in fair value of derivatives". The consolidated balance sheet at December 31, 2001, included $5.5 million in other current assets and $3.5 million in accrued liabilities as a result of recording the fair value of derivatives. In 2001, the Partnership did not designate any of its derivatives as hedging instruments under SFAS No. 133. 20. Commitments and Contingencies Commitments and Guarantees The Partnership leases office space for its headquarters office under a long-term lease. The lease extends until October 31, 2005. Ryder provides tractors and trailers to the Partnership under an operating lease that also includes full-service maintenance. Under the terms of the lease, the Partnership leases 75 tractors and 75 trailers. The Partnership pays a fixed monthly rental charge for each tractor and trailer and a fee based on mileage for the maintenance services. The Partnership leases three tanks for use in its pipeline operations. The tank leases expire in 2004. Additionally, it leases a segment of pipeline. Under the terms of that lease, the Partnership makes lease payments based on throughput, and has no minimum volumetric or financial requirements remaining. The Partnership also leases service vehicles for its field personnel. The future minimum rental payments under all noncancelable operating leases as of December 31, 2002, were as follows (in thousands). 62 Office Tractors and Service Space Trailers Tanks Vehicles Total -------- --------- --------- --------- --------- 2003...... $ 431 $ 2,832 $ 465 $ 374 $ 4,102 2004...... 489 2,838 465 373 4,165 2005...... 410 2,387 - 222 3,019 2006...... 18 997 - - 1,015 2007....... 15 887 - - 902 2008 and thereafter. - 2,518 - - 2,518 --------- --------- --------- --------- --------- Total minimum lease obligations $ 1,363 $ 12,459 $ 930 $ 969 $ 15,721 ========= ========= ========= ========= ======== Total operating lease expense was as follows (in thousands). Year ended December 31, 2002.............................. $ 4,713 Year ended December 31, 2001.............................. $ 4,379 Year ended December 31, 2000.............................. $ 2,500 The Partnership has guaranteed $5.2 million of residual value related to the leases of tractors and trailers. Management of the Partnership believes the likelihood the Partnership would be required to perform or otherwise incur any significant losses associated with this guaranty is remote. GELP has guaranteed crude oil purchases of GCOLP. These guarantees, totaling $9.9 million, were provided to counterparties. To the extent liabilities exist under the contracts subject to these guarantees, such liabilities are included in the consolidated balance sheet. GELP, the General Partner and the subsidiaries of GCOLP have guaranteed the payments by GCOLP to Citicorp under the terms of the Citicorp Agreement related to borrowings and letters of credit. Borrowings at December 31, 2002 were $5.5 million and are reflected in the consolidated balance sheet. To the extent liabilities exist under the letters of credit, such liabilities are include in the consolidated balance sheet. The Partnership has contractual commitments (forward contracts) arising in the ordinary course of its crude oil marketing activities. At December 31, 2002, the Partnership had commitments to purchase 2,743,000 barrels of crude oil in January 2003, and 1,864,000 barrels of crude oil between February 2003, and June 2004. The partnership had commitments to sell 2,810,000 barrels of crude oil in January 2003, and 749,000 barrels of crude oil between February 2003 and July 2003. All of these contracts are associated with market-price-related contracts. The total commitment to purchase crude oil would be valued at $139.9 million, using market prices at December 31, 2002. The total commitment to sell crude oil would be valued at $110.2 million, using market prices at December 31, 2002. In general, the Partnership expects to increase its expenditures in the future to comply with higher industry and regulatory safety standards. While the total amount of increased expenditures cannot be accurately estimated at this time, the Partnership anticipates that it will expend a total of approximately $9.6 million in 2003 and 2004 for testing and rehabilitation under regulations requiring assessment of the integrity of crude oil pipelines. Unitholder Litigation On June 7, 2000, Bruce E. Zoren, a holder of units of limited partner interests in the partnership, filed a putative class action complaint in the Delaware Court of Chancery, No. 18096-NC, seeking to enjoin the restructuring and seeking damages. Defendants named in the complaint include the Partnership, Genesis Energy L.L.C., members of the board of directors of Genesis Energy, L.L.C., and Salomon Smith Barney Holdings Inc. The plaintiff alleges numerous breaches of fiduciary duty loyalty owed by the defendants to the purported class in connection with making a proposal for restructuring. In November 2000, the plaintiff amended its complaint. In response, the defendants removed the amended complaint to federal court. On March 27, 2002, the federal court dismissed the suit; however, the plaintiff filed a motion to alter or amend the judgment. On May 15, 2002, the federal court denied the motion to alter or amend. The time for an appeal to be taken expired without an appeal being filed. On June 11, 2002, the plaintiff refiled the original complaint in the Delaware Court of Chancery, No. 19694-NC. On July 19, 2002, the defendants moved to dismiss the complaint for failure to state a claim upon which relief can be granted. The court has not ruled on that motion. Management of the General Partner believes that the 63 complaint is without merit and intends to vigorously defend the action. Management of the Partnership believes that any potential liability will be covered by insurance. Pennzoil Litigation The Partnership was named one of the defendants in a complaint filed on January 11, 2001, in the 125th District Court of Harris County, Texas, cause No. 2001-01176. Pennzoil-Quaker State Company ("PQS") seeks property damages, loss of use and business interruption suffered as a result of a fire and explosion that occurred at the Pennzoil Quaker State refinery in Shreveport, Louisiana, on January 18, 2000. PQS claims the fire and explosion was caused, in part, by Genesis selling to PQS crude oil that was contaminated with organic chlorides. We believe that the suit is without merit and intend to vigorously defend ourselves in this matter. We believe that any potential liability will be covered by insurance. PQS is also a defendant in five suits brought by neighbors living in the vicinity of the PQS Shreveport, Louisiana refinery in the First Judicial District Court, Caddo Parish, Louisiana, cause nos. 455,647-A. 455,658-B, 455,655-A, 456,574-A, and 458,379-C. PQS has brought third party demand against Genesis and others for indemnity with respect to the fire and explosion of January 18, 2000. We believe that the demand against Genesis is without merit and intend to vigorously defend ourselves in this matter. We believe that any potential liability will substantially be covered by insurance. Other Matters On December 20, 1999, the Partnership had a spill of crude oil from its Mississippi System. Approximately 8,000 barrels of oil spilled from the pipeline near Summerland, Mississippi, and entered a creek nearby. A portion of the oil then flowed into the Leaf River. The oil spill is covered by insurance and the financial impact to the Partnership for the cost of the clean-up has not been material. As a result of this crude oil spill, certain federal and state regulatory agencies will likely impose fines and penalties that would not be covered by insurance. The Partnership is subject to various environmental laws and regulations. Policies and procedures are in place to monitor compliance. The Partnership's management has made an assessment of its potential environmental exposure, and as a result of the spill from the Mississippi System, a total accrual of $3.0 million was recorded during 2002 and 2001. The Partnership is subject to lawsuits in the normal course of business and examination by tax and other regulatory authorities. Such matters presently pending are not expected to have a material adverse effect on the financial position, results of operations or cash flows of the Partnership. EX-10 3 creditagreement.txt CREDIT AGREEMENT WITH FLEET NATIONAL BANK [Execution] CREDIT AGREEMENT ------------------------------------------------------- GENESIS CRUDE OIL, L.P., as Borrower, GENESIS ENERGY, INC., as Guarantor, GENESIS ENERGY, L.P., as Guarantor, FLEET NATIONAL BANK, as Administrative Agent, FLEET SECURITIES, INC., as Arranger and Book Manager, and CERTAIN FINANCIAL INSTITUTIONS, as Lenders ------------------------------------------------------- $65,000,000 March 14, 2003 2 TABLE OF CONTENTS ARTICLE I - Definitions and References.........................................1 -------------------------- Section 1.1. Defined Terms...........................................1 ------------- Section 1.2. Exhibits and Schedules; Additional Definitions.........22 ---------------------------------------------- Section 1.3. Amendment of Defined Instruments.......................22 -------------------------------- Section 1.4. References and Titles..................................23 --------------------- Section 1.5. Calculations and Determinations........................23 ------------------------------- Section 1.6. Joint Preparation; Construction of Indemnities and Releases...........................................23 ---------------------------------------------- ARTICLE II - The Loans and Letters of Credit..................................24 ------------------------------- Section 2.1. Commitments to Lend; Notes.............................24 -------------------------- Section 2.2. Requests for New Loans.................................24 ---------------------- Section 2.3. Continuations and Conversions of Existing Loans........25 ----------------------------------------------- Section 2.4 Use of Proceeds.........................................26 --------------- Section 2.5. Optional Prepayments of Loans..........................26 ----------------------------- Section 2.6. Mandatory Prepayments..................................27 --------------------- Section 2.7. Letters of Credit......................................27 ----------------- Section 2.8. Requesting Letters of Credit...........................27 ---------------------------- Section 2.9. Reimbursement and Participations.......................28 -------------------------------- Section 2.10. No Duty to Inquire....................................29 ------------------ Section 2.11. LC Collateral.........................................30 ------------- Section 2.12. Interest Rates and Fees; Reduction in Commitment......31 ------------------------------------------------ Section 2.13. Borrowing Base Reporting..............................32 ------------------------ ARTICLE III - Payments to Lenders.............................................32 ------------------- Section 3.1. General Procedures.....................................32 ------------------ Section 3.2. Capital Reimbursement..................................33 --------------------- Section 3.3. Increased Cost of LIBOR Loans or Letters of Credit.....33 -------------------------------------------------- Section 3.4. Notice; Change of Applicable Lending Office............34 ------------------------------------------- Section 3.5. Availability...........................................34 ------------ Section 3.6. Funding Losses.........................................35 -------------- Section 3.7. Reimbursable Taxes.....................................35 ------------------ Section 3.8. Replacement of Lenders.................................36 ---------------------- ARTICLE IV - Conditions Precedent to Credit...................................37 ------------------------------ Section 4.1. Documents to be Delivered..............................37 ------------------------- Section 4.2. Additional Conditions Precedent........................39 ------------------------------- ARTICLE V - Representations and Warranties....................................40 ------------------------------ Section 5.1. No Default.............................................40 ---------- Section 5.2. Organization and Good Standing.........................40 ------------------------------ Section 5.3. Authorization..........................................40 ------------- Section 5.4. No Conflicts or Consents...............................40 ------------------------ Section 5.5. Enforceable Obligations................................41 ----------------------- Section 5.6. Initial Financial Statements...........................41 ---------------------------- Section 5.7. Other Obligations and Restrictions.....................41 ---------------------------------- Section 5.8. Full Disclosure........................................41 --------------- Section 5.9. Litigation.............................................42 ---------- Section 5.10. Labor Disputes and Acts of God........................42 ------------------------------ Section 5.11. ERISA Plans and Liabilities...........................42 --------------------------- Section 5.12. Compliance with Laws..................................42 -------------------- Section 5.13. Environmental Laws....................................43 ------------------ Section 5.14. Names and Places of Business..........................44 ---------------------------- Section 5.15. Borrower's Subsidiaries...............................45 ----------------------- Section 5.16. Title to Properties; Licenses.........................45 ----------------------------- Section 5.17. Government Regulation.................................45 --------------------- Section 5.18. Insider...............................................45 ------- Section 5.19. Solvency..............................................45 -------- Section 5.20. Credit Arrangements...................................46 ------------------- Section 5.21. Real Property.........................................46 ------------- ARTICLE VI - Affirmative Covenants............................................46 --------------------- Section 6.1. Payment and Performance................................46 ----------------------- Section 6.2. Books, Financial Statements and Reports................46 --------------------------------------- Section 6.3. Other Information and Inspections......................49 --------------------------------- Section 6.4. Notice of Material Events and Change of Address........49 ----------------------------------------------- Section 6.5. Maintenance of Properties..............................50 ------------------------- Section 6.6. Maintenance of Existence and Qualifications............50 ------------------------------------------- Section 6.7. Payment of Trade Liabilities, Taxes, etc...............50 ----------------------------------------- Section 6.8. Insurance..............................................50 --------- Section 6.9. Performance on Borrower's Behalf.......................51 -------------------------------- Section 6.10. Interest..............................................51 -------- Section 6.11. Compliance with Agreements and Law....................51 ---------------------------------- Section 6.12. Environmental Matters; Environmental Reviews..........51 -------------------------------------------- Section 6.13. Evidence of Compliance................................52 ---------------------- Section 6.14. Agreement to Deliver Security Documents...............52 --------------------------------------- Section 6.15. Perfection and Protection of Security Interests and Liens.............................................52 ----------------------------------------------- Section 6.16. Bank Accounts; Offset.................................52 --------------------- Section 6.17. Guaranties of Subsidiaries............................53 -------------------------- Section 6.18. Compliance with Agreements............................53 -------------------------- Section 6.19. Rents.................................................53 ----- Section 6.20. Operating Practices...................................54 ------------------- Section 6.21. Collateral Account....................................54 ------------------ ARTICLE VII - Negative Covenants..............................................54 ------------------ Section 7.1. Indebtedness...........................................55 ------------ Section 7.2. Limitation on Liens....................................55 ------------------- Section 7.3. Hedging Contracts......................................57 ----------------- Section 7.4. Limitation on Mergers, Issuances of Securities.........57 ---------------------------------------------- Section 7.5. Limitation on Sales of Property........................58 ------------------------------- Section 7.6. Limitation on Dividends and Redemptions................58 --------------------------------------- Section 7.7. Limitation on Investments and New Businesses...........59 -------------------------------------------- Section 7.8. Limitation on Credit Extensions........................59 ------------------------------- Section 7.9. Transactions with Affiliates...........................59 ---------------------------- Section 7.10. Prohibited Contracts.................................59 --------------------- Section 7.11. Current Ratio.........................................60 ------------- Section 7.12. Leverage Ratio........................................60 -------------- Section 7.13. Cash Flow Coverage Ratio..............................60 ------------------------ Section 7.14. Funded Indebtedness to Capitalization Ratio...........61 ------------------------------------------- Section 7.15. Minimum EBITDA........................................61 -------------- Section 7.16. Open Position; Certain Permitted Financial Instruments; NYMEX Transactions.......................61 ------------------------------------------ Section 7.17. Redelivery of Borrowing Base Report...................62 ----------------------------------- Section 7.18. Deposit Accounts......................................62 ---------------- ARTICLE VIII - Events of Default and Remedies.................................62 ------------------------------ Section 8.1. Events of Default......................................62 ----------------- Section 8.2. Remedies...............................................65 -------- ARTICLE IX - Administrative Agent.............................................65 -------------------- Section 9.1. Appointment and Authority..............................65 ------------------------- Section 9.2. Exculpation, Administrative Agent's Reliance, Etc......66 ------------------------------------------------- Section 9.3. Credit Decisions.......................................67 ---------------- Section 9.4. Indemnification........................................67 --------------- Section 9.5. Rights as Lender.......................................67 ---------------- Section 9.6. Sharing of Set-Offs and Other Payments.................68 -------------------------------------- Section 9.7. Investments............................................68 ----------- Section 9.8. Benefit of Article IX..................................68 --------------------- Section 9.9. Resignation............................................69 ----------- ARTICLE X - Miscellaneous.....................................................69 ------------- Section 10.1. Waivers and Amendments; Acknowledgments...............69 --------------------------------------- Section 10.2. Survival of Agreements; Cumulative Nature.............71 ----------------------------------------- Section 10.3. Notices...............................................71 ------- Section 10.4. Payment of Expenses; Indemnity........................72 ------------------------------ Section 10.5. Joint and Several Liability; Parties in Interest; Assignments; Replacement Notes........................73 ------------------------------------------------- Section 10.6. Confidentiality.......................................75 --------------- Section 10.7. Governing Law; Submission to Process..................75 ------------------------------------ Section 10.8. Limitation on Interest................................76 ---------------------- Section 10.9. Termination; Limited Survival.........................77 ----------------------------- Section 10.10. Severability.........................................77 ------------ Section 10.11. Counterparts.........................................77 ------------ Section 10.12. Waiver of Jury Trial, Punitive Damages, etc..........77 -------------------------------------------- Section 10.13. Restatement of Existing Credit Agreement.............78 ---------------------------------------- Schedule 1 - Lender Schedule Schedule 2 - Disclosure Schedule Schedule 3 - Security Schedule Schedule 4 - Insurance Schedule Schedule 5 - Borrowing Base Procedures Schedule 6 - Real Property Schedule 7 - Initial Letters of Credit Exhibit A - Promissory Note Exhibit B - Borrowing Notice Exhibit C - Continuation/Conversion Notice Exhibit D - Forms of Letter of Credit Exhibit E - Letter of Credit Application and Agreement Exhibit F - Certificate Accompanying Financial Statements Exhibit G - Opinion of Counsel for Restricted Persons Exhibit H - Borrowing Base Report Exhibit I - Environmental Compliance Certificate Exhibit J - Assignment and Acceptance Agreement Exhibit K - Solvency Certificate Exhibit L - Assignment of Note and Liens CREDIT AGREEMENT THIS CREDIT AGREEMENT is made as of March 14, 2003, by and among GENESIS CRUDE OIL, L.P. ("Borrower"), a Delaware limited partnership, GENESIS ENERGY, INC. ("General Partner"), a Delaware corporation, GENESIS ENERGY, L.P. ("Genesis Energy, L.P."), a Delaware limited partnership, and FLEET NATIONAL BANK, as administrative agent (in such capacity, "Administrative Agent"), FLEET SECURITIES, INC., as exclusive arranger (in such capacity, "Arranger and Book Manager") and the Lenders referred to below. W I T N E S S E T H: In consideration of the mutual covenants and agreements contained herein and in consideration of the loans which may hereafter be made by Lenders to, and the Letters of Credit that may hereafter be issued by the LC Issuer for the account of, Borrower, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto do hereby agree as follows: ARTICLE I - Definitions and References Section 1.1. Defined Terms. As used in this Agreement, each of the following terms has the meaning given to such term in this Section 1.1 or in the sections and subsections referred to below: "Acceptable Issuer" means any national or state bank or trust company which is organized under the laws of the United States of America or any state thereof or any branch licensed to operate under the laws of the United States of America or any state thereof, which is a branch of a bank organized under any country which is a member of the Organization for Economic Cooperation and Development, in each case which has capital, surplus and undivided profits of at least $500,000,000 and whose commercial paper is rated at least P-1 by Moody's or A-1 by S&P. "Account" shall have the meaning given that term in the UCC. "Account Debtor" means any Person who is or who may become obligated under, with respect to, or on account of, an Account. For purposes of the determination of Eligible Accounts, Account Debtors that are Affiliates of each other shall be treated as a single Account Debtor unless otherwise consented to by Administrative Agent. "Administrative Agent" means Fleet National Bank, as Administrative Agent hereunder, and its successors in such capacity. "Affiliate" means, as to any Person, each other Person that directly or indirectly (through one or more intermediaries or otherwise) controls, is controlled by, or is under common control with, such Person. A Person shall be deemed to be "controlled by" any other Person if such other Person possesses, directly or indirectly, power (a) to vote 1 20% or more of the securities (on a fully diluted basis) having ordinary voting power for the election of directors or managing general partners; or (b) to direct or cause the direction of the management and policies of such Person whether by contract or otherwise. "Alternate Base Rate" means the higher of (a) that variable rate of interest per annum established by Fleet National Bank from time to time as its "base rate" (which rate of interest may not be the lowest rate charged on similar loans) and (b) the Federal Funds Rate plus one-half percent (0.5%) per annum. Each change in the Alternative Base Rate shall become effective without prior notice to Borrower automatically as of the opening of business on the date of a change in the Alternate Base Rate. The Alternative Base Rate shall in no event, however, exceed the Highest Lawful Rate. "Applicable Lending Office" means, with respect to each Lender, such Lender's Domestic Lending Office in the case of Base Rate Loans and such Lender's LIBOR Lending Office in the case of LIBOR Loans. "Applicable Usage Level" means, for each day, the level set forth below that corresponds to the ratio of the Facility Usage at the close of business on such day to the Borrowing Base in effect on such day: Applicable Usage Level Ratio of Facility Usage to Borrowing Base ---------------------- -------------------------- Level I less than .50 to 1.0 Level II greater than or equal to .50 to 1.0 but less than .75 to 1.0 Level III greater than or equal to .75 to 1.0 "Approved Eligible Receivables" means each Eligible Receivable (other than Eligible Exchange Balances) (a) from a Person whose Debt Rating is either at least Baa3 by Moody's or at least BBB- by S&P; (b) fully and unconditionally guaranteed as to payment by a Person whose Debt Rating is either at least Baa3 by Moody's or at least BBB- by S&P; (c) from any other Person Currently Approved by Majority Lenders; or (d) fully covered by a letter of credit from an Acceptable Issuer. "Available Cash" has the meaning given such term in the Partnership Agreement. "Base Rate Loan" means a Loan which does not bear interest at the LIBOR Rate. "Base Rate Margin" means (i) from the date hereof through but not including the six-month anniversary of the date hereof, the greater of (A) 1.50% per annum and (B) the percent per annum set forth below based on the Applicable Usage Level in effect on such date, and (ii) on and after the six-month anniversary of the date hereof, the percent per annum set forth below based on the Applicable Usage Level in effect on such date. Applicable Usage Level Base Rate Margin Level I 1.00% Level II 1.50% Level III 2.00% Changes in the applicable Base Rate Margin will occur automatically without prior notice as changes in the Applicable Usage Level occur. "Borrower" means Genesis Crude Oil, L.P., a Delaware limited partnership. -------- "Borrowing" means a borrowing of new Loans of a single Type pursuant to Section 2.2 or a Continuation or Conversion of all or a portion of an existing Loan (whether alone or as a combination with a new Loan) into a single Type (and, in the case of LIBOR Loans, with the same Interest Period) pursuant to Section 2.3. "Borrowing Base" means the lesser of (I) the Maximum Facility Amount or (II) the remainder of (a) minus (b) below as of the date of determination (without duplication): (a) the sum of the following as of the date of determination : (i) the lesser of (A) 100% of Eligible Cash Equivalents or (B) $5,000,000; plus (ii) 90% of Approved Eligible Receivables; plus (iii) the lesser of (A) 85% of Other Eligible Receivables or (B) one-third of the sum of the amounts of clauses (a)(i) plus (a)(ii); plus (iv) 85% of Eligible Margin Deposits; plus (v) 95% of Hedged Eligible Inventory plus 100% of Other Eligible Inventory Value; plus .........(vi) 80% of Eligible Exchange Balances; plus .........(vii) 100% of all Paid but Unexpired Letters of Credit MINUS (b) the following as of the date of determination: (i) 100% of First Purchase Crude Payables; plus .........(ii) 100% of Other Priority Claims; plus .........(iii) The Estimate Adjustment Amount as provided in Schedule 5 "Borrowing Notice" means a written or telephonic request, or a written confirmation, made by Borrower which meets the requirements of Section 2.2. "Business Day" means any day, other than a Saturday, Sunday or day which shall be in New York City or the Commonwealth of Massachusetts a legal holiday or day on which banking institutions are required or authorized to close. Any Business Day in any way relating to LIBOR Loans (such as the day on which an Interest Period begins or ends) must also be a day on which commercial banks settle payments in London. "Capital Expenditures" means, for any Person for any period, the sum of, without duplication, (a) all expenditures made, directly or indirectly, by such Person or any of its Subsidiaries during such period for equipment, fixed assets, real property or improvements, or for replacements or substitutions therefor or additions thereto, that have been or should be, in accordance with GAAP, reflected as additions to property, plant or equipment on a Consolidated balance sheet of such Person or have a useful life of more than one year plus (b) the aggregate principal amount of all Indebtedness (including obligations under Capitalized Leases) assumed or incurred in connection with any such expenditures. For purposes of this definition, the purchase price of equipment that is purchased simultaneously with the trade-in of existing equipment or with insurance proceeds shall be included in Capital Expenditures only to the extent of the gross amount of such purchase price less the credit granted by the seller of such equipment for the equipment being traded in at such time or the amount of such proceeds, as the case may be. "Capital Lease" means a lease with respect to which the lessee is required concurrently to recognize the acquisition of an asset and the incurrence of a liability in accordance with GAAP. "Capital Lease Obligation" means, with respect to any Person and a Capital Lease, the amount of the obligation of such Person as the lessee under such Capital Lease which would, in accordance with GAAP, appear as a liability on a balance sheet of such Person. "Cash Equivalents" means Investments in: (a)......marketable obligations, maturing within 12 months after acquisition thereof, issued or unconditionally guaranteed by the United States of America or an instrumentality or agency thereof and entitled to the full faith and credit of the United States of America; (b)......demand deposits and time deposits (including certificates of deposit) maturing within 12 months from the date of deposit thereof, (i) with any office of any Lender or (ii) with a domestic office of any national or state bank or trust company which is organized under the Laws of the United States of America or any state therein, which has capital, surplus and undivided profits of at least $500,000,000, and whose long-term certificates of deposit are rated at least Aa3 by Moody's or AA- by S&P; (c)......repurchase obligations with a term of not more than seven days for underlying securities of the types described in subsection (a) above entered into with (i) any Lender or (ii) any other commercial bank meeting the specifications of subsection (b) above; (d)......open market commercial paper, maturing within 270 days after acquisition thereof, which are rated at least P-1 by Moody's or A-1 by S&P; and (e)......money market or other mutual funds substantially all of whose assets comprise securities of the types described in subsections (a) through (d) above. "Change of Control" means the occurrence of any of the following events: (i) any Person or group of Persons acting in concert as a partnership or other group (a "Group of Persons"), other than General Partner shall be the legal or beneficial owner (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of 25% or more of the combined voting power of the then total partnership interests (including all securities which are convertible into partnership interests) of Genesis Energy, L.P., or (ii) Genesis Energy, L.P. shall cease to be the sole legal and beneficial owner (as defined above) of at least ninety percent (90%) of the limited partnership interests of Borrower (including all securities which are convertible into limited partner interests), or (iii) the General Partner shall cease to be the sole general partner of Genesis Energy, L.P., the Borrower, Genesis Pipeline Texas, L.P. and Genesis Pipeline USA, L.P. or (iv) Denbury Resources Inc. shall own, in the aggregate based on its direct ownership and its indirect ownership through wholly-owned Subsidiaries, less than 100% of the voting power and equity interests in the General Partner. "Citicorp" means Citicorp North America, Inc. "Code" means the Internal Revenue Code of 1986, as amended from time to time, together with all rules and regulations promulgated with respect thereto. "Collateral" means all property of any kind which is subject to a Lien in favor of Lenders (or in favor of Administrative Agent for the benefit of Lenders) or which, under the terms of any Security Document, is purported to be subject to such a Lien, in each case granted or created to secure all or part of the Obligations. "Commitment Fee Rate" means, on any day (i) from the date hereof through but not including the six-month anniversary of the date hereof, 0.50% per annum and (ii) on and after the six-month anniversary of the date hereof, the rate per annum set forth below based on the Applicable Usage Level on such date. Applicable Usage Level Commitment Fee Rate ---------------------- ------------------- Level I 0.375% Level II or Level III 0.500% Changes in the applicable Commitment Fee Rate will occur automatically without prior notice as changes in the Applicable Usage Level occur. "Commitment Period" means the period from and including the date hereof until March 14, 2006 (or, if earlier, the day on which (i) the obligation of Lenders to make Loans hereunder and the obligations of LC Issuer to issue Letters of Credit hereunder have terminated, (ii) the obligation of LC Issuer to issue Letters of Credit hereunder has terminated, or (iii) the Notes first become due and payable in full, whichever shall first occur). "Consolidated" refers to the consolidation of any Person, in accordance with GAAP, with its properly consolidated subsidiaries. References herein to a Person's Consolidated financial statements, financial position, financial condition, liabilities, etc. refer to the consolidated financial statements, financial position, financial condition, liabilities, etc. of such Person and its properly consolidated subsidiaries. "Consolidated EBITDA" means, for any period, the sum of (1) the Consolidated Net Income of Genesis Energy, L.P. and its Consolidated Subsidiaries during such period, plus (2) all Interest Expense which was deducted in determining such Consolidated Net Income for such period, plus (3) all income taxes (including any franchise taxes to the extent based upon net income) which were deducted in determining such Consolidated Net Income, plus (4) all depreciation, amortization (including amortization of good will and debt issue costs) and other non-cash charges (including any provision for the reduction in the carrying value of assets recorded in accordance with GAAP) which were deducted in determining such Consolidated Net Income, minus (5) all non-cash items of income which were included in determining such Consolidated Net Income. "Consolidated Funded Indebtedness" means as of any date, the sum of the following (without duplication): (i) all Indebtedness which is classified as "long-term indebtedness" on a Consolidated balance sheet of Genesis Energy, L.P. and its Consolidated Subsidiaries prepared as of such date in accordance with GAAP and any current maturities and other principal amount in respect of such Indebtedness due within one year but which was classified as "long-term indebtedness" at the creation thereof, (ii) indebtedness for borrowed money of Genesis Energy, L.P. and its Consolidated Subsidiaries outstanding under a revolving credit or similar agreement providing for borrowings (and renewals and extensions thereof) over a period of more than one year, notwithstanding the fact that any such borrowing is made within one year of the expiration of such agreement, and (iii) Indebtedness in respect of Capital Leases of Genesis Energy, L.P. and its Consolidated Subsidiaries. "Consolidated Net Income" means, for any period, Genesis Energy, L.P.'s and its Consolidated Subsidiaries' gross revenues for such period, including any cash dividends or distributions actually received from any other Person during such period, minus Genesis Energy, L.P.'s and its Subsidiaries' expenses and other proper charges against income (including taxes on income to the extent imposed), determined on a Consolidated basis after eliminating earnings or losses attributable to outstanding minority interests (other than the minority interest in Borrower held by the General Partner) and excluding the net earnings of any Person other than a Subsidiary in which Genesis Energy, L.P. or any of its Subsidiaries has an ownership interest. Consolidated Net Income shall not include (i) any gain or loss from the sale of assets, (ii) any extraordinary gains or losses or (it being understood that up to $3,000,000 of any penalty or other payments assessed by any Tribunal in connection with the Pipeline Release during the first or second Fiscal Quarter of 2003 shall be considered to be an "extraordinary loss" for purposes of this clause (ii)) or (iii) any non-cash gains or losses resulting from mark to market activity as a result of the implementation of SFAS 133. "Consolidated Net Worth" means the remainder of all Consolidated assets, as determined in accordance with GAAP, of Genesis Energy, L.P. and its Subsidiaries minus the sum of (a) Genesis Energy, L.P.'s Consolidated liabilities, as determined in accordance with GAAP, and (b) all outstanding Minority Interests (other than the minority interest in Borrower held by the General Partner). The effect of any increase or decrease in net worth in any period as a result of items of income or loss not reflected in the determination of net income but reflected in the determination of comprehensive income (to the extent provided under GAAP as in effect on the date hereof) shall be excluded in determining Consolidated Net Worth. "Minority Interests" means the book value of any equity interests in any of Genesis Energy, L.P.'s Subsidiaries which equity interests are owned by a Person other than Genesis Energy, L.P. or a Wholly Owned Subsidiary of Genesis Energy, L.P. "Continuation/Conversion Notice" means a written or telephonic request, or a written confirmation, made by Borrower which meets the requirements of Section 2.3. "Continue", "Continuation", and "Continued" shall refer to the continuation pursuant to Section 2.3 hereof of a LIBOR Loan as a LIBOR Loan from one Interest Period to the next Interest Period. "Convert", "Conversion", and "Converted" shall refer to a conversion pursuant to Section 2.3 or Article III of one Type of Loan into another Type of Loan. "Current Trading Month" has the meaning given that term in Section 7.16. "Currently Approved by Majority Lenders" means such Person (including a limit on the maximum credit exposure to any such Person), storage location, pipeline, form of Letter of Credit or other matter as the case may be, as reflected in the most recent written notice given by Administrative Agent to Borrower as being approved by Majority Lenders. Each such written notice will supersede and revoke each prior notice. "Debt Rating" means with respect to a Person, the rating then in effect by a Rating Agency for the long term senior unsecured non-credit enhanced debt of such Person. "Default" means any Event of Default and any default, event or condition which would, with the giving of any requisite notices and the passage of any requisite periods of time, constitute an Event of Default. "Default Rate" means, at the time in question, (i) two percent (2%) per annum plus the applicable LIBOR Rate Margin plus the LIBOR Rate then in effect for any LIBOR Loan (up to the end of the applicable Interest Period) or (ii) two percent (2%) per annum plus the applicable Base Rate Margin plus the Alternative Base Rate for each Base Rate Loan; provided, however, the Default Rate shall never exceed the Highest Lawful Rate "Default Rate Period" means (i) any period during which an Event of Default, other than pursuant to Section 8.1 (a) or (b) or Section 8.1(i)(i), (i)(ii) or (i)(iii), is continuing, provided that such period shall not begin until notice of the commencement of the Default Rate has been given to Borrower by Administrative Agent upon the instruction by Majority Lenders and (ii) any period during which any Event of Default pursuant to Section 8.1 (a) or (b) or 8.1(i)(i), (i)(ii), or (i)(iii) is continuing unless Borrower has been notified otherwise by Administrative Agent upon the instruction by Majority Lenders. "Disclosure Schedule" means Schedule 2 hereto. "Dollars" and "$" means the lawful currency of the United States of America, except where otherwise specified. "Domestic Lending Office" means, with respect to any Lender, the office of such Lender specified as its "Domestic Lending Office" in the Lender Schedule hereto, or such other office as such Lender may from time to time specify to Borrower and Administrative Agent; with respect to LC Issuer, the office, branch, or agency through which it issues Letters of Credit; and, with respect to Administrative Agent, the office, branch, or agency through which it administers this Agreement. "Eligible Cash Equivalents" means Cash Equivalents in which Borrower has lawful and absolute title, which are free from any express or implied at law Lien, trust or other beneficial interest, in which Administrative Agent holds a fully perfected first-priority security interest prior to the rights of, and enforceable as such against, any other Persons pursuant to an account agreement satisfactory to Administrative Agent and which remain under the sole dominion and control of Administrative Agent. "Eligible Exchange Balances" means each Approved Eligible Receivable (including for this purpose only either the right to receive Petroleum Inventory in kind or to receive money) arising from the trading, lending, borrowing or exchange of Petroleum Inventory, net of any netted obligations or other offsets or counterclaims determined in accordance with prices set forth in the applicable exchange contracts, based on current value at the Market Price, in which Borrower has lawful and absolute title, which is not subject to any Lien in favor of any Person (other than Permitted Inventory Liens), and which is subject to a fully perfected first-priority security interest (subject only to Permitted Inventory Liens) in favor of Administrative Agent pursuant to the Loan Documents prior to the rights of, and enforceable as such against, any other Persons minus without duplication the amount of any Permitted Inventory Lien on any Petroleum Inventory receivable in kind. "Eligible Inventory" means inventories of Petroleum Inventory in which Borrower has lawful and absolute title (specifically excluding, however, tank bottoms), which are not subject to any Lien in favor of any Person (other than Permitted Inventory Liens), which are subject to a fully perfected first priority security interest (subject only to Permitted Inventory Liens) in favor of Administrative Agent pursuant to the Loan Documents prior to the rights of, and enforceable as such against, any other Person, which are otherwise satisfactory to Majority Lenders in their reasonable business judgment and which are located in storage locations (including pipelines) which are either (a) owned by a Restricted Person or (b) Currently Approved by Majority Lenders minus without duplication the amount of any Permitted Inventory Lien on any such inventory. Eligible Inventory shall specifically exclude inventory to be delivered in the current or next succeeding trading month. "Eligible Margin Deposit" means net equity value of investments by Borrower in margin deposit accounts with commodities brokers on nationally recognized exchanges subject to a perfected security interest in favor of Administrative Agent and a three-party agreement among Borrower, Administrative Agent and the depository institution, in form and substance satisfactory to Administrative Agent. "Eligible Receivables" means, at the time of any determination thereof (and without duplication), each Account and, with respect to each determination made on or after the 20th day of each calendar month and prior to the first day of the next calendar month, each amount which will be, in the good faith estimate reasonably determined by Borrower, an Account of the Borrower with respect to sales and deliveries of Petroleum Inventory during such calendar month or sales and deliveries of Petroleum Inventory during the next calendar month under firm written purchase and sale agreements, in either event as to which the following requirements have been fulfilled (or as to future Accounts, will be fulfilled as of the date of such sales and deliveries of Petroleum Inventory), to the reasonable satisfaction of Administrative Agent: (i) Borrower has lawful and absolute title to such Account; (ii) such Account is a valid, legally enforceable obligation of an Account Debtor payable in Dollars, arising from the sale and delivery of Petroleum Inventory to such Person in the United States of America in the ordinary course of business of Borrower, to the extent of the volumes of Petroleum Inventory delivered to such Person prior to the date of determination; (iii) there has been excluded from such Account (A) any portion that is subject to any dispute, rejection, loss, non-conformance, counterclaim or other claim or defense on the part of any Account Debtor or to any claim on the part of any Account Debtor denying liability under such Account, and (B) the amount of any account payable or other liability owed by Borrower to the Account Debtor on such Account, whether or not a specific netting agreement may exist, excluding, however, any portion of any such account payable or other liability which is at the time in question covered by a Letter of Credit; (iv) Borrower has the full and unqualified right to assign and grant a security interest in such Account to Administrative Agent as security for the Obligation; (v) such Account (A) is evidenced by an invoice rendered to the Account Debtor, or (B) represents the uninvoiced amount in respect of volumes of Petroleum Inventory scheduled to be delivered by Borrower in the current or next-following calendar month, is governed by a purchase and sale agreement, exchange agreement or other written agreement, and in either event such Account is not evidenced by any promissory note or other instrument; (vi) such Account is not subject to any Lien in favor of any Person and is subject to a fully perfected first priority security interest in favor of Administrative Agent pursuant to the Loan Documents, prior to the rights of, and enforceable as such against, any other Person except for a Lien in respect of First Purchase Crude Payables; (vii) such Account is due not more than 30 days following the last day of the calendar month in which the Petroleum Inventory delivery occurred and is not more than 30 days past due (except that Accounts of a single Account Debtor in excess of $250,000 which are not Approved Eligible Receivables shall be excluded from Eligible Receivables if not paid on or before the third Business Day after the due date); (viii) such Account is not payable by an Account Debtor with more than ten percent (10%) of its Accounts to Borrower that are outstanding more than 30 days from the invoice date; (ix) the Account Debtor in respect of such Account (A) is located, is conducting significant business or has significant assets in the United States of America or is a Person Currently Approved by Majority Lenders, (B) is not an Affiliate of Borrower, and (C) is not the subject of any event of the type described in Section 8.1(i); (x) the Account Debtor in respect of such Account is not a governmental authority, domestic or foreign; (xi) such Account is not the obligation of an Account Debtor that Administrative Agent or Majority Lenders determine in good faith that there is a legitimate concern over the timing or collection of such receivable; and (xii) there is excluded, in the determination of Eligible Receivables, the portion of aggregate Accounts with respect to any Account Debtor that exceed the percentage designated by Administrative Agent from time to time of the total Eligible Receivables. Accounts. "Eligible Transferee" means a Person which either (a) is a Lender or an Affiliate of a Lender, or (b) is consented to as an Eligible Transferee by Administrative Agent and, so long as no Default or Event of Default is continuing, by Borrower, which consents in each case will not be unreasonably withheld (provided that no Person organized outside the United States may be an Eligible Transferee if Borrower would be required to pay withholding taxes on interest or principal owed to such Person). "Environmental Laws" means any and all Laws relating to the environment or to emissions, discharges, releases or threatened releases of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or wastes into the environment including ambient air, surface water, ground water, or land, or otherwise relating to the manufacture, processing, distribution use, treatment, storage, disposal, transport, or handling of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or wastes. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time, together with all rules and regulations promulgated with respect thereto. "ERISA Affiliate" means each Restricted Person and all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control that, together with such Restricted Person, are treated as a single employer under Section 414 of the Code. "ERISA Plan" means any employee pension benefit plan subject to Title IV of ERISA maintained by any ERISA Affiliate with respect to which any Restricted Person has a fixed or contingent liability. "Event of Default" has the meaning given to such term in Section 8.1. "Existing Credit Agreement" means that certain Amended and Restated Credit Agreement dated as of May 3, 2002 by and between Genesis Crude Oil, L.P., as Borrower and Citicorp North America, Inc., as Administrative Agent and Collateral Agent, and certain financial institutions, as Lenders. "Facility Usage" means, at the time in question, the aggregate amount of outstanding Loans and LC Obligations at such time. "Federal Funds Rate" means, for any day, the rate per annum (rounded upwards, if necessary, to the nearest 1/1000th of one percent) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day, provided that (i) if the day for which such rate is to be determined is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (ii) if such rate is not so published for any day, the Federal Funds Rate for such day shall be the average rate quoted to Administrative Agent on such day on such transactions as determined by Administrative Agent. "First Purchase Crude Payables" means the unpaid amount of any payable obligation related to the purchase of Petroleum Inventory by Borrower which Administrative Agent determines will be secured by a statutory Lien, including but not limited to the statutory Liens, if any, created under the laws of Texas, New Mexico, Wyoming, Kansas, Oklahoma or any other state to the extent such payable obligation is not at the time in question covered by a Letter of Credit. "Fiscal Quarter" means a three-month period ending on March 31, June 30, September 30 or December 31 of any year. "Fiscal Year" means a twelve-month period ending on December 31 of any year. "Floating Price Contract" has the meaning given that term in Section 7.16. "GAAP" means those generally accepted accounting principles and practices which are recognized as such by the Financial Accounting Standards Board (or any generally recognized successor) and which, in the case of Genesis Energy, L.P. and its Consolidated Subsidiaries, are applied for all periods after the date hereof in a manner consistent with the manner in which such principles and practices were applied to the Initial Financial Statements. If any change in any accounting principle or practice is required by the Financial Accounting Standards Board (or any such successor) in order for such principle or practice to continue as a generally accepted accounting principle or practice, all reports and financial statements required hereunder with respect to Genesis Energy, L.P. or with respect to Genesis Energy, L.P. and its Consolidated Subsidiaries may be prepared in accordance with such change, but all calculations and determinations to be made hereunder may be made in accordance with such change only after notice of such change is given to each Lender, and Majority Lenders agree to such change insofar as it affects the accounting of Genesis Energy, L.P. or of Genesis Energy, L.P. and its Consolidated Subsidiaries. "General Partner" means Genesis Energy, Inc., a Delaware corporation. --------------- partnership. "Genesis Energy, L.P." means Genesis Energy, L.P., a Delaware limited -------------------- "Guarantors" means Genesis Energy, Inc., Genesis Energy, L.P., Genesis ---------- Pipeline USA, L.P., and Genesis Pipeline Texas, L.P., any Subsidiary of Genesis Energy, L.P. which now or hereafter executes and delivers a guaranty to Administrative Agent pursuant to Section 6.17, and any other Person who has guaranteed some or all of the Obligations and who has been accepted by Administrative Agent as a Guarantor. "Hazardous Materials" means any substances regulated under any Environmental Law, whether as pollutants, contaminants, or chemicals, or as industrial, toxic or hazardous substances or wastes, or otherwise. "Hedged Eligible Inventory" means Eligible Inventory with respect to which the price risk has been (a) hedged for delivery within the next 190 days by either (i) a contract on the NYMEX arranged through brokers approved by Administrative Agent and with whom a three-party agreement among Borrower, Administrative Agent and such broker has been entered in form and substance satisfactory to Administrative Agent or (ii) a contract for a specified price for physical delivery of such inventory to a counterparty whose Account would qualify as an Approved Eligible Receivable or (b)......otherwise hedged in a manner satisfactory to Majority Lenders. The value of Hedged Eligible Inventory shall be the volume of the inventory times the prices fixed in such hedge, minus all storage, transportation and other applicable costs. "Hedging Contract" means (a) any agreement providing for options, swaps, floors, caps, collars, forward sales or forward purchases involving interest rates, commodities or commodity prices, equities, currencies, bonds, or indexes based on any of the foregoing, (b) any option, futures or forward contract traded on an exchange, and (c) any other derivative agreement or other similar agreement or arrangement. "Highest Lawful Rate" means, with respect to each Lender Party to whom Obligations are owed, the maximum nonusurious rate of interest that such Lender Party is permitted under applicable Law to contract for, take, charge, or receive with respect to such Obligations. All determinations herein of the Highest Lawful Rate, or of any interest rate determined by reference to the Highest Lawful Rate, shall be made separately for each Lender Party as appropriate to assure that the Loan Documents are not construed to obligate any Person to pay interest to any Lender Party at a rate in excess of the Highest Lawful Rate applicable to such Lender Party. "Indebtedness" of any Person means its Liabilities (without duplication) in any of the following categories: (a)......Liabilities for borrowed money, (b)......Liabilities constituting an obligation to pay the deferred purchase price of property or services, (c)......Liabilities evidenced by a bond, debenture, note or similar instrument, (d)......Liabilities (other than reserves for taxes and reserves for contingent obligations) which (i) would under GAAP be shown on such Person's balance sheet as a liability and (ii) are payable more than one year from the date of creation or incurrence thereof, (e)......Liabilities arising under Hedging Contracts (on a net basis to the extent netting is provided for in the applicable Hedging Contract), (f)......Liabilities constituting principal under Capital Leases, (g)......Liabilities arising under conditional sales or other title retention agreements, (h)......Liabilities owing under direct or indirect guaranties of Liabilities of any other Person or otherwise constituting obligations to purchase or acquire or to otherwise protect or insure a creditor against loss in respect of Liabilities of any other Person (such as obligations under working capital maintenance agreements, agreements to keep-well, or agreements to purchase Liabilities, assets, goods, securities or services), but excluding endorsements in the ordinary course of business of negotiable instruments in the course of collection, (i)......Liabilities consisting of an obligation to purchase or redeem securities or other property, if such Liabilities arises out of or in connection with the sale or issuance of the same or similar securities or property (for example, repurchase agreements, mandatorily redeemable preferred stock and sale/leaseback agreements), (j)......Liabilities with respect to letters of credit or applications or reimbursement agreements therefor, (k)......Liabilities with respect to banker's acceptances, or (l)......Liabilities with respect to obligations to deliver goods or services in consideration of advance payments therefor; provided, however, that the "Indebtedness" of any Person shall not include Liabilities that were incurred in the ordinary course of business by such Person on ordinary trade terms to vendors, suppliers or other Persons providing goods and services for use by such Person in the ordinary course of its business, unless and until such Liabilities are outstanding more than 120 days after the date the respective goods are delivered or the respective services are rendered, other than Liabilities contested in good faith by appropriate proceedings, if required, and for which adequate reserves are maintained on the books of such Person in accordance with GAAP. "Initial Financial Statements" means (i) the audited Consolidated financial statements of Genesis Energy, L.P. as of December 31, 2001, (ii) the audited Consolidated financial statements of Borrower as of December 31, 2001, (iii) the unaudited Consolidated financial statements of Genesis Energy, L.P. as of September 30, 2002, and (iv) the unaudited Consolidated financial statements of Borrower as of September 30, 2002. "Initial Letters of Credit" means those letters of credit issued by Citicorp under the Existing Credit Agreement prior to the date hereof that are outstanding as of the date hereof and are listed on Schedule 7 attached hereto. "Insurance Schedule" means Schedule 4 attached hereto. "Interest Expense" means, with respect to any period, the sum (without duplication) of the following (in each case, eliminating all offsetting debits and credits between Genesis Energy, L.P. and its Subsidiaries and all other items required to be eliminated in the course of the preparation of Consolidated financial statements of Genesis Energy, L.P. and its Subsidiaries in accordance with GAAP): (a) all interest and commitment fees in respect of Indebtedness of Genesis Energy, L.P. or any of its Subsidiaries (including imputed interest on Capital Lease Obligations) which are accrued during such period and whether expensed in such period or capitalized; plus (b) all fees, expenses and charges in respect of letters of credit issued for the account of Genesis Energy, L.P. or any of its Subsidiaries, which are accrued during such period and whether expensed in such period or capitalized. "Interest Period" means, with respect to each particular LIBOR Loan in a Borrowing, the period specified in the Borrowing Notice or Continuation/Conversion Notice applicable thereto, beginning on and including the date specified in such Borrowing Notice or Continuation/Conversion Notice (which must be a Business Day), and ending one, two, three, six or twelve months thereafter, as Borrower may elect in such notice; provided that: (a) any Interest Period which would otherwise end on a day which is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day; (b) any Interest Period which begins on the last Business Day in 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 in a calendar month; and (c) notwithstanding the foregoing, no Interest Period may be selected that would end after the last day of the Commitment Period. "Investment" means any investment made, directly or indirectly in any Person, whether by acquisition of shares of capital stock, indebtedness or other obligations or securities or by loan, advance, capital contribution or otherwise and whether made in cash, by the transfer of property or by any other means. "Law" means any statute, law, regulation, ordinance, rule, treaty, judgment, order, decree, permit, concession, franchise, license, agreement or other governmental restriction of the United States or any state or political subdivision thereof or of any foreign country or any department, state, province or other political subdivision thereof. "LC Application" means any application for a Letter of Credit hereafter made by Borrower to LC Issuer. "LC Collateral" has the meaning given to such term in Section 2.11(a). "LC Issuer" means with respect to the Initial Letters of Credit, Citicorp in its capacity as the issuer of the Initial Letters of Credit, and (ii) with respect to any Letter of Credit other than the Initial Letters of Credit, Fleet National Bank, in its capacity as the issuer of Letters of Credit hereunder, other than the Initial Letters of Credit, and its successors in such capacity. Administrative Agent may, with the consent of Borrower and Lender in question, appoint any Lender hereunder as an LC Issuer in place of or in addition to Fleet National Bank.. "LC Obligations" means, at the time in question, the sum of all Matured LC Obligations plus the maximum amounts which LC Issuer might then or thereafter be called upon to advance under all Letters of Credit then outstanding. "Lender Parties" means Administrative Agent, LC Issuer, and all Lenders -------------- "Lender Schedule" means Schedule 1 hereto. "Lenders" means each signatory hereto (other than Borrower and any Restricted Person that is a party hereto), including Fleet National Bank, in its capacity as a Lender hereunder rather than as Administrative Agent and LC Issuer, and the successors and each permitted assign of each such party as holder of a Note. "Letter of Credit" means any letter of credit issued by LC Issuer hereunder and the Initial Letters of Credit. "Letter of Credit Fee Rate" means, on any day (i) from the date hereof through but not including the six-month anniversary of the date hereof, the greater of (A) 2.50% per annum and (B) the rate per annum set forth below based on the Applicable Usage Level on such date, and (ii) on and after the six-month anniversary of the date hereof, the rate per annum set forth below based on the Applicable Usage Level on such date. Applicable Usage Level LC Fee Rate ---------------------- ----------- Level I 2.00% Level II 2.50% Level III 3.00% Changes in the applicable Letter of Credit Fee Rate will occur automatically without prior notice as changes in the Applicable Usage Level occur. "Liabilities" means, as to any Person, all indebtedness, liabilities and obligations of such Person, whether matured or unmatured, liquidated or unliquidated, primary or secondary, direct or indirect, absolute, fixed or contingent, and whether or not required to be considered pursuant to GAAP. "LIBOR Lending Office" means, with respect to any Lender, the office of such Lender specified as its "LIBOR Lending Office" on the Lender Schedule hereto (or, if no such office is specified, its Domestic Lending Office), or such other office of such Lender as such Lender may from time to time specify to Borrower and Administrative Agent. "LIBOR Loan" means a Loan that bears interest at a rate based upon the LIBOR Rate. "LIBOR Rate" means, as applicable to any LIBOR Loan within a Borrowing and with respect to the related Interest Period therefor, the rate per annum (rounded upwards, if necessary, to the nearest 1/16th of 1%)as determined on the basis of offered rates for deposits in U.S. dollars, for a period of time comparable to such Interest Period which appears on Telerate Page 3750 (or any successor page) as of 11:00 a.m. London time on the day that is two Business Days preceding the first day of such LIBOR Loan; provided, however, if the rate described above does not appear on the Telerate system on any applicable interest determination date, the LIBOR Rate shall be the rate (rounded upwards as described above, if necessary) for deposits in dollars for a period substantially equal to such Interest Period on the Reuters Page "LIBO" (or such other page as may replace the LIBO Page on that service for the purpose of displaying such rates), as of 11:00 a.m. (London time), on the date that is two Business Days prior to the beginning of 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 (rounded upwards, if necessary, to the nearest 1/1000 of 1%). If both the Telerate and Reuters system are unavailable, then the LIBOR Rate for that date will be determined on the basis of the offered rates for deposits in U.S. dollars for a period of time comparable to such Interest Period which are offered by four major banks in the London interbank market at approximately 11:00 a.m. London time, on the day that is two (2) Business Days preceding the first day of such LIBOR Loan as selected by Administrative Agent. The principal London office of each of the four major London banks will be requested to provide a quotation of its U.S. dollar deposit offered rate. If at least two such quotations are provided, the rate for that date will be the arithmetic mean of the quotations. If fewer than two quotations are provided as requested, the rate for that date will be determined on the basis of the rates quoted for loans in U.S. dollars to leading European banks for a period of time comparable to such Interest Period offered by major banks in New York City at approximately 11:00 a.m. New York City time, on the day that is two Business Days preceding the first day of such LIBOR Loan. In the event that Administrative Agent is unable to obtain any such quotation as provided above, it will be deemed that the LIBOR Rate pursuant to such LIBOR Loan cannot be determined. In the event that the Board of Governors of the Federal Reserve System shall impose a Reserve Percentage with respect to LIBOR deposits of any Lender, then for any period during which such Reserve Percentage shall apply, the LIBOR Rate shall be equal to the amount determined above divided by an amount equal to 1 minus the Reserve Percentage. "Reserve Percentage" means the maximum aggregate reserve requirement (including all basic, supplemental, marginal, special, emergency and other reserves) which is imposed on member banks of the Federal Reserve System against "Euro-currency Liabilities" as defined in Regulation D. Without limiting the effect of the foregoing, the Reserve Percentage shall reflect any other reserves required to be maintained by such member banks with respect to (a) any category of liabilities which includes deposits by reference to which the LIBOR Rate is to be determined, or (b) any category of extensions of credit or other assets which include LIBOR Loans. The LIBOR Rate for any LIBOR Loan shall change whenever the Reserve Percentage changes. "LIBOR Rate Margin" means (i) from the date hereof through but not including the six-month anniversary of the date hereof, the greater of (A) 2.50% per annum and (B) the percent per annum set forth below based on the Applicable Usage Level in effect on such date, and (ii) on and after the six-month anniversary of the date hereof, the percent per annum set forth below based on the Applicable Usage Level in effect on such date. Applicable Usage Level LIBOR Rate Margin ---------------------- ----------------- Level I 2.00% Level II 2.50% Level III 3.00% Changes in the applicable LIBOR Rate Margin will occur automatically without prior notice as changes in the Applicable Usage Level occur. "Lien" means, with respect to any property or assets, any right or interest therein of a creditor to secure Liabilities owed to it or any other arrangement with such creditor which provides for the payment of such Liabilities out of such property or assets or which allows such creditor to have such Liabilities satisfied out of such property or assets prior to the general creditors of any owner thereof, including any lien, mortgage, security interest, pledge, deposit, production payment, rights of a vendor under any title retention or conditional sale agreement or lease substantially equivalent thereto, tax lien, mechanic's or materialman's lien, or any other charge or encumbrance for security purposes, whether arising by Law or agreement or otherwise, but excluding any right of offset which arises without agreement in the ordinary course of business. "Lien" also means any filed financing statement, any registration of a pledge (such as with an issuer of uncertificated securities), or any other arrangement or action which would serve to perfect a Lien described in the preceding sentence, regardless of whether such financing statement is filed, such registration is made, or such arrangement or action is undertaken before or after such Lien exists. "Loans" has the meaning given to such term in Section 2.1. "Loan Documents" means this Agreement, the Notes, the Security Documents, the Letters of Credit, the LC Applications, and all other agreements, certificates, documents, instruments and writings at any time delivered in connection herewith or therewith (exclusive of term sheets and commitment letters). "Maintenance Capital Expenditures" means, for any period, all amounts properly classified as capital expenditures under GAAP for maintenance of or repair or replacement of existing assets during such period or that are required to maintain existing operations. "Majority Lenders" means Lenders whose aggregate Percentage Shares equal or exceed sixty-six and two-thirds percent (66 2/3%). "Market Price" means on each day a spot price for the inventory of Petroleum Inventory being valued, determined by published prices and methodology approved by Administrative Agent from time to time, based on an index gravity and grade of Petroleum Inventory at a delivery point reflecting as nearly as practical the actual gravity, grade, and location of the Petroleum Inventory being valued, adjusted to reflect any differences in gravity and grade between the index Petroleum Inventory and the actual inventory and to reflect transportation costs or other appropriate location price differential from the actual location to the index location. "Material Adverse Change" means a material and adverse change, from the state of affairs presented in the Initial Financial Statements or as represented or warranted in any Loan Document, to (a) Genesis Energy, L.P.'s Consolidated financial condition, (b) Genesis Energy, L.P.'s Consolidated operations, properties or prospects, considered as a whole, (c) Borrower's ability to timely pay the Obligations, or (d) the enforceability of the material terms of any Loan Document. "Material Market Open Position Loss" means a cumulative amount of net losses resulting from Open Positions (other than Open Positions permitted under Section 7.16) of all Restricted Persons on a mark to market basis during any period of 12 consecutive months in excess of $250,000. "Matured LC Obligations" means all amounts paid by LC Issuer on drafts or demands for payment drawn or made under any Letter of Credit and all other amounts due and owing to LC Issuer under any LC Application for any Letter of Credit, to the extent the same have not been repaid to LC Issuer (with the proceeds of Loans or otherwise) or cash collaterialized pursuant to Section 2.11 hereof. "Maximum Drawing Amount" means at the time in question the sum of the maximum amounts which LC Issuer might then or thereafter be called upon to advance under all Letters of Credit then outstanding. "Maximum Facility Amount" means the amount of $65,000,000, as such amount may be reduced by Borrower from time to time as provided in Section 2.12. "Maximum Loan Amount" means $25,000,000. "Moody's" means Moody's Investor Service, Inc., or its successor. ------- "Note" has the meaning given to such term in Section 2.1. "NYMEX" means the New York Mercantile Exchange. "Obligations" means all Liabilities from time to time owing by any Restricted Person to any Lender Party under or pursuant to any of the Loan Documents, including all LC Obligations. "Obligation" means any part of the Obligations. "Offsetting Position" means any offsetting sale or purchase agreement, an offsetting NYMEX contract, an offsetting physical inventory position (excluding tank bottoms and pipeline linefill inventory classified as a long term asset and working inventory not held for resale), or an offsetting swap, collar or option contract, in each case eliminating price risk and substantially all basis risk. "Open Position" means (i) any physical Petroleum Inventory or (ii) any purchase or sale contract for Petroleum Inventory that does not have an Offsetting Position. "Other Eligible Inventory Value" means the following amount of Eligible Inventory, other than Hedged Eligible Inventory: (a) if the WTI Price is less than or equal to $30 per barrel, 80% of the product of the volume of such crude oil times the Market Price, or (b) if the WTI Price is greater than $30 per barrel the greater of (i) 70% of the product of the volume of such crude oil times the Market Price or (ii) 80% of the product of the volume of such crude oil times $30 per barrel; minus, in each case, all storage, transportation and other applicable costs. As used herein "WTI Price" means on each day the Platt's Average Spot Price for West Texas intermediate crude oil (Cushing, Oklahoma). "Other Eligible Receivable" means any Eligible Receivable which is not an Approved Eligible Receivable nor an Eligible Exchange Balance. The portions of the aggregate of the Other Eligible Receivables owed by any obligor and its Affiliates exceeding ten percent (10%) of the sum of (i) Approved Eligible Receivables plus (ii) Other Eligible Receivables, shall not be included without the prior written approval of the Majority Lenders. "Other Priority Claims" means any account payable, obligation or liability which Administrative Agent has determined has or will have a Lien upon or claim against any Cash Equivalent, account or inventory of Borrower senior or equal in priority to the security interests in favor of Administrative Agent for the benefit of Lenders, in each case to the extent such Cash Equivalent, account or inventory of Borrower is otherwise included in the determination of the Borrowing Base and the included portion thereof has not already been reduced by such Lien or claim. "Paid but Unexpired Letters of Credit" means, on any day, the maximum drawing amount of Letters of Credit on such day where no underlying obligation exists on such day, or if the amount of the Letter of Credit exceeds the underlying obligation on such day, the amount of such excess. As used herein, "underlying obligation" includes without limitation, all existing and future obligations to the beneficiary of such Letter of Credit in respect of Petroleum Inventory purchased or received on or prior to such day or in respect of Petroleum Inventory Borrower is then obligated to purchase or receive or has then nominated to purchase or receive. "Partnership Agreement" means the Third Amended and Restated Agreement of Limited Partnership of Genesis Energy, L.P. dated July 31, 2002. "Percentage Share" means, with respect to any Lender (a) when used in Sections 2.1 or 2.12, in any Borrowing Notice or when no Loans are outstanding hereunder, the percentage set forth opposite such Lender's name on the Lender Schedule hereto, and (b) when used otherwise, the percentage obtained by dividing (i) the sum of the unpaid principal balance of such Lender's Loans at the time in question plus the Matured LC Obligations which such Lender has funded pursuant to Section 2.9(c) plus the portion of the Maximum Drawing Amount which such Lender might be obligated to fund under Section 2.9(c), by (ii) the sum of the aggregate unpaid principal balance of all Loans at such time plus the aggregate amount of LC Obligations outstanding at such time. "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 Restricted Person 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 Petroleum Inventory marketing, gathering, transportation, storage, terminaling and pipeline operation; and (iv) the aggregate purchase price for all Permitted Acquisitions from and after the date of this Agreement does not exceed $15,000,000. "Permitted Inventory Liens" means any Lien, and the amount of any Liability secured thereby, on Petroleum Inventory which would be a Permitted Lien under Section 7.2(ii)(b) (so long as such Lien is inchoate) or Section 7.2(ii)(d). "Permitted Investments" means: (a)......Cash Equivalents, (b)......Investments described in the Disclosure Schedule, (c)......Investments by Genesis Energy, L.P. or any of its Subsidiaries in Borrower or any Wholly Owned Subsidiary of Genesis Energy, L.P. which is a Guarantor, (d)......Permitted Acquisitions. "Permitted Lien" has the meaning given to such term in Section 7.2. "Person" means an individual, corporation, partnership, limited liability company, association, joint stock company, trust or trustee thereof, estate or executor thereof, unincorporated organization or joint venture, Tribunal, or any other legally recognizable entity. "Petroleum Inventory" means crude oil, condensate, natural gas liquids (N.L.'s), liquefied petroleum gases (LPG's) or any blend thereof. "Pipeline Release" means the spill of crude oil from the Genesis Pipeline USA, L.P. Mississippi System on December 20, 1999. "Rating Agency" means either S&P or Moody's. "Regulation D" means Regulation D of the Board of Governors of the Federal Reserve System as from time to time in effect. "Reimbursable Taxes" has the meaning set forth in Section 3.7(a). "Restricted Person" means any of Genesis Energy, L.P., Genesis Energy, ----------------- Inc., and each Subsidiary of Genesis Energy, L.P., including but not limited to Borrower and each Subsidiary of Borrower. "S&P" means Standard & Poor's Ratings Services (a division of McGraw --- Hill, Inc.) or its successor. "Security Documents" means the instruments listed in the Security Schedule and all other security agreements, deeds of trust, mortgages, chattel mortgages, pledges, guaranties, financing statements, continuation statements, extension agreements and other agreements or instruments now, heretofore, or hereafter delivered by any Restricted Person to Administrative Agent in connection with this Agreement or any transaction contemplated hereby to secure or guarantee the payment of any part of the Obligations or the performance of any Restricted Person's other duties and obligations under the Loan Documents. "Security Schedule" means Schedule 3 hereto. "Solvent" and "Solvency" mean, with respect to any Person on a particular date, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person's ability to pay such debts and liabilities as they mature and (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person's property would constitute an unreasonably small capital. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. "Subsidiary" means, with respect to any Person, any corporation, association, partnership, limited liability company, joint venture, or other business or corporate entity, enterprise or organization which is directly or indirectly (through one or more intermediaries) controlled or owned more than fifty percent by such Person, it being understood that for all purposes of this Agreement and the other Loan Documents, (i) Borrower is a Subsidiary of Genesis Energy, L.P. and General Partner and (ii) Genesis Energy, L.P. is a Subsidiary of General Partner. "Termination Event" means (a) the occurrence with respect to any ERISA Plan of (i) a reportable event described in Sections 4043(c)(5) or (6) of ERISA or (ii) any other reportable event described in Section 4043(c) of ERISA other than a reportable event not subject to the provision for 30-day notice to the Pension Benefit Guaranty Corporation pursuant to a waiver by such corporation under Section 4043(a) of ERISA, or (b) the withdrawal of any ERISA Affiliate from an ERISA Plan during a plan year in which it was a "substantial employer" as defined in Section 4001(a)(2) of ERISA, or (c) the filing of a notice of intent to terminate any ERISA Plan or the treatment of any ERISA Plan amendment as a termination under Section 4041 of ERISA, or (d) the institution of proceedings to terminate any ERISA Plan by the Pension Benefit Guaranty Corporation under Section 4042 of ERISA, or (e) any other event or condition which might constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any ERISA Plan. "Tribunal" means any government, any arbitration panel, any court or any governmental department, commission, board, bureau, agency or instrumentality of the United States of America or any state, province, commonwealth, nation, territory, possession, county, parish, town, township, village or municipality, whether now or hereafter constituted or existing. "Type" means, with respect to any Loans, the characterization of such Loans as either Base Rate Loans or LIBOR Loans. "UCC" means the Uniform Commercial Code as in effect in the State of New York. "Wholly Owned Subsidiary" means any Subsidiary of a Person, all of the issued and outstanding stock, limited liability company membership interests, or partnership interests of which (including all rights or options to acquire such stock or interests) are directly or indirectly (through one or more Subsidiaries) owned by such Person, excluding any general partner interests owned, directly or indirectly, by General Partner in any such Subsidiary that is a partnership, in each case such general partner interests not to exceed three percent (3%) of the aggregate ownership interests of any such partnership and directors' qualifying shares if applicable. Section 1.2. Exhibits and Schedules; Additional Definitions. All Exhibits and Schedules attached to this Agreement are a part hereof for all purposes. Reference is hereby made to the Security Schedule for the meaning of certain terms defined therein and used but not defined herein, which definitions are incorporated herein by reference. Section 1.3. Amendment of Defined Instruments. Unless the context otherwise requires or unless otherwise provided herein the terms defined in this Agreement which refer to a particular agreement, instrument or document also refer to and include all renewals, extensions, modifications, amendments and restatements of such agreement, instrument or document, provided that nothing contained in this section shall be construed to authorize any such renewal, extension, modification, amendment or restatement. Section 1.4. References and Titles. All references in this Agreement to Exhibits, Schedules, articles, sections, subsections and other subdivisions refer to the Exhibits, Schedules, articles, sections, subsections and other subdivisions of this Agreement unless expressly provided otherwise. Exhibits and Schedules to any Loan Document shall be deemed incorporated by reference in such Loan Document. References to any document, instrument, or agreement (a) shall include all exhibits, schedules, and other attachments thereto, and (b) shall include all documents, instruments, or agreements issued or executed in replacement thereof. Titles appearing at the beginning of any subdivisions are for convenience only and do not constitute any part of such subdivisions and shall be disregarded in construing the language contained in such subdivisions. The words "this Agreement," "this instrument," "herein," "hereof," "hereby," "hereunder" and words of similar import refer to this Agreement as a whole and not to any particular subdivision unless expressly so limited. The phrases "this section" and "this subsection" and similar phrases refer only to the sections or subsections hereof in which such phrases occur. The word "or" is not exclusive, and the word "including" (in its various forms) means "including without limitation." Pronouns in masculine, feminine and neuter genders shall be construed to include any other gender, and words in the singular form shall be construed to include the plural and vice versa, unless the context otherwise requires. Accounting terms have the meanings assigned to them by GAAP, as applied the accounting entity to which they refer. References to "days" shall mean calendar days, unless the term "Business Day" is used. Unless otherwise specified, references herein to any particular Person also refer to its successors and permitted assigns. Section 1.5. Calculations and Determinations. All calculations under the Loan Documents of interest and of fees shall be made on the basis of actual days elapsed (including the first day but excluding the last) and a year of 360 days. Each determination by a Lender Party of amounts to be paid under Article III or any other matters which are to be determined hereunder by a Lender Party (such as any LIBOR Rate, Business Day, Interest Period, or Reserve Percentage) shall, in the absence of manifest error, be conclusive and binding. Unless otherwise expressly provided herein or unless Majority Lenders otherwise consent all financial statements and reports furnished to any Lender Party hereunder shall be prepared and all financial computations and determinations pursuant hereto shall be made in accordance with GAAP. Section 1.6. Joint Preparation; Construction of Indemnities and Releases. This Agreement and the other Loan Documents have been reviewed and negotiated by sophisticated parties with access to legal counsel and no rule of construction shall apply hereto or thereto which would require or allow any Loan Document to be construed against any party because of its role in drafting such Loan Document. All indemnification and release provisions of this Agreement shall be construed broadly (and not narrowly) in favor of the Persons receiving indemnification or being released. ARTICLE II - The Loans and Letters of Credit Section 2.1. Commitments to Lend; Notes. Subject to the terms and conditions hereof, each Lender agrees to make loans to Borrower (herein called such Lender's "Loans") upon Borrower's request from time to time during the Commitment Period, provided that (a) subject to Sections 3.3, 3.4 and 3.6, all Lenders are requested to make Loans of the same Type in accordance with their respective Percentage Shares and as part of the same Borrowing, (b) after giving effect to such loans, the aggregate principal amount of outstanding Loans will not exceed the Maximum Loan Amount, and (c) after giving effect to such Loans, the Facility Usage does not exceed the Borrowing Base determined as of the date on which the requested Loans are to be made. The aggregate principal amount of each Loan in any Borrowing shall not be less than $100,000 and shall be in integral multiples of $100,000. Borrower may have no more than five Borrowings of LIBOR Loans outstanding at any time. The obligation of Borrower to repay to each Lender the aggregate amount of all Loans made by such Lender, together with interest accruing in connection therewith, shall be evidenced by a single promissory note (herein called such Lender's "Note") made by Borrower payable to the order of such Lender in the form of Exhibit A with appropriate insertions. The amount of principal owing on any Lender's Note at any given time shall be the aggregate amount of all Loans theretofore made by such Lender minus all payments of principal theretofore received by such Lender on such Note. Interest on each Note shall accrue and be due and payable as provided herein and therein. Each Note shall be due and payable as provided herein and therein, and shall be due and payable in full on the last day of the Commitment Period. Subject to the terms and conditions of this Agreement, Borrower may borrow, repay, and reborrow hereunder. Section 2.2. Requests for New Loans. Borrower must give to Administrative Agent written notice (or telephonic notice promptly confirmed in writing) of any requested Borrowing of Loans to be funded by Lenders. Each such notice constitutes a "Borrowing Notice" hereunder and must: (a) specify (i) the aggregate amount of any such Borrowing of Base Rate Loans and the date on which such Base Rate Loans are to be advanced, or (ii) the aggregate amount of any such Borrowing of LIBOR Loans, the date on which such LIBOR Loans are to be advanced (which shall be the first day of the Interest Period which is to apply thereto), and the length of the applicable Interest Period; and (b) be received by Administrative Agent not later than 12:00 noon, Boston, Massachusetts time, on (i) the day on which any such Base Rate Loans are to be made, or (ii) the third Business Day preceding the day on which any such LIBOR Loans are to be made. Each such written request or confirmation must be made in the form and substance of the "Borrowing Notice" attached hereto as Exhibit B, duly completed. Each such telephonic request shall be deemed a representation, warranty, acknowledgment and agreement by Borrower as to the matters which are required to be set out in such written confirmation. Upon receipt of any such Borrowing Notice, Administrative Agent shall give each Lender prompt notice of the terms thereof. If all conditions precedent to such new Loans have been met, each Lender will on the date requested promptly remit to Administrative Agent at Administrative Agent's office in Boston, Massachusetts the amount of such Lender's Loan in immediately available funds, and upon receipt of such funds, unless to its actual knowledge any conditions precedent to such Loans have been neither met nor waived as provided herein, Administrative Agent shall promptly make such Loans available to Borrower. Unless Administrative Agent shall have received prompt notice from a Lender that such Lender will not make available to Administrative Agent such Lender's new Loan, Administrative Agent may in its discretion assume that such Lender has made such Loan available to Administrative Agent in accordance with this section and Administrative Agent may if it chooses, in reliance upon such assumption, make such Loan available to Borrower. If and to the extent such Lender shall not so make its new Loan available to Administrative Agent, such Lender and Borrower severally agree to pay or repay to Administrative Agent within three days after demand the amount of such Loan together with interest thereon, for each day from the date such amount was made available to Borrower until the date such amount is paid or repaid to Administrative Agent, with interest at (i) the Federal Funds Rate, if such Lender is making such payment and (ii) the interest rate applicable at the time to the other new Loans made on such date, if Borrower is making such repayment. If neither such Lender nor Borrower pays or repays to Administrative Agent such amount within such three-day period, Administrative Agent shall be entitled to recover from Borrower, on demand, in lieu of the interest provided for in the preceding sentence, interest thereon at the Default Rate, calculated from the date such amount was made available to Borrower. The failure of any Lender to make any new Loan to be made by it hereunder shall not relieve any other Lender of its obligation hereunder, if any, to make its new Loan, but no Lender shall be responsible for the failure of any other Lender to make any new Loan to be made by such other Lender. Section 2.3. Continuations and Conversions of Existing Loans. Borrower may make the following elections with respect to Loans already outstanding: to Convert, in whole or in part, Base Rate Loans to LIBOR Loans, to Convert, in whole or in part, LIBOR Loans to Base Rate Loans on the last day of the Interest Period applicable thereto, and to Continue, in whole or in part, LIBOR Loans beyond the expiration of such Interest Period by designating a new Interest Period to take effect at the time of such expiration. In making such elections, Borrower may combine existing Loans made pursuant to separate Borrowings into one new Borrowing or divide existing Loans made pursuant to one Borrowing into separate new Borrowings, provided that Borrower may have no more than five Borrowings of LIBOR Loans outstanding at any time. To make any such election, Borrower must give to Administrative Agent written notice (or telephonic notice promptly confirmed in writing) of any such Conversion or Continuation of existing Loans, with a separate notice given for each new Borrowing. Each such notice constitutes a "Continuation/Conversion Notice" hereunder and must: (a) specify the existing Loans which are to be Continued or Converted; (b) specify (i) the aggregate amount of any Borrowing of Base Rate Loans into which such existing Loans are to be Continued or Converted and the date on which such Continuation or Conversion is to occur, or (ii) the aggregate amount of any Borrowing of LIBOR Loans into which such existing Loans are to be Continued or Converted, the date on which such Continuation or Conversion is to occur (which shall be the first day of the Interest Period which is to apply to such LIBOR Loans), and the length of the applicable Interest Period; and (c) be received by Administrative Agent not later than 11:00 a.m., Boston, Massachusetts time, on (i) the day on which any such Continuation or Conversion to Base Rate Loans is to occur, or (ii) the third Business Day preceding the day on which any such Continuation or Conversion to LIBOR Loans is to occur. Each such written request or confirmation must be made in the form and substance of the "Continuation/Conversion Notice" attached hereto as Exhibit C, duly completed. Each such telephonic request shall be deemed a representation, warranty, acknowledgment and agreement by Borrower as to the matters which are required to be set out in such written confirmation. Upon receipt of any such Continuation/Conversion Notice, Administrative Agent shall give each Lender prompt notice of the terms thereof. Each Continuation/Conversion Notice shall be irrevocable and binding on Borrower. During the continuance of any Default, Borrower may not make any election to Convert existing Loans into LIBOR Loans or Continue existing Loans as LIBOR Loans beyond the expiration of their respective and corresponding Interest Period then in effect. If (due to the existence of a Default or for any other reason) Borrower fails to timely and properly give any Continuation/Conversion Notice with respect to a Borrowing of existing LIBOR Loans at least three days prior to the end of the Interest Period applicable thereto, such LIBOR Loans, to the extent not prepaid at the end of such Interest Period, shall automatically be Converted into Base Rate Loans at the end of such Interest Period. No new funds shall be repaid by Borrower or advanced by any Lender in connection with any Continuation or Conversion of existing Loans pursuant to this section, and no such Continuation or Conversion shall be deemed to be a new advance of funds for any purpose; such Continuations and Conversions merely constitute a change in the interest rate applicable to already outstanding Loans. Section 2.4 Use of Proceeds. Borrower shall use the proceeds of all Loans to pay, refinance or replace the loans and letters of credit under the Existing Credit Agreement, pay the fees and expenses related to the closing of the transactions contemplated by the Loan Documents and for working capital and general business purposes; provided, however, the aggregate amount of Loan proceeds used for Permitted Acquisitions shall not exceed $15,000,000. Borrower shall use all Letters of Credit solely for the purposes specified in Section 2.7(d). In no event shall any Loan or any Letter of Credit be used (i) directly or indirectly by any Person for personal, family, household or agricultural purposes, (ii) for the purpose, whether immediate, incidental or ultimate, of purchasing, acquiring or carrying any "margin stock" (as such term is defined in Regulation U promulgated by the Board of Governors of the Federal Reserve System) or (iii) to extend credit to others directly or indirectly for the purpose of purchasing or carrying any such margin stock. Borrower represents and warrants that Borrower is not engaged principally, or as one of Borrower's important activities, in the business of extending credit to others for the purpose of purchasing or carrying such margin stock. Section 2.5. Optional Prepayments of Loans. Borrower may, upon three Business Days' notice to Administrative Agent (and Administrative Agent will promptly give notice to the other Lenders), from time to time and without premium or penalty prepay the Loans, in whole or in part, so long as the aggregate amounts of all partial prepayments of principal on the Loans equals $100,000 or any higher integral multiple of $100,000. Each prepayment of principal under this section shall be accompanied by all interest then accrued and unpaid on the principal so prepaid. Any principal or interest prepaid pursuant to this section shall be in addition to, and not in lieu of, all payments otherwise required to be paid under the Loan Documents at the time of such prepayment. Section 2.6. Mandatory Prepayments. If at any time the Facility Usage exceeds the Borrowing Base (whether due to a reduction in the Borrowing Base in accordance with this Agreement, or otherwise), Borrower shall within 1 Business Day following demand by the Administrative Agent prepay the principal of the Loans in an amount at least equal to such excess. Section 2.7. Letters of Credit. Subject to the terms and conditions hereof, Borrower may at any time before the ninth Business Day prior to the Maturity Date request LC Issuer to issue, amend, or extend the expiration date of, one or more Letters of Credit, provided that: (a) after taking such Letter of Credit into account, the Facility Usage does not exceed the Borrowing Base at such time; (b) the expiration date of such Letter of Credit is prior to the earlier of (i) (A) 365 days after date of issuance with respect to Letters of Credits which, in the aggregate, do not result in outstanding LC Obligations at any one time in excess of $3,000,000, or (B) 70 days after date of issuance with respect to all other Letters of Credit, and (ii) the end of the Commitment Period; (c) the issuance of such Letter of Credit will be in compliance with all applicable governmental restrictions, policies, and guidelines and will not subject LC Issuer to any cost which is not reimbursable under Article III; (d) such Letter of Credit (i) is related to the purchase or exchange by Borrower of Petroleum Inventory, provided that Letters of Credit, not to exceed in the aggregate at any one time $3,000,000, may be used for general corporate purposes of Borrower or any of its Subsidiaries, and (ii) is in the Form of Exhibit D hereto or such other form, terms and purposes as shall be acceptable to Administrative Agent and LC Issuer in their sole and absolute discretion. (e) all other conditions in this Agreement to the issuance of such Letter of Credit have been satisfied. LC Issuer will honor any such request if the foregoing conditions (a) through (e) (in the following Section 2.8 called the "LC Conditions") have been met as of the date of issuance, amendment, or extension of such Letter of Credit. Section 2.8. Requesting Letters of Credit. Borrower must make written application for any Letter of Credit at least two Business Days before the date on which Borrower desires for LC Issuer to issue such Letter of Credit. By making any such written application, unless otherwise expressly stated therein, Borrower shall be deemed to have represented and warranted that the LC Conditions described in Section 2.7 will be met as of the date of issuance of such Letter of Credit. Each such written application for a Letter of Credit must be made in writing in the form and substance of Exhibit E, the terms and provisions of which are hereby incorporated herein by reference (or in such other form as may mutually be agreed upon by LC Issuer and Borrower). If all LC Conditions for a Letter of Credit have been met as described in Section 2.7 on any Business Day before 11:00 a.m, Boston, Massachusetts time, LC Issuer will issue such Letter of Credit on the same Business Day at LC Issuer's office in Boston, Massachusetts. If the LC Conditions are met as described in Section 2.7 on any Business Day on or after 11:00 a.m, Boston, Massachusetts time, LC Issuer will issue such Letter of Credit on the next succeeding Business Day at LC Issuer's office in Boston, Massachusetts. If any provisions of any LC Application conflict with any provisions of this Agreement, the provisions of this Agreement shall govern and control. Section 2.9. Reimbursement and Participations. -------------------------------- (a)......Reimbursement. Each Matured LC Obligation shall constitute a loan by LC Issuer to Borrower. Borrower promises to pay to LC Issuer, or to LC Issuer's order, on demand, the full amount of each Matured LC Obligation together with interest thereon (i) at the Alternative Base Rate plus the Base Rate Margin in effect on such date to and including the second Business Day after the Matured LC Obligation is incurred and (ii) at the Default Rate on each day thereafter. (b)......Letter of Credit Advances. If the beneficiary of any Letter of Credit makes a draft or other demand for payment thereunder then Borrower may, during the interval between the making thereof and the honoring thereof by LC Issuer, request Lenders to make Loans to Borrower in the amount of such draft or demand, which Loans shall be made, subject to the terms and conditions hereof, concurrently with LC Issuer's payment of such draft or demand and shall be immediately used by LC Issuer to repay the amount of the resulting Matured LC Obligation. Such a request by Borrower shall be made in compliance with all of the provisions hereof, provided that for the purposes of the first sentence of Section 2.1, the amount of such Loans shall be considered, but the amount of the Matured LC Obligation to be concurrently paid by such Loans shall not be considered. (c)......Participation by Lenders. LC Issuer irrevocably agrees to grant and hereby grants to each Lender, and - to induce LC Issuer to issue Letters of Credit hereunder - each Lender irrevocably agrees to accept and purchase and hereby accepts and purchases from LC Issuer, on the terms and conditions hereinafter stated and for such Lender's own account and risk an undivided interest equal to such Lender's Percentage Share of LC Issuer's obligations and rights under each Letter of Credit issued hereunder and the amount of each Matured LC Obligation paid by LC Issuer thereunder. Each Lender unconditionally and irrevocably agrees with LC Issuer that, if a Matured LC Obligation is paid under any Letter of Credit for which LC Issuer is not reimbursed in full by Borrower in accordance with the terms of this Agreement and the related LC Application (including any reimbursement by means of concurrent Loans or by the application of LC Collateral), such Lender shall (in all circumstances and without set-off or counterclaim) pay to LC Issuer on demand, in immediately available funds at LC Issuer's address for notices hereunder, such Lender's Percentage Share of such Matured LC Obligation (or any portion thereof which has not been reimbursed by Borrower). Each Lender's obligation to pay LC Issuer pursuant to the terms of this subsection is irrevocable and unconditional. If any amount required to be paid by any Lender to LC Issuer pursuant to this subsection is paid by such Lender to LC Issuer within three Business Days after the date such payment is due, LC Issuer shall in addition to such amount be entitled to recover from such Lender, on demand, interest thereon calculated from such due date at the Federal Funds Rate. If any amount required to be paid by any Lender to LC Issuer pursuant to this subsection is not paid by such Lender to LC Issuer within three Business Days after the date such payment is due, LC Issuer shall in addition to such amount be entitled to recover from such Lender, on demand, interest thereon calculated from such due date at the Alternative Base Rate. (d)......Distributions to Participants. Whenever LC Issuer has in accordance with this section received from any Lender payment of such Lender's Percentage Share of any Matured LC Obligation, if LC Issuer thereafter receives any payment of such Matured LC Obligation or any payment of interest thereon (whether directly from Borrower or by application of LC Collateral or otherwise, and excluding only interest for any period prior to LC Issuer's demand that such Lender make such payment of its Percentage Share), LC Issuer will distribute to such Lender its Percentage Share of the amounts so received by LC Issuer; provided, however, that if any such payment received by LC Issuer must thereafter be returned by LC Issuer, such Lender shall return to LC Issuer the portion thereof which LC Issuer has previously distributed to it. (e)......Calculations. A written advice setting forth in reasonable detail the amounts owing under this section, submitted by LC Issuer to Borrower or any Lender from time to time, shall be conclusive, absent manifest error, as to the amounts thereof. Section 2.10. No Duty to Inquire. ------------------ (a)......Drafts and Demands. LC Issuer is authorized and instructed to accept and pay drafts and demands for payment under any Letter of Credit without requiring, and without responsibility for, any determination as to the existence of any event giving rise to said draft, either at the time of acceptance or payment or thereafter. LC Issuer is under no duty to determine the proper identity of anyone presenting such a draft or making such a demand (whether by tested telex or otherwise) as the officer, representative or agent of any beneficiary under any Letter of Credit, and payment by LC Issuer to any such beneficiary when requested by any such purported officer, representative or agent is hereby authorized and approved. Borrower releases each Lender Party from, and agrees to hold each Lender Party harmless and indemnified against, any liability or claim in connection with or arising out of the subject matter of this section, WHICH INDEMNITY SHALL APPLY WHETHER OR NOT ANY SUCH LIABILITY OR CLAIM IS IN ANY WAY OR TO ANY EXTENT CAUSED, IN WHOLE OR IN PART, BY ANY NEGLIGENT ACT OR OMISSION OF ANY KIND BY ANY LENDER PARTY, provided only that no Lender Party shall be entitled to indemnification for that portion, if any, of any liability or claim which is proximately caused by its own individual gross negligence or willful misconduct, as determined in a final judgment. (b)......Extension of Maturity. If the maturity of any Letter of Credit is extended by its terms or by Law or governmental action, if any extension of the maturity or time for presentation of drafts or any other modification of the terms of any Letter of Credit is made at the request of Borrower, or if the amount of any Letter of Credit is increased at the request of Borrower, this Agreement shall be binding upon all Restricted Persons with respect to such Letter of Credit as so extended, increased or otherwise modified, with respect to drafts and property covered thereby, and with respect to any action taken by LC Issuer, LC Issuer's correspondents, or any Lender Party in accordance with such extension, increase or other modification. (c)......Transferees of Letters of Credit. If any Letter of Credit provides that it is transferable, LC Issuer shall have no duty to determine the proper identity of anyone appearing as transferee of such Letter of Credit, nor shall LC Issuer be charged with responsibility of any nature or character for the validity or correctness of any transfer or successive transfers, and payment by LC Issuer to any purported transferee or transferees as determined by LC Issuer is hereby authorized and approved, and Borrower releases each Lender Party from, and agrees to hold each Lender Party harmless and indemnified against, any liability or claim in connection with or arising out of the foregoing, WHICH INDEMNITY SHALL APPLY WHETHER OR NOT ANY SUCH LIABILITY OR CLAIM IS IN ANY WAY OR TO ANY EXTENT CAUSED, IN WHOLE OR IN PART, BY ANY NEGLIGENT ACT OR OMISSION OF ANY KIND BY ANY LENDER PARTY, provided only that no Lender Party shall be entitled to indemnification for that portion, if any, of any liability or claim which is proximately caused by its own individual gross negligence or willful misconduct, as determined in a final judgment. Section 2.11. LC Collateral. ------------- (a)......LC Obligations in Excess of Borrowing Base. If, after the making of all mandatory prepayments required under Section 2.6, the outstanding LC Obligations will exceed the Borrowing Base, then in addition to prepayment of the entire principal balance of the Loans Borrower will immediately pay to Administrative Agent an amount equal to such excess. Administrative Agent will hold such amounts as collateral security for the ratable benefit of each LC Issuer for the remaining LC Obligations all such amounts held as collateral security for LC Obligations being herein collectively called "LC Collateral") and as collateral security for the other Obligations, and such collateral may be applied from time to time to pay Matured LC Obligations or any other Obligations which are then due and payable. Neither this subsection nor the following subsection shall, however, limit or impair any rights which LC Issuer may have under any other document or agreement relating to any Letter of Credit, LC Collateral or LC Obligation, including any LC Application, or any rights which any Lender Party may have to otherwise apply any payments by Borrower and any LC Collateral under Section 3.1. (b)......Acceleration of LC Obligations. If the Obligations or any part thereof become immediately due and payable pursuant to Section 8.1 then, unless all Lenders otherwise specifically elect to the contrary (which election may thereafter be retracted by all Lenders at any time), all LC Obligations shall become immediately due and payable without regard to whether or not actual drawings or payments on the Letters of Credit have occurred, and Borrower shall be obligated to pay to LC Issuer immediately an amount equal to the aggregate LC Obligations which are then outstanding to be held as LC Collateral. (c)......Investment of LC Collateral. Pending application thereof, all LC Collateral shall be invested by LC Issuer in such Cash Equivalents as LC Issuer may choose in its sole discretion. All interest on (and other proceeds of) such Investments shall be reinvested or applied to Matured LC Obligations or other Obligations which are due and payable. When all Obligations have been satisfied in full, including all LC Obligations, all Letters of Credit have expired or been terminated, and all of Borrower's reimbursement obligations in connection therewith have been satisfied in full, LC Issuer shall release any remaining LC Collateral. Borrower hereby assigns and grants to LC Issuer for the benefit of Lenders a continuing security interest in all LC Collateral paid by it to LC Issuer, all Investments purchased with such LC Collateral, and all proceeds thereof to secure its Matured LC Obligations and its Obligations under this Agreement, each Note, and the other Loan Documents, and Borrower agrees that such LC Collateral, Investments and proceeds shall be subject to all of the terms and conditions of the Security Documents. Borrower further agrees that LC Issuer shall have all of the rights and remedies of a secured party under the UCC with respect to such security interest and that an Event of Default under this Agreement shall constitute a default for purposes of such security interest. (d)......Payment of LC Collateral. When Borrower is required to provide LC Collateral for any reason and fails to do so on the day when required, LC Issuer or Administrative Agent may without prior notice to Borrower or any other Restricted Person provide such LC Collateral (whether by application of proceeds of other Collateral, by transfers from other accounts maintained with LC Issuer, or otherwise) using any available funds of Borrower or any other Person also liable to make such payments, and LC Issuer or Administrative Agent will give notice thereof to Borrower promptly after such application or transfer. Any such amounts which are required to be provided as LC Collateral and which are not provided on the date required shall, for purposes of each Security Document, be considered past due Obligations owing hereunder, and LC Issuer is hereby authorized to exercise its respective rights under each Security Document to obtain such amounts. Section 2.12. Interest Rates and Fees; Reduction in Commitment. ------------------------------------------------ (a)......Interest Rates. Unless the Default Rate shall apply, (i) each Base Rate Loan shall bear interest on each day outstanding at the Alternative Base Rate plus the Base Rate Margin in effect on such day and (ii) each LIBOR Loan shall bear interest on each day during the related Interest Period at the related LIBOR Rate plus the LIBOR Rate Margin in effect on such day. During a Default Rate Period, all Loans shall bear interest on each day outstanding at the applicable Default Rate. The interest rate shall change whenever the applicable Alternative Base Rate, the Base Rate Margin, the LIBOR Rate or the LIBOR Rate Margin changes. In no event shall the interest rate on any Loan exceed the Highest Lawful Rate. (b)......Commitment Fees. In consideration of each Lender's commitment to make Loans, Borrower will pay to Administrative Agent for the account of each Lender a commitment fee determined on a daily basis equal to the Commitment Fee Rate in effect on such day multiplied by such Lender's Percentage Share of the unused portion of the Maximum Facility Amount on each day during the Commitment Period, determined for each such day by deducting the Facility Usage from the Maximum Facility Amount at the end of such day. This commitment fee shall be due and payable in arrears within 15 days after the last day of each Fiscal Quarter and at the end of the Commitment Period. Borrower shall have the right from time to time to permanently reduce the Maximum Facility Amount, provided that (i) notice of such reduction is given not less than two Business Days prior to such reduction, (ii) the resulting Maximum Facility Amount is not less than the Facility Usage, and (iii) each partial reduction shall be in an amount at least equal to $1,000,000 and in multiples of $500,000 in excess thereof. (c)......Letter of Credit Fees. In consideration of LC Issuer's issuance of any Letter of Credit, Borrower agrees to pay to Administrative Agent, for the account of all Lenders in accordance with their respective Percentage Shares, a letter of credit fee equal to the Letter of Credit Fee Rate applicable each day times the face amount of such Letter of Credit. Such fee will be calculated on the face amount of each Letter of Credit outstanding on each day at the above applicable rates and will be payable in arrears within 15 days after the last day of each Fiscal Quarter. In addition, Borrower will pay to LC Issuer an administrative issuance fee equal to the greater of $150 or one-eighth percent (0.125%) per annum of the face amount of each Letter of Credit and such other fees and charges customarily charged by the LC Issuer in respect of any issuance, amendment or negotiation of any Letter of Credit in accordance with the LC Issuer's published schedule of such charges effective as of the date of such amendment or negotiation. (d)......Administrative Agent's Fees. In addition to all other amounts due to Administrative Agent under the Loan Documents, Borrower will pay fees to Administrative Agent as described in a letter agreement of even date herewith between Administrative Agent and Borrower. Section 2.13. Borrowing Base Reporting. The Borrowing Base Reports are subject to the procedures set forth on Schedule 5. Notwithstanding anything to the contrary contained in this Agreement, Administrative Agent shall have the right to conduct a field examination of the Borrower's operations from time to time and, if it deems such action necessary, shall have the right to adjust the Borrowing Base to reflect the result of such field examination. Section 2.14. LC Issuer. The rights to reimbursement and participation under Section 2.9, the benefit of LC Collateral under Section 2.11 and the other provisions of this Agreement applicable to LC Issuer and Letters of Credit (a) will benefit each LC Issuer individually, in its capacity as LC Issuer, in respect of the Letters of Credit issued by it and the LC Obligations arising therefrom and (ii) shall continue to inure to the benefit of a LC Issuer, in its capacity as LC Issuer, in respect to such Letters of Credit issued by it and the LC Obligations arising therefrom even if it shall cease to be a Lender hereunder, whether as a result of an assignment pursuant to Section 10.5 or otherwise. ARTICLE III - Payments to Lenders Section 3.1. General Procedures. Borrower will make each payment which it owes under the Loan Documents to Administrative Agent for the account of the Lender Party to whom such payment is owed in lawful money of the United States of America, (unless otherwise expressly provided in this Agreement), without set-off, deduction or counterclaim, and in immediately available funds. Each such payment must be received by Administrative Agent not later than noon, Boston, Massachusetts time, on the date such payment becomes due and payable. Any payment received by Administrative Agent after such time will be deemed to have been made on the next following Business Day. Should any such payment become due and payable on a day other than a Business Day, the maturity of such payment shall be extended to the next succeeding Business Day, and, in the case of a payment of principal or past due interest, interest shall accrue and be payable thereon for the period of such extension as provided in the Loan Document under which such payment is due. Each payment under a Loan Document shall be due and payable at the place provided therein and, if no specific place of payment is provided, shall be due and payable at the place of payment of Administrative Agent's Note. When Administrative Agent collects or receives money on account of the Obligations, Administrative Agent shall distribute all money so collected or received, and each Lender Party shall apply all such money so distributed, as follows: (a) first, for the payment of all Obligations which are then due (and if such money is insufficient to pay all such Obligations, first to any reimbursements due Administrative Agent under Section 6.9 or 10.4 and then to the partial payment of all other Obligations then due in proportion to the amounts thereof, or as Lender Parties shall otherwise agree); (b) then for the prepayment of amounts owing under the Loan Documents (other than principal on the Notes) if so specified by Borrower; (c) then for the prepayment of principal on the Notes, together with accrued and unpaid interest on the principal so prepaid, and then held as LC Collateral pursuant to Section 2.11(c); and (d) last, for the payment or prepayment of any other Obligations. All payments applied to principal or interest on any Note shall be applied first to any interest then due and payable, then to principal then due and payable, and last to any prepayment of principal and accrued interest thereon in compliance with Sections 2.5 and 2.6, as applicable. All distributions of amounts described in any of subsections (b), (c) or (d) above shall be made by Administrative Agent pro rata to each Lender Party then owed Obligations described in such subsection in proportion to all amounts owed to all Lender Parties which are described in such subsection; provided that if any Lender then owes payments to LC Issuer for the purchase of a participation under Section 2.9(c) or to Administrative Agent under Section 9.4, any amounts otherwise distributable under this section to such Lender shall be deemed to belong to LC Issuer or Administrative Agent, respectively, to the extent of such unpaid payments, and Administrative Agent shall apply such amounts to make such unpaid payments rather than distribute such amounts to such Lender. Section 3.2. Capital Reimbursement. If either (a) the introduction or implementation of or the compliance with or any change in or in the interpretation of any Law, or (b) the introduction or implementation of or the compliance with any request, directive or guideline from any central bank or other governmental authority (whether or not having the force of Law) affects or would affect the amount of capital required or expected to be maintained by any Lender Party or any corporation controlling any Lender Party, then, within five Business Days after demand by such Lender Party, Borrower will pay to Administrative Agent for the benefit of such Lender Party, from time to time as specified by such Lender Party, such additional amount or amounts which such Lender Party shall reasonably determine to be appropriate to compensate such Lender Party or any corporation controlling such Lender Party in light of such circumstances, to the extent that such Lender Party reasonably determines that the amount of any such capital would be increased or the rate of return on any such capital would be reduced by or in whole or in part based on the existence of the face amount of such Lender Party's Loans, Letters of Credit, participations in Letters of Credit or commitments under this Agreement. Section 3.3. Increased Cost of LIBOR Loans or Letters of Credit. If any applicable Law (whether now in effect or hereinafter enacted or promulgated, including Regulation D) or any interpretation or administration thereof by any governmental authority charged with the interpretation or administration thereof (whether or not having the force of Law): (a) shall change the basis of taxation of payments to any Lender Party of any principal, interest, or other amounts attributable to any LIBOR Loan or Letter of Credit or otherwise due under this Agreement in respect of any LIBOR Loan or Letter of Credit (other than taxes imposed on, or measured by, the overall net income of such Lender Party or any Applicable Lending Office of such Lender Party by any jurisdiction in which such Lender Party or any such Applicable Lending Office is located); or (b) shall change, impose, modify, apply or deem applicable any reserve, special deposit or similar requirements in respect of any LIBOR Loan or any Letter of Credit (excluding those for which such Lender Party is fully compensated pursuant to adjustments made in the definition of LIBOR Rate) or against assets of, deposits with or for the account of, or credit extended by, such Lender Party; or (c) shall impose on any Lender Party or the interbank eurocurrency deposit market any other condition affecting any LIBOR Loan or Letter of Credit, the result of which is to increase the cost to any Lender Party of funding or maintaining any LIBOR Loan or of issuing any Letter of Credit or to reduce the amount of any sum receivable by any Lender Party in respect of any LIBOR Loan or Letter of Credit by an amount deemed by such Lender Party to be material, then such Lender Party shall promptly notify Administrative Agent and Borrower in writing of the happening of such event and of the amount required to compensate such Lender Party for such event (on an after-tax basis, taking into account any taxes on such compensation), whereupon (i) Borrower shall, within five Business Days after demand therefor by such Lender Party, pay such amount to Administrative Agent for the account of such Lender Party and (ii) Borrower may elect, by giving to Administrative Agent and such Lender Party not less than three Business Days' notice, to Convert all (but not less than all) of any such LIBOR Loans into Base Rate Loans. Section 3.4. Notice; Change of Applicable Lending Office. A Lender Party shall notify Borrower of any event occurring after the date of this Agreement that will entitle such Lender Party to compensation under Section 3.2, 3.3 or 3.5 hereof as promptly as practicable after such Lender Party obtains actual knowledge thereof; provided, that such Lender Party will designate a different Applicable Lending Office for the Loans affected by such event if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the sole opinion of such Lender Party, be disadvantageous to such Lender Party, except that such Lender Party shall have no obligation to designate an Applicable Lending Office located in the United States of America. Each Lender Party will furnish to Borrower a certificate setting forth the basis and amount of each request by such Lender Party for compensation under Section 3.2, 3.3 or 3.5 hereof. Section 3.5. Availability. If (a) any change in applicable Laws, or in the interpretation or administration thereof of or in any jurisdiction whatsoever, domestic or foreign, shall make it unlawful or impracticable for any Lender Party to fund or maintain LIBOR Loans or to issue or participate in Letters of Credit, or shall materially restrict the authority of any Lender Party to purchase or take offshore deposits of dollars (i.e., "eurodollars"), or (b) any Lender Party determines that matching deposits appropriate to fund or maintain any LIBOR Loan are not available to it, or (c) any Lender Party determines that the formula for calculating the LIBOR Rate does not fairly reflect the cost to such Lender Party of making or maintaining loans based on such rate, then, upon notice by such Lender Party to Borrower and Administrative Agent, Borrower's right to elect LIBOR Loans from such Lender Party (or, if applicable, to obtain Letters of Credit) shall be suspended to the extent and for the duration of such illegality, impracticability or restriction and all LIBOR Loans of such Lender Party which are then outstanding or are then the subject of any Borrowing Notice and which cannot lawfully or practicably be maintained or funded shall immediately become or remain, or shall be funded as, Base Rate Loans of such Lender Party. Borrower agrees to indemnify each Lender Party and hold it harmless against all costs, expenses, claims, penalties, liabilities and damages which may result from any such change in Law, interpretation or administration. Such indemnification shall be on an after-tax basis, taking into account any taxes imposed on the amounts paid as indemnity. Section 3.6. Funding Losses. In addition to its other obligations hereunder, Borrower will indemnify each Lender Party against, and reimburse each Lender Party on demand for, any loss or expense incurred or sustained by such Lender Party (including any loss or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by a Lender Party to fund or maintain LIBOR Loans), as a result of (a) any payment or prepayment (whether or not authorized or required hereunder) of all or a portion of a LIBOR Loan on a day other than the day on which the applicable Interest Period ends, (b) any payment or prepayment, whether or not required hereunder, of a Loan made after the delivery, but before the effective date, of a Continuation/Conversion Notice, if such payment or prepayment prevents such Continuation/Conversion Notice from becoming fully effective, (c) the failure of any Loan to be made or of any Continuation/Conversion Notice to become effective due to any condition precedent not being satisfied or due to any other action or inaction of any Restricted Person, or (d) any Conversion (whether or not authorized or required hereunder) of all or any portion of any LIBOR Loan into a Base Rate Loan or into a different LIBOR Loan on a day other than the day on which the applicable Interest Period ends. Such indemnification shall be on an after-tax basis, taking into account any taxes imposed on the amounts paid as indemnity. Section 3.7. Reimbursable Taxes. Borrower covenants and agrees that: ------------------ (a) Borrower will indemnify each Lender Party against and reimburse each Lender Party for all present and future stamp and other taxes, duties, levies, imposts, deductions, charges, costs, and withholdings whatsoever imposed, assessed, levied or collected on or in respect of this Agreement or any LIBOR Loans or Letters of Credit (whether or not legally or correctly imposed, assessed, levied or collected), excluding, however, any taxes imposed on or measured by the overall net income of Administrative Agent or such Lender Party or any Applicable Lending Office of such Lender Party (or franchise or equivalent taxes) by any jurisdiction in which such Lender Party or any such Applicable Lending Office is located (all such non-excluded taxes, levies, costs and charges being collectively called "Reimbursable Taxes" in this section). Such indemnification shall be on an after-tax basis, taking into account any taxes imposed on the amounts paid as indemnity. (b) All payments on account of the principal of, and interest on, each Lender Party's Loans and Note, and all other amounts payable by Borrower to any Lender Party hereunder, shall be made in full without set-off or counterclaim and shall be made free and clear of and without deductions or withholdings of any nature by reason of any Reimbursable Taxes, all of which will be for the account of Borrower. In the event of Borrower being compelled by Law to make any such deduction or withholding from any payment to any Lender Party, Borrower shall pay on the due date of such payment, by way of additional interest, such additional amounts as are needed to cause the amount receivable by such Lender Party after such deduction or withholding to equal the amount which would have been receivable in the absence of such deduction or withholding. If Borrower should make any deduction or withholding as aforesaid, Borrower shall within 60 days thereafter forward to such Lender Party an official receipt or other official document evidencing payment of such deduction or withholding. (c) If Borrower is ever required to pay any Reimbursable Tax with respect to any LIBOR Loan, Borrower may elect, by giving to Administrative Agent and such Lender Party not less than three Business Days' notice, to Convert all (but not less than all) of any such LIBOR Loan into a Base Rate Loan, but such election shall not diminish Borrower's obligation to pay all Reimbursable Taxes. (d) Notwithstanding the foregoing provisions of this section, Borrower shall be entitled, to the extent it is required to do so by Law, to deduct or withhold (and not to make any indemnification or reimbursement for) income or other similar taxes imposed by the United States of America (other than any portion thereof attributable to a change in federal income tax Laws effected after the date hereof) from interest, fees or other amounts payable hereunder for the account of any Lender Party, other than a Lender Party (i) who is a U.S. person for Federal income tax purposes or (ii) who has the Prescribed Forms on file with Administrative Agent (with copies provided to Borrower) for the applicable year to the extent deduction or withholding of such taxes is not required as a result of the filing of such Prescribed Forms, provided that if Borrower shall so deduct or withhold any such taxes, it shall provide a statement to Administrative Agent and such Lender Party, setting forth the amount of such taxes so deducted or withheld, the applicable rate and any other information or documentation which such Lender Party may reasonably request for assisting such Lender Party to obtain any allowable credits or deductions for the taxes so deducted or withheld in the jurisdiction or jurisdictions in which such Lender Party is subject to tax. As used in this section, "Prescribed Forms" means such duly executed forms or statements, and in such number of copies, which may, from time to time, be prescribed by Law and which, pursuant to applicable provisions of (x) an income tax treaty between the United States and the country of residence of the Lender Party providing the forms or statements, (y) the Code, or (z) any applicable rules or regulations thereunder, permit Borrower to make payments hereunder for the account of such Lender Party free of such deduction or withholding of income or similar taxes. Section 3.8. Replacement of Lenders. If any Lender Party seeks reimbursement for increased costs under Sections 3.2 through 3.7, then within ninety days thereafter - provided no Event of Default then exists - Borrower shall have the right (unless such Lender Party withdraws its request for additional compensation) to replace such Lender Party by requiring such Lender Party to assign its Loans and Notes and its commitments hereunder to an Eligible Transferee reasonably acceptable to Administrative Agent and to Borrower, provided that: (i) all Obligations of Borrower owing to such Lender Party being replaced (including such increased costs and any breakage costs with respect to any outstanding LIBOR Loans), but excluding principal and accrued interest on the Notes being assigned) shall be paid in full to such Lender Party concurrently with such assignment, and (ii) the replacement Eligible Transferee shall purchase the Note being assigned by paying to such Lender Party a price equal to the principal amount thereof plus accrued and unpaid interest and accrued and unpaid commitment fees thereon. In connection with any such assignment Borrower, Administrative Agent, such Lender Party and the replacement Eligible Transferee shall otherwise comply with Section 10.5. Notwithstanding the foregoing rights of Borrower under this section, however, Borrower may not replace any Lender Party which seeks reimbursement for increased costs under Section 3.2 through 3.7 unless Borrower is at the same time replacing all Lender Parties which are then seeking such compensation. ARTICLE IV - Conditions Precedent to Credit Section 4.1. Documents to be Delivered. No Lender has any obligation to make its first Loan, and LC Issuer has no obligation to issue the first Letter of Credit unless Administrative Agent shall have received all of the following, at Administrative Agent's office in Boston, Massachusetts, duly executed and delivered and in form, substance and date satisfactory to Administrative Agent: (a) This Agreement and any other documents that Lenders are to execute in connection herewith. (b) Each Note. (c) Each Security Document listed in the Security Schedule. (d) Certain certificates including: (i) An "Omnibus Certificate" of the secretary and of the president of General Partner, which shall contain the names and signatures of the officers and other approved persons of General Partner authorized to execute Loan Documents and which shall certify to the truth, correctness and completeness of the following exhibits attached thereto: (1) a copy of resolutions duly adopted by the Board of Directors of General Partner and in full force and effect at the time this Agreement is entered into, authorizing the execution of this Agreement and the other Loan Documents delivered or to be delivered in connection herewith and the consummation of the transactions contemplated herein and therein, (2) a copy of the charter documents of each Restricted Person and all amendments thereto, certified by the appropriate official of such Restricted Person's jurisdiction of organization, and (3) a copy of any bylaws or agreement of limited partnership of each Restricted Person; and (ii) A certificate of the president and of the chief financial officer of General Partner, regarding satisfaction of Section 4.2(a) through (d) and (f). (e) A certificate (or certificates) of the due formation, valid existence and good standing of each Restricted Person in its respective jurisdiction of organization, issued by the appropriate authorities of such jurisdiction, and certificates of each Restricted Person's good standing and due qualification to do business, issued by appropriate officials in any jurisdictions in which such Restricted Person owns property subject to Security Documents. (f) Documents similar to those specified in subsections (d)(i) and (e) of this section with respect to each Guarantor and the execution by it of its guaranty of Borrower's Obligations. (g) The favorable opinions of (i) Jenkens & Gilchrist, a Professional Corporation, special Texas counsel to Restricted Persons, substantially in the form set forth in Exhibit G, and (ii) local counsel for the states of Alabama, Florida, Louisiana and Mississippi satisfactory to Administrative Agent. (h) The Initial Financial Statements. (i) Certificates or binders evidencing Restricted Persons' insurance in effect on the date hereof. (j) Copies of such permits and approvals regarding the property and business of Restricted Persons as Administrative Agent may request. (k) A certificate signed by the chief executive officer of General Partner in form and detail acceptable to Administrative Agent confirming the insurance that is in effect as of the date hereof and certifying that such insurance is customary for the businesses conducted by Restricted Persons and is in compliance with the requirements of this Agreement. (l) Payment of all commitment, facility, agency and other fees required to be paid to any Lender pursuant to any Loan Documents or any commitment agreement heretofore entered into. (m) General Partner shall have delivered to Administrative Agent a certificate by the chief financial officer of General Partner, certifying the Initial Financial Statements delivered pursuant to clause (h) above and reflecting compliance with each event specified in Sections 7.11 through 7.15, inclusive. (n) Certificates from the chief financial officer of General Partner, in substantially the form of Exhibit K hereto, attesting to the Solvency of each Restricted Person before and after giving effect to the transactions contemplated by this Agreement. (o) Administrative Agent and the Lender Parties shall be satisfied that (i) the Maximum Facility Amount under and as defined in the Existing Credit Agreement has been terminated, and all loans and notes with respect thereto have been repaid in full, together with interest thereon, all letters of credit issued thereunder have been terminated and all other amounts (including premiums) owing pursuant to the Existing Credit Agreement have been repaid in full and all documents with respect to the Existing Credit Agreement and all guarantees with respect thereto have been terminated (except as to any provisions which may survive to the extent provided therein) and are of no further force and effect; and (ii) the creditors in respect of the Existing Credit Agreement have terminated and released, or assigned to Administrative Agent for the benefit of Lender Parties, any and all security interests and Liens on the assets owned by Borrower and its Subsidiaries. (p) The Borrowing Base as of the date of such first Loan and first Letter of Credit shall be at least $15,000,000 more than the initial Facility Usage on such date after giving effects to the Loans and Letters of Credit requested for such date, and General Partner shall have delivered to the Administrative Agent a Borrowing Base Report in reasonable detail demonstrating compliance with this requirement. Section 4.2. Additional Conditions Precedent. No Lender has any obligation to make any Loan (including its first), and LC Issuer has no obligation to issue any Letter of Credit (including its first), unless the following conditions precedent have been satisfied (and the delivery by the Borrower of a Borrowing Notice or the Election by the Borrower to make a Conversion shall constitute a representation by the Borrower that these conditions have been met): (a) All representations and warranties made by any Restricted Person in any Loan Document shall be true on and as of the date of such Loan or the date of issuance of such Letter of Credit as if such representations and warranties had been made as of the date of such Loan or the date of issuance of such Letter of Credit except to the extent that such representation or warranty was made as of a specific date or updated, modified or supplemented as of a subsequent date with the consent of Majority Lenders. (b) No Default shall exist at the date of such Loan or the date of issuance of such Letter of Credit. (c) No Material Adverse Change shall have occurred to, and no event or circumstance shall have occurred that could reasonably be expected to cause a Material Adverse Change to, Genesis Energy, L.P.'s or Borrower's Consolidated financial condition or businesses since the date of the Initial Financial Statements. (d) Each Restricted Person shall have performed and complied with all agreements and conditions required in the Loan Documents to be performed or complied with by it on or prior to the date of such Loan or the date of issuance of such Letter of Credit. (e) The making of such Loan or the issuance of such Letter of Credit shall not be prohibited by any Law and shall not subject any Lender or any LC Issuer to any penalty or other onerous condition under or pursuant to any such Law. (f) Each Restricted Person shall be Solvent. (g) Administrative Agent shall have received all documents and instruments which Administrative Agent has then requested, in addition to those described in Section 4.1 (including opinions of legal counsel for Restricted Persons and Administrative Agent; corporate documents and records; documents evidencing governmental authorizations, consents, approvals, licenses and exemptions; and certificates of public officials and of officers and representatives of Borrower and other Persons), as to (i) the accuracy and validity of or compliance with all representations, warranties and covenants made by any Restricted Person in this Agreement and the other Loan Documents, (ii) the satisfaction of all conditions contained herein or therein, and (iii) all other matters pertaining hereto and thereto. All such additional documents and instruments shall be satisfactory to Administrative Agent in form, substance and date. ARTICLE V - Representations and Warranties To confirm each Lender's understanding concerning Restricted Persons and Restricted Persons' businesses, properties and obligations and to induce each Lender to enter into this Agreement and to extend credit hereunder, General Partner, Genesis Energy, L.P. and Borrower represent and warrant to each Lender that: Section 5.1. No Default. No Restricted Person is in default in the performance of any of the covenants and agreements contained in any Loan Document. No event has occurred and is continuing which constitutes a Default. Section 5.2. Organization and Good Standing. Each Restricted Person is duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization, having all powers required to carry on its business and enter into and carry out the transactions contemplated hereby. Each Restricted Person is duly qualified, in good standing, and authorized to do business in all other jurisdictions wherein the character of the properties owned or held by it or the nature of the business transacted by it makes such qualification necessary except where the failure to so qualify would not cause a Material Adverse Change. Section 5.3. Authorization. Each Restricted Person has duly taken all action necessary to authorize the execution and delivery by it of the Loan Documents to which it is a party and to authorize the consummation of the transactions contemplated thereby and the performance of its obligations thereunder. Borrower is duly authorized to borrow funds hereunder. Section 5.4. No Conflicts or Consents. The execution and delivery by the various Restricted Persons of the Loan Documents to which each is a party, the performance by each of its obligations under such Loan Documents, and the consummation of the transactions contemplated by the various Loan Documents, do not and will not (i) conflict with any provision of (1) any Law, (2) the organizational documents of any Restricted Person or any of its Affiliates, or (3) any agreement, judgment, license, order or permit applicable to or binding upon any Restricted Person or any of its Affiliates, (ii) result in the acceleration of any Indebtedness owed by any Restricted Person or any of its Affiliates, or (iii) result in or require the creation of any Lien upon any assets or properties of any Restricted Person or any of its Affiliates except as expressly contemplated in the Loan Documents. Except as expressly contemplated in the Loan Documents or disclosed in the Disclosure Schedule, no permit, consent, approval, authorization or order of, and no notice to or filing, registration or qualification with, any Tribunal or third party is required in connection with the execution, delivery or performance by any Restricted Person of any Loan Document or to consummate any transactions contemplated by the Loan Documents. Section 5.5. Enforceable Obligations. This Agreement is, and the other Loan Documents when duly executed and delivered will be, legal, valid and binding obligations of each Restricted Person which is a party hereto or thereto, enforceable in accordance with their terms except as such enforcement may be limited by bankruptcy, insolvency or similar Laws of general application relating to the enforcement of creditors' rights. Section 5.6. Initial Financial Statements. Genesis Energy, L.P. and Borrower have heretofore delivered to each Lender true, correct and complete copies of the Initial Financial Statements. The Initial Financial Statements fairly present Genesis Energy, L.P.'s and Borrower's Consolidated financial position at the date thereof and the Consolidated results of Genesis Energy, L.P.'s and Borrower operations for the periods thereof, and in the case of the annual Initial Financial Statements, Consolidated cash flows for the period thereof. Since the date of the annual Initial Financial Statements, no Material Adverse Change has occurred, except as reflected in the quarterly Initial Financial Statements or in the Disclosure Schedule. All Initial Financial Statements were prepared in accordance with GAAP. Section 5.7. Other Obligations and Restrictions. No Restricted Person has any outstanding Liabilities of any kind (including contingent obligations, tax assessments, and unusual forward or long-term commitments) which are, in the aggregate, material to Genesis Energy, L.P. or Borrower or material with respect to Genesis Energy, L.P.'s or Borrower's Consolidated financial condition and not shown in the Initial Financial Statements, disclosed in the Disclosure Schedule or otherwise permitted under Section 7.1. Except as shown in the Initial Financial Statements or disclosed in the Disclosure Schedule, no Restricted Person is subject to or restricted by any franchise, contract, deed, charter restriction, or other instrument or restriction which could cause a Material Adverse Change. Each Restricted Person has paid all taxes, assessments, and other governmental charges or levies imposed upon it or upon its income, profits or property, except to the extent that any of the foregoing is not yet due or is being in good faith contested as permitted by Section 6.7 Section 5.8. Full Disclosure. No certificate, statement or other information delivered herewith or heretofore by any Restricted Person to any Lender in connection with the negotiation of this Agreement or in connection with any transaction contemplated hereby contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements contained herein or therein, in light of the circumstances under which they were made, not misleading as of the date made or deemed made. All written information furnished after the date hereof by or on behalf of any Restricted Person to Administrative Agent or any Lender Party in connection with this Agreement and the other Loan Documents and the transactions contemplated hereby and thereby will be true, complete and accurate in every material respect in light of the circumstances in which made, or based on reasonable estimates on the date as of which such information is stated or certified. There is no fact known to any Restricted Person that is not shown in the Initial Financial Statements or disclosed in the Disclosure Schedule which could reasonably be expected to cause a Material Adverse Change. Section 5.9. Litigation. Except as disclosed in the Initial Financial Statements or in the Disclosure Schedule: (i) there are no actions, suits or legal, equitable, arbitrative or administrative proceedings pending, or to the knowledge of any Restricted Person threatened, against any Restricted Person or affecting any Collateral (including, without limitation, any which challenge or otherwise pertain to any Restricted Person's title to any Collateral) before any Tribunal which could reasonably be expected to cause a Material Adverse Change, and (ii) there are no outstanding judgments, injunctions, writs, rulings or orders by any such Tribunal against any Restricted Person or any Restricted Person's stockholders, partners, directors or officers or affecting any Collateral which could reasonably be expected to cause a Material Adverse Change. Section 5.10. Labor Disputes and Acts of God. Except as disclosed in the Disclosure Schedule, neither the business nor the properties of any Restricted Person has been affected by any fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy or other casualty (whether or not covered by insurance), which could reasonably be expected to cause a Material Adverse Change. Section 5.11. ERISA Plans and Liabilities. All currently existing ERISA Plans are listed in the Disclosure Schedule. Except as disclosed in the Initial Financial Statements or in the Disclosure Schedule, no Termination Event has occurred with respect to any ERISA Plan and all ERISA Affiliates are in compliance with ERISA in all material respects. No ERISA Affiliate is required to contribute to, or has any other absolute or contingent liability in respect of, any "multiemployer plan" as defined in Section 4001 of ERISA. Except as set forth in the Disclosure Schedule: (i) no "accumulated funding deficiency" (as defined in Section 412(a) of the Code exists with respect to any ERISA Plan, whether or not waived by the Secretary of the Treasury or his delegate, and (ii) the amount of unfunded benefit liabilities as defined in Section 4001(a)(18) of ERISA of each ERISA Plan does not exceed $250,000. Section 5.12. Compliance with Laws. Except as set forth in the Disclosure Schedule, each Restricted Person has all permits, licenses and authorizations required in connection with the conduct of its businesses, except where the failure to have such permits, licenses and authorizations would not result in a Material Adverse Change. Each Restricted Person is in compliance with the terms and conditions of all such permits, licenses and authorizations, and is also in compliance with all other limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in any Law or in any regulation, code, plan, order, decree, judgment, injunction, notice or demand letter issued, entered, promulgated or approved thereunder, and no Restricted Person is aware of any facts or circumstances that could reasonably be expected to result in non-compliance as described in this section 5.12, except where the failure to be in compliance would not result in a Material Adverse Change. Without limiting the foregoing, each Restricted Person (i) has filed and maintained all tariffs applicable to its business with each applicable commission, (ii) and all such tariffs are in compliance with all Laws administered or promulgated by each applicable commission and (iii) has imposed charges on its customers in compliance with such tariffs or otherwise in compliance with law. As used herein, "commission" includes the Federal Energy Regulatory Commission, the Texas Railroad Commission and each other US federal, state, or local governmental department, commission, board, bureau, agency or instrumentality having jurisdiction over any Restricted Person or its properties. Section 5.13. Environmental Laws. As used in this section: "CERCLA" means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, "CERCLIS" means the Comprehensive Environmental Response, Compensation and Liability Information System List of the Environmental Protection Agency, and "Release" has the meaning given such term in 42 U.S.C. ss. 9601(22). Without limiting the provisions of Section 5.12 and except as set forth in the Disclosure Schedule: (a)......No notice, notification, demand, request for information, citation, summons or order has been issued, no complaint has been filed and, to the knowledge of any Restricted Person, none are threatened, no penalty has been assessed and, to the knowledge of any Restricted Person, none are threatened, and no investigation or review is pending or threatened by any Tribunal or any other Person with respect to any of the following (i) any alleged generation, treatment, storage, recycling, transportation, disposal, or Release of any Hazardous Materials, either by any Restricted Person or on any property owned or operated by any Restricted Person, (ii) any remedial action which might be needed to respond to any such alleged generation, treatment, storage, recycling, transportation, disposal, or Release, (iii) any alleged failure by any Restricted Person to have, or to be in compliance with, any permit, license or authorization required in connection with the conduct of its business or with respect to any such generation, treatment, storage, recycling, transportation, disposal, or Release, or (iv) any allegation of any non-compliance with any Environmental Law. (b)......No Restricted Person otherwise has any known material contingent liability in connection with any alleged generation, treatment, storage, recycling, transportation, disposal, or Release of any Hazardous Materials. (c)......No Restricted Person has handled any Hazardous Materials, other than as a generator, on any properties now or previously owned or leased by any Restricted Person to an extent that such handling has caused, or could cause, a Material Adverse Change. (d)......Except as would not be reasonably expected to cause a Material Adverse Change: (i) no PCBs are or have been present at any properties now or previously owned, operated or leased by any Restricted Person; (ii) no asbestos is or has been present at any properties now or previously owned, operated or leased by any Restricted Person; (iii) there are no underground storage tanks, active or abandoned, at any properties now or previously owned, operated or leased by any Restricted Person; and (iv) no Hazardous Materials have been Released at, on or under any properties now or previously owned, operated or leased by any Restricted Person. (e)......No Restricted Person has transported or arranged for the transportation or disposition of any Hazardous Material to any location which is listed on the National Priorities List under CERCLA, any location listed for possible inclusion on the National Priorities List by the Environmental Protection Agency in CERCLIS, or any location listed on any similar state list or which is the subject of federal, state or local enforcement actions or other investigations which may lead to claims against any Restricted Person for clean-up costs, remedial work, damages to natural resources or for personal injury claims, including, but not limited to, claims under CERCLA. (f)......No property now or previously owned, operated or leased by any Restricted Person is listed or proposed for listing on the National Priority list promulgated pursuant to CERCLA, in CERCLIS, or on any similar state list of sites requiring investigation or clean-up. (g)......There are no Liens arising under or pursuant to any Environmental Laws on any of the real properties or properties owned, operated or leased by any Restricted Person, and no government actions of which Borrower is aware have been taken or are threatened which could subject any of such properties to such Liens; nor would any Restricted Person be required to place any notice or restriction relating to the presence of Hazardous Materials at any properties owned by it in any deed to such properties. (h)......There have been no environmental investigations, studies, audits, tests, reviews or other analyses for surface water, ground water, soil contamination or natural resource damages relating to the Release of Hazardous Materials conducted by or which are in the possession of any Restricted Person in relation to any properties or facility now or previously owned, operated or leased by any Restricted Person which have not been made available to Administrative Agent. (i)......All Restricted Persons are conducting their businesses in material compliance with all applicable Environmental Laws, and all past non-compliance with such Environmental Laws have been resolved without ongoing obligations or costs; and no Restricted Person has filed any notice under any Law indicating that any such Person is responsible for the improper release into the environment, or the improper storage or disposal, of any material amount of any Hazardous Materials or that any Hazardous Materials have been improperly released, or are improperly stored or disposed of, upon any property of any such Person. (j)......The Disclosure Schedule sets out (i) the amounts expended by Restricted Persons through October 31, 2002 to pay (x) vendors, (y) spill claimants, and (z) clean up costs incurred in connection with the Pipeline Release (collectively, the "Spill Costs"), (ii) the estimated amount of additional Spill Costs which will be incurred by the Restricted Persons in the future, (iii) the amount of insurance payments received by Restricted Persons through October 31, 2002 to pay for Spill Costs, and (iv) the estimated amount of future insurance payments that the Restricted Persons anticipate receiving to pay for Spill Costs. Section 5.14. Names and Places of Business. No Restricted Person has, during the preceding five years, had, been known by, or used any other trade or fictitious name, except as disclosed in the Disclosure Schedule. Except as otherwise indicated in the Disclosure Schedule, the chief executive office and principal place of business of each Restricted Person are (and since the dates of initial formation of such Restricted Persons have been) located at the address of Borrower set out in Section 10.3. Except as indicated in the Disclosure Schedule or otherwise disclosed in writing to the Administrative Agent, no Restricted Person has any other office or place of business. Section 5.15. Borrower's Subsidiaries. Borrower does not presently have any Subsidiary or own any stock in any other corporation or association except those listed in the Disclosure Schedule or disclosed to Administrative Agent in writing. Neither Borrower nor any Restricted Person is a member of any general or limited partnership, limited liability company, corporation, joint venture or association of any type whatsoever except those listed in the Disclosure Schedule or disclosed to Administrative Agent in writing. Borrower owns, directly or indirectly, the equity interest in each of its Subsidiaries which is indicated in the Disclosure Schedule or as disclosed to Administrative Agent in writing. Section 5.16. Title to Properties; Licenses. Each Restricted Person has good and defensible title to all of its material properties and assets, free and clear of all Liens other than Permitted Liens and of all material impediments to the use of such properties and assets in such Restricted Person's business. Each Restricted Person possesses all licenses, permits, franchises, patents, copyrights, trademarks and trade names, and other intellectual property (or otherwise possesses the right to use such intellectual property without violation of the rights of any other Person) which are necessary to carry out its business as presently conducted and as presently proposed to be conducted hereafter, except to the extent that such failure to possess could not reasonably be expected to cause a Material Adverse Change, and no Restricted Person is in violation in any material respect of the terms under which it possesses such intellectual property or the right to use such intellectual property. Section 5.17. Government Regulation. Neither Borrower nor any other Restricted Person owing Obligations is subject to regulation under the Public Utility Holding Company Act of 1935, the Federal Power Act, the Investment Company Act of 1940 (as any of the preceding acts have been amended) or any other Law which regulates the incurring by such Person of Indebtedness, including Laws relating to common contract carriers or the sale of electricity, gas, steam, water or other public utility services. Section 5.18. Insider. No Restricted Person, nor any Person having "control" (as that term is defined in 12 U.S.C. ss. 375b(9) or in regulations promulgated pursuant thereto) of any Restricted Person, is a "director" or an "executive officer" or "principal shareholder" (as those terms are defined in 12 U.S.C. ss. 375b(8) or (9) or in regulations promulgated pursuant thereto) of any Lender, of a bank holding company of which any Lender is a Subsidiary or of any Subsidiary of a bank holding company of which any Lender is a Subsidiary. Section 5.19. Solvency. Upon giving effect to the issuance of the Notes, the execution of this Agreement and the other Loan Documents by Borrower and each Guarantor and the consummation of the transactions contemplated hereby and thereby, (i) Borrower and each Guarantor will be solvent (as such term is used in applicable bankruptcy, liquidation, receivership, insolvency or similar Laws), and the sum of Borrower's and each Guarantor's absolute and contingent liabilities, including the Obligations or guarantees thereof, shall not exceed the fair market value of such Restricted Person's assets, and (ii) Borrower's and each Guarantor's capital should be adequate for the businesses in which such Restricted Person is engaged and intends to be engaged. Neither Borrower nor any Restricted Person has incurred (whether under the Loan Documents or otherwise), nor does any Restricted Person intend to incur or believe that it will incur, debts which will be beyond its ability to pay as such debts mature. Section 5.20. Credit Arrangements. Except as set forth on the Disclosure Schedule, no Affiliate of any Restricted Person is party to or subject to any credit agreement, loan agreement, indenture, purchase agreement, guaranty or other arrangement providing for or otherwise relating to any Indebtedness or any extension of credit (or commitment for any extension of credit) that creates by a covenant of such Affiliate or otherwise, any limitation or restriction any action of any Restricted Person or any obligation that any Restricted Person be caused to take any action. Section 5.21. Real Property. Set forth on Part I of Schedule 6 hereto is a complete and accurate list of all real property owned by any Restricted Person or any of its Subsidiaries (other than Injection Stations), showing as of the date hereof the street address, county or other relevant jurisdiction, state, record owner and book and estimated fair value thereof. Each Restricted Person or such Subsidiary has good, marketable and insurable fee simple title to such real property, free and clear of all Liens, other than Permitted Liens and other Liens created or permitted by the Loan Documents. Set forth on Part II of Schedule 6 hereto is a complete and accurate list of all leases of real property under which any Restricted Person or any of its Subsidiaries is the lessee(other than Injection Stations), showing as of the date hereof the street address, county or other relevant jurisdiction, state, lessor, lessee, expiration date and annual rental cost thereof. Each such lease is the legal, valid and binding obligation of the lessor thereof, enforceable in accordance with its terms. ARTICLE VI - Affirmative Covenants To conform with the terms and conditions under which each Lender is willing to have credit outstanding to Borrower, and to induce each Lender to enter into this Agreement and extend credit hereunder, General Partner, Genesis Energy, L.P. and Borrower covenant and agree that until the full and final payment of the Obligations and the termination of this Agreement, unless Majority Lenders, or all Lenders as required under Section 10.1, have previously agreed otherwise: Section 6.1. Payment and Performance. Each Restricted Person will pay all amounts due under the Loan Documents, to which it is a party, in accordance with the terms thereof and will observe, perform and comply with every covenant, term and condition expressed in the Loan Documents to which it is a party. Section 6.2. Books, Financial Statements and Reports. Each Restricted Person will at all times maintain full and accurate books of account and records. Genesis Energy, L.P. and Borrower will maintain and will cause their Subsidiaries to maintain a standard system of accounting, will maintain its Fiscal Year, and will furnish the following statements and reports to each Lender at Restricted Person's expense: (a) As soon as available, and in any event within ninety days (90) days after the end of each Fiscal Year (i) complete Consolidated financial statements of Genesis Energy, L.P. and of Borrower together with all notes thereto, prepared in reasonable detail in accordance with GAAP, together with an unqualified opinion, based on an audit using generally accepted auditing standards, by Deloitte & Touche LLP, or other independent certified public accountants selected by General Partner and acceptable to Majority Lenders, stating that such Consolidated financial statements have been so prepared and (ii) supporting unaudited balance sheets and statements of income of each other Restricted Person. These financial statements shall contain a Consolidated balance sheet as of the end of such Fiscal Year and Consolidated statements of earnings for such Fiscal Year. Such Consolidated financial statements shall set forth in comparative form the corresponding figures for the preceding Fiscal Year. In addition, within ninety (90) days after the end of each Fiscal Year, Genesis Energy, L.P. and Borrower will furnish a certificate signed by such accountants (i) stating that they have read this Agreement, (ii) containing calculations showing compliance (or non-compliance) at the end of such Fiscal Year with the requirements of Sections 7.11 through 7.15 inclusive, and (iii) further stating that in making their examination and reporting on the Consolidated financial statements described above they obtained no knowledge of any Default existing at the end of such Fiscal Year, or, if they did so conclude that a Default existed, specifying its nature and period of existence. (b) As soon as available, and in any event within sixty (60) days after the end of the first three Fiscal Quarters of each Fiscal Year (i) Genesis Energy, L.P.'s and Borrower's Consolidated balance sheet as of the end of such Fiscal Quarter and Consolidated statements of Genesis Energy, L.P.'s and Borrower's earnings and cash flows for such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and (ii) supporting balance sheets and statements of income of each other Restricted Person, all in reasonable detail and prepared in accordance with GAAP, subject to changes resulting from normal year-end adjustments. In addition Genesis Energy, L.P. and Borrower will, together with each such set of financial statements and each set of financial statements furnished under subsection (a) of this section, furnish a certificate in the form of Exhibit F signed by the chief financial officer, principal accounting officer or treasurer of General Partner stating that such financial statements are accurate and complete in all material respects (subject to normal year-end adjustments), stating that he has reviewed the Loan Documents, containing calculations showing compliance (or non-compliance) at the end of such Fiscal Quarter with the requirements of Sections 7.11 through 7.15, inclusive and stating that no Default exists at the end of such Fiscal Quarter or at the time of such certificate or specifying the nature and period of existence of any such Default. (c) Promptly upon their becoming available, copies of all financial statements, reports, notices and proxy statements sent by Genesis Energy, L.P. to its unit holders and all registration statements, periodic reports and other statements and schedules filed by Genesis Energy, L.P. with any securities exchange, the Securities and Exchange Commission or any similar governmental authority. (d) As soon as available, and in any event within one hundred twenty (120) days after the end of each Fiscal Year, a business and financial plan for Genesis Energy, L.P. (in form reasonably satisfactory to Administrative Agent), prepared or caused to be prepared by a senior financial officer of General Partner, setting forth for the first year thereof, quarterly financial projections and budgets for Genesis Energy, L.P., and thereafter yearly financial projections during the Commitment Period. (e) On or about the twenty-sixth (26th) (but no later than the twenty-eighth (28th)) day of each calendar month a Borrowing Base Report in the form of Exhibit H duly completed by an authorized officer of General Partner and conforming with the requirements of Section 2.13 and Schedule 5 and an accounts payable aging report, and (ii) on or before the last day of each calendar month, a statement in form satisfactory to Administrative Agent reconciling the Borrowing Base Report delivered on or about the 26th day of the preceding calendar month with actual results for the preceding calendar month, conforming with the requirements of Section 2.13 and Schedule 5. (f) As soon as available, and in any event within thirty (30) days after the end of each calendar month, a report setting forth for such month aggregate volumes, prices and margins for all marketing activities of Restricted Persons in form satisfactory to Administrative Agent. (g) As soon as available, and in any event within thirty (30) days after the end of each Fiscal Year, an environmental compliance certificate signed by the president or chief executive officer of General Partner in the form attached hereto as Exhibit I. Further, if requested by Administrative Agent, Restricted Persons shall permit and cooperate with an environmental and safety review made in connection with the operations of Restricted Persons' properties one time during each Fiscal Year, by consultants selected by Administrative Agent which review shall, if requested by Administrative Agent, be arranged and supervised by environmental legal counsel for Administrative Agent, all at Restricted Persons' cost and expense. The consultant shall render a verbal or written report, as specified by Administrative Agent, based upon such review at Restricted Persons' cost and expense and a copy thereof will be provided to Restricted Persons. (h) Concurrently with the annual renewal of Restricted Persons' insurance policies, Restricted Persons shall at their own cost and expense, if requested by Administrative Agent in writing, cause a certificate or report to be issued by Administrative Agent's professional insurance consultants or other insurance consultants satisfactory to Administrative Agent certifying that Restricted Persons' insurance for the next succeeding year after such renewal (or for such longer period for which such insurance is in effect) complies with the provisions of this Agreement and the Security Documents. (i) As soon as available, and in any event within thirty (30) days after the end of each calendar month, a Consolidated statement of Genesis Energy, L.P.'s earnings for such calendar month in form satisfactory to Administrative Agent. (j) As soon as available, and in any event within thirty (30) days after the end of each calendar month, a report on a mark to market basis of all Floating Price Contracts as of the close of business on the last day of such calendar month, and together with such report a complete list of all net realized losses on any Floating Price Contracts for the prior twelve months in form reasonably satisfactory to Administrative Agent. Section 6.3. Other Information and Inspections. Each Restricted Person will furnish to each Lender any information which Administrative Agent or any Lender may from time to time request concerning any covenant, provision or condition of the Loan Documents or any matter in connection with Restricted Persons' businesses and operations. Each Restricted Person will permit representatives appointed by Administrative Agent (including independent accountants, auditors, agents, attorneys, appraisers and any other Persons) to visit and inspect during normal business hours any of such Restricted Person's property, including its books of account, other books and records, and any facilities or other business assets, and to make extra copies therefrom and photocopies and photographs thereof, and to write down and record any information such representatives obtain, and each Restricted Person shall permit Administrative Agent or its representatives to investigate and verify the accuracy of the information furnished to Administrative Agent or any Lender in connection with the Loan Documents and to discuss all such matters with its officers, employees and, upon prior notice to Borrower, its representatives. Without limitation of the foregoing, within one hundred twenty (120) days after the end of each Fiscal Year, and in addition once during each Fiscal Year, if requested by Administrative Agent at the instruction of Majority Lenders, Borrower shall permit commercial financial examiners appointed by Administrative Agent to conduct a commercial finance examination of the business and assets of Restricted Persons and in connection with such examination to have full access to and the right to examine, audit, make abstracts and copies from, and inspect Restricted Persons' records, files, books of account and all other documents, instruments and agreements to which a Restricted Person is a party. Borrower shall pay all reasonable costs and expenses of Administrative Agent associated with any such examination. Section 6.4. Notice of Material Events and Change of Address. Each Restricted Person will notify each Lender Party, not later than five (5) Business Days after any executive officer of Restricted Persons has knowledge thereof, stating that such notice is being given pursuant to this Agreement, of: (a) the occurrence of any Material Adverse Change, (b) the occurrence of any Default, (c) the acceleration of the maturity of any Indebtedness owed by any Restricted Person or of any default by any Restricted Person under any indenture, mortgage, agreement, contract or other instrument to which any of them is a party or by which any of them or any of their properties is bound, if such acceleration or default could cause a Material Adverse Change, (d) the occurrence of any Termination Event, (e) Under any Environmental Law, any claim of $250,000 or more, any notice of potential liability which might exceed such amount, or any other material adverse claim asserted against any Restricted Person or with respect to any Restricted Person's properties taken as a whole, and (f) the filing of any suit or proceeding, or the assertion in writing of a claim against any Restricted Person or with respect to any Restricted Person's properties in which an adverse decision could reasonably be expected to cause a Material Adverse Change. Upon the occurrence of any of the foregoing, Restricted Persons will take all necessary or appropriate steps to remedy promptly any such Material Adverse Change, Default, acceleration, default, or Termination Event to protect against any such adverse claim, to defend any such suit or proceeding, and to resolve all controversies on account of any of the foregoing. Restricted Persons will also notify Administrative Agent and Administrative Agent's counsel in writing at least twenty Business Days prior to the date that any Restricted Person changes its name or the location of its chief executive office or principal place of business or the place where it keeps its books and records concerning the Collateral, furnishing with such notice any necessary financing statement amendments or requesting Administrative Agent and its counsel to prepare the same. Section 6.5. Maintenance of Properties. Each Restricted Person will maintain, preserve, protect, and keep all Collateral and all other material property used or useful in the conduct of its business in good condition (ordinary wear and tear excepted) and in compliance with all applicable Laws, and will from time to time make all repairs, renewals and replacements needed to enable the business and operations carried on in connection therewith to be promptly and advantageously conducted at all times. Section 6.6. Maintenance of Existence and Qualifications. Each Restricted Person will maintain and preserve its existence and its rights and franchises in full force and effect and will qualify to do business in all states or jurisdictions where required by applicable Law, except where the failure so to qualify will not cause a Material Adverse Change. Section 6.7. Payment of Trade Liabilities, Taxes, etc. Each Restricted Person will (a) timely file all required tax returns including any extensions; (b) timely pay all taxes, assessments, and other governmental charges or levies imposed upon it or upon its income, profits or property; (c) within one hundred twenty (120) days after the date such goods are delivered or such services are rendered, pay all Liabilities owed by it on ordinary trade terms to vendors, suppliers and other Persons providing goods and services used by it in the ordinary course of its business; (d) pay and discharge when due all other Liabilities now or hereafter owed by it, other than royalty payments suspended in the ordinary course of business; and (e) maintain appropriate accruals and reserves for all of the foregoing in accordance with GAAP. Each Restricted Person may, however, delay paying or discharging any of the foregoing so long as it is in good faith contesting the validity thereof by appropriate proceedings, if necessary, and has set aside on its books adequate cash reserves therefor which are required by GAAP. Section 6.8. Insurance. Each Restricted Person shall at all times maintain insurance for its property in accordance with the Insurance Schedule which insurance shall be by financially sound and reputable insurers. Each Restricted Person will maintain any additional insurance coverage as described in the respective Security Documents. Borrower shall maintain, or cause to be maintained, with an insurer reasonably acceptable to Agent, flood insurance sufficient for Lenders to comply with Regulation H of the Board of Governors of the Federal Reserve System. Upon demand by Administrative Agent any insurance policies covering Collateral shall be endorsed (a) to provide for payment of losses to Administrative Agent as its interests may appear, (b) to provide that such policies may not be canceled or reduced or affected in any material manner for any reason without fifteen days prior notice to Administrative Agent, and (c) to provide for any other matters specified in any applicable Security Document or which Administrative Agent may reasonably require. Each Restricted Person shall at all times maintain insurance against its liability for injury to persons or property in accordance with the Insurance Schedule, which insurance shall be by financially sound and reputable insurers. Without limiting the foregoing, each Restricted Person shall at all time maintain liability insurance in accordance with the Insurance Schedule. Section 6.9. Performance on Borrower's Behalf. If any Restricted Person fails to pay any taxes, insurance premiums, expenses, attorneys' fees or other amounts it is required to pay under any Loan Document, Administrative Agent may pay the same after notice of such payment by Administrative Agent is given to Borrower. Borrower shall immediately reimburse Administrative Agent for any such payments and each amount paid by Administrative Agent shall constitute an Obligation owed hereunder which is due and payable on the date such amount is paid by Administrative Agent. Section 6.10. Interest. Borrower hereby promises to each Lender to pay interest at the Default Rate on all Obligations (including Obligations to pay fees or to reimburse or indemnify any Lender) which Borrower has in this Agreement promised to pay to such Lender and which are not paid when due. Such interest shall accrue from the date such Obligations become due until they are paid. Section 6.11. Compliance with Agreements and Law. Each Restricted Person will perform all material obligations it is required to perform under the terms of each indenture, mortgage, deed of trust, security agreement, lease, and franchise, and each agreement, contract or other instrument or obligation to which it is a party or by which it or any of its properties is bound. Each Restricted Person will conduct its business and affairs in compliance with all Laws applicable thereto and will maintain in good standing all licenses that may be necessary or appropriate to carry on its business. Section 6.12. Environmental Matters; Environmental Reviews. -------------------------------------------- (a)......Each Restricted Person will comply in all material respects with all Environmental Laws now or hereafter applicable to such Restricted Person as well as all contractual obligations and agreements with respect to environmental remediation or other environmental matters and shall obtain, at or prior to the time required by applicable Environmental Laws, all environmental, health and safety permits, licenses and other authorizations necessary for its operations and will maintain such authorizations in full force and effect, conduct any investigation, study, sampling and testing, and undertake any cleanup, removal, remedial or other action necessary to remove ans clean up all Hazardous materials from any of its properties, in accordance with the requirements of all Environmental Laws. (b)......Each Restricted Person will promptly furnish to Administrative Agent all written notices of violation, orders, claims, citations, complaints, penalty assessments, suits or other proceedings received by any Restricted Person, or of which it has notice, pending or threatened against any Restricted Person, the potential liability of which exceeds $250,000 or would cause a Material Adverse Change if resolved adversely against any Restricted Person, by any governmental authority with respect to any alleged violation of or non-compliance with any Environmental Laws or any permits, licenses or authorizations in connection with its ownership or use of its properties or the operation of its business. (c)......Each Restricted Person will promptly furnish to Administrative Agent all requests for information, notices of claim, demand letters, and other notifications, received by any Restricted Person in connection with its ownership or use of its properties or the conduct of its business, relating to potential responsibility with respect to any investigation or clean-up of Hazardous Material at any location, the potential liability of which exceeds $250,000 or would cause a Material Adverse Change if resolved adversely against any Restricted Person. Section 6.13. Evidence of Compliance. Subject to the last sentence of Section 6.3, each Restricted Person will furnish to each Lender at such Restricted Person's expense all evidence which Administrative Agent from time to time reasonably requests in writing as to the accuracy and validity of or compliance with all representations, warranties and covenants made by any Restricted Person in the Loan Documents, the satisfaction of all conditions contained therein, and all other matters pertaining thereto. Section 6.14. Agreement to Deliver Security Documents. Restricted Persons will deliver to further secure the Obligations whenever requested by Administrative Agent in its sole and absolute discretion, deeds of trust, mortgages, chattel mortgages, flood hazard certification, title searches, title insurance, surveys, security agreements, financing statements and other Security Documents in form and substance reasonably satisfactory to Administrative Agent for the purpose of granting, confirming, and perfecting first and prior liens or security interests in any real or personal property now owned or hereafter acquired by any Restricted Person. Section 6.15. Perfection and Protection of Security Interests and Liens. Each Restricted Person will from time to time deliver to Administrative Agent any financing statements, continuation statements, extension agreements and other documents, properly completed and executed (and acknowledged when required) by Restricted Persons in form and substance reasonably satisfactory to Administrative Agent, which Administrative Agent requests for the purpose of perfecting, confirming, or protecting any Liens or other rights in Collateral securing any Obligations. Section 6.16. Bank Accounts; Offset. To secure the repayment of the Obligations, each Restricted Person hereby grants to each Lender a security interest, a lien, and a right of offset, each of which shall be in addition to all other interests, liens, and rights of any Lender at common Law, under the Loan Documents, or otherwise, and each of which shall be upon and against (a) any and all moneys, securities or other property (and the proceeds therefrom) of such Restricted Person now or hereafter held or received by or in transit to any Lender from or for the account of such Restricted Person, whether for safekeeping, custody, pledge, transmission, collection or otherwise, (b) any and all deposits (general or special, time or demand, provisional or final) of such Restricted Person with any Lender, and (c) any other credits and claims of such Restricted Person at any time existing against any Lender, including claims under certificates of deposit. At any time and from time to time during the continuance of any Event of Default, each Lender is hereby authorized to foreclose upon, or to offset against the Obligations then due and payable (in either case without notice to any Restricted Person), any and all items hereinabove referred to. The remedies of foreclosure and offset are separate and cumulative, and either may be exercised independently of the other without regard to procedures or restrictions applicable to the other. Section 6.17. Guaranties of Subsidiaries. Each Subsidiary of General Partner (other than Borrower) now existing or created, acquired or coming into existence after the date hereof shall, promptly upon request by Administrative Agent, execute and deliver to Administrative Agent an absolute and unconditional guaranty of the timely repayment of the Obligations and the due and punctual performance of the obligations of Borrower hereunder, which guaranty shall be reasonably satisfactory to Administrative Agent in form and substance. Each Subsidiary of General Partner or Genesis Energy L.P. (other than Borrower) existing on the date hereof shall duly execute and deliver such a guaranty prior to the making of any Loan hereunder. General Partner and Genesis Energy L.P. will cause each of its Subsidiaries to deliver to Administrative Agent, simultaneously with its delivery of such a guaranty, written evidence satisfactory to Administrative Agent and its counsel that such Subsidiary has taken all corporate, limited liability company or partnership action necessary to duly approve and authorize its execution, delivery and performance of such guaranty and any other documents which it is required to execute. Section 6.18. Compliance with Agreements. Each Restricted Person shall observe, perform or comply with any agreement with any Person or any term or condition of any instrument, if such agreement or instrument is materially significant to such Restricted Person or to Restricted Persons on a Consolidated basis or materially significant to any Guarantor, unless any such failure to so observe, perform or comply is remedied within the applicable period of grace (if any) provided in such agreement or instrument or unless such failure to so observe, perform or comply would not reasonably be expected to cause a Material Adverse Change. Section 6.19. Rents. By the terms of the various Security Documents, certain Restricted Persons are and will be assigning to Administrative Agent, for the benefit of Lender Parties, all of the "Rents" (as defined therein) accruing to the property covered thereby. Notwithstanding any such assignments, so long as no Default has occurred and is continuing, (i) such Restricted Persons may continue to receive and collect from the payors of such Rents all such Rents, subject, however, to the Liens created under the Security Documents, which Liens are hereby affirmed and ratified, and free and clear of such Liens, use the proceeds of the Rents, and (ii) Administrative Agent will not notify the obligors of such Rents or take any other action to cause proceeds thereof to be remitted to Administrative Agent. Upon the occurrence of a Default, Administrative Agent may exercise all rights and remedies granted under the Security Documents, including the right to obtain possession of all Rents then held by such Restricted Persons or to receive directly from the payors of such Rents all other Rents until such time as such Default is no longer continuing. If Administrative Agent shall receive any Rent proceeds from any payor at any time other than during the continuance of a Default, then it shall notify Borrower thereof and (i) upon request and pursuant to the instructions of Borrower, it shall, if no Default is then continuing, remit such proceeds to the Borrower and (ii) at the request and expense of Borrower, execute and deliver a letter to such payors confirming Restricted Persons' right to receive and collect Rents until otherwise notified by Administrative Agent. In no case shall any failure, whether purposed or inadvertent, by Administrative Agent to collect directly any such Rents constitute in any way a waiver, remission or release of any of its rights under the Security Documents, nor shall any release of any Rents by Administrative Agent to such Restricted Persons constitute a waiver, remission, or release of any other Rents or of any rights of Administrative Agent to collect other Rents thereafter. Section 6.20. Operating Practices. Each Restricted Person shall operate its business in a manner that is consistent with the policies and procedures approved by the board of directors of General Partner and in effect on, and delivered to Administrative Agent and Lenders prior to, the date hereof, and revisions thereto referred to in the following sentence. Borrower shall review such policies and procedures at least annually, and shall promptly recommend to the board of directors of General Partner such revisions to such policies and procedures as may be recommended by Restricted Persons' or, upon consultation with Borrower and its consultants and at the request of Administrative Agent, Administrative Agent's third party consultants, with respect to adequate internal controls, and Borrower shall promptly provide a report to Lenders regarding such policies and procedures, including such policies and procedures which the board of directors of General Partner could adopt and has adopted. Section 6.21. Collateral Account. Borrower will established with Administrative Agent an account (as used in this Section 6.21, the "Collateral Account") in the name of Borrower and under the sole control of Administrative Agent into which there shall be deposited from time to time the cash proceeds of the Collateral required to be delivered to Administrative Agent pursuant to this Section 6.21 or pursuant to any other provision of this Agreement or any other Loan Document. In the event that, at any time, the Facility Usage shall exceed 90% of the Borrowing Base, Administrative Agent may, in its sole discretion, require Borrower to instruct all Account Debtors and other Persons obligated to make payments to Borrower on any receivables, general intangibles, instruments, or other rights to payment included within the Collateral to make such payments directly to Administrative Agent, in which case Borrower shall instruct that such payments be remitted to a post office box designated by and under the control of Administrative Agent and shall execute a lock box agreement and other documents related to the same as Administrative Agent shall request. All such payments shall be deposited into the Collateral Account. In addition to the foregoing, Borrower agrees that if any such payment is received by Borrower, Borrower shall as promptly as possible deposit such payments into the Collateral Account. Until so deposited, all such payments shall be held in trust by Borrower for Administrative Agent and shall not be commingled with any other funds or property of Borrower. So long as no Default or Event of Default shall have occurred and be continuing, collected funds on deposit in the Collateral Account shall be disbursed by Administrative Agent to an operating account in the name of Borrower maintained with Agent from time to time upon receipt of a disbursement request in forms reasonably acceptable to Administrative Agent. If an Event of Default shall have occurred and be continuing, disbursement of funds in the Collateral Account shall be made in the discretion of Administrative Agent or Majority Lenders. ARTICLE VII - Negative Covenants To conform with the terms and conditions under which each Lender is willing to have credit outstanding to Borrower, and to induce each Lender to enter into this Agreement and make the Loans, General Partner, Genesis Energy, L.P. and Borrower covenant and agree that until the full and final payment of the Obligations and the termination of this Agreement, unless Majority Lenders, or all Lenders as required under Section 10.1, have previously agreed otherwise: Section 7.1. Indebtedness. No Restricted Person will in any manner ------------ owe or be liable for Indebtedness except: (a)......the Obligations; (b)......Indebtedness of Borrower arising under Hedging Contracts (i) permitted under Section 7.3 or (ii) consisting of options, swaps, collars and similar instruments that relate to Petroleum Inventory and are either referred to in Section 7.16(a) or permitted by Section 7.16(b) or (c); (c)......Indebtedness of any Restricted Person owing to another Restricted Person; (d)......guaranties by Genesis Energy, L.P., Borrower or any Guarantor of trade payables of any Restricted Person incurred and paid in the ordinary course of business on ordinary trade terms; (e)......Indebtedness of any Restricted Person owing in connection with deferred payments of insurance premiums, provided that all such Indebtedness of all Restricted Persons shall not exceed $3,000,000 in any fiscal year; and (f)......other Indebtedness of Borrower not to exceed in the aggregate principal amount of $1,000,000 at any one time outstanding. Section 7.2. Limitation on Liens. No Restricted Person will create, assume or permit to exist (i) any Lien upon any Accounts, inventory, cash or investment securities which constitute Collateral except (A) Permitted Inventory Liens, (B) Liens created pursuant to the Security Documents, (C) statutory Liens in respect of First Purchase Crude Payables, (D) Liens of the type described in clause (e) below in connection with any Eligible Margin Deposit to secure Hedging Contracts permitted under Section 7.1 with the broker that is the holder of such Eligible Margin Deposit, (E) Liens of the type described in clauses (a), (c) and (f) below, and (F) any other Liens expressly permitted to encumber such Collateral under any Security Document covering such Collateral or (ii) any Lien upon any of the properties or assets other than such Collateral which it now owns or hereafter acquires except the following (Liens, to the extent permitted by this Section, herein called "Permitted Liens"): (a)......Liens created pursuant to this Agreement or the Security Documents and Liens existing on the date of this Agreement and listed in the Disclosure Schedule. (b)......Liens imposed by any governmental authority for taxes, assessments or charges not yet due or the validity of which is being contested in good faith and by appropriate proceedings, if necessary, and for which adequate reserves are maintained on the books of any Restricted Person in accordance with GAAP; (c)......pledges or deposits of cash or securities under worker's compensation and automobile insurance policies, unemployment insurance and employee medical insurance or other social security legislation not to exceed for all such items in the aggregate $1,000,000; (d)......carriers', warehousemen's, mechanics', materialmen's, repairmen's, landlord's, or other like Liens (including, without limitation, Liens on property of any Restricted Person in the possession of storage facilities, pipelines or barges) arising in the ordinary course of business for amounts which are not more than 60 days past due or the validity of which is being contested in good faith and by appropriate proceedings, if necessary, and for which adequate reserves are maintained on the books of any Restricted Person in accordance with GAAP; (e)......Liens under or with respect to accounts with brokers or counterparties with respect to Hedging Contracts consisting of cash, commodities or futures contracts, options, securities, instruments, and other like assets securing only Hedging Contracts permitted under Section 7.1; (f)......deposits of cash or securities to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business; (g)......easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of real property or minor imperfections in title thereto which, in the aggregate, are not material in amount, and which do not in any case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of any Restricted Person; (h)......Liens in respect of purchase money obligations and Capital Leases relating to Indebtedness permitted under Section 7.1(f), and Liens in respect of operating leases; (i)......rights reserved to or vested in any governmental authority by the terms of any right, power, franchise, grant, license or permit, or by any provision of law, to revoke or terminate any such right, power, franchise, grant, license or permit or to condemn or acquire by eminent domain or similar process; (j)......rights reserved to or vested by Law in any governmental authority to in any manner, control or regulate in any manner any of the properties of any Restricted Person or the use thereof or the rights and interests of any Restricted Person therein, in any manner under any and all Laws; (k)......rights reserved to the grantors of any properties of any Restricted Person, and the restrictions, conditions, restrictive covenants and limitations, in respect thereto, pursuant to the terms, conditions and provisions of any rights-of-way agreements, contracts or other agreements therewith; and (l)......inchoate Liens in respect of pending litigation or with respect to a judgment which has not resulted in an Event of Default under Section 8.1. Section 7.3. Hedging Contracts. No Restricted Person will be a party to or in any manner be liable on any Hedging Contract, except: (a)......Hedging Contracts entered into by a Restricted Person with the purpose and effect of fixing interest rates on a principal amount of indebtedness of such Restricted Person that is accruing interest at a variable rate, provided that (i) the aggregate notional amount of such contracts never exceeds one hundred percent (100%) of the anticipated outstanding principal balance of the indebtedness to be hedged by such contracts or an average of such principal balances calculated using a generally accepted method of matching interest swap contracts to declining principal balances, (ii) the floating rate index of each such contract generally matches the index used to determine the floating rates of interest on the corresponding indebtedness to be hedged by such contract and (iii) each such contract is with a counterparty or has a guarantor of the obligation of the counterparty who (unless such counterparty is a Lender or an Affiliate of any Lender at the time such contract is entered into) at the time the contract is made has long-term unsecured and unenhanced debt obligations rated A or A2 or better, respectively, by either Rating Agency or is otherwise acceptable to Majority Lenders. (b)......Hedging Contracts relating to Petroleum Inventory which are referred to in Section 7.16(a) or permitted by Section 7.16(b) or (c). Section 7.4. Limitation on Mergers, Issuances of Securities. Except as expressly provided in this section, no Restricted Person will (a) enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), (b) acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person except for purchases of inventory and other property to be sold or used in the ordinary course of business and Investments permitted under Section 7.7 hereof or (c) sell, transfer, lease, exchange, alienate or otherwise dispose of, in one transaction or a series of transactions, any part of its business or property, whether now owned or hereafter acquired, except for sales or transfers not prohibited under Section 7.5 hereof. Any Person, other than Borrower, that is a Subsidiary of a Restricted Person may, however, be merged into or consolidated with (i) another Subsidiary of such Restricted Person, so long as a Restricted Person is the surviving business entity, or (ii) such Restricted Person, so long as such Restricted Person is the surviving business entity. Genesis Energy, L.P. will not issue any securities other than (i) limited partnership interests and any options or warrants giving the holders thereof only the right to acquire such interests, and (ii) general partnership interests issued to the General Partner. No Subsidiary of Genesis Energy, L.P. will issue any additional shares of its capital stock or other securities or any options, warrants or other rights to acquire such additional shares or other securities except a direct Subsidiary of a Restricted Person may issue additional shares or other securities to such Restricted Person, to Genesis Energy, L.P. or to General Partner so long as (i) such Subsidiary is a Wholly Owned Subsidiary of Genesis Energy, L.P. after giving effect thereto, and (ii) such share and securities shall be pledged to the Administrative Agent for the benefit of the Lenders pursuant to Security Documents acceptable to the Administrative Agent. No Subsidiary of Borrower which is a partnership will allow any diminution of Borrower's interest (direct or indirect) therein. Section 7.5. Limitation on Sales of Property. No Restricted Person will sell, transfer, lease, exchange, alienate or dispose of any Collateral or any of its material assets or properties or any material interest therein except: (a)......equipment which is worthless or obsolete or no longer necessary or useful to the proper conduct of its business or which is replaced by equipment of equal suitability and value; (b)......inventory (including pipeline linefill) which is sold in the ordinary course of business on ordinary trade terms; (c)......sales or transfers, subject to the Security Documents, by a Person (other than Borrower) that is a Subsidiary of a Restricted Person to such Restricted Person or to a Wholly Owned Subsidiary of such Restricted Person that is a Guarantor; (d)......the sale of any other asset by Borrower or any Subsidiary so long as (A) the purchase price paid to Borrower or such Subsidiary for such asset shall be no less than the fair market value of such asset at the time of such sale, (B) the purchase price for such asset shall be paid to Borrower or such Subsidiary solely in cash, (C) the aggregate purchase price paid to Borrower and all of its Subsidiaries for such asset and all other assets sold by Borrower and its Subsidiaries during the same Fiscal Year pursuant to this clause (d) shall not exceed $2,000,000, (D) if the portion of the aggregate annual Consolidated EBITDA derived from all assets sold pursuant to this clause (d) (for each asset based on the four Fiscal Quarters prior to the sale of such asset) would exceed $1,000,000, the consent (not to be unreasonably withheld) of the Majority Lenders is obtained in connection with any such sale, (E) no Default or Event of Default shall exist prior to or after giving effect to such sale and (F) Agent shall have received a certificate from the Borrower demonstrating compliance with the conditions of this clause (d). No Restricted Person will sell, transfer or otherwise dispose of capital stock of or interest in any of its Subsidiaries except to Borrower or a Wholly Owned Subsidiary of Borrower, which shall pledge such capital stock or interest to the Administrative Agent for the benefit of the Lenders pursuant to Security Documents acceptable to the Administrative Agent. No Restricted Person will discount, sell, pledge or assign any notes payable to it, accounts receivable or future income. So long as no Default then exists, Administrative Agent will, at Borrower's request and expense, execute a release, satisfactory to Borrower and Administrative Agent, of any Collateral so sold, transferred, leased, exchanged, alienated or disposed of pursuant to clauses (a), (b) or (d) of this Section. Section 7.6. Limitation on Dividends and Redemptions. No Restricted Person will declare or pay any dividends on, or make any other distribution in respect of, any class of its capital stock or any partnership, limited liability company or other interest in it, nor will any Restricted Person directly or indirectly make any capital contribution of any nature to or purchase, redeem, acquire or retire any shares of the capital stock of or partnership or limited liability company interests in any Restricted Person (whether such interests are now or hereafter issued, outstanding or created), or cause or permit any reduction or retirement of the capital stock of any Restricted Person, while any Loan or commitment hereunder is outstanding; provided that Genesis Energy L.P. shall be permitted to make distributions to its general and limited partners to the extent required, as of the date hereof, by the Partnership Agreement if, at the time such distribution is made: (i) no Default exists, or would exist after giving effect to such distribution, (ii) the Borrower is not aware of any event or circumstance that exists, or is likely to occur in the future, that would result in a Default, and (iii) on the effective date of each Borrowing Base Report delivered during the Fiscal Quarter immediately preceding such distribution, the Borrowing Base shall have exceeded the Facility Usage by at least the sum of $10,000,000 plus the amount of such distribution (including, if more than one distribution is made during a Fiscal Quarter, all other such distributions made during the same Fiscal Quarter). No such distribution shall be made until 5 Business Days after the Borrower has available to it the financial statements contemplated by Section 6.2(a) or (b) for the Fiscal Quarter most recently ended prior to the date of such distribution and the Chief Financial Officer of the Borrower delivers to the Administrative Agent a certificate that the above conditions have been satisfied. Section 7.7. Limitation on Investments and New Businesses. No Restricted Person will (a) make any expenditure or commitment or incur any obligation or enter into or engage in any transaction except in the ordinary course of business, (b) engage directly or indirectly in any business or conduct any operations except in connection with or incidental to its present businesses and operations, or (c) make any acquisitions of or capital contributions to or other Investments in any Person, or make any acquisitions of material properties or assets of another Person other than Permitted Investments. All transactions permitted under the foregoing subsections (a) through (c), inclusive, are subject to Section 7.5. General Partner will not engage in any business other than the ownership of Genesis Energy, L.P. and Borrower. Section 7.8. Limitation on Credit Extensions. Except for Permitted Investments and Hedging Contracts permitted under Section 7.3(b) hereof, no Restricted Person will extend credit, make advances or make loans other than normal and prudent extensions of credit to customers buying goods and services in the ordinary course of business or to another Restricted Person in the ordinary course of business, which extensions shall not be for longer periods than those extended by similar businesses operated in a normal and prudent manner. Section 7.9. Transactions with Affiliates. No Restricted Person will engage in any material transaction with any of its Affiliates except: (a) transactions among Borrower and Wholly Owned Subsidiaries of Borrower, subject to the other provisions of this Agreement, and (b) transactions entered into in the ordinary course of business of such Restricted Person on terms which are no less favorable to such Restricted Person than those which would have been obtainable at the time in arm's-length transactions with Persons other than such Affiliates. Section 7.10. Prohibited Contracts. Except as expressly provided for in the Loan Documents and as described in the Disclosure Schedule, no Restricted Person will, directly or indirectly, enter into, create, or otherwise allow to exist any contract or other consensual restriction on the ability of any Subsidiary of Genesis Energy, L.P., including but not limited to Borrower and any Subsidiary of Borrower to: (a) pay dividends or make other distributions to Borrower or Genesis Energy, L.P., (b) redeem equity interests held in it by Borrower or Genesis Energy, L.P., (c) repay loans and other indebtedness owing by it to Borrower or Genesis Energy, L.P., or (d) transfer any of its assets to Borrower or Genesis Energy, L.P. No Restricted Person will, directly or indirectly, enter into, create, or otherwise allow to exist any contract or other consensual restriction on the ability of any Restricted Person to create Liens on any of its assets or property to secure the Obligations. No Restricted Person will enter into any "take-or-pay" contract or other contract or arrangement for the purchase of goods or services which obligates it to pay for such goods or service regardless of whether they are delivered or furnished to it other than contracts for pipeline capacity or for services in either case reasonably anticipated to be utilized in the ordinary course of business. No Restricted Person will amend or permit any amendment to any contract or lease which releases, qualifies, limits, makes contingent or otherwise detrimentally affects the rights and benefits of Administrative Agent or any Lender under or acquired pursuant to any Security Documents. No ERISA Affiliate will incur any obligation to contribute to any "multiemployer plan" as defined in Section 4001 of ERISA that is subject to Title IV of ERISA. Section 7.11. Current Ratio. The ratio of (i) the sum of Genesis Energy, L.P.'s Consolidated current assets plus the unutilized amount available for Loans hereunder pursuant to Section 2.1 to (ii) Genesis Energy, L.P.'s Consolidated current liabilities will never be less than 1.1 to 1.0. For purposes of this section, Genesis Energy, L.P.'s Consolidated current liabilities will be calculated without including any payments of principal on the Notes which are required to be repaid within one year from the time of calculation. Section 7.12. Leverage Ratio. (a) At the end of each Fiscal Quarter, (b) on each date on which General Partner declares a distribution permitted under Section 7.6 and (c) on the date of each Permitted Acquisition, both immediately prior to and after giving effect to the consummation thereof, the ratio of (i) Consolidated Funded Indebtedness on the date of determination to (ii) Consolidated EBITDA for the four Fiscal Quarter period most recently ended prior to the date of determination for which financial statements contemplated by Section 6.2(a) or (b) are available to Borrower shall not exceed 3.0 to 1.0. For purposes of this Section 7.12, if, since the beginning of the four Fiscal Quarter period ending on the date for which Consolidated EBITDA is determined, any Restricted Person shall have made any asset disposition or acquisition, shall have consolidated or merged with or into any Person (other than another Restricted Person), or shall have made any disposition or acquisition of a Restricted Person, Consolidated EBITDA shall be calculated giving pro forma effect thereto as if the disposition, acquisition, consolidation or merger had occurred on the first day of such period. Such pro forma effect shall be determined (i) in good faith by the chief financial officer of Borrower, and (ii) without giving effect to any anticipated or proposed change in operations, revenues, expenses or other items included in the computation of Consolidated EBITDA, except with the consent of Majority Lenders. Section 7.13. Cash Flow Coverage Ratio. The ratio of (a) the remainder of Consolidated EBITDA minus Maintenance Capital Expenditures for the period of four consecutive Fiscal Quarters then most recently ended to (b) the sum of Interest Expense for such period plus Distributions with respect to such period plus current maturities of long term indebtedness shall never be less than 1.1 to 1.0. For the purposes of this section 7.13, "Distributions" means distributions by Genesis Energy, L.P. to its general and limited partners made with respect to such period of four Fiscal Quarters where, for such purpose, distributions made during any Fiscal Quarter shall be deemed to have been made with respect to the immediately preceding Fiscal Quarter. Section 7.14. Funded Indebtedness to Capitalization Ratio. The ratio of (a) all Consolidated Funded Indebtedness to (b) the sum of Consolidated Funded Indebtedness plus Consolidated Net Worth will never be greater than 0.65 to 1.0 at any time. Section 7.15. Minimum EBITDA. Consolidated EBITDA for each period of four consecutive Fiscal Quarters ending after the date hereof shall never be less than $8,500,000. Section 7.16. Open Position; Certain Permitted Financial Instruments; ------------------------------------------------------- NYMEX Transactions. ------------------ (a)......Open Position. No Restricted Person shall at any time have ------------- any Open Positions; provided, however, that Borrower may have: (i) Physical inventories of Petroleum Inventory (A) consisting of tank bottoms and pipeline linefill requirements of up to 200,000 barrels in the aggregate at any time, and (B) excess inventory of up to 200,000 barrels in the aggregate at any time resulting from crude gathering receipts in excess of scheduled quantities, provided that Borrower shall establish an Offsetting Position with respect to such quantities within five business days following identification of such inventory, but in any event not later than the 20th day following the month in which such excess volumes were received. (ii) Floating Price Contracts to purchase or sell Petroleum Inventory in the Current Trading Month; provided that, such Floating Price Contracts either (A) have an Offsetting Position by the 26th day of the month preceding the month of receipt or delivery, or (B) are scheduled to be stored in pipelines Currently Approved by Majority Lenders and are hedged in the delivery month with NYMEX contracts; and further provided that such Floating Price Contracts relating to the sale of Petroleum Inventory for the Current Trading Month do not exceed purchases by more than 10,000 barrels per day. (iii) Floating Price Contracts to purchase or sell Petroleum Inventory to be received or delivered after the Current Trading Month, but within the twelve months following the Current Trading Month provided that (A) such contracts are at the then market price and (B) at any point in time the sum of (x) net realized losses relating to such contracts and (y) mark to market exposure relating to such contracts does not, at any time, exceed $1,000,000. As used herein, "Current Trading Month" means (i) with respect to the first twenty-five days of any calendar month, the next following calendar month and (ii) with respect to the period from the 26th day of a calendar month through the last day of such month, the second calendar month next following such month (for example, for the period from January 26th through February 25th, the Current Trading Month is March), "Floating Price Contract" means (i) a purchase or sale contract based upon a daily index such as a posted price or NYMEX price from time to time in effect during the delivery month and (ii) a NYMEX spread transaction in which the length of time between the offsetting purchase and sale obligations do not exceed twelve months. (b)......Certain Permitted Financial Instruments. No Restricted Person will write (i.e. sell) or otherwise participate in any swap, collar or similar agreement relating to Petroleum Inventory, or write (i.e. sell) any option, unless, with respect thereto, (i) such Restricted Person has an Offsetting Position in crude volumes and (ii) the counter-party (or guarantor to the obligations of such counter-party) at the time such financial instrument is made (A) has one or more long term unsecured and unenhanced debt obligations rated A or A2 or better, respectively, by either Rating Agency, or (B) is a Lender or an Affiliate of a Lender, or (C) is listed in the Disclosure Schedule. (c)......NYMEX Transactions. No Restricted Person will convert a NYMEX position to a physical position by way of an "exchange for physicals" or an "alternative delivery procedure" unless the credit extended in connection with such physical position would comply with the credit requirements of the definition of "Approved Eligible Receivables." Section 7.17. Redelivery of Borrowing Base Report. If, at any time, the amount of any component of the Borrowing Base, listed in item "(a)" of the definition thereof, shall decrease, or if any contract related to such item is modified, sold or exchanged in any way that would negatively affect the Borrowing Base, the Borrower shall immediately (i) deliver to Administrative Agent a revised Borrowing Base Report satisfactory to Administrative Agent, which Administrative Agent shall thereafter furnish to Lenders, and (ii) make any prepayment as may be required under Section 2.6 resulting from such reduced Borrowing Base. Section 7.18. Deposit Accounts. No Restricted Person shall at any time maintain any Deposit Account at any Bank (as such terms are defined in Article 9 of the UCC) other than Administrative Agent, except for Deposit Accounts whose deposits do not at any time exceed the aggregate amount of $1,000,000. No proceeds of Accounts or other Collateral shall be deposited (whether by check, wire transfer or lock-box service arrangement) in any Deposit Account other than a Deposit Account maintained at Administrative Agent or an account subject to an account access control agreement satisfactory to Administrative Agent except, during a period of up to two months from the date of this Agreement, amounts not to exceed $150,000 during any month. ARTICLE VIII - Events of Default and Remedies Section 8.1. Events of Default. Each of the following events ----------------- constitutes an Event of Default under this Agreement: (a)......Any Restricted Person fails to pay the principal component of any Loan or any reimbursement obligation with respect to any Letter of Credit when due and payable, whether at a date for the payment of a fixed installment or as a contingent or other payment becomes due and payable or as a result of acceleration or otherwise; (b)......Any Restricted Person fails to pay any Obligation (other than the Obligations in subsection (a) above) when due and payable, whether at a date for the payment of a fixed installment or as a contingent or other payment becomes due and payable or as a result of acceleration or otherwise, within three Business Days after the same becomes due; (c)......Any event defined as a "default" or "event of default" under or otherwise constituting a breach of in any Loan Document occurs, and the same is not remedied within the applicable period of grace (if any) provided in such Loan Document; (d)......Any Restricted Person fails to duly observe, perform or comply with any covenant, agreement or provision of Section 6.4 or Article VII; (e)......Any Restricted Person fails (other than as referred to in subsections (a), (b), (c) or (d) above) to duly observe, perform or comply with any covenant, agreement, condition or provision of any Loan Document to which it is a party, and such failure remains unremedied for a period of thirty (30) days after notice of such failure is given by Administrative Agent to Borrower; (f)......Any representation or warranty previously, presently or hereafter made in writing by or on behalf of any Restricted Person in connection with any Loan Document shall prove to have been false or incorrect in any material respect on any date on or as of which made, or any Loan Document at any time ceases to be valid, binding and enforceable as warranted in Section 5.5 for any reason other than its release or subordination by Administrative Agent; (g)......Any Restricted Person shall default in the payment when due of any principal of or interest on any of its other Indebtedness in excess of $250,000 in the aggregate (other than Indebtedness the validity of which is being contested in good faith by appropriate proceedings and for which adequate reserves with respect thereto are maintained on the books of such Restricted Person in accordance with GAAP), or any event specified in any note, agreement, indenture or other document evidencing or relating to any such Indebtedness shall occur if the effect of such event is to cause, or (with the giving of any notice or the lapse of time or both) to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, such Indebtedness to become due, or to be prepaid in full (whether by redemption, purchase, offer to purchase or otherwise), prior to its stated maturity; (h)......Either (i) any "accumulated funding deficiency" (as defined in Section 412(a) of the Code) in excess of $250,000 exists with respect to any ERISA Plan, whether or not waived by the Secretary of the Treasury or his delegate, or (ii) any Termination Event occurs with respect to any ERISA Plan and the amount of unfunded benefit liabilities as defined in Section 4001(a)(18) of ERISA of such ERISA Plan exceeds $250,000 (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); (i)......General Partner or any other Restricted Person: (i) has entered against it of a judgment, decree or order for relief by a Tribunal of competent jurisdiction in an involuntary proceeding commenced under any applicable bankruptcy, insolvency or other similar Law of any jurisdiction now or hereafter in effect, including the federal Bankruptcy Code, as from time to time amended, or has any such proceeding commenced against it, in each case, which remains undismissed for a period of sixty days; or (ii) commences a voluntary case under any applicable bankruptcy, insolvency or similar Law now or hereafter in effect, including the federal Bankruptcy Code, as from time to time amended; or applies for or consents to the entry of an order for relief in an involuntary case under any such Law; or makes a general assignment for the benefit of creditors; or is generally unable to pay (or admits in writing its inability to so pay) its debts as such debts become due; or takes corporate or other action to authorize any of the foregoing; or (iii) has entered against it the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of all or a substantial part of its assets in a proceeding brought against or initiated by it, and such appointment or taking possession is neither made ineffective nor discharged within sixty days after the making thereof, or such appointment or taking possession is at any time consented to, requested by, or acquiesced to by it; or (iv) has entered against it the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of any part of the Collateral in a proceeding brought against or initiated by it, and such appointment or taking possession is neither made ineffective nor discharged within sixty days after the making thereof, or such appointment or taking possession is at any time consented to, requested by, or acquiesced to by it; or (v) has entered against it a final judgment for the payment of money in excess of $250,000 (in each case not covered by insurance satisfactory to Administrative Agent in its discretion), unless the same is discharged within thirty days after the date of entry thereof or an appeal or appropriate proceeding for review thereof is taken within such period and a stay of execution pending such appeal is obtained; or (vi) suffers a writ or warrant of attachment or any similar process to be issued by any Tribunal against all or any substantial part of its assets or any part of the Collateral, and such writ or warrant of attachment or any similar process is not stayed or released within thirty days after the entry or levy thereof or after any stay is vacated or set aside; (j)......General Partner shall default in the payment when due of any principal of or interest on any of its Indebtedness in excess of $250,000 in the aggregate, or any event specified in any note, agreement, indenture or other document evidencing or relating to any such Indebtedness shall occur if the effect of such event is to cause, or (with the giving of any notice or the lapse of time or both) to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, such Indebtedness to become due, or to be prepaid in full (whether by redemption, purchase, offer to purchase or otherwise), prior to its stated maturity; (k)......Any Change in Control occurs; (l)......Any Material Market Open Position Loss occurs; (m)......Any Security Document shall for any reason (other than pursuant to the terms hereof and thereof) cease to create a valid and perfected first priority Lien in any asset having a value in excess of $100,000; (n)......During any twelve-month period, there shall have occurred a default in payment (and such default remains unremedied for five Business Days) of one or more Eligible Receivables in an amount exceeding $500,000 individually or $750,000 in the aggregate; (o)......During any period of 30 consecutive days, the beneficiaries of Letters of Credit shall make drafts or other demands for payment thereunder in an aggregate amount in excess of $500,000; or (p)......A Material Adverse Change shall occur. Upon the occurrence of an Event of Default described in subsection (i)(i), (i)(ii) or (i)(iii) of this section with respect to Borrower or Genesis Energy, L.P., all of the Obligations shall thereupon be immediately due and payable, without demand, presentment, notice of demand or of dishonor and nonpayment, protest, notice of protest, notice of intention to accelerate, declaration or notice of acceleration, or any other notice or declaration of any kind, all of which are hereby expressly waived by Borrower and each Restricted Person who at any time ratifies or approves this Agreement. Upon any such acceleration, any obligation of any Lender to make any further Loans and any obligation of LC Issuer to issue Letters of Credit hereunder shall be permanently terminated. During the continuance of any other Event of Default, Administrative Agent at any time and from time to time may (and upon written instructions from Majority Lenders, Administrative Agent shall), without notice to Borrower or any other Restricted Person, do either or both of the following: (1) terminate any obligation of Lenders to make Loans hereunder and any obligation of LC Issuer to issue Letters of Credit hereunder, and (2) declare any or all of the Obligations immediately due and payable, and all such Obligations shall thereupon be immediately due and payable, without demand, presentment, notice of demand or of dishonor and nonpayment, protest, notice of protest, notice of intention to accelerate, declaration or notice of acceleration, or any other notice or declaration of any kind, all of which are hereby expressly waived by Borrower and each Restricted Person who at any time ratifies or approves this Agreement. Section 8.2. Remedies. If any Default shall occur and be continuing, each Lender Party may protect and enforce its rights under the Loan Documents by any appropriate proceedings, including proceedings for specific performance of any covenant or agreement contained in any Loan Document, and each Lender Party may enforce the payment of any Obligations due it or enforce any other legal or equitable right which it may have. All rights, remedies and powers conferred upon Lender Parties under the Loan Documents shall be deemed cumulative and not exclusive of any other rights, remedies or powers available under the Loan Documents or at Law or in equity. ARTICLE IX - Administrative Agent Section 9.1. Appointment and Authority. Each Lender Party hereby irrevocably authorizes Administrative Agent, and Administrative Agent hereby undertakes, to receive payments of principal, interest and other amounts due hereunder as specified herein and to take all other actions and to exercise such powers under the Loan Documents as are specifically delegated to Administrative Agent by the terms hereof or thereof, together with all other powers reasonably incidental thereto. The relationship of Administrative Agent to the other Lender Parties is only that of one commercial lender acting as administrative agent for others, and nothing in the Loan Documents shall be construed to constitute Administrative Agent a trustee or other fiduciary for any Lender Party or any holder of any participation in a Note nor to impose on Administrative Agent duties and obligations other than those expressly provided for in the Loan Documents. With respect to any matters not expressly provided for in the Loan Documents and any matters which the Loan Documents place within the discretion of Administrative Agent, Administrative Agent shall not be required to exercise any discretion or take any action, and it may request instructions from Lenders with respect to any such matter, in which case it shall be required to act or to refrain from acting (and shall be fully protected and free from liability to all Lender Parties in so acting or refraining from acting) upon the instructions of Majority Lenders (including itself), provided, however, that Administrative Agent shall not be required to take any action which exposes it to a risk of personal liability that it considers unreasonable or which is contrary to the Loan Documents or to applicable Law. Upon receipt by Administrative Agent from Borrower of any communication calling for action on the part of Lenders or upon notice from Borrower or any Lender to Administrative Agent of any Default or Event of Default, Administrative Agent shall promptly notify each other Lender thereof. Section 9.2. Exculpation, Administrative Agent's Reliance, Etc. Neither Administrative Agent nor any of its directors, officers, agents, attorneys, or employees shall be liable for any action taken or omitted to be taken by any of them under or in connection with the Loan Documents, INCLUDING THEIR NEGLIGENCE OF ANY KIND, except that each shall be liable for its own gross negligence or willful misconduct. Without limiting the generality of the foregoing, Administrative Agent (a) may treat the payee of any Note as the holder thereof until Administrative Agent receives written notice of the assignment or transfer thereof in accordance with this Agreement, signed by such payee and in form satisfactory to Administrative Agent; (b) may consult with legal counsel (including counsel for Borrower), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (c) makes no warranty or representation to any other Lender Party and shall not be responsible to any other Lender Party for any statements, warranties or representations made in or in connection with the Loan Documents; (d) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of the Loan Documents on the part of any Restricted Person or to inspect the property (including the books and records) of any Restricted Person; (e) shall not be responsible to any other Lender Party for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of any Loan Document or any instrument or document furnished in connection therewith; (f) may rely upon the representations and warranties of each Restricted Person or Lender Party in exercising its powers hereunder; and (g) shall incur no liability under or in respect of the Loan Documents by acting upon any notice, consent, certificate or other instrument or writing (including any facsimile, telegram, cable or telex) believed by it to be genuine and signed or sent by the proper Person or Persons. Section 9.3. Credit Decisions. Each Lender Party acknowledges that it has, independently and without reliance upon any other Lender Party, made its own analysis of Borrower and the transactions contemplated hereby and its own independent decision to enter into this Agreement and the other Loan Documents. Each Lender Party also acknowledges that it will, independently and without reliance upon any other Lender Party 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 the Loan Documents. Section 9.4. Indemnification. EACH LENDER AGREES TO INDEMNIFY ADMINISTRATIVE AGENT (TO THE EXTENT NOT REIMBURSED BY BORROWER WITHIN TEN (10) DAYS AFTER DEMAND) FROM AND AGAINST SUCH LENDER'S PERCENTAGE SHARE OF ANY AND ALL LIABILITIES, OBLIGATIONS, CLAIMS, LOSSES, DAMAGES, PENALTIES, FINES, ACTIONS, JUDGMENTS, SUITS, SETTLEMENTS, COSTS, EXPENSES OR DISBURSEMENTS (INCLUDING REASONABLE FEES OF ATTORNEYS, ACCOUNTANTS, EXPERTS AND ADVISORS) OF ANY KIND OR NATURE WHATSOEVER (IN THIS SECTION COLLECTIVELY CALLED "LIABILITIES AND COSTS") WHICH TO ANY EXTENT (IN WHOLE OR IN PART) MAY BE IMPOSED ON, INCURRED BY, OR ASSERTED AGAINST ADMINISTRATIVE AGENT GROWING OUT OF, RESULTING FROM OR IN ANY OTHER WAY ASSOCIATED WITH ANY OF THE COLLATERAL, THE LOAN DOCUMENTS AND THE TRANSACTIONS AND EVENTS (INCLUDING THE ENFORCEMENT THEREOF) AT ANY TIME ASSOCIATED THEREWITH OR CONTEMPLATED THEREIN (WHETHER ARISING IN CONTRACT OR IN TORT OR OTHERWISE AND INCLUDING ANY VIOLATION OR NONCOMPLIANCE WITH ANY ENVIRONMENTAL LAWS BY ANY PERSON OR ANY LIABILITIES OR DUTIES OF ANY PERSON WITH RESPECT TO HAZARDOUS MATERIALS FOUND IN OR RELEASED INTO THE ENVIRONMENT). THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND COSTS ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY OR CAUSED, IN WHOLE OR IN PART, BY ANY NEGLIGENT ACT OR OMISSION OF ANY KIND BY ADMINISTRATIVE AGENT, provided only that no Lender shall be obligated under this section to indemnify Administrative Agent for that portion, if any, of any liabilities and costs which is proximately caused by Administrative Agent's own individual gross negligence or willful misconduct, as determined in a final judgment. Cumulative of the foregoing, each Lender agrees to reimburse Administrative Agent promptly upon demand for such Lender's Percentage Share of any costs and expenses to be paid to Administrative Agent by Borrower under Section 10.4(a) to the extent that Administrative Agent is not timely reimbursed for such expenses by Borrower as provided in such section. As used in this section the term "Administrative Agent" shall refer not only to the Person designated as such in Section 1.1 but also to each director, officer, agent, attorney, employee, representative and Affiliate of such Person. Section 9.5. Rights as Lender. In its capacity as a Lender, Administrative Agent shall have the same rights and obligations as any Lender and may exercise such rights as though it were not Administrative Agent. Administrative Agent may accept deposits from, lend money to, act as trustee under indentures of, and generally engage in any kind of business with any Restricted Person or their Affiliates, all as if it were not Administrative Agent hereunder and without any duty to account therefor to any other Lender. Section 9.6. Sharing of Set-Offs and Other Payments. Each Lender Party agrees that if it shall, whether through the exercise of rights under Security Documents or rights of banker's lien, set off, or counterclaim against Borrower or otherwise, obtain payment of a portion of the aggregate Obligations owed to it which, taking into account all distributions made by Administrative Agent under Section 3.1, causes such Lender Party to have received more than it would have received had such payment been received by Administrative Agent and distributed pursuant to Section 3.1, then (a) it shall be deemed to have simultaneously purchased and shall be obligated to purchase interests in the Obligations as necessary to cause all Lender Parties to share all payments as provided for in Section 3.1, and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that Administrative Agent and all Lender Parties share all payments of Obligations as provided in Section 3.1; provided, however, that nothing herein contained shall in any way affect the right of any Lender Party to obtain payment (whether by exercise of rights of banker's lien, set-off or counterclaim or otherwise) of indebtedness other than the Obligations. Borrower expressly consents to the foregoing arrangements and agrees that any holder of any such interest or other participation in the Obligations, whether or not acquired pursuant to the foregoing arrangements, may to the fullest extent permitted by Law and, subject to the provisions of Section 6.16, exercise any and all rights of banker's lien, set-off, or counterclaim as fully as if such holder were a holder of the Obligations in the amount of such interest or other participation. If all or any part of any funds transferred pursuant to this section is thereafter recovered from the holder of any such interest or other participation in the Obligations, under this section which received the same, the purchase provided for in this section shall be deemed to have been rescinded to the extent of such recovery, together with interest, if any, if interest is required pursuant to the order of a Tribunal to be paid on account of the possession of such funds prior to such recovery. Section 9.7. Investments. Whenever Administrative Agent in good faith determines that it is uncertain about how to distribute to Lender Parties any funds which it has received, or whenever Administrative Agent in good faith determines that there is any dispute among Lender Parties about how such funds should be distributed, Administrative Agent may choose to defer distribution of the funds which are the subject of such uncertainty or dispute. If Administrative Agent in good faith believes that the uncertainty or dispute will not be promptly resolved, or if Administrative Agent is otherwise required to invest funds pending distribution to Lender Parties, Administrative Agent shall invest such funds pending distribution; all interest on any such Investment shall be distributed upon the distribution of such Investment and in the same proportion and to the same Persons as such Investment. All moneys received by Administrative Agent for distribution to Lender Parties (other than to the Person who is Administrative Agent in its separate capacity as a Lender Party) shall be held by Administrative Agent pending such distribution solely as Administrative Agent for such Lender Parties, and Administrative Agent shall have no equitable title to any portion thereof. Section 9.8. Benefit of Article IX. The provisions of this Article are intended solely for the benefit of Lender Parties, and no Restricted Person shall be entitled to rely on any such provision or assert any such provision in a claim or defense against any Lender (other than in relation to the reference to Section 6.16 contained in Section 9.6 or the right to reasonably approve a successor Administrative Agent under Section 9.9). Lender Parties may waive or amend such provisions as they desire without any notice to or consent of Borrower or any other Restricted Person. Section 9.9. Resignation. Administrative Agent may resign at any time by giving written notice thereof to Lenders and Borrower. Each such notice shall set forth the date of such resignation. Upon any such resignation Majority Lenders shall have the right to appoint a successor Administrative Agent, subject to the approval of Borrower, unless a Default has occurred and is continuing, which approval will not be unreasonably withheld. A successor must be appointed for any retiring Administrative Agent, and such Administrative Agent's resignation shall become effective when such successor accepts such appointment. If, within thirty days after the date of the retiring Administrative Agent's resignation, no successor Administrative Agent has been appointed and has accepted such appointment, then the retiring Administrative Agent may appoint a successor Administrative Agent, which shall be a commercial bank organized or licensed to conduct a banking or trust business under the Laws of the United States of America or of any state thereof. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent, the retiring Administrative Agent shall be discharged from its duties and obligations under this Agreement and the other Loan Documents. After any retiring Administrative Agent's resignation hereunder the provisions of this Article IX shall continue to inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under the Loan Documents. ARTICLE X - Miscellaneous Section 10.1. Waivers and Amendments; Acknowledgments. --------------------------------------- (a)......Waivers and Amendments. No failure or delay (whether by course of conduct or otherwise) by any Lender in exercising any right, power or remedy which such Lender Party may have under any of the Loan Documents shall operate as a waiver thereof or of any other right, power or remedy, nor shall any single or partial exercise by any Lender Party of any such right, power or remedy preclude any other or further exercise thereof or of any other right, power or remedy. No waiver of any provision of any Loan Document and no consent to any departure therefrom shall ever be effective unless it is in writing and signed as provided below in this section, and then such waiver or consent shall be effective only in the specific instances and for the purposes for which given and to the extent specified in such writing. No notice to or demand on any Restricted Person shall in any case of itself entitle any Restricted Person to any other or further notice or demand in similar or other circumstances. This Agreement and the other Loan Documents set forth the entire understanding between the parties hereto with respect to the transactions contemplated herein and therein and supersede all prior discussions and understandings with respect to the subject matter hereof and thereof, and no waiver, consent, release, modification or amendment of or supplement to this Agreement or the other Loan Documents shall be valid or effective against any party hereto unless the same is in writing and signed by (i) if such party is Borrower, by Borrower, (ii) if such party is Administrative Agent or LC Issuer, by such party, and (iii) if such party is a Lender, by such Lender or by Administrative Agent on behalf of Lenders with the written consent of Majority Lenders (which consent has already been given as to the termination of the Loan Documents as provided in Section 10.9). Notwithstanding the foregoing or anything to the contrary herein, Administrative Agent shall not, without the prior consent of each individual Lender, execute and deliver on behalf of such Lender any waiver or amendment which would: (1) waive any of the conditions specified in Article IV (provided that Administrative Agent may in its discretion withdraw any request it has made under Section 4.2(g)), (2) increase the Percentage Share of any such Lender or increase the Maximum Facility Amount or Maximum Loan Amount or subject such Lender to any additional obligations, (3) reduce any fees payable to such Lender hereunder, or the principal of, or interest on, such Lender's Note, (4) change any date fixed for any payment of any such fees, principal or interest, (5) amend the definition herein of "Borrowing Base" or any of the terms used in that definition, (6) amend the definition herein of "Majority Lenders" or otherwise change the aggregate amount of Percentage Shares which is required for Administrative Agent, Lenders or any of them to take any particular action under the Loan Documents, (7) release Borrower from its obligation to pay such Lender's Note or any Guarantor from its guaranty of such payment, except a release of a Guarantor that has ceased to be a Subsidiary of Borrower or Genesis Energy, L.P. in a transaction permitted under this Agreement, (8) release all or any substantial portion of the Collateral, except such releases relating to sales of property permitted under Section 7.5 or (9) permit a Restricted Person to make an acquisition of or other Investments in any Person other than Permitted Investments. (b)......Acknowledgments and Admissions. Borrower hereby represents, warrants, acknowledges and admits that (i) it has been advised by counsel in the negotiation, execution and delivery of the Loan Documents to which it is a party, (ii) it has made an independent decision to enter into this Agreement and the other Loan Documents to which it is a party, without reliance on any representation, warranty, covenant or undertaking by Administrative Agent or any other Lender Party, whether written, oral or implicit, other than as expressly set out in this Agreement or in another Loan Document delivered on or after the date hereof, (iii) there are no representations, warranties, covenants, undertakings or agreements by any Lender Party as to the Loan Documents except as expressly set out in this Agreement or in another Loan Document delivered on or after the date hereof, (iv) no Lender Party has any fiduciary obligation toward Borrower with respect to any Loan Document or the transactions contemplated thereby, (v) the relationship pursuant to the Loan Documents between Borrower and the other Restricted Persons, on one hand, and each Lender Party, on the other hand, is and shall be solely that of debtor and creditor, respectively, (vi) no partnership or joint venture exists with respect to the Loan Documents between any Restricted Person and any Lender Party, (vii) Administrative Agent is not Borrower's Administrative Agent, but Administrative Agent for Lenders, (viii) should an Event of Default or Default occur or exist, each Lender Party will determine in its sole discretion and for its own reasons what remedies and actions it will or will not exercise or take at that time, (ix) without limiting any of the foregoing, Borrower is not relying upon any representation or covenant by any Lender Party, or any representative thereof, and no such representation or covenant has been made, that any Lender Party will, at the time of an Event of Default or Default, or at any other time, waive, negotiate, discuss, or take or refrain from taking any action permitted under the Loan Documents with respect to any such Event of Default or Default or any other provision of the Loan Documents, and (x) all Lender Parties have relied upon the truthfulness of the acknowledgments in this section in deciding to execute and deliver this Agreement and to become obligated hereunder. (c)......Representation by Lenders. Each Lender hereby represents that it will acquire its Note for its own account in the ordinary course of its commercial lending business; however, the disposition of such Lender's property shall at all times be and remain within its control and, in particular and without limitation, such Lender may sell or otherwise transfer its Note, any participation interest or other interest in its Note, or any of its other rights and obligations under the Loan Documents subject to compliance with Sections 10.5(b) through (g), inclusive, and applicable Law. (d)......Joint Acknowledgment. THIS WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS 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. Section 10.2. Survival of Agreements; Cumulative Nature. All of Restricted Persons' various representations, warranties, covenants and agreements in the Loan Documents shall survive the execution and delivery of this Agreement and the other Loan Documents and the performance hereof and thereof, including the making or granting of the Loans and the delivery of the Notes and the other Loan Documents, and shall further survive until all of the Obligations are paid in full to each Lender Party and all of Lender Parties' obligations to Borrower are terminated. All statements and agreements contained in any certificate or other instrument delivered by any Restricted Person to any Lender Party under any Loan Document shall be deemed representations and warranties by Borrower or agreements and covenants of Borrower under this Agreement. The representations, warranties, indemnities, and covenants made by Restricted Persons in the Loan Documents, and the rights, powers, and privileges granted to Lender Parties in the Loan Documents, are cumulative, and, except for expressly specified waivers and consents, no Loan Document shall be construed in the context of another to diminish, nullify, or otherwise reduce the benefit to any Lender Party of any such representation, warranty, indemnity, covenant, right, power or privilege. In particular and without limitation, no exception set out in this Agreement to any representation, warranty, indemnity, or covenant herein contained shall apply to any similar representation, warranty, indemnity, or covenant contained in any other Loan Document, and each such similar representation, warranty, indemnity, or covenant shall be subject only to those exceptions which are expressly made applicable to it by the terms of the various Loan Documents. Section 10.3. Notices. All notices, requests, consents, demands and other communications required or permitted under any Loan Document shall be in writing, unless otherwise specifically provided in such Loan Document (provided that Administrative Agent may give telephonic notices to the other Lender Parties), and shall be deemed sufficiently given or furnished if delivered by personal delivery, by facsimile or other electronic transmission, by delivery service with proof of delivery, or by registered or certified United States mail, postage prepaid, to Borrower and Restricted Persons at the address of Borrower specified on the signature pages hereto and to each Lender Party at its address specified on the signature pages hereto (unless changed by similar notice in writing given by the particular Person whose address is to be changed). Any such notice or communication shall be deemed to have been given (a) in the case of personal delivery or delivery service, as of the date of first attempted delivery during normal business hours at the address provided herein, (b) in the case of facsimile or other electronic transmission, upon receipt, or (c) in the case of registered or certified United States mail, three days after deposit in the mail; provided, however, that no Borrowing Notice or Continuation/Conversion Notice shall become effective until actually received by Administrative Agent. Section 10.4. Payment of Expenses; Indemnity. ------------------------------ (a)......Payment of Expenses. Whether or not the transactions contemplated by this Agreement are consummated, Borrower will promptly (and in any event, within 30 days after any invoice or other statement or notice) pay: (i) all transfer, stamp, mortgage, documentary or other similar taxes, assessments or charges levied by any governmental or revenue authority in respect of this Agreement or any of the other Loan Documents or any other document referred to herein or therein, (ii) all reasonable costs and expenses incurred by or on behalf of Administrative Agent (including attorneys' fees, consultants' fees and engineering fees, travel costs and miscellaneous expenses) in connection with (1) the negotiation, preparation, execution and delivery of the Loan Documents, and any and all consents, waivers or other documents or instruments relating thereto, (2) the filing, recording, refiling and re-recording of any Loan Documents and any other documents or instruments or further assurances required to be filed or recorded or refiled or re-recorded by the terms of any Loan Document, (3) the borrowings hereunder and other action reasonably required in the course of administration hereof, (4) monitoring or confirming (or preparation or negotiation of any document related to) any Restricted Person's compliance with any covenants or conditions contained in this Agreement or in any Loan Document, and (iii) all reasonable costs and expenses incurred by or on behalf of any Lender Party (including attorneys' fees, consultants' fees and accounting fees) in connection with the defense or enforcement of any of the Loan Documents (including this section), any attempt to cure any breach thereunder by any Restricted Person or the defense of any Lender Party's exercise of its rights thereunder. In addition to the foregoing, until all Obligations have been paid in full, Borrower will also pay or reimburse Administrative Agent for all reasonable out-of-pocket costs and expenses of Administrative Agent or its agents or employees in connection with the continuing administration of the Loans and the related due diligence of Administrative Agent, including travel and miscellaneous expenses and fees and expenses of Administrative Agent's outside counsel, reserve engineers and consultants engaged in connection with the Loan Documents. (b)......Indemnity. Borrower agrees to indemnify each Lender Party, upon demand, from and against any and all liabilities, obligations, claims, losses, damages, penalties, fines, actions, judgments, suits, settlements, costs, expenses or disbursements (including reasonable fees of attorneys, accountants, experts and advisors) of any kind or nature whatsoever (in this section collectively called "liabilities and costs") which to any extent (in whole or in part) may be imposed on, incurred by, or asserted against such Lender Party growing out of, resulting from or in any other way associated with any of the Collateral, the Loan Documents and the transactions and events (including the enforcement or defense thereof) at any time associated therewith or contemplated therein whether arising in contract or in tort or otherwise and including any violation or noncompliance with any Environmental Laws by any Lender Party or any other Person or any liabilities or duties of any Lender Party or any other Person with respect to Hazardous Materials found in or released into the environment). THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND COSTS ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY OR CAUSED, IN WHOLE OR IN PART, BY ANY NEGLIGENT ACT OR OMISSION OF ANY KIND BY ANY LENDER PARTY, provided only that no Lender Party shall be entitled under this section to receive indemnification for that portion, if any, of any liabilities and costs which is proximately caused by its own individual gross negligence or willful misconduct, as determined in a final judgment. If any Person (including Borrower or any of its Affiliates) ever alleges such gross negligence or willful misconduct by any Lender Party, the indemnification provided for in this section shall nonetheless be paid upon demand, subject to later adjustment or reimbursement, until such time as a court of competent jurisdiction enters a final judgment as to the extent and effect of the alleged gross negligence or willful misconduct. As used in this section the term "Lender Party" shall refer not only to each Person designated as such in Section 1.1 but also to each director, officer, agent, attorney, employee, representative and Affiliate of such Persons. Section 10.5. Joint and Several Liability; Parties in Interest; ------------------------------------------------- Assignments; Replacement Notes. ------------------------------ (a)......All Obligations which are incurred by two or more Restricted Persons shall be their joint and several obligations and liabilities. All grants, covenants and agreements contained in the Loan Documents shall bind and inure to the benefit of the parties thereto and their respective successors and permitted assigns; provided, however, that no Restricted Person may assign or transfer any of its rights or delegate any of its duties or obligations under any Loan Document without the prior consent of all Lenders. Neither Borrower nor any Affiliates of Borrower shall directly or indirectly purchase or otherwise retire any Obligations owed to any Lender nor will any Lender accept any offer to do so, unless each Lender shall have received substantially the same offer with respect to the same Percentage Share of the Obligations owed to it. If Borrower or any Affiliate of Borrower at any time purchases some but less than all of the Obligations owed to all Lender Parties, such purchaser shall not be entitled to any rights of any Lender under the Loan Documents unless and until Borrower or its Affiliates have purchased all of the Obligations. (b)......No Lender shall sell any participation interest in its commitment hereunder or any of its rights under its Loans or under the Loan Documents to any Person unless the agreement between such Lender and such participant at all times provides: (i) that such participation exists only as a result of the agreement between such participant and such Lender and that such transfer does not give such participant any right to vote as a Lender or any other direct claims or rights against any Person other than such Lender, (ii) that such participant is not entitled to payment from any Restricted Person under Sections 3.2 through 3.7 of amounts in excess of those payable to such Lender under such sections (determined without regard to the sale of such participation), and (iii) unless such participant is an Affiliate of such Lender, that such participant shall not be entitled to require such Lender to take any action under any Loan Document or to obtain the consent of such participant prior to taking any action under any Loan Document, except for actions which would require the consent of all Lenders under subsection (a) of Section 10.1. No Lender selling such a participation shall, as between the other parties hereto and such Lender, be relieved of any of its obligations hereunder as a result of the sale of such participation. Each Lender which sells any such participation to any Person (other than an Affiliate of such Lender) shall give prompt notice thereof to Administrative Agent and Borrower; provided, however, that no liability shall arise if any Lender fails to give such notice to Borrower. (c)......Except for sales of participations under the immediately preceding subsection, no Lender shall make any assignment or transfer of any kind of its commitments or any of its rights under its Loans or under the Loan Documents, except for assignments to an Eligible Transferee, or, subject to the provisions of subsection (g) below, to an Affiliate and then only if such assignment is made in accordance with the following requirements: (i) Each such assignment shall apply to all Obligations owing to the assignor Lender hereunder and to the unused portion of the assignor Lender's commitments, so that after such assignment is made the assignor Lender shall have a fixed (and not a varying) Percentage Share in its Loans and Note and be committed to make that Percentage Share of all future Loans, the assignee shall have a fixed Percentage Share in such Loans and Note and be committed to make that Percentage Share of all future Loans, and the Percentage Share of the Maximum Loan Amount of each of the assignor and assignee shall equal or exceed $10,000,000. (ii) The parties to each such assignment shall execute and deliver to Administrative Agent, for its acceptance and recording in the "Register" (as defined below in this section), an Assignment and Acceptance in the form of Exhibit J, appropriately completed, together with the Note subject to such assignment and a processing fee payable by such assignor Lender (and not at Borrower's expense) to Administrative Agent of $3,500. Upon such execution, delivery, and payment and upon the satisfaction of the conditions set out in such Assignment and Acceptance, then (i) Borrower shall issue new Notes to such assignor and assignee upon return of the old Notes to Borrower, and (ii) as of the "Settlement Date" specified in such Assignment and Acceptance the assignee thereunder shall be a party hereto and a Lender hereunder and Administrative Agent shall thereupon deliver to Borrower and each Lender a revised Schedule 1 hereto showing the revised Percentage Shares of such assignor Lender and such assignee Lender and the Percentage Shares of all other Lenders. (iii) Each assignee Lender organized under the laws of a jurisdiction outside of the United States shall (to the extent it has not already done so) provide Administrative Agent and Borrower with the "Prescribed Forms" referred to in Section 3.7(d). (d)......Any Lender may at any time pledge all or any portion of its Loan and Note (and related rights under the Loan Documents including any portion of its Note) to any of the twelve (12) Federal Reserve Banks organized under Section 4 of the Federal Reserve Act, 12 U.S.C. Section 341. No such pledge or enforcement thereof shall release any such Lender from its obligations under any of the Loan Documents; provided that all related costs, fees and expenses in connection with any such pledge shall be for the sole account of such Lender. (e)......By executing and delivering an Assignment and Acceptance, each assignee Lender thereunder will be confirming to and agreeing with Borrower, Administrative Agent and each other Lender Party that such assignee understands and agrees to the terms hereof, including Article IX hereof. (f)......Administrative Agent shall maintain a copy of each Assignment and Acceptance and a register for the recordation of the names and addresses of Lenders and the Percentage Shares of, and principal amount of the Loans owing to, each Lender from time to time (in this section called the "Register"). The entries in the Register shall be conclusive, in the absence of manifest error, and Borrower and each Lender Party may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes. The Register shall be available for inspection by Borrower or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (g)......Any Lender may assign or transfer its commitment or its rights under its Loans or under the Loan Documents to (i) any Affiliate that is wholly-owned direct or indirect subsidiary of such Lender or of any Person that wholly owns, directly or indirectly, such Lender, or (ii) if such Lender is a fund that invests in bank loans, any other fund that invests in bank loans and is advised or managed by (A) the same investment advisor as any Lender or (B) any Affiliate of such investment advisor that is a wholly-owned direct or indirect subsidiary of any Person that wholly owns, directly or indirectly, such investment advisor, subject to the following additional conditions: (x) any right of such Lender assignor and such assignee to vote as a Lender, or any other direct claims or rights against any other Persons, shall be uniformly exercised or pursued in the manner that such Lender assignor would have so exercised such vote, claim or right if it had not made such assignment or transfer; (y) such assignee shall not be entitled to payment from any Restricted Person under Sections 3.2 through 3.7 of amounts in excess of those payable to such Lender assignor under such sections (determined without regard to such assignment or transfer); and (z) if such Lender assignor assigns or transfers to such assignee any of such Lender's commitment, such assignee may become primarily liable for such commitment, but such assignment or transfer shall not relieve or release such Lender from such commitment. (h)......Upon receipt of an affidavit reasonably satisfactory to Borrower of an officer of any Lender as to the loss, theft, destruction or mutilation of its Note or any Security Document which is not of public record, and, in the case of any such loss, theft, destruction or mutilation, upon cancellation of such Note or such Security Document, Borrower will execute and deliver, in lieu thereof, a replacement Note in the same principal amount thereof and otherwise of like tenor (or each Restricted Person a party to any such Security Document will execute and deliver a replacement Security Document of like tenor). Section 10.6. Confidentiality. Each Lender Party agrees (on behalf of itself and each of its Affiliates, and each of its and their directors, officers, agents, attorneys, employees, and representatives) that it (and each of them) will take all reasonable steps to keep confidential any non-public information supplied to it by or at the direction of any Restricted Person so identified when delivered, provided, however, that this restriction shall not apply to (a) information which has at the time in question entered the public domain, (b) information which is required to be disclosed by Law (whether valid or invalid) of any Tribunal, (c) any disclosure to any Lender Party's Affiliates, auditors, attorneys, or agents, (d) any disclosure to any other Lender Party or to any purchaser or prospective purchaser of participations or other interests in any Loan or Loan Document (provided each such Person first agrees to hold such information in confidence on the terms provided in this section), or (e) any disclosure in the course of enforcing its rights and remedies during the existence of an Event of Default. Section 10.7. Governing Law; Submission to Process. EXCEPT TO THE EXTENT THAT THE LAW OF ANOTHER JURISDICTION IS EXPRESSLY ELECTED IN A LOAN DOCUMENT, THE LOAN DOCUMENTS SHALL BE DEEMED CONTRACTS AND INSTRUMENTS MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK AND THE LAWS OF THE UNITED STATES OF AMERICA, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. BORROWER HEREBY AGREES THAT ANY LEGAL ACTION OR PROCEEDING AGAINST BORROWER WITH RESPECT TO THIS AGREEMENT, THE NOTES OR ANY OF THE LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AS LENDER PARTIES MAY ELECT, AND, BY EXECUTION AND DELIVERY HEREOF, BORROWER ACCEPTS AND CONSENTS FOR ITSELF AND IN RESPECT TO ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. BORROWER AGREES THAT SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK SHALL APPLY TO THE LOAN DOCUMENTS AND WAIVES ANY RIGHT TO STAY OR TO DISMISS ANY ACTION OR PROCEEDING BROUGHT BEFORE SAID COURTS ON THE BASIS OF FORUM NON CONVENIENS. IN FURTHERANCE OF THE FOREGOING, BORROWER HEREBY IRREVOCABLY DESIGNATES AND APPOINTS CORPORATION SERVICE COMPANY, 80 STATE STREET, ALBANY, NEW YORK 12207, AS AGENT OF BORROWER TO RECEIVE SERVICE OF ALL PROCESS BROUGHT AGAINST BORROWER WITH RESPECT TO ANY SUCH PROCEEDING IN ANY SUCH COURT IN NEW YORK, SUCH SERVICE BEING HEREBY ACKNOWLEDGED BY BORROWER TO BE EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT. COPIES OF ANY SUCH PROCESS SO SERVED SHALL ALSO BE SENT BY REGISTERED MAIL TO BORROWER AT ITS ADDRESS SET FORTH BELOW, BUT THE FAILURE OF BORROWER TO RECEIVE SUCH COPIES SHALL NOT AFFECT IN ANY WAY THE SERVICE OF SUCH PROCESS AS AFORESAID. BORROWER SHALL FURNISH TO LENDER PARTIES A CONSENT OF CORPORATION SERVICE COMPANY AGREEING TO ACT HEREUNDER PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. NOTHING HEREIN SHALL AFFECT THE RIGHT OF LENDER PARTIES TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF LENDER PARTIES TO BRING PROCEEDINGS AGAINST BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. IF FOR ANY REASON CORPORATION SERVICE COMPANY SHALL RESIGN OR OTHERWISE CEASE TO ACT AS BORROWER'S AGENT, BORROWER HEREBY IRREVOCABLY AGREES TO (A) IMMEDIATELY DESIGNATE AND APPOINT A NEW AGENT ACCEPTABLE TO ADMINISTRATIVE AGENT TO SERVE IN SUCH CAPACITY AND, IN SUCH EVENT, SUCH NEW AGENT SHALL BE DEEMED TO BE SUBSTITUTED FOR CORPORATION SERVICE COMPANY FOR ALL PURPOSES HEREOF AND (B) PROMPTLY DELIVER TO AGENT THE WRITTEN CONSENT (IN FORM AND SUBSTANCE SATISFACTORY TO ADMINISTRATIVE AGENT) OF SUCH NEW AGENT AGREEING TO SERVE IN SUCH CAPACITY. Section 10.8. Limitation on Interest. Lender Parties, Restricted Persons and any other parties to the Loan Documents intend to contract in strict compliance with applicable usury Law from time to time in effect. In furtherance thereof such Persons stipulate and agree that none of the terms and provisions contained in the Loan Documents shall ever be construed to create a contract to pay, for the use, forbearance or detention of money, interest in excess of the maximum amount of interest permitted to be contracted for, charged, or received by applicable Law from time to time in effect. Neither any Restricted Person nor any present or future guarantors, endorsers, or other Persons hereafter becoming liable for payment of any Obligation shall ever be liable for unearned interest thereon or shall ever be required to pay interest thereon in excess of the maximum amount that may be lawfully contracted for, charged, or received under applicable Law from time to time in effect, and the provisions of this section shall control over all other provisions of the Loan Documents which may be in conflict or apparent conflict herewith. Lender Parties expressly disavow any intention to contract for, charge, or receive excessive unearned interest or finance charges in the event the maturity of any Obligation is accelerated. If (a) the maturity of any Obligation is accelerated for any reason, (b) any Obligation is prepaid and as a result any amounts held to constitute interest are determined to be in excess of the legal maximum, or (c) any Lender or any other holder of any or all of the Obligations shall otherwise collect moneys which are determined to constitute interest which would otherwise increase the interest on any or all of the Obligations to an amount in excess of that permitted to be contracted for, charged or received by applicable Law then in effect, then all sums determined to constitute interest in excess of such legal limit shall, without penalty, be promptly applied to reduce the then outstanding principal of the related Obligations or, at such Lender's or holder's option, promptly returned to Borrower or other payor thereof upon such determination. In determining whether or not the interest paid or payable, under any specific circumstance, exceeds the maximum amount permitted under applicable Law, Lender Parties and Restricted Persons (and any other payors thereof) shall to the greatest extent permitted under applicable Law, (i) characterize any non-principal payment as an expense, fee or premium rather than as interest, (ii) exclude voluntary prepayments and the effects thereof, and (iii) amortize, prorate, allocate, and spread the total amount of interest throughout the entire contemplated term of the instruments evidencing the Obligations in accordance with the amounts outstanding from time to time thereunder and the maximum legal rate of interest from time to time in effect under applicable Law in order to lawfully charge the maximum amount of interest permitted under applicable Law. Section 10.9. Termination; Limited Survival. In its sole and absolute discretion Borrower may at any time that no Obligations are owing or outstanding elect in a written notice delivered to Administrative Agent to terminate this Agreement. Upon receipt by Administrative Agent of such a notice, if no Obligations are then owing or outstanding this Agreement and all other Loan Documents shall thereupon be terminated and the parties thereto released from all prospective obligations thereunder. Notwithstanding the foregoing or anything herein to the contrary, any waivers or admissions made by any Restricted Person in any Loan Document, any Obligations under Sections 3.2 through 3.7, and any obligations which any Person may have to indemnify or compensate any Lender Party shall survive any termination of this Agreement or any other Loan Document. At the request and expense of Borrower, Administrative Agent shall prepare and execute all necessary instruments to reflect and effect such termination of the Loan Documents. Administrative Agent is hereby authorized to execute all such instruments on behalf of all Lenders, without the joinder of or further action by any Lender. Section 10.10. Severability. If any term or provision of any Loan Document shall be determined to be illegal or unenforceable all other terms and provisions of the Loan Documents shall nevertheless remain effective and shall be enforced to the fullest extent permitted by applicable Law. Section 10.11. Counterparts. This Agreement may be separately executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to constitute one and the same Agreement. Section 10.12. Waiver of Jury Trial, Punitive Damages, etc. RESTRICTED PERSONS AND LENDER PARTIES MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR LENDERS TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND MAKE THE LOANS. BORROWER AND EACH LENDER PARTY HEREBY FURTHER (A) IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY "SPECIAL DAMAGES," AS DEFINED BELOW, (B) CERTIFIES THAT NO PARTY HERETO NOR ANY REPRESENTATIVE OR AGENT OR COUNSEL FOR ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS, AND (C) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION. AS USED IN THIS SECTION, "SPECIAL DAMAGES" INCLUDES ALL SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES (REGARDLESS OF HOW NAMED), BUT DOES NOT INCLUDE ANY PAYMENTS OR FUNDS WHICH ANY PARTY HERETO HAS EXPRESSLY PROMISED TO PAY OR DELIVER TO ANY OTHER PARTY HERETO. Section 10.13. Restatement of Existing Credit Agreement. Effective as of the Closing Date, the Existing Credit Agreement, all Loan Documents and Security Documents (as such terms are defined therein), and all Liens and security interests created thereunder have been assigned to Administrative Agent, for the benefit of the Lenders pursuant to a certain Assignment of Note, Mortgage and Liens in the form set forth as Exhibit L, save and except certain Reserved Obligations specified therein. Accordingly, this Agreement amends and restates the Existing Credit Agreement in its entirety, effective as of the Closing Date. The loans and all other obligations outstanding under the Existing Credit Agreement, except such Reserved Obligations, shall be deemed to be outstanding Loans and Obligations under and governed by this Agreement, effective as of the Closing Date. Borrower hereby acknowledges, warrants, represents and agrees that this Agreement is not intended to be, and shall not be deemed or construed to be, a novation or release of the Existing Credit Agreement. Borrower, Administrative Agent and Lenders hereby acknowledge and agree that (i) the Notes will amend and restate the Notes outstanding under the Existing Credit Agreement and (ii) the initial Loans by each Lender on the Closing Date shall, to the extent of the Loans outstanding under the Existing Credit Agreement, be funded under such Assignment of Note, Mortgage and Liens. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.] IN WITNESS WHEREOF, this Agreement is executed as of the date first written above. BORROWER: GENESIS CRUDE OIL, L.P. By: GENESIS ENERGY, INC., its general partner By: /s/ Ross A. Benavides --------------------- Ross A. Benavides, Chief Financial Officer GUARANTOR: GENESIS ENERGY, INC. By: /s/ Ross A. Benavides --------------------- Ross A. Benavides, Chief Financial Officer GENESIS ENERGY, L.P. By: GENESIS ENERGY, INC., its general partner By: /S/ Ross A. Benavides --------------------- Ross A. Benavides, Chief Financial Officer Address for Borrower and Guarantors: 500 Dallas Street, Suite 2500 Houston, Texas 77002 Attention: Ross A. Benavides Telephone: 713-860-2528 Fax: 713-860-2636 c: y: FLEET NATIONAL BANK, Administrative Agent, LC Issuer and a Lender By: /s/ Allison Rossi ----------------- Allison Rossi, Director Address: 100 Federal Street Boston, Massachusetts 02110 Attention: Allison Rossi Mail Code: MADE 10008A Telephone: (617) 434-9061 Fax: (617) 434-3652 FLEET SECURITIES, INC., Arranger and Book Manager By: /s/ Richard Makin ----------------- Richard Makin, Managing Director GUARANTY BANK a Lender By: /s/ Jim R. Hamilton ------------------- Name: Jim R. Hamilton Title: Senior Vice President Address: 1100 NE Loop 410 San Antonio, TX 78209 Attention: Jim Hamilton Telephone: (210) 930-2926 Fax: (210) 930-1783 CITICORP NORTH AMERICA, INC., LC Issuer and a Lender By: /s/ John Dorans --------------- Name: John Dorans Title: Vice President Address: 1200 Smith Street, Suite 2000 Houston, Texas 77002 Attention: Brian Smith Telephone: (713) 654-2911 Telecopy: (713) 654-2849 SIEMENS FINANCIAL SERVICES, INC., a Lender By: /s/ Frank Amodio ---------------- Name: Frank Amodio Title: Vice President-Credit Address: 200 Somerset Corporate Boulevard Bridgewater, New Jersey 08807-2843 Attention: Victor Alarcon Telephone: (908) 575-4074 Telecopy: (908) 575-4060 U.S. BANK NATIONAL ASSOCIATION, a Lender By: /s/ Monte E. Deckerd -------------------- Name: Monte E. Deckerd Title: Vice President Address: 918 17th Street DNCOBB3E Denver, Colorado 80202 Attention: Monte E. Deckerd Telephone: (303) 585-4212 Telecopy: (303) 585-4362 EX-21 4 exhibit211.txt LIST OF SUBSIDIARIES EXHIBIT 21.1 GENESIS ENERGY, L.P. Subsidiaries of the Registrant Genesis Crude Oil, L.P. - Delaware limited partnership (99.99% limited partner interest owned by Genesis Energy, L.P.) Genesis Pipeline Texas, L.P. - Delaware limited partnership (100% limited partner interest owned by Genesis Crude Oil, L.P.) Genesis Pipeline USA, L.P. - Delaware limited partnership (100% limited partner interest owned by Genesis Crude Oil, L.P.) EX-99 5 exhibit99-1.txt CEO 906 CERTIFICATION Exhibit 99.1 CERTIFICATION BY CHIEF EXECUTIVE OFFICER PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the Annual Report of Genesis Energy, L.P. (the "Partnership") on Form 10-Q for the year ended December 31, 2002 (the "Report") filed with the Securities and Exchange Commission, I, Mark J. Gorman, President and Chief Executive Officer of Genesis Energy, Inc., the general partner of the Partnership, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that: (1) the Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and (2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Partnership. March 19, 2003 /s/ Mark J. Gorman -------------------------------------- Mark J. Gorman President and Chief Executive Officer, Genesis Energy, Inc. EX-99 6 exhibit99-2.txt CFO 906 CERTIFICATION Exhibit 99.2 CERTIFICATION BY CHIEF FINANCIAL OFFICER PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the Annual Report of Genesis Energy, L.P. (the "Partnership") on Form 10-K for the year ended December 31, 2002 (the "Report") filed with the Securities and Exchange Commission, I, Ross A. Benavides, Chief Financial Officer of Genesis Energy, Inc., the general partner of the Partnership, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that: (1) the Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and (2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Partnership. March 19, 2003 /s/ Ross A. Benavides ------------------------ Ross A. Benavides Chief Financial Officer, Genesis Energy, Inc. -----END PRIVACY-ENHANCED MESSAGE-----